In cross-border cases funders are interested to see how you will deal with additional layers of complexity. Show them how you will deal with them and they will be more willing to lend you money.
Jurisdiction Risk and Enforceability
A judgment must be recoverable from the Defendant. Rules as to recognition and enforcement of foreign judgments in the jurisdiction of the court in which a claim is brought vary from country to country. It is necessary at an early stage to investigate whether a relevant reciprocal enforcement treaty is applicable or whether enforcement of a judgment in a foreign country is to be sought by separate proceedings.
Currency and Cost Unpredictability
Multi-jurisdiction cases typically generate a mass of costs charged in currencies other than that of the country where the case is being heard. It’s therefore wise to allow for an upward movement in exchange rates over the period of the case and for funder facilities to cover costs of foreign counsel as well as their own.
Arbitration Versus Foreign Court Proceedings
However many international litigation funders take the view that arbitration (where possible) is preferable to court proceedings in a foreign jurisdiction because awards are easier to enforce internationally under the New York Convention.
Demonstrating a Clear Recovery Route
Is there sufficient information available about the defendant’s assets and their recoverability? A letter from local counsel confirming asset traceability as well as the relevant enforcement procedure will carry significant weight with funders.
Structuring a Multi-Jurisdiction Application
Consider presenting a timeline detailing the progress of the dispute in each jurisdiction and set out the estimated costs of progress in each jurisdiction as well as the name of the relevant counsel.
For UK Litigation Funding, see //www.novo-modo.co.uk/litigation-funding.
Solid work on the enforceability and recovery aspects of a dispute can go a long way to convincing a funder to fund your case.
