Covid-19 has resulted in further project disruption in an industry that, before the pandemic, was already suffering. The erosion of profit margins by inequitable risk allocation, late payments and an unparalleled level of scope changes had created a culture of chronic cost and time overruns, disputes and mounting financial losses. In 2020, a greater incidence of fights over who should bear the costs was inevitable.
The construction industry has been slow to change and, until the playing field is levelled between the stakeholders, that is set to continue.
Attempts to redress the balance through the pursuit of arbitration or litigation claims has been an (expensive) necessity for contractors in the past, but the present priority is survival. Expending significant cash and time on costly disputes is something that industry players of all sizes can ill afford.
Enter stage left the litigation funders.
Litigation funding has been around, in one form or another, for many years, and some of the larger funds have now accumulated decades of experience.
Their business model is simple: they agree to provide non-recourse financing, mainly to claimants, to fund their claims, in return for a percentage of the winnings. This gives claimants ready access to capital to pursue legitimate claims and removes the cost from their balance sheets, a key priority for CEOs and CFOs alike.
When claims are funded, the client retains full control over the dispute resolution process; the funder simply provides the funding, although it will be involved in setting the budget and strategy as a precondition.
Since construction-related claims tend to be substantial, the nature of the industry lends itself to litigation funding
If the claim is unsuccessful, the funder loses out. Usually, it will also have obtained adverse costs insurance to cover the other side’s costs if the client loses, so that the client should never have to pay a penny. This eliminates the downside risk for the client.
In return for taking on this risk, the funder takes an agreed percentage of the winnings if the claim is successful. The percentage depends on a number of factors, one of which is whether the client has more than one claim to be funded. In this case, the funder will be able to offer better terms, since it can spread its risk across a number of cases.
Why is this of particular relevance to the Middle East construction industry? For five reasons:
> First, litigation and arbitration funding is permitted in the Middle East’s various jurisdictions.
In some jurisdictions – such as Dubai International Financial Centre (DIFC) and Abu Dhabi Global Market (ADGM) – it is expressly permitted and there are provisions made for its use. In the onshore jurisdictions, while care needs to be taken when structuring the funding, there is no prohibition on funding.
> Second, while funders have traditionally focused on markets such as the US, Europe and Australia because of their size and the perceived predictability of their legal systems and enforcement regimes, they have become far more interested in the Middle East in recent years.
This is due to the sheer number and size of disputes, as well as the existence of the DIFC and ADGM courts, whose regimes are very similar to the common law courts of England. The increasing track record of successful enforcement and the prevalence of arbitration have also contributed to funders' growing interest in this region.
Having taken on cases in the Middle East, many funders have made successful recoveries and have, to some extent, become comfortable with the onshore litigation system. Many have established offices here, particularly in Dubai.
Funders are here, and they are looking to commit their funds.
> Third, funders are generally interested only in larger claims. Since construction-related claims tend to be substantial, the nature of the industry lends itself to litigation funding.
> Fourth, while funders do fund single claims, their preference is to spread risk across a portfolio of claims so that, if one claim fails, they are still able to recoup their costs from others. Bundling up a portfolio of claims allows the funder to offer more favourable funding terms to clients.
The significance for the construction industry, where many contractors have numerous claims at any given time, is obvious – and for this reason litigation funders are increasingly interested in offering portfolio funding solutions to players in the construction sector.
> Finally, while the perception is that litigation funders have focused on banks and their non-performing loan portfolios or impecunious or insolvent clients, the reality is that funders have been funding construction claims for a long time.
The sector is one of the key drivers of their growth in the Middle East.
As highlighted in the MEED/DLA Piper report Time for Change (November 2018), the region’s construction industry faces a number of systemic issues, which drive the region’s projects into developer/contractor and contractor/sub-contractor disputes.
Against a backdrop of global economic uncertainty, new funders continue to enter the market. For example, Litigation Capital Management (LCM), a long-established funder listed on London’s Alternative Investment Market (AIM) exchange, recently entered into an arrangement with DLA Piper and a new DLA Piper-dedicated funder, Aldersgate Funding, to launch a £150m ($199m) litigation fund, whose reach and investment goals are global.
Funders such as LCM and Aldersgate are seeking to take the market to the next level, with best-in-class funding terms and with investment in construction claims a key focus.
With cost constraints often cited as a major impediment in deciding whether to pursue litigation, this is an example of a law firm taking action to provide more efficient and innovative solutions to clients that enable them to take recourse in a market where they are otherwise facing cost-reducing measures and a lack of available capital.
Litigation funding could provide a much-needed push towards redressing the balance and act as a catalyst for reactivating change. Above all, it could ensure the survival of industry players.
About the authors
By DLA Piper's Henry Quinlan, head of litigation, arbitration and investigations, Middle East, and Suzannah Newboult, partner, Dubai
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