The Third Party Litigation Funding Law Review: Singapore
Singapore opened its doors to third party funding in early 2017, but only for international arbitration and related proceedings. Since then, funding has become a growing feature of Singapore's international arbitration landscape. Many funders have established a presence in the city state and new participants continue to join the market.
Singapore is one of the world's leading international arbitration jurisdictions. The caseload of the Singapore International Arbitration Centre (SIAC) has increased considerably over the past decade. In 2019, SIAC received nearly 500 new cases involving parties from 59 jurisdictions and the aggregate sum in dispute for new cases filed in 2019 was S$10.9 billion.
These trends look set to continue. SIAC's caseload has grown more than fivefold in the past decade and, since 2017, both the ICC International Court of Arbitration and the Permanent Court of Arbitration have established offices in Singapore to meet the growing demand for commercial and investor–state arbitration.
A market for third party funding is also emerging. The first third party funding agreement under the new statutory framework was reported in July 2017 and international funders have a regular – and growing – presence in Singapore. Several funders have already opened permanent offices.
Further changes may also be on the horizon. In May 2018, Singapore's Ministry of Law concluded a public consultation seeking feedback on the third party funding framework.
While it is still early days, funding in Singapore benefits from a combination of light statutory regulation, a rich pool of disputes and serious interest from international funders. All this means that the future looks bright for third party funding in Singapore.
Legal and regulatory framework
The legal and regulatory framework for third party funding in Singapore changed significantly on 1 March 2017. Singapore law now permits third party funding in international arbitration (and related proceedings) if the funder meets certain qualifying criteria. Outside the international arbitration context, however, funding is currently prohibited on public policy grounds. However, this is changing. On 10 October 2019, Kasiviswanathan Shanmugan (Minister of Law and Home Affairs) announced that third party funding will be extended to domestic arbitration.
The regulatory regime for funding in international arbitration has been designed with flexibility and party autonomy in mind. Statutory regulation is relatively light and focuses on lawyers and law firms practising in Singapore. Softer regulation from relevant institutions is emerging, but it remains to be seen how this will be used in practice.
The framework allowing third party funding is made up of various instruments.
i The Civil Law Act and the Civil Law (Third-Party Funding) Regulations 2017
Before the recent reforms, almost all funding arrangements in Singapore were unenforceable on public policy grounds. The amended Civil Law Act and the Civil Law (Third-Party Funding) Regulations 2017 provide a new framework to allow funding in certain cases.
The Civil Law Act abolishes civil liability for the tort of maintenance and champerty. However, funding agreements will still be unenforceable if they are contrary to public policy or are otherwise illegal.
The Civil Law Act also creates a category of permitted funding agreements. These are contracts 'under which a qualifying third-party funder provides funds to any party for the purpose of funding all or part of the costs of that party in prescribed dispute resolution proceedings'. Under the new framework, 'Prescribed dispute resolution proceedings' means: international arbitration proceedings; court proceedings arising from or out of or in any way connected with international arbitration proceedings; mediation proceedings arising out of or in any way connected with international arbitration proceedings; an application for a stay of an international arbitration agreement and any other application for the enforcement of an arbitration agreement; and proceedings for or in connection with the enforcement of a foreign award under the International Arbitration Act.
A third party funder is 'a person who carries on the business of funding all or part of the costs of dispute resolution proceedings to which the person is not a party'. Dispute resolution proceedings are defined broadly to include the 'entire process of resolving or attempting to resolve a dispute', including through 'any civil, mediation, conciliation, arbitration or insolvency proceedings'.
To 'qualify' under the Civil Law Act, the third party funder must carry on the principal business, in Singapore or elsewhere, of the funding of the costs of dispute resolution proceedings to which the third party funder is not a party; and have a paid-up share capital of not less than S$5 million or not less than S$5 million in managed assets.
The effect of these provisions is that most commercial third party funders will now be able to fund international arbitration and related proceedings under Singapore law. However, the requirement to 'carry on the principal business' of funding and the apparent need to fund 'in return for a share or other interest in the proceeds or potential proceeds of the proceedings' seem to exclude respondent-side funding and non-commercial funders (such as pro bono funders, most individual persons and businesses not principally engaged in funding).
Where a third party funder does not comply with the qualification requirements identified above, its rights under a funding agreement will not be enforceable. The funder can, however, apply to the court or arbitration tribunal for relief. It may be granted relief if the disqualification or non-compliance was accidental, inadvertent or for other sufficient cause, or where it is otherwise just and equitable to grant the relief. If the funder's rights become unenforceable, the rights of any other party under the funding agreement will not be affected. In practice, however, funders will most likely seek to neutralise this provision by including this situation as a termination event in the funding agreement.
ii Legal Profession Act and Legal Profession (Professional Conduct) Rules 2015
The new framework also makes amendments to the Legal Profession Act and the Professional Conduct Rules applicable to legal practitioners and law firms in Singapore. The amendments impose requirements to disclose the existence of third party funding (these are addressed further in Section IV). They also prohibit lawyers and law firms from holding financial interests in funders or from receiving commissions, fees or shares of proceeds from funders.
These amendments are supplemented by a Guidance Note from the Law Society of Singapore. Aspects of the Law Society Note are addressed in further detail below.
iii Other guidelines and practice notes
As anticipated when the Civil Law Act was passed, various practitioner and institutional commentaries, guidelines and rules have emerged. The most significant to date are those produced by the Singapore Institute of Arbitrators (SIArb) and SIAC.
SIArb has produced Guidelines for Third Party Funders that aim to promote best practice for funders in Singapore-seated arbitration. Although not mandatory, the SIArb Guidelines are the result of significant input from the Singapore arbitration community and carry considerable weight. The SIArb Guidelines identify matters to be addressed in funding agreements and suggest approaches to issues of confidentiality and privilege, conflicts of interest and control of proceedings, withdrawal of funding and disclosure.
SIAC has produced a Practice Note on Arbitrator Conduct in Cases Involving External Funding. The Practice Note applies in SIAC arbitration involving a permitted 'external funder'. It includes provisions on disclosure (including the disclosure of potential arbitrator conflicts) and costs.
SIAC also recently published the SIAC Investment Arbitration Rules 2017, which include provisions on third party funding.
Specific aspects of these materials are addressed further below.
Structuring the agreement
The new statutory framework is silent as to the structure and terms of the funding agreement. The SIArb Guidelines, however, provide extensive guidance and have gained traction in the market. At the time of writing, 12 funds have publicly endorsed the Guidelines. The Law Society Note also makes recommendations to legal practitioners when advising on funding negotiations.
The Law Society Note identifies five key themes outlined below, which overlap with the SIArb Guidelines.
i Confidentiality and privilege
The Law Society Note recommends that certain terms be included in an initial confidentiality or non-disclosure agreement. The terms are designed to protect confidentiality and privilege in documents disclosed to a funder before it decides to fund a claim. The SIArb Guidelines echo the need for this protection.
The Note also recommends that similar provisions be included in the funding agreement itself. In addition, the SIArb Guidelines prohibit a funder from seeking disclosure of information from a funded party's legal practitioner that might amount to a breach of privilege or the practitioner's confidentiality obligations.
ii Scope of funding
The funding agreement should specify the amount of funding (and how this may be varied) and the agreed investment return. It should also state the type of costs that will be funded and in particular whether a funder is liable for adverse costs, insurance premiums, amounts ordered as security for costs or any other financial liability. The Law Society Note also recommends terms on the priority and timing of payments to the funder.
iii Managing conflicts of interest
The Law Society Note recommends terms designed to reduce the risk of conflicts between a funder and the funded party. These include the funder acknowledging that the lawyer's duties are owed to the client, not the funder; the lawyer only sharing written opinions with the funder if the funded party consents; and the funder not inducing the lawyer to breach his or her duties or cede control of the dispute to the funder.
The SIArb Guidelines contain similar provisions, although they appear to allow slightly more leeway for funders to control a dispute if the funding agreement permits. The SIArb Guidelines also require funders to be satisfied the funding will not give rise to conflicts of interest. Where a funder funds more than one party in the same proceedings, it must notify the funded parties of any potential conflict that arises during the case.
The related issue of disclosure between adverse parties and to the court or tribunal is addressed further in Section IV. The SIArb Guidelines envisage the funding agreement authorising the funded party to disclose the funder's identity and address, and the existence of the funding, to the other parties, legal practitioners and court or arbitral tribunal. The guidelines also require funders to cooperate with any further disclosure about the funding required by the court or tribunal or under any applicable rules.
iv Funder's level of involvement in decision-making and dispute resolution
The Law Society Note recommends that a funding agreement specify the nature and scope of the funder's role and gives examples of what this might look like in practice. Outside the context of settlement, the SIArb Guidelines do not specifically envisage a term outlining the funder's role, although the Guidelines favour clarity where possible.
Both the Law Society Note and the SIArb Guidelines advocate including a dispute resolution provision for managing conflicts between the funder and funded party. The Law Society Note gives two examples of possible procedures: referral of disputes to an independent arbitrator for an expedited and binding decision; or giving the funded party the final say, but reserving the funder's right to claim against the funded party if it acts in bad faith. By contrast, the SIArb Guidelines suggest a 'fair, transparent and independent dispute resolution mechanism'.
v Termination of the funding agreement
The funding agreement should identify the situations in which it may be terminated by the funder. The Law Society Note recommends that funders should generally not have a discretionary right to terminate a funding agreement. The funding agreement may also provide for termination by the funded party.
Termination provisions should clarify the extent to which a funder remains liable for accrued obligations. The Law Society Note suggests the funding agreement should also require the funder to pay costs caused by the funder's termination.
Disclosure of funding arrangements to adverse parties and the court or arbitral tribunal is a central tenet of Singapore's new funding framework. The disclosure rules are designed to address issues that can arise from a lack of transparency and conflicts of interest in funded proceedings, while avoiding prescriptive regulation that limits party autonomy and flexibility.
i Disclosure of basic funding information
Amendments to the Legal Profession (Professional Conduct) Rules 2015 require legal practitioners in Singapore to disclose certain information to the court or tribunal and every other party to funded proceedings, namely the existence of the funding agreement and the identity and address of the third party funder.
Disclosure must be made either on the date the proceedings are commenced or, if no funding is in place at that date, as soon as practicable after that.
The Law Society Note also recommends that any termination of a funding agreement or change of funder should also be disclosed.
The rationale for these obligations was to give the disclosure requirements 'practical and real effect', instead of attempting to regulate funders or funded parties, which are often located outside the jurisdiction. Two important consequences flow from this.
First, although the disclosure requirement on legal professionals themselves are relatively limited, it is unclear whether legal practitioners subject to the Professional Conduct Rules must disclose funding arrangements in proceedings outside Singapore. If they must disclose in those circumstances, this may create inequalities in the disclosure obligations applicable to the parties' respective legal teams in some situations.
Second, as the Professional Conduct Rules only bind Singapore legal practitioners, legal teams outside Singapore will not need to comply. This may create inequalities in the ethical rules applicable to legal practitioners even in Singapore-seated arbitration.
In practice, the risk of inconsistent or unequal treatment may be limited, because tribunals or courts may take an active role in requesting the disclosure of funding arrangements (as is now possible under the SIAC Rules and SIAC Investment Arbitration Rules). They may use this power to deal with inequality (e.g., where one party's lawyers are obliged to disclose, but the other side's lawyers are not).
ii Disclosure of more detailed funding information in SIAC arbitration
Unless the parties have agreed otherwise, a tribunal in a SIAC arbitration may conduct 'such enquiries as may appear to the Tribunal to be necessary or expedient'. This may include ordering the disclosure of the existence of funding, the funder's identity and, where appropriate, details of the external funder's interest in the proceedings and whether the funder has committed to undertake adverse costs liability.
iii Arbitrator disclosure under the SIAC Rules
The SIAC Practice Note requires arbitrator candidates to disclose to the SIAC Registrar and the parties any direct or indirect relationship with a funder involved in the arbitration. The disclosure must be made as soon as reasonably practicable and in any event before the candidate is appointed. In addition, an arbitrator must disclose any such relationship that is discovered or arises during the arbitration proceedings.
The year in review
Singapore's new funding framework reflects a trend towards third party funding in arbitration in other leading international arbitration jurisdictions. The framework adopts a light-touch approach to regulation and places disclosure at its heart to promote greater transparency and fewer conflicts of interest.
The framework also leaves space for industry norms to establish and grow. Some organisations, notably the Singapore Law Society, SIAC and SIArb, have led the way by issuing guidance and new institutional rules. Twelve funds have already signed up to the SIArb Guidelines.
The Singapore government is also keen to ensure the framework is working well and to identify areas for further improvement and innovation. Between April and May 2018, Singapore's Ministry of Law carried out a public consultation. The consultation sought feedback on the operation of the current third party funding framework and suggestions for improvement and extension beyond international arbitration. The results of the consultation are expected in due course. Preliminary observations in March 2019 from Edwin Tong SC (Senior Minister of State for Law), suggests the feedback has been positive, with funders seeing an upturn in their requests for funding in Singapore. Announcements at the end of 2019 also indicated that the third party funding framework would be extended to domestic arbitration proceedings and certain prescribed proceedings in the Singapore International Commercial Court. The implementation and practical effect of this announcement remains to be seen.
Conclusions and outlook
The third party funding framework has been a welcome development for international arbitration in Singapore. It provides parties with greater risk management opportunities and access to justice, and funders with a new pool of potential investments. Since the framework was introduced in early 2017, Singapore has seen an influx of funders and the market is growing. In keeping with other aspects of the dispute resolution environment in Singapore, the Ministry of Law has sought views from users to catalyse further innovation. The recent public consultation on third party funding may thus lead to further refinements and improvements to the framework.
Outside the international arbitration context, there are signs that third party funding may be extended to other categories of proceedings in the future (including domestic arbitration and litigation). In October 2019, the Ministry of Law announced that it has decided to extend third party funding to domestic arbitration and is seriously considering the introduction of conditional fee arrangements for domestic and international arbitration. Parties, funders and practitioners alike will be watching market developments with interest.