December Edition 2019

20 the claimant’s appetite and ability to prosecute its claim. Partnering with a well-capitalised funder like Woodsford substantially levels the playing field and allows a claim to proceed on its merits rather than on the respective parties’ purchasing power. Even where a claimant has the resources to fund a dispute, funding offers many advantages. Third-party funding allows a claimant to unlock the value of a potential claim and preserve capital for other uses, while transferring the ongoing costs and contingent liabilities of the claim to the funder. Moreover, funding can take the potentially significant expense of arbitration off a company’s books. Ultimately, funding permits a claimant to hedge its risk, ensuring that it will be in a better position if the claim is successful, but in no worse position if the claim is not successful. In addition to benefits relating to resourcing, arbitration funding can also have substantial strategic benefits and change the dynamic of a dispute. For example, a funded claimant will often be able to achieve a better settlement outcome more quickly than an unfunded claimant. This is principally because the defendant, upon becoming aware of the claimant’s funding, will appreciate that the tactic of depleting a claimant’s resources to stifle a claim would likely fail. A funded claimant is also less likely to feel any financial pressure to accept a low settlement offer. How to Obtain Third-Party Funding in International Arbitration? There are a number of factors a funder will look at when assessing whether they should finance a party in an arbitration. First, they will look for cases where the merits in respect of liability, causation and quantum are strong. Second, the claimant needs to show they have suffered sufficiently high provable damages in order to make the claim economically viable to be pursued with the help of funding. Third, it’s vital that the Defendant has the financial strength to meet the claim. It will be necessary to show that in the event the arbitration is successful and an award of damages is ordered by the tribunal, the defendant has sufficient assets in a New York Convention state which will be available to satisfy that award. Fourth, the claimant must also have a credible strategy as to where and how a judgement or award against the defendant will be enforced. In this regard, the seat of the arbitration will often be important. Additional important matters the funder will consider include issues in relation to whether the lawyers acting for the