Academic literature on the topic 'Litigation funding'
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Journal articles on the topic "Litigation funding"
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Tweed, Paul. "Funding defamation litigation." Northern Ireland Legal Quarterly 63, no. 1 (March 3, 2020): 145–48. http://dx.doi.org/10.53386/nilq.v63i1.379.
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Rawson, Edwina. "Funding update." Clinical Risk 16, no. 4 (June 28, 2010): 143–48. http://dx.doi.org/10.1258/cr.2010.010041.
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Funding medical litigation is constantly evolving, and the last 12 months have seen many interesting cases and developments, in addition to proposed radical reforms to the structure of funding. Now, more than ever, medical negligence lawyers need to key abreast of developments, not only in their own area but in other areas of litigation as these may give indication of changes that may come our way. It is vital for patient safety that funding is effective, and that medical litigation remains commercially viable for firms.
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Gamino, John. "Taxing Nonrecourse Litigation Funding." ATA Journal of Legal Tax Research 12, no. 2 (September 1, 2014): 85–104. http://dx.doi.org/10.2308/jltr-50939.
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ABSTRACT This article examines the implications of the growing phenomenon of nonrecourse litigation funding. The increasing acceptance and use of such funding raises elemental federal income tax issues of characterization and timing for funding providers and for plaintiffs accepting such funding in exchange for agreeing to share the cash proceeds of any settlement or judgment. Emphasizing the commercial (business-to-business) market for litigation funding as it has evolved, this article addresses the lack of guidance as to the implicit tax compliance issues by testing alternative guidance models that may apply by analogy. It concludes by identifying the single model that should apply and offers a pro forma revenue ruling as a starting point for the government's further consideration of the issues and early promulgation of administrative guidance.
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van der Krans, A. "Third party litigation funding." Onderneming en Financiering 26, no. 2 (July 2018): 30–41. http://dx.doi.org/10.5553/oenf/157012472018026002004.
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Heaton, J. B. "The Siren Song of Litigation Funding." Michigan Business & Entrepreneurial Law Review, no. 9.1 (2020): 139. http://dx.doi.org/10.36639/mbelr.9.1.siren.
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For an investor, litigation funding is too tempting to resist. Litigation funding promises that most elusive of investment returns: those uncorrelated with an investor’s other investment returns. Litigation funding also invests in a world that seems fraught with possible pricing inefficiencies. It seems plausible—even likely—that a team of smart lawyer-underwriters can identify high-value litigation investments to generate superior returns for litigation funding investors. But more than a decade of experience suggests the promise of litigation funding is a siren song. The promise draws investors into the water, but the payoffs may be meager and rare. While litigation funding has always been controversial with defendants and business trade associations, the real problem is that the investment class is a poor one. First, high-stakes civil litigation is far more complex and random than most investors understand. There are an overwhelming number of ways that litigants can lose and far fewer paths to significant victories. Second, few good cases—from an investment perspective—are likely to find their way to funders. Third, litigation funding is probably prone to optimism bias, causing litigation funders to overestimate the probability of victory in their cases. Finally, litigation funding is fungible with little value added by the funder, suggesting that competition will drive down any significant previously-existing profits. While litigation funding serves a valuable social purpose when it finances meritorious cases that otherwise would not be pursued, we can expect investor success in the field to be rare and likely limited to those funders with the most litigation savvy and the best luck. Nevertheless, investors are unlikely to give up on the space despite the large prospect of poor returns.
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Capper, David. "Three aspects of litigation funding." Northern Ireland Legal Quarterly 70, no. 3 (October 3, 2019): 357–69. http://dx.doi.org/10.53386/nilq.v70i3.268.
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This comment reviews three decisions of the Supreme Court of Ireland from the last three years which concern different aspects of litigation funding. Persona Digital Telephony Ltd v Minister for Public Enterprise is about the direct provision of financial support for litigation, something which the Supreme Court invalidated as contravening the ancient principles of maintenance and champerty. In SPV Osus v HSBC Institutional Trust Services the Supreme Court unsurprisingly struck down an assignment of a right to litigate as also savouring of maintenance and champerty. Finally in Moorview Development Ltd v First Active plc the Supreme Court considered when a third party supporting litigation in circumstances not covered by Persona Digital might be required to pay the costs of the defendant should the litigation supported be lost. Persona Digital is a decision of mainly Irish significance, but the other decisions have implications for the wider common law in relation to two matters. The first is whether the difference between financing a claim and buying it is more than a matter of form. The second is the appropriate approach of courts wherever situated to making a non-commercial funder of civil litigation liable to pay the costs of an opposing litigant.
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Khoza, Mpho Justice. "Formal Regulation of Third Party Litigation Funding Agreements? A South African Perspective." Potchefstroom Electronic Law Journal 21 (August 29, 2018): 1–22. http://dx.doi.org/10.17159/1727-3781/2018/v21i0a3426.
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In South Africa third party litigation funding agreement as a tool that provides access to justice is not legislated with regard to non-lawyers. This article is based on research conducted to determine whether regulating this type of agreement would facilitate in fostering the policy that favours access to justice. A brief comparative study showed that English law permits third party litigation funding agreements in the Courts and Legal Services Act 1990. However, unlike in South African law, English law also has a body that regulates the conclusion of third party litigation funding agreements. The Association of Litigation Funders introduced a voluntary Code of Conduct for Litigation Funders in 2011 and an updated one in 2016, which regulates the conclusion of third party litigation funding agreements. The Code of Conduct protects the litigant against abuse by the funder and the funder against non-compliance by the litigant. Despite being a "self-regulatory" legislative initiative that governs most of the funding agreements in England, this Code does not bind non-members of the Association. In South Africa there is no such voluntary regulation of third party litigation funding agreements. Consequently, litigants may be prejudiced by the litigation funder in instances where a funder receives a disproportionate percentage of the capital award. The study on which this article draws investigated whether there is a need for an effective legislative response that regulates third party litigation funding agreements in South Africa. It was found that there is a need for formal regulation with regard to third party litigation funding agreements because there are no clear guidelines on the conclusion of the agreements in South Africa.
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Xiao, Jean. "Consumer Litigation Funding and Medical Malpractice Litigation: Examining the Effect of Rancman v. Interim Settlement Funding Corporation." Journal of Empirical Legal Studies 14, no. 4 (November 7, 2017): 886–915. http://dx.doi.org/10.1111/jels.12167.
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Solas, Gian Marco. "Alternative Litigation Funding and the Italian Perspective." European Review of Private Law 24, Issue 2 (April 1, 2016): 253–70. http://dx.doi.org/10.54648/erpl2016016.
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Abstract: Alternative Litigation Funding (ALF) refers to any practice whereby an entity not party to a dispute provides capital to claimants or defendants or in any way bears whole or part of the dispute costs, in exchange for a share of the expected financial recovery. For a few years, the use of ALF has experienced some success in certain common law jurisdictions but has not yet emerged in most (European Union) civil law countries. Italy is one of those countries in which ALF has not yet emerged, although court costs have steadily increased in recent years, and practitioners’ claims for access to justice have multiplied. Against this background, after a comparative overview, this article aims to shed light on the current status and issues related to ALF in Italy. In doing so, some Italian legislation that might potentially involve this manner of funding will also be analysed, particularly with regard to the recent reforms of (civil and commercial) justice. Résumé: Le financement alternatif du contentieux (FAC) se réfère à toute pratique par laquelle une entité non partie à une dispute fournit des capitaux aux parties, ou encore assume tout ou partie des coûts liés au litige, en échange d’une part des gains attendus. Depuis plusieurs années, le FAC connaît un succès grandissant dans certains pays de common law. En revanche, la plupart des pays de droit civil de l’Union Européenne se sont pas encore ouverts à cette pratique. En Italie par exemple, le FAC n’a pas encore vu le jour bien que, au cours des dernières années, les frais de justice aient augmenté de facon constante et les plaintes des praticiens concernant l’accès à la justice se soient multipliées. L’objectif de cet article sera donc d’établir un état des lieux des questions liées à l’introduction du FAC en Italie. Après un rapide apercu comparatif, nous analyserons la législation italienne pouvant concerner cette forme de financement. Nous intéresserons ainsi en particulier aux récentes réformes de la justice civile et commerciale.
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Hamuľáková, Klára. "Funding of Collective Actions." International and Comparative Law Review 16, no. 2 (December 1, 2016): 127–44. http://dx.doi.org/10.1515/iclr-2016-0019.
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Summary The paper deals with the questions of funding of collective actions. Proper funding has significant influence on the right to the access to the court and is a precondition for the efficient course of litigation in general, specifically in connection with a collective redress. Funding of class actions is also closely related with other issues such as costs and lawyer’s fees, reimbursement of legal costs and moreover.
Dissertations / Theses on the topic "Litigation funding"
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Stewart, Malcolm Grant. "The regulation of third party funding of commercial litigation." Thesis, University of Nottingham, 2016. http://eprints.nottingham.ac.uk/35636/.
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Chapter 1 introduces the topic of third party funding of litigation which is a recent phenomenon in academic circles. Few of the existing papers on commercial litigation funding are empirically based and those that are, with one exception, use surveys and interviews to collect data. Within the legal boundaries of litigation funding, economic theory predicts that in perfectly competitive markets consumers control what is supplied, prices cover costs without excessive profits and inefficient producers are eliminated. However reality rarely conforms to prediction, and regulation may be appropriate in the public interest to overcome market failures arising from information asymmetries. The research focus is: ‘How effectively are commercial third party litigation funders governed and/or regulated?’ Chapter 2 proceeds to consider the literature on regulation, it’s applicability to litigation funding and the interests of stakeholders. A major concern is the ability of a litigation funder to pay the costs of a winning defendant. The conclusion reached in Chapter 3 is that litigation funders have too much choice in the way they report and disclose information and what they actually report and disclose is deficient in meeting the needs of investors. In Chapter 4, using single firm event study methodology I discover that the stock exchange market does not always react as predicted to disclosure by litigation funders and consequently the market is not an adequate proxy for a regulator. Chapter 5 extends chapter 3 on the solvency issue and also considers other stakeholder issues e.g. ethical ones which may require regulation. The conclusion reached is that a light touch independent regulator overseen by the legal services board would be appropriate. This work narrows the literature gap for empirically based economic research and augments and extends the existing literature by examining third party funding of heterogeneous high value, low volume cases in contrast to homogenous, low value, high volume cases. It is the first work on the accounting regulation of litigation funding. This work will also assist investors, the judiciary and other stakeholders to better evaluate the risks of this new industry.
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Ríos, Pizarro Carlos. "Three is a crowd? Some notes about Third Party Funding and its application in commercial arbitrations." IUS ET VERITAS, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/123422.
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In this article, the author introduces us to the institution of third party funding and its future application in arbitration litigation. Third party funding allows the litigant’s costs can be funded. Moreover, he points out the problems that the third party financing has, and the implementation of rules to deal with this situation. Finally, there is a tendency to expand the duty of disclosure of the parties whether a third party is funding them.En este artículo, el autor nos introduce a la institución del third party funding y su futura aplicación en los litigios arbitrales. El third party funding permite que los costos del litigante puedan ser financiados. Asimismo, señala los problemas que presenta el tercero financista, y la implementación de normas para afrontar esa situación. Finalmente, hay una tendencia de ampliar el deber de revelación de las partes sobre si se está siendo financiado por un tercero.
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Waye, Vicki Catherine. "Markets for Legal Claims." Faculty of Law University of Sydney, 2007. http://hdl.handle.net/2123/1585.
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PhDAccess to justice is an important human right that ensures adequate redress for harm, and which consequently helps deter future wrongdoing. Without access to justice citizens are precluded from the full enjoyment of their economic and social entitlements. The cost of litigation is a significant impediment to access to justice. Although the courts have attempted to increase access to justice by broadening the range of available dispute resolution options and by improving productivity through the implementation of case flow management systems, the cost of prosecuting claims remains disproportionately high and unaffordable for most small to medium sized claimholders. Legal claim assignment to parties able to aggregate claims and to apply their expertise as litigation entrepreneurs to deal with claim prosecution efficiently is one means of redressing the imbalance between the cost of claim prosecution to individual claimholders compared to the value of their claims. However, the well-entrenched doctrines of maintenance and champerty prohibit legal claim assignment. The continued resort to the doctrines of maintenance and champerty despite a strong and independent modern judiciary reflects distaste for claim commodification. However, the advent of litigation funding and its acceptance by the High Court of Australia in Campbell’s Cash and Carry v Fostif Pty Ltd (and to some extent United Kingdom and United States courts) on access to justice grounds has challenged conventional maintenance and champerty dogma. Together with other measures such as the introduction of conditional fee agreements that shift the cost of funding access to justice from the public to the private purse, the resistance to full claim alienability has been significantly weakened. The thesis argues that full claim alienability is favoured on normative and efficiency grounds and examines developments in Australia, England and the United States, which portend toward claim commodification. In addition, the thesis examines regulatory instruments required to ensure that the present partial claim market and the potential full claim market operates fairly and efficiently. It also considers how claim commodification may affect the relationship between legal practitioners and claim holders. [Please note: For any information on access to the full text please conact the author.]
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Bellander, Henrik. "Rättegångskostnader : Om kostnadsbördan i dispositiva tvistemål." Doctoral thesis, Uppsala universitet, Juridiska institutionen, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-312475.
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Rättegångskostnader – Costs in Civil Procedure The rules on costs in Chapter 18 of the Swedish Code of Legal Procedure (Sw: Rättegångsbalken) have an impact on several procedural questions but have rarely been thoroughly discussed in legal practice or theory since their adoption in 1942. On the other hand, since the Code was adopted civil procecedure scholars have considerably focused on the development and changes in society and how they affect civil procedure. This thesis aims at examining both these lines of development. The impact of the theoretical discussions during the 20th century is critically addressed, with special attention to cost-related questions, and the application of rules on costs in some current and actual situations are examined and evaluated from a pragmatic perspective. The inquiry shows that costs have been of indirect relevance for the theoretical discussion in procedural law and that this theoretical development in turn has had effects on cost rules. Changing views on civil procedure have led to altered framings of cost problems and to shifts in how the rules have been comprehended and applied. The inquiry covers questions on cost assessment and cost shifting between the parties, as well as problems connected to possibilities to spread costs and risk on legal representatives, funders and others. It is argued that a more compromising and pluralistic application of the rules combined with more explicit communication in cost issues between the parties and the court during early stages of the proceedings may facilitate and lead to more nuanced cost decisions without burdening the final stages of the proceedings with extensive legal argumentation.
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Khoza, Mpho Justice. "Third-party litigation funding agreements : a comparative study." Diss., 2019. http://hdl.handle.net/10500/25716.
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In third-party litigation funding agreements, funders agree to finance a litigant’s litigation on condition that the funder will deduct a specified percentage from the capital awarded to the litigant in the event of success. In contingency fee agreements, such funding is provided by lawyers. Initially both these agreements were illegal in South Africa and England, but as civil courts became able to counter corruption and abuse – and with the recognition of the need to give more litigants access to justice – both were recognised as legal. Third-party litigation funding agreements by non-lawyers are unregulated in most jurisdictions. As the voluntary self-regulation in England is unsatisfactory, mandatory statutory regulation should be introduced in South Africa. The Contingency Fees Act 66 of 1997 caps the fee to 25% on the capital amount in South Africa. Since no such cap exists in Ontario (Canada), the cap of 25% in South Africa should be revised.Eka Mintwanano yo nyika nseketelo wa mali eka nandzu wa thedi phati, vanyiki va mali va pfumela ku hakela mali ya nandzu wa mumangali hi xipimelo xa leswaku munyiki wa mali u ta susa phesenteji leyi kombisiweke ku suka eka mali leyi nyikiweke mumangali loko a humelela. Eka mintwanano ya tihakelo ta vukorhokeri, nseketelo walowo wa mali wu nyikiwa hi maloyara. Ekusunguleni mintwanano leyi hinkwayo a yi nga ri enawini eAfrika Dzonga na le England, kambe tanihi leswi tikhoto ta mfumo ti koteke ku kokela etlhelo eka timhaka ta vukungundzwana na nxaniso- na ku anakanyiwa ka xilaveko xo nyika vamangali votala mfikelelo wa vululami- hinkwayo yi anakanyiwile tanihi leyi nga enawini. Mintwanano yo nyika nseketelo wa mali eka nandzu wa thedi phati hi vanhu lava nga riki maloyara a yi lawuriwi eka vuavanyisi byotala. Tanihileswi vutilawuri byo tinyiketa eEngland byi nga riki kahle, mafambiselo ya nawu lama lavekaka ya fanele ya tivisiwa eAfrika Dzonga. Nawu wa Tihakelo ta Vukorhokeri wa 66 wa 1997 wu veka mpimo wa hakelo eka 25% eka xiphemu xa tsengo wa mali eAfrika Dzonga. Ku sukela loko ku ri hava mpimo lowu nga kona eOntario (Canada), mpimo wa 25% eAfrika Dzonga wu fanele wu langutisiwa hi vuntshwa.
Kha thendelano dza ndambedzo dza mbilo ine ya itelwa muthu, vhabadeli vho tenda u badela mbilo ya muthu o no khou itelwa mbilo tenda mubadeli a tshi ḓo ṱusa phesenthe yo tiwaho kha tshelede yo avhelwaho muthu ane a khou itelwa mbilo arali a kunda. Kha thendelano dza mbadelo dzine dza badelwa musi ramilayo o no kunda kha mulandu, mbadelo idzo dzi ṋetshedzwa nga vhoramilayo. Mathomoni thendelano idzi vhuvhili hadzo dzo vha dzi siho mulayoni Afurika Tshipembe na England, fhedzi musi khothe dza mbilo dzi tshi vho thoma u hanedzana na tshanḓanguvhoni na u tambudzwa - na u dzhiela nṱha ṱhoḓea ya u ṋea vhathu vhane vha khou itelwa mbilo u swikelela vhulamukanyi –vhuvhili hadzo dzo dzhiwa sa dzi re mulayoni. Thendelano dza ndambedzo dza mbilo ine muthu a itelwa nga vhathu vhane vha sa vhe vhoramilayo a i langulwi kha vhulamukanyi vhunzhi. Samusi u langulwa ha ndaulo nga iwe muṋe hu ha u tou funa ngei England a zwi ṱanganedzwi, ndaulo ya khombekhombe ya mulayo i fanela u ḓivhadzwa Afurika Tshipembe. Mulayo wa Mbadelo dzine dza badelwa Ramilayo musi o kunda wa nomboro 66 wa 1997 mutengo wawo u guma kha 25% mutengo wa tshelede Afurika Tshipembe. Samusi tshikalo itsho tshi sa wanali ngei Ontario (Canada), tshikalo itsho tsha 25% Afurika Tshipembe tshi fanela u sedzuluswa hafhu.
Private Law
LL. M.
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Kiracofe, Christine S. "The relationship between public school desegregation and funding litigation." 2004. http://purl.galileo.usg.edu/uga%5Fetd/kiracofe%5Fchristine%5Fs%5F200408%5Fedd.
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Wilson, Carlton. "School funding litigation a study of the Alabama cases /." 2004. http://purl.galileo.usg.edu/uga%5Fetd/wilson%5Fcarlton%5Fk%5F200412%5Fedd.
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Gonçalves, Alexandra Sofia Mendes. "Third party funding na arbitragem comercial." Master's thesis, 2018. http://hdl.handle.net/10362/51676.
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This study focuses on third party funding, especially its application in commercial arbitration.
Arbitration as an alternative dispute resolution mechanism is usually known for its celerity and flexibility. However, it entails high costs and expenses, making arbitration difficult to reach, particularly for those who have limited financial resources.
In an attempt to lighten those costs and expenses it has been discussed the possibility of third party funding.
TPF occurs when a third party decides to pay for a part or the total amount of costs that litigation requires of one of the litigants and in return the funder is entitled to a part of the success obtained by the financed party. Only if the party wins the dispute will the funder be rewarded.
It’s already in force in some jurisdictions around the world that seem to understand it as a tool for an easier access to Justice. However, some jurisdictions still impose some restrictions driven by the medieval beliefs of mistrust of third party interventions in disputes.
The precise definition of TPF is also a struggle because of its evolutionary state. In addition, its regulation is rare with only a few jurisdictions and arbitration centers expressly permitting its application.
Notwithstanding its advantages in commercial arbitration it can also create some problems concerning the general principles applicable to the arbitral proceedings, having the ability to create conflicts of interest with the arbitrators and jeopardize the confidentiality that reigns in arbitration.
In Portugal, TPF is not yet a reality nor there are known cases in which it was used. Nevertheless, there are advantages in its application in our country as long as it’s done with caution for the rules and principles in place.
This thesis aims to understand if TPF is indeed a viable and fortunate way in commercial arbitration and if its disadvantages can be override specially through its regulation in order to guarantee that arbitration keeps its position as an efficient way of solving disputes.O presente estudo centra-se na análise do instituto do third party funding, principalmente na sua aplicação à arbitragem comercial. A arbitragem, enquanto meio de resolução alternativa de litígios, caracteriza-se geralmente pela sua celeridade e flexibilidade processual. No entanto, acarreta custos cada vez mais elevados, que têm dificultado o seu acesso, particularmente para as entidades com uma capacidade económica mais reduzida. Numa tentativa de aliviar aqueles encargos discute-se a aplicação do TPF. O TPF ocorre quando um terceiro decide financiar parte ou a totalidade dos custos de um dos litigantes, recebendo em contrapartida uma fração dos ganhos que o litigante obtenha com a causa. Só em caso de sucesso é que o funder é retribuído pelo seu investimento. Estando já previsto nalgumas jurisdições no mundo que o aceitaram como uma forma de facilitar o acesso à Justiça, noutras é ainda visto com desconfiança, motivada por ancestrais preconceitos para com a intervenção de terceiros (financiadores) em litígios. A precisa concretização do seu âmbito é também difícil, já que se trata de uma realidade em evolução. Para além disso, a previsão da sua regulação é rara e circunscrita a alguns ordenamentos jurídicos e centros de arbitragem que expressamente preveem a sua aplicação. Na arbitragem comercial, apesar das vantagens que abarca, pode gerar problemas ao nível dos próprios princípios que regem o processo arbitral, podendo criar conflitos de interesses com os árbitros e pôr em causa a confidencialidade predominante naquele processo. Em Portugal, o TPF não está ainda previsto, nem são conhecidos casos concretos em que tenha sido usado. Ainda assim, há margem para a sua aplicação no território, desde que acautelada a harmonia com as regras e princípios vigentes. Esta Dissertação tem como objetivo perceber se o TPF é verdadeiramente uma opção viável no seio da arbitragem comercial e se as suas desvantagens podem ser ultrapassadas através da sua regulação, por forma a manter a arbitragem na mira daqueles que queiram uma resolução efetiva dos seus conflitos.
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Santos, Vinícius Eduardo Pereira dos. "Financiamento de litígios por terceiros como incentivo ao acesso à justiça." Master's thesis, 2021. http://hdl.handle.net/10316/97541.
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Dissertação de Mestrado em Direito apresentada à Faculdade de DireitoEste trabalho versa sobre o financiamento de litígios por terceiros, ou third-party funding, instituto que apesar de ser recente para os ordenamentos jurídicos português e brasileiro, já conta com certa solidez em países como Austrália, Singapura, Reino Unido e Estados Unidos da América. O financiamento de uma demanda pode ocorrer das mais diversas formas, questão que é analisada no capítulo 2.4 desta dissertação; todavia, a espécie de financiamento sobre a qual aqui se debruça é bastante específica e deve ter seus contornos bem delimitados para que este estudo seja compreendido. De forma objetiva, propõe-se, aqui, como conceito de third-party funding a forma de financiamento na qual uma pessoa estranha ao litígio arca com as custas e outras despesas do processo, em contrapartida à expectativa de receber, no final, o valor investido e seu lucro, de acordo com o resultado da demanda, correndo o risco de, em caso de derrota da parte financiada, não ser reembolsada pelos valores dispendidos. Por ser um tema novo e ainda pouco consolidado é frequente que desconfianças gravitem em torno do instituto, as quais devem ser superadas ao longo dos anos, na medida em que forem constatados os benefícios que o financiamento de litígios pode trazer, não só, mas principalmente em momentos como o presente, nos quais há preocupação com os impactos que podem advir de uma crise econômica. Grande parte dos estudos dedicados ao third-party funding enfoca-o sob a ótica do procedimento arbitral: dever de revelação, conflitos de interesses lá gerados, participação do terceiro financiador em um processo que, por regra, deve envolves apenas os signatários do compromisso arbitral e caução para custas, por exemplo. Esta dissertação, de seu turno, examina o acesso à justiça proporcionado pelo financiamento de litígios por terceiros também, e principalmente, sob a ótica do processo judicial comum, que tramita no Poder Judiciário, constatando em que medida ele pode ser utilizado, em paralelo ou em complemento, aos benefícios da gratuidade da justiça e do apoio judiciário. Assim, sob a ótica dos ordenamentos jurídicos português e brasileiro, mas com amparo também no direito estrangeiro, este trabalho partirá do desenvolvimento histórico do financiamento de litígios por terceiros para, ao final, analisar as vantagens e desconfianças que o envolvem atualmente, além de outras questões atreladas, como sua posição na relação jurídico-processual e os diferentes arranjos que podem ser adotados para sua utilização.
This thesis deals with third-party funding, a mechanism that, although recent in Portuguese and Brazilian legal systems, already have some solidity in countries such as Australia, Singapore, the United Kingdom and the United States of America. The funding of a dispute can occur in the most various ways, an issue that is addressed in chapter 2.4 of this dissertation; however, the type of funding upon which this work elaborates is quite specific and needs to be precisely conceptualized in order for this study to be comprehended. In objective terms, it is proposed, as the concept of third-party funding, the type of funding through which a person unrelated to the dispute bears the costs and other expenses of the proceedings, with the expectation of receiving, in the end, the invested amount and its profit, according to the result of the dispute, bearing the risk of, in case of loss of the funded party, not being reimbursed of the expended amount. Being a new and not consolidated topic, it is frequent that this mechanism is subject to distrust, which should be overcome over the course of the years, as its benefits are noted, not only, but mostly in times such as these, on which there is a concern as to the impacts arising out of an economic crisis. A big part of the studies dedicated to third-party funding approaches it in connection to arbitration: duty of disclosure, conflicts of interests originated on these proceedings, participation of a third-party funder in a proceeding that, as a rule, should involve only the parties signatories to the arbitral convention and security for costs, for example. This dissertation, on the other hand, examines the access to justice made available by third-party funding also, and mainly, under the optics of the common judicial proceedings on the Judicial System, verifying in what way it can be used, in parallel or complementing the legal aid benefits. Hence, under the Portuguese and the Brazilian legal systems, but also based on foreign law, this thesis will start from the historic development of third-party funding, in order to, in the end, analyze the advantages and distrusts that currently surround it, as well as other related issues, such as the funder’s position in the proceedings, and the different arrangements that can be made for its use.
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Bushe, Bernard. "The efficacy of alternative dispute resolution (ADR) in labour dispute resolution : a critical comparative analysis of Botswana, South Africa and Zimbabwe." Diss., 2019. http://hdl.handle.net/10500/26223.
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This Master of Laws dissertation is a treatise of “The efficacy of Alternative Dispute Resolution (ADR) in labour disputes: a critical comparative analysis of Botswana, South Africa (RSA) and Zimbabwe.” Alternative Dispute Resolution hereinafter referred to as (“ADR”) has attracted so much research ado worldwide with policy makers alive to its possibilities in so far as it ought to shed off the burden of the courts in handling disputes. Courts are considered inundated with unresolved cases taking many years to finalise. ADR is therefore touted, not only the panacea, but the cheaper, efficient and effective alternative to normal court process. This study was saddled with the common challenges of definition, scope and methodology as does most scientific studies, especially to locate the concept ADR in the plethora of views from prominent exponent-s of the discipline. This study labored on the considered view that ADR is essentially an ‘out of court settlement approach to dispensing with disputes involving an attempt by disputants to rope in an impartial third party to aid finality to the respective wrangle. The lack of a methodological approach to treat this subject matter, made this study more challenging. The study had to therefore rely on a hypothetical model developed after gleaning through various scholarly views 1 that sought to treat the subject of ADR efficacy in labour dispute resolution. The study contented with the strongly held view 2 that ADR is an efficacious approach in resolving disputes outside the court system. As to whether this was the case in Botswana, RSA and Zimbabwe in so far as labour dispute resolution is concerned was the major challenge this study was seized with? A model was formulated which envisaged that efficaciousness of ADR may be achieved if three conditions or criteria are present within a jurisdiction, namely (1) ADR Background Conditions that comprise (a) adequate legislative and political support; (b) Supportive institutional and cultural norms, (c) adequate and competent manpower, (d) sufficient funding support, and (e) power-parity of disputants; (2) ADR Program Design comprising of (a) Planning and preparation and (b) Operations and implementation and finally (3) ADR Measures (a) Client satisfaction; (b) Time efficient; (c) Cost saving and (d) Settlement & enforcement. This study measured the situations obtaining in the three countries using these three-pronged criteria. In all three measures3 this study found that although all the three countries still have a long way before their ADR became as efficacious as would be reasonably possible, RSA has made many strides such as legislative enactments immediately upon attaining independence that sought to address the injustices of the past and thereby installing structures for enforcing industrial democracy 4, while Botswana and Zimbabwe took 5 years 5 and over 10 years 6 respectively after attaining independence. RSA established an independent body for dispensing with labour dispute settlement7 while Botswana8 and Zimbabwe 9 are still reluctant to do so, relying rather on their labour ministries often marinated in bureaucratic bottlenecks hence stalling efficacy of ADR. While RSA makes effort to provide adequate and competent manpower because of sufficient funding, Botswana and Zimbabwe still struggle to dispense with disputes under their labour departments who are either inadequately skilled or also accused of favouritism in the case of Zimbabwe.10 All the three countries are regarded as unequal societies which tends to sway the power-parity of disputants with capitalists still wielding unbridled powers in dispute outcomes. South Africa enacted section 143 to the Labour Relations Act 11 which empowers the Director of CCMA to certify an arbitral award, giving it the same force as an order of the Magistrate Court. This has cut off the time and administrative burden of having to register an arbitral award with the court so as to obtain writs of executions and enforce it, a practice which is still prevalent in Zimbabwe. The Department of Labour in South Africa has made funding available to the CCMA to assist employees who are not in a financial position to enforce awards in their favour.12 The funding is aimed at employees who are too indigent to afford the costs of enforcement.13 These employees are deemed to be: (a) Employees who earn below the earnings threshold (currently at R205 433.30 per annum) – proof of income will be required by the CCMA. There is no record regarding enforcement or ease of enforcement of ADR outcomes in Botswana and Zimbabwe or at least this study is aware of. The governments of Botswana and Zimbabwe have been accused of using a heavy hand in determining wages, the right to strike and often curtailing union power through declaring certain sectors essential services. RSA’s Commission for Conciliation, Mediation and Arbitration hereinafter after referred to as (the “CCMA”)14 runs an electronic system of case management by which cases are screened and assigned commissioners whereas Zimbabwe and Botswana still rely on manual systems often inefficiently managed especially when it comes to allocating matters to ADR interventionists.15 In Zimbabwe the challenge of resources is acute often the Labour Officers lacking a simple photocopier and postage stamps to dispense with administration of disputes. This dissertation found that Botswana and Zimbabwe lack publicly available information from which to infer the efficaciousness of ADR practices therein. Measuring client satisfaction, efficiency and cost effectiveness, enforcement and settlement has not been tackled with ease, which was different when it came to RSA. This study argues that RSA’s ADR is efficacious rated at 75% attainment of settlement of disputes, despite accusations of failing to offer disputants options and job retention at the end of ADR intervention. Botswana and Zimbabwe on the measures raised above are not yet close to achieving efficaciousness based on the above criteria. The challenges need to be addressed to ensure that in all three measures ADR affords Botswana, RSA and Zimbabwe disputants a cheaper, efficient and effective alternative to dispensing with labour disputes. This study concluded with recommendations arising from the three measures ADR Background Conditions; ADR Program Design and (3) ADR Measures could be implemented towards achieving an efficacious ADR regime for the three countries and beyond.Mercantile Law
LL.M.
Books on the topic "Litigation funding"
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Bender, Michael F. Civil litigation funding. Annapolis, Md: Dept. of Legislative Services, Office of Policy Analysis, 2012.
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Fennell, Steven. The funding of personal injury litigation. Sheffield: University of Sheffield, Faculty of Law, Institute for theStudy of the Legal Profession, 1994.
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Chen, Wenjing. A Comparative Study of Funding Shareholder Litigation. Singapore: Springer Singapore, 2017. http://dx.doi.org/10.1007/978-981-10-3623-1.
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Chalk, David J. Risk assessment in litigation: Conditional fee arrangements, insurance and funding. London: Butterworths, 2002.
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Institute, Pennsylvania Bar. Third party litigation funding: Leveling the playing field or buying trouble? [Mechanicsburg, Pa.]: Pennsylvania Bar Institute, 2011.
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Fennell, Steven. The funding of personal injury litigation: An independent review of the funding of personal injury litigation and of possible proposals for reform, commissioned by the Association of Personal Injury Lawyers. Sheffield [England]: Institute for the Study of the Legal Profession, 1994.
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Committee, New Jersey Legislature Senate Judiciary. Public hearing before Senate Judiciary Committee: Assembly concurrent resolution no. 2 (2R) : proposes constitutional amendment to prohibit state from requiring county or municipality to perform new or expanded program or service without full state funding. Trenton, N.J. (162 W. State St., CN 068, Trenton 08625-00): The Committee, 1993.
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Sime, Stuart. 2. Funding Litigation. Oxford University Press, 2016. http://dx.doi.org/10.1093/he/9780198747673.003.0107.
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This chapter discusses the issue of funding litigation. Solicitors have a professional duty to advise clients on litigation funding options. The advice and agreed funding method should be confirmed in writing in a ‘client care letter’. Most commercial clients pay their lawyers under the traditional retainer, normally with an agreed hourly rate. Conditional free agreements (CFAs) or ‘no win, no fee’ agreements are increasingly common. They allow a lawyer to agree not to charge the client if the proceedings are unsuccessful, but to charge an uplift or ‘success fee’ of up to 100 per cent over the solicitor’s usual costs if the proceedings are successful. Damages-based agreements (DBAs) are a form of contingency fee agreement under which the lawyer is paid out of the sums recovered in the proceedings. Public funding is restricted to individuals with modest income and capital, and there are wide exclusions from the scheme.
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Sime, Stuart. 2. Funding Litigation. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198823100.003.0107.
Full textAbstract:
This chapter discusses the issue of funding litigation. Solicitors have a professional duty to advise clients on litigation funding options. The advice and agreed funding method should be confirmed in writing in a ‘client care letter’. Most commercial clients pay their lawyers under the traditional retainer, normally with an agreed hourly rate. Conditional free agreements (CFAs) or ‘no win, no fee’ agreements allow a lawyer to agree not to charge the client if the proceedings are unsuccessful, but to charge an uplift or ‘success fee’ of up to 100 per cent over the solicitor’s usual costs if the proceedings are successful. Damages-based agreements (DBAs) are a form of contingency fee agreement under which the lawyer is paid out of the sums recovered in the proceedings. Public funding through legal aid is restricted to individuals with modest income and capital, and there are wide exclusions from the scheme.
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Pirozzolo, Rocco. Litigation funding handbook. Edited by Law Society (Great Britain). 2014.
Find full textBook chapters on the topic "Litigation funding"
1
Chen, Wenjing. "Funding Shareholder Litigation: Public Funding." In A Comparative Study of Funding Shareholder Litigation, 91–136. Singapore: Springer Singapore, 2017. http://dx.doi.org/10.1007/978-981-10-3623-1_4.
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Doriat-Duban, Myriam. "Third-Party Litigation Funding." In Encyclopedia of Law and Economics, 2032–36. New York, NY: Springer New York, 2019. http://dx.doi.org/10.1007/978-1-4614-7753-2_681.
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Doriat-Duban, Myriam. "Third-Party Litigation Funding." In Encyclopedia of Law and Economics, 1–5. New York, NY: Springer New York, 2017. http://dx.doi.org/10.1007/978-1-4614-7883-6_681-1.
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Chen, Wenjing. "Third Party Litigation Funding (TPLF) of Shareholder Litigation." In A Comparative Study of Funding Shareholder Litigation, 137–88. Singapore: Springer Singapore, 2017. http://dx.doi.org/10.1007/978-981-10-3623-1_5.
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Chen, Wenjing. "An Overview of Shareholder Litigation." In A Comparative Study of Funding Shareholder Litigation, 15–66. Singapore: Springer Singapore, 2017. http://dx.doi.org/10.1007/978-981-10-3623-1_2.
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Chen, Wenjing. "Funding Alternatives Through Fee or Cost Arrangements." In A Comparative Study of Funding Shareholder Litigation, 189–216. Singapore: Springer Singapore, 2017. http://dx.doi.org/10.1007/978-981-10-3623-1_6.
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Chen, Wenjing. "Introduction." In A Comparative Study of Funding Shareholder Litigation, 1–13. Singapore: Springer Singapore, 2017. http://dx.doi.org/10.1007/978-981-10-3623-1_1.
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Chen, Wenjing. "Rules on the Costs and Funding of Shareholder Litigation." In A Comparative Study of Funding Shareholder Litigation, 67–89. Singapore: Springer Singapore, 2017. http://dx.doi.org/10.1007/978-981-10-3623-1_3.
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Chen, Wenjing. "Policy Proposals for Solving Funding Problems with Shareholder Litigation in China." In A Comparative Study of Funding Shareholder Litigation, 217–25. Singapore: Springer Singapore, 2017. http://dx.doi.org/10.1007/978-981-10-3623-1_7.
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Chen, Wenjing. "Conclusion." In A Comparative Study of Funding Shareholder Litigation, 227–40. Singapore: Springer Singapore, 2017. http://dx.doi.org/10.1007/978-981-10-3623-1_8.
Full textConference papers on the topic "Litigation funding"
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Kuespert, Daniel R., and Nathaniel J. Leon. "Integrating Safety Into Academic Culture." In ASME 2013 International Mechanical Engineering Congress and Exposition. American Society of Mechanical Engineers, 2013. http://dx.doi.org/10.1115/imece2013-64861.
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Integrating safety with business operations is a problem which challenges all industries, and it can pose unique concerns in academia, as pointed out by a variety of recent reviews of academic safety. Academics must incorporate safety concepts into the engineering and science curricula without significantly adding to the students’ course loads, and they must attempt to make safety education a facilitator of teaching and research activities instead of, as is often perceived, an impediment. Several factors drive this effort in addition to the risk of injury or illness, including litigation, societal expectations for “safe products,” and potential for loss of research funding or tuition if safety is not included in the institution’s core values. This paper will explore challenges faced and initial successes achieved by one university in enhancing its safety culture and reducing overall risk.