Litigation Funding Agreement Template for Hong Kong

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Key Requirements PROMPT example:

Litigation Funding Agreement

"I need a Litigation Funding Agreement for funding a construction arbitration claim in Hong Kong, with a funding commitment of HKD 50 million and provision for after-the-event insurance coverage to protect against adverse costs."

Document background
The Litigation Funding Agreement is essential when a party seeks external funding for legal proceedings in Hong Kong. This document has gained particular significance following Hong Kong's legislative reforms permitting third-party funding in arbitration and mediation proceedings, and its established acceptance in insolvency cases. The agreement comprehensively addresses the funding arrangement's commercial and legal aspects, including the funder's investment commitment, return structure, control over proceedings, confidentiality obligations, and termination rights. It must be carefully drafted to ensure compliance with Hong Kong's regulatory requirements, particularly the Code of Practice for Third Party Funding of Arbitration and relevant professional conduct rules. The document is typically used when a party has a meritorious claim but lacks the financial resources to pursue it, or wishes to manage litigation risk and cash flow through external funding.
Suggested Sections

1. Parties: Identification of the funder, funded party, and any other relevant parties to the agreement

2. Background: Context of the litigation and purpose of the funding arrangement

3. Definitions and Interpretation: Key terms used throughout the agreement, including 'Claim', 'Proceeds', 'Success Fee', etc.

4. Funding Commitment: Details of the funding to be provided, including amount, drawdown conditions, and any caps

5. Return on Investment: Calculation and payment of the funder's return, including success fees and priority of payments

6. Conditions Precedent: Conditions that must be satisfied before the funding obligation becomes effective

7. Representations and Warranties: Standard and specific warranties from both parties regarding the claim and funding arrangement

8. Conduct of Proceedings: Rights and obligations regarding the management of the litigation, including settlement decisions

9. Confidentiality and Privilege: Provisions protecting confidential information and legal professional privilege

10. Termination: Circumstances allowing termination and consequences thereof

11. Adverse Costs: Responsibility for adverse costs orders and any security for costs

12. Conflicts of Interest: Provisions addressing potential conflicts between the funder, lawyers, and funded party

13. General Provisions: Standard boilerplate clauses including governing law, notices, and assignment

Optional Sections

1. Multiple Claimants: Required when funding multiple claimants, addressing allocation of proceeds and decision-making

2. Cross-Border Provisions: Needed for claims involving multiple jurisdictions or enforcement abroad

3. After-the-Event Insurance: Provisions regarding ATE insurance if required for the claim

4. Public Relations: Controls over public statements about the litigation when media attention is likely

5. Collective Investment Scheme Compliance: Required when the funding structure might constitute a collective investment scheme

6. Alternative Dispute Resolution: Specific provisions for mediation or other ADR processes if contemplated

7. Currency and Exchange Rates: Required when funding or proceeds involve multiple currencies

Suggested Schedules

1. Schedule 1 - The Claim: Detailed description of the funded claim including key documents and timeline

2. Schedule 2 - Funding Schedule: Detailed breakdown of funding tranches and drawdown conditions

3. Schedule 3 - Budget: Approved litigation budget including counsel fees and other costs

4. Schedule 4 - Return Calculations: Detailed methodology for calculating the funder's return in different scenarios

5. Schedule 5 - Lawyers' Terms of Engagement: Key terms of the retained lawyers' engagement

6. Schedule 6 - Reporting Requirements: Format and frequency of progress reports to the funder

7. Appendix A - Key Documents: List or copies of key documents supporting the claim

8. Appendix B - Power of Attorney: If required for the funder to take certain actions

9. Appendix C - Communication Protocol: Procedures for communications between parties, lawyers, and funder

Authors

Alex Denne

Head of Growth (Open Source Law) @ Genie AI | 3 x UCL-Certified in Contract Law & Drafting | 4+ Years Managing 1M+ Legal Documents | Serial Founder & Legal AI Author

Relevant legal definitions
Clauses
Relevant Industries

Financial Services

Insurance

Banking

Construction

Manufacturing

Technology

Mining and Resources

Real Estate

Healthcare

Retail

Professional Services

Transportation and Logistics

Energy

Telecommunications

Relevant Teams

Legal

Finance

Risk Management

Compliance

Investment

Operations

Claims

Corporate Development

Restructuring

Commercial

Relevant Roles

General Counsel

Legal Director

Chief Legal Officer

Litigation Counsel

Chief Financial Officer

Risk Manager

Compliance Officer

Investment Manager

Legal Operations Manager

Claims Manager

Restructuring Officer

Insolvency Practitioner

Corporate Counsel

Finance Director

Commercial Director

Industries
Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance 2017: This ordinance amended the Arbitration Ordinance (Cap. 609) to provide a statutory framework for third-party funding of arbitration and related proceedings in Hong Kong
Hong Kong Code of Practice for Third Party Funding of Arbitration: Sets out the practices and standards with which third party funders are ordinarily expected to comply in carrying on activities in connection with third party funding of arbitration
Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32): Relevant for litigation funding in the context of insolvency proceedings, as liquidators have been permitted to enter into litigation funding agreements
Legal Practitioners Ordinance (Cap. 159): Contains provisions regarding legal professional conduct and potential conflicts of interest that may arise in litigation funding arrangements
Rules of High Court (Cap. 4A): Governs civil procedure in Hong Kong and contains relevant provisions regarding costs and case management that may affect litigation funding arrangements
Securities and Futures Ordinance (Cap. 571): May be relevant if the litigation funding arrangement could be characterized as a collective investment scheme or other regulated investment product
Money Lenders Ordinance (Cap. 163): May be applicable if the funding arrangement could be characterized as a money lending arrangement, requiring compliance with licensing requirements
Control of Exemption Clauses Ordinance (Cap. 71): Relevant for drafting limitation of liability clauses in the funding agreement
Teams

Employer, Employee, Start Date, Job Title, Department, Location, Probationary Period, Notice Period, Salary, Overtime, Vacation Pay, Statutory Holidays, Benefits, Bonus, Expenses, Working Hours, Rest Breaks,  Leaves of Absence, Confidentiality, Intellectual Property, Non-Solicitation, Non-Competition, Code of Conduct, Termination,  Severance Pay, Governing Law, Entire Agreemen

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