LIJDLR

CAPITAL AS A GATEWAY: THIRD-PARTY FUNDING IN COMMERCIAL DISPUTES AND ACCESS TO COMMERCIAL JUSTICE

Vidhi Saxena, B.A. LL. B (Hons), 10th Semester, Student at Amity Law School, Noida (India)

Access to justice is the utmost important key concept and a prerequisite for the effective functioning if any legal system. Although arbitration is considered to be one of the cost-effective mechanisms, but there are several instances where the parties are not able to fund their own cases or the arbitration ends up in a heavy consolidated fee or charges. In such a situation external fund financers step into their matters and finances the cost of litigation or arbitration and in return get the share from the proceeds of the case, if succeeded. This emerging mechanism is known as Third-Party funding where someone externally helps the parties to the dispute and in return gets the respective share of the proceeds of claim. One point which is quite reflected in third party funding is that funding externally seems profitable, but it has to be strictly kept in mind that the investors will get profits only if the party succeeds. They will not recover their investment if that party loses the case, reflecting the non-recourse nature of such arrangements. In many jurisdictions TPF has laid down its ways as like as that of United Kingdom, Singapore, Australia, United states but in India, the concept is still evolving.  Till now we don’t have any statutory provisions which can regulate the procedure of TPF, but judicial pronouncements and certain procedural provisions suggests that TPF is not prohibited in the Indian legal system. Supreme Court has observed that third parties may finance litigation; however, advocates are not permitted to act as third-party funders due to professional conduct restrictions under the Bar Council of India Rules. Despite these all approvals and applications, it is in some cases considered as an unethical practice with an ill motive of the investor which results into the potential abuse of the legal system and conflict of interests.

📄 Type 🔍 Information
Research Paper LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 1, Page 2556–2570.
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