Harmonizing Third-Party Litigation Funding Regulation

Abstract

Third-party litigation funding is no longer a new phenomenon, but rather is a mainstay in global commerce and dispute resolution. Yet, many observers still consider the third-party litigation funding industry as a "wild west" due to a lack of regulation in many countries. Some of the countries that have regulations suffer from a lack of uniformity and an array of conflicting laws at the sub-national level (i.e., the laws of states, provinces, territories, etc.). For example, the United States has a confusing patchwork of state laws on third-party litigation funding. This article proposes harmonizing the regulatory framework for third-party litigation funding in the United States by identifying the three categories of interactions – transactional, procedural, and ethical – that make up third-party litigation funding and suggesting avenues for regulation within those three categories. This approach will weave a regulatory "safety net" of minimum standards for the behaviors and interactions of the players in third-party litigation funding arrangements to ensure the integrity of the dispute resolution system in which they invest and participate.

Keywords: third-party litigation funding, litigation funding, litigation, arbitration, investment, securities, ethics, procedure, federal rules of civil procedure, model rules of professional responsibility, regulation

JEL Classification: K40, K41, K42, K49, K00, K10, K19, K13, K20, K29