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Rowles-Davies: Retrospective Provision in Litigation Funding Bill is ‘Fundamentally Flawed’

By John Freund |

In an article shared on LinkedIn, Nick Rowles-Davies, founder and CEO of Lexolent, makes the case against the retrospective aspect of the UK government’s Litigation Funding Agreements (Enforceability) Bill. Whilst acknowledging that many within the industry disagree with his position, Rowles-Davies argues that ‘the Bill should be prospective only and that the retrospective element is fundamentally flawed.’

Rowles-Davies summarizes his extensive article into the following key points:

  1. ‘The starting point for any consideration of the Bill must be firstly to correct the various inaccurate Supporting Documents (to the Bill) such that the law as it stands, and has always stood, is properly reflected. 
  2. The Government has put forward no credible justification to support the retrospective provision in the Bill.
  3. When considered under the true set of facts, this legislation appears to be incompatible with the ECHR. 
  4. The justification for the Bill’s prospective elements and its (arguably unprecedented) retrospective aspect must be considered separately. The Supporting Documents grossly misrepresent the position. Save for pure value transfers from previously funded parties to existing funders, what the Bill properly seeks to achieve can be accomplished through prospective only legislation. 
  5. If retrospectivity survives, it is likely that the matter will come before the courts quickly thereafter in relation to the ECHR.’

Rowles-Davies argues in the article that ‘the Supporting Documents to the LFA Bill provide absolutely no evidence of legal precedent to support the retrospective aspect of the Bill.” He goes on to say that not only is this bill ‘unprecedented’, but it also fails to provide ‘credible “public interest” justification for the retrospective aspect.’ 

In the conclusion of the article, Rowles-Davies calls on both chambers of Parliament to ‘take proper time to explore the foundation upon which the Bill rests and then test its contents after it has been repaired.’ Furthermore, he argues that ‘the positioning of the Bill is disrespectful to a busy Parliament tasked with addressing far more pressing global, social, and public interest matters.’

Bills Targeting Litigation Finance Disclosure and Foreign Funders Make Progress in Louisiana

By John Freund |

Reporting by Bloomberg Law covers the campaign to introduce new rules governing litigation funding in the state of Louisiana, with proponents of the legislation sensing an opportunity to make progress since the state elected a new governor, Jeff Landry. The two bills making their way through the Legislature are: HB336, which would create a Litigation Financing Disclosure Act, and SB355, which would enact ‘transparency and limitations on foreign third-party litigation funding’. 

In an interview with Bloomberg, Representative Emily Chenevert ,who brought HB336, explained that the turnover in elected representatives provided a fresh opportunity, saying: “The appetite was there already within the legislature and so now it’s like, let’s attempt this and let’s see with a new House and some new senators what could happen.” Dai Wai Chin Feman, managing director at funder Parabellum Capital, spoke out in opposition to Chenevert’s bill but said that SB355 was “acceptable to our industry.”

HB336 would require any party in a civil action to disclose the existence of a litigation financing agreement, whilst redacting the financial details of the agreement, and would make all financing arrangements ‘permissible subjects of discovery’. The bill also prohibits funders from controlling or making any decisions in the proceedings, stating that ‘The right to make these decisions remains solely with the plaintiff and the plaintiff's attorney in the civil proceeding.’

SB355 requires any foreign litigation funder involved in a civil action in Louisiana to disclose its details to the state’s attorney general (AG), and to provide the AG with a copy of the funding agreement. Similarly to HB336, this bill would prohibit the foreign funder from controlling the legal action in any way and also prohibits the funder from being ‘assigned rights in a civil action for which the litigation funder has provided funding’.

HB336 has been approved by the state House and was referred to the Senate Judiciary Committee, whilst SB355 has cleared the majority of procedural hurdles and now awaits a vote by the House.

Stonward’s Demarco: Funding Market Trending Towards Consolidation and Specialization

By John Freund |

In an interview with Leaders League, Guido Demarco, head of legal assets at Stonward, discusses the current state of the litigation funding market. The interview explores recent trends affecting funders, the nuances of the Spanish funding market, and Stonward’s own approach to legal strategy and market specialization.

Beginning with an overview of the global litigation funding industry, Demarco highlights the move towards consolidation, with funders specializing in specific legal sub-sectors or markets. Demarco says that this approach allows funders “to leverage expertise in particular legal domains or jurisdictions, enhancing their ability to assess and manage risks effectively.” He goes on to explain that the cost burden of case origination and due diligence, along with the need for specialized experts for each legal area, means that consolidation allows funders to maximise capital efficiency and scale their operations.

Focusing on the Spanish market, Demarco describes the country as a “promising hub” for litigation finance, pointing to the jurisdiction’s “sophisticated legal market” and its position as “a double gateway to the broader Latin American continent and the EU market.” Referencing his earlier explanation of the trend towards consolidation, Demarco argues that this has benefitted Spain as the market continues to attract specialist funders who can build an on-the-ground footprint in the market. As for Stonward’s exclusive focus on the Spanish funding market, Demarco says that this strategy has allowed the business “to develop an in-depth understanding of local legal intricacies, enabling the team to navigate the unique challenges and opportunities presented by Spanish procedural law.”

Darrow Names Mathew Keshav Lewis As Chief Revenue Officer & US General Manager

By John Freund |

Darrow, the leading AI-powered justice intelligence platform, today announced the appointment of Mathew Keshav Lewis as its first Chief Revenue Officer and US General Manager. Lewis brings over 20 years of experience driving revenue and growth for high-profile legal and technology companies – including SaaS platform Dealpath, alternative investment platform Yieldstreet, and legal services pioneer Axiom Law – and will be responsible for helping Darrow scale as it continues an accelerated growth trajectory. 

"Mathew's arrival at Darrow opens enterprise-level deals to all plaintiff law firms, previously accessible only to a select few,” said Evyatar Ben Artzi, CEO and Co-Founder of Darrow. “His expertise from YieldStreet and Axiom empowers our partners to leverage AI, driving unprecedented growth and innovation.” 

Lewis, who will be based in Darrow’s New York headquarters, joins Darrow after serving as the first Chief Revenue Officer of Dealpath, a real estate deal management platform. He also previously held the role of Chief Revenue Officer and GM, Investments at Yieldstreet, where he drove record revenue and growth for the investment platform. 

“I’m delighted to join a team of tremendously talented individuals at Darrow, who have already disrupted the legal technology space and forged the path ahead,” said Mathew Keshav Lewis, Chief Revenue Officer & US General Manager of Darrow. “I am inspired by Darrow’s progress to date, and I look forward to working alongside Darrow’s growing team to expand the company’s footprint.”

This announcement comes at a period of rapid growth for the company, which completed its $35 million Series B funding round last year. Darrow currently works on active litigation valued over $10 billion across legal domains such as privacy, consumer protection, and antitrust. 

About Darrow: Founded in 2020, Darrow is a LegalTech company on a mission to fuel law firm growth and deliver justice for victims of class and mass action lawsuits. Darrow's AI-powered justice intelligence platform leverages generative AI and world-class legal experts and technologists to uncover egregious violations across legal domains spanning privacy and data breach, consumer protection, securities and financial fraud, environment, and employment. Darrow is based out of New York City and Tel Aviv. For more information, visit: darrow.ai

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Summary of the Lords’ Committee Stage Debate on the Litigation Funding Bill

By John Freund |

Following the second debate of the Litigation Funding Agreements (Enforceability) Bill in the House of Lords, the bill was moved forward to the committee stage for members to propose amendments and undertake a line by line examination. As LFJ reported yesterday, three amendments were proposed in advance of the committee debate, with two being put forward by Lord Stewart of Direlton, the Advocate-General of Scotland, and one by Lord Marks of Henley-on-Thames. 

LFJ has read through the full transcript of the committee stage debate and has provided a summary, highlighting key takeaways from the contributions made by each of the members of the House.

Yesterday’s debate was opened by Lord Stewart, who began by responding to issues raised by other members during the second reading of the bill. With regards to the retrospective nature of the bill, Lord Stewart acknowledged the potential issues that this could raise for claimants who negotiated new funding arrangements post-PACCAR, and told the House that “the Government are looking into the questions raised and hope to provide a further update on Report.” 

Lord Stewart then went on to introduce the two amendments on behalf of the government, starting with Amendment 1 which was described as a “technical amendment” and was designed to close a small gap in the definition of litigation funding agreements (LFAs). He explained that the amendment would ensure that an LFA “which is used to fund items of expenditure where the litigant is unrepresented” will be rendered enforceable by the new legislation. He stated that this amendment “reflects the policy object of the Bill”, and would avoid any LFAs being missed in the government’s efforts to reverse the impact of the PACCAR ruling.

Amendment 2 was also described as another technical change, which Lord Stewart said would “make it clear that the payment of adverse costs the litigant may be required to pay to another party, which would be funded under an LFA, includes the payment of costs following court, tribunal or arbitration proceedings, or as part of a settlement.”

Following on from Lord Stewart’s introduction of the government’s amendments, Lord Marks began by covering the arguments in favour of the introduction of regulation for the litigation funding market. Among these arguments, the most prominent point raised by Lord Marks was the idea that “in an unregulated market, litigation funders can effectively impose their terms on clients”, thereby reducing the amount of compensation that claimants may receive from any settlement. He also pointed to the question posed by others that, “if regulation of DBAs is appropriate for lawyers, why is it not for litigation funders?”

Lord Marks then continued on to address the issue of “retrospectivity” in the bill, noting that concerns had been raised that the retrospective nature of the bill and that any legislation attempting to include such a measure, must demonstrate “special justification”. Lord Marks said that he had concluded that in order to avoid “confusion and uncertainty”, this was one such situation that demonstrated special justification because it would ensure  that “in the case of LFAs between the PACCAR decision and the commencement of this Bill, such LFAs should be in the same position as LFAs entered into in the interregnum or in the interim period.”

Moving on to his own probing amendment, which called for a review into third-party funding and laid out the scope of the proposed review’s focus, Lord Marks acknowledged that “it has been comprehensively and well answered” both by letters from the Secretary of State and Lord Stewart, and by the publishing of the terms of reference for the Civil Justice Council (CJC) review. He went on to say that he was “pleased to see that the Government realise that this is urgent and that the whole question of looking at the field of litigation funding is both important and urgent.”

Speaking briefly about the CJC’s planned review, Lord Marks expressed that he was pleased to see the breadth of the review’s remit, including the issue of “whether there should be regulation and how, if there is to be regulation , it should be framed.” Among the other important issues that the review will be exploring, Lord Marks highlighted areas including the idea of a cap on funder’s returns, the recoverability of funder’s costs, and the potential conflicts of interest between funders, law firms and their clients.

Lord Marks closed his contribution by voicing his support for both of the government’s amendments.

Lord Carlile of Berriew was the next member of the House to speak, addressing the questions previously raised around the bill’s potential to violate the Human Rights Act and whether the retrospective quality of the bill. Lord Carlile spoke succinctly in saying that the arguments about the Human Rights Act were “not strong, and the Government are perfectly entitled to act as they are in that regard.” Furthermore, he went on to say that this legislation “would be absolutely pointless if it were not retrospective”, arguing that the purpose of the bill was to “right a wrong that nobody expected, and it is simply restoring to people the legal rights which they already had.”

Lord Carlile also took time to briefly endorse the CJC review and its terms of reference, going on to praise the choice of the CJC as the reviewing body. He explained that he would not be “an enthusiast for an independent reviewer in this situation”, and that the CJC would have the ability to be flexible whilst also retaining the ability to “change the law in small ways to ensure that appropriate procedures are followed.”

Baroness Bennett of Manor Castle followed Lord Carlile but rose to voice opposition to the current approach to this legislation and said that it “is still not an adequate solution to the problems at hand.” She argued that the government is actually facing “a structural problem”, arguing that the current legal system demonstrates a “huge inequality of arms”. She concluded by saying that under this existing system, which the bill does not attempt to deal with, “there is far too much justice denied to individuals in our society when they are crushed by the weight of corporations or the state.”

Lord Sandhurst joined Lord Carlile in supporting the government’s amendments, arguing in favour of the retrospective nature of the bill whilst this opens up the possibility of “a spate of future litigation of the wrong satellite nature”, the government cannot afford to allow the current situation to continue. Considering the issue of a challenge by the ECHR, Lord Sandhurst argued that when crafting this type of legislation, “There may be no perfect answer, but this is the right route—or the least bad.”

Lord Thomas of Cwmgiedd spoke briefly in support of the bill and the CJC review, noting that the reviewer will be able to draw upon the lessons learned during Australia’s review of litigation funding regulations and the research completed by the European Law Institute. He argued that the example of Australia may demonstrate that the best strategy is not “the creation of yet another regulatory body” but instead giving the courts “the powers and guidance necessary to deal with the issues.”

Lord Ponsonby of Shulbrede was the final peer to join the debate and took the time to address the real world use cases for litigation funding, highlighting its value to small and medium-sized companies to manage their cashflow whilst pursuing meritorious litigation. He argued that the use of LFAs is an ideal “way of managing risk”, and that the UK should not fall behind other jurisdictions such as Singapore, Australia, and Dubai, which would happily take up this share of the global litigation funding market.

Lord Stewart returned to the floor to close out the debate, taking the time to address issues and concerns raised by each of the members and reiterate the objectives of the government’s bill. Of primary importance procedurally, Lord Stewart focused on Lord Marks’ amendment requiring a review of the third-party funding sector, stating that in the face of the CJC review “his amendment is not necessary and will duplicate efforts.” Therefore, he requested that Lord Marks not press the amendment at this stage.

At the close of the debate, both of the government’s amendments were agreed and as Lord Marks had decided not to press his amendment, the debate was ended. The amended version of the bill can be read here.

The bill now moves to the report stage, which provides an opportunity for members of the Lords to further examine the bill and propose any additional amendments to the text. 

The full transcript of the committee stage debate can be read here.

Omni Bridgeway Releases Investment Portfolio Report for 3Q24

By John Freund |

Omni Bridgeway Limited (ASX: OBL) (Omni Bridgeway, OBL, Group) announces the key investment performance metrics for the three months ended 31 March 2024 (3Q24, Quarter) and for the financial year to date (FYTD).

Summary

  • Investment income of A$296 million FYTD; A$56 million provisionally attributable to OBL.
  • 23 full completions, 17 partial completions FYTD, with an overall multiple on invested capital (MOIC) of2.0x.
  • A$333 million of new commitments FYTD with a corresponding A$447 million in new fair value, on track to achieve our A$625 million target.
  • Pricing remains at improved levels, up 32% for the FYTD compared to FY23.
  • Strong pipeline, with agreed term sheets outstanding for an estimated A$212 million in new commitments.
  • OBL cash and receivables of A$101 million plus A$60 million in undrawn debt at 31 March 2024.
  • A$4.4 billion of possible estimated portfolio value (EPV) in completions over the next 12 months. 
  • Further simplification and enhancement of our disclosures as announced at the Annual General Meeting, comprising non-IFRS OBL-only financials and non-IFRS fair value on a portfolio basis and OBL-only basis.
  • These new disclosures and metrics, as well as a valuation framework for our existing book and platform, were presented at our investor day on 27 March 2024.

Refer to https://omnibridgeway.com/investors/investor-day.

Key metrics and developments for the Quarter

Income and completions

  • Investment income of A$296 million generated from A$193 million income recognised and A$103 million income yet to be recognised (IYTBR), with A$56 million provisionally attributable to OBL FYTD (excluding management and performance fees). 
  • During the Quarter, 11 full completions and 11 partial completions (excluding IYTBR), resulting in 23 full completions and 17 partial completions (excluding IYTBR) FYTD, and one secondary market transaction, with a FYTD overall MOIC of 2.0x.

New commitments

  • Our stated targets for FY24 include A$625 million in new commitments or equivalent value, prioritising value over volume to reflect potential for improved pricing of new commitments.
  • FYTD new commitments of A$333 million at 31 March 2024 (from matters that were newly funded, conditionally approved or had increased investment opportunities). 
  • The fair value associated with these commitments is $447million, 72% of the full year value generation target.
  • Pipeline of 37 agreed exclusive term sheets, representing approximately A$212 million in investment opportunities, which if converted into funded investments is a further 34% of our FY24 commitments target.  
  • In addition to the regular new commitments to investments in the existing funds FYTD, an additional A$11.5 million of external co-fundings were secured for these investments to manage fund concentration limits. OBL will be entitled to management fees as well as performance fees on such external co-funding.

Portfolio review

  • A$4.4 billion of EPV is assessed to possibly complete in the 12 months following the end of the quarter. This 12 month rolling EPV is based on investments which are subject to various stages of (anticipated) settlement discussions or for which an award or a judgment is expected. All or only part of these may actually complete during the 12 month period.
  • We anticipate replacing these final EPV metrics with fair value metrics by the end of this financial year.

Cash reporting and financial position

  • At 31 March 2024, the Group held A$100.7 million in cash and receivables (A$62.8 million in OBL balance sheet cash, A$2.0 million in OBL balance sheet receivables and A$35.9 million of OBL share of cash and receivables within Funds) plus access to a further A$60 million in debt.
  • In aggregate, we have approximately A$161 million to meet operational needs, interest payments, and fund investments before recognising any investment completions, secondary market sales, management and transaction fees, and associated fund performance fees.
  • Post Quarter-end and as per the date of this report, in anticipation of the expiry of the availability period of the debt facility, OBL has drawn down the A$60 million in undrawn debt and received the funds.

Investor day

The investor day presentation and Q&A which took place on 27 March 2024 can be viewed at https://omnibridgeway.com/investors/investor-day.

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Litigation Funding Support Ensures Law Firm Can Continue MoD Lariam Claims

By Harry Moran |

A frequent talking point among claimant law firms and litigation funders is the use of delaying and prolonging tactics by defendants, hoping to continually increase the financial cost of bringing a case until it is no longer viable to do so. However, as a recent example demonstrates once again, third-party litigation funding provides a significant weapon in the claimant’s arsenal when it comes to combating this type of strategy.

An article in The Law Society Gazette covers ongoing developments in the group action being brought against the Ministry of Defence over claims that its prescription of Lariam, an anti-malarial drug, caused harmful side effects to armed forces personnel. The law firm leading these claims, Hilary Meredith Solicitors, has denied reporting that it is facing bankruptcy due to the large costs involved in the case, and told the Gazette that its financial backing is secure.

In a statement to the Gazette, the law firm stated that its “bank and litigation funders have confirmed their ongoing financial support”, which will allow the law firm to continue with the Lariam cases without fear of bankruptcy. Hilary Meredith Solicitors admitted that whilst it had been necessary “to borrow millions of pounds to fund this David and Goliath type action”, the law firm’s financial footing was secure with the support of outside lenders.

The identity of the litigation funder supporting Hilary Meredith Solicitors is not specified by the law firm’s statement or the Gazette’s reporting.

The firm also confirmed that with 10 lead cases scheduled for trial at the High Court next year, they are now “close” to agreeing a settlement with the MoD. The Gazette also cites its reporting from last year, which revealed that the MoD had spent £20 million on its legal budget to defend against the claims brought between 2021 and 2022.

Three Amendments to the Litigation Funding Bill Discussed at Committee Stage

By Harry Moran |

As the Litigation Funding Agreements (Enforceability) Bill is subject to a line by line examination during the committee stage today, we can analyse the amendments that have been put forward by members of the House of Lords. Of the three amendments that were discussed during the committee stage, two were put forward by Lord Stewart of Direlton and one by Lord Marks of Henley-on-Thames.

Both of Lord Stewart’s amendments deal with the section of the bill that provides a definition of a litigation funding agreement.

The first of Lord Stewart’s amendments calls for the following line to be inserted at the end of the Clause 1, page 1, line 14: “(ia) where the litigant is a litigant in person, expenses incurred by that litigant, or”. In his explanatory statement, Lord Stewart said that this language “ensures that the definition of litigation funding agreements includes agreements under which a funder agrees to fund expenses incurred by a litigant in person.” 

The second of Lord Stewart’s amendments relates to Clause 1, page 1, line 16, which would take the following sentence: “the payment of costs that the litigant may be required to pay to another person by virtue of a costs order”, and would now be followed by: “, an arbitration award or a settlement agreement”. Lord Stewart explained that this would ensure that the bill’s definition of an LFA would also include “agreements under which a funder agrees to pay costs relating to litigation that arise by virtue of an arbitration award or a settlement agreement, as well as by virtue of a costs order.”

Lord Marks’ “probing amendment” would follow Clause 1 and would be titled “Review: enforceability of litigation funding agreements”. The language of the amendment requires the Lord Chancellor to “establish an independent review of the impact of provisions in this Act” and lays out the scope of such a review. This would include a review of safeguards for claimants, regulation of third-party funding, funders’ returns, and alternatives to LFAs. The amendment dictates that the review must be completed by 31 August 2025, and that the Lord Chancellor must then provide a response before Parliament within three months of receiving the review.

The full text of the amendments can be read here.

The current version of the bill can be read here.

LFJ will be providing a summary of the committee stage hearing once the Hansard transcript is available.

Member Spotlight: David Harper

By John Freund |

With over two decades of experience in technology and Business Process Outsourcing (BPO), David Harper has made significant strides in the UK's BPO landscape, particularly noted for scaling one of the fastest-growing BPO businesses focused on enhancing customer experience and retention. 

David's expertise in navigating complex outsourcing and insourcing strategies has helped numerous top-tier law firms boost efficiencies and cut costs, effectively integrating transformative legal technologies into their operations.

As co-founder and CEO of Legal Intelligence Ltd., David is pioneering the utilisation of Generative AI, Machine Learning, and Robotic Process Automation to demystify advanced technologies for Litigation Funders and Law Firms. His vision is to craft a suite of powerful AI assets that provide clients with a formidable competitive edge, simplifying complex processes and empowering them to excel in a highly competitive environment.

Beyond his professional achievements, David is a devoted family man, enjoying quality time with his partner and two sons. Beyond his professional life and proud patron of The Prince's Trust, dedicating time to charitable causes. Recently, he ventured into farming by purchasing a farm, and is enthusiastically navigating the steep—and often muddy—learning curve that comes with rural management.

Company Profile: Legal Intelligence Ltd

At Legal Intelligence, our mission is to empower legal firms and litigation funders to expand and innovate in a risk-managed environment. Our expert team, comprising AI, software, and data science specialists alongside seasoned professionals in litigation and finance, excels in developing and deploying cost-effective AI solutions that transform inefficiencies into robust efficiencies at scale.

Our clients benefit from rapid capital deployment, streamlined client onboarding, and unparalleled book-building capabilities. Automation drives our processes, ensuring reduced overheads and top-tier operational and customer service delivery, allowing our clients to scale confidently and maintain service excellence.

Understanding the economic dynamics of litigation funding and their partnered law firms has led us to develop a unique cost model for our suite of AI tools. We align our model with the risk and reward dynamics often seen in funded arrangements, truly partnering with our clients—your success is indeed our success.

Legal Intelligence is setting new standards for excellence and innovation in the legal sector. Let us be your partner in driving digital transformation. Together, we'll redefine what's possible in the legal industry, achieving outcomes that are efficient, risk-aware, and client-focused.

Welcome to the future of litigation—and yes, we're really nice people too!

Websitewww.legalintelligence.ai

"Generative AI is not about replacing human expertise but enhancing it. Our suite of AI assets ensures a seamless integration of human judgment with advanced AI capabilities, providing a synergy that is unmatched in the industry," says David Harper.

Year Founded: 2024
Headquarters: London and Gateshead, operating globally.
Area of Focus: Legal Technology and AI Outsourcing Solutions

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Carpentum Capital Launches Aurigon Litigation Risk Consulting (LRC)

By John Freund |

The team around former Carpentum Capital has launched AURIGON LITIGATION RISK CONSULTING (LRC), a litigation funding intermediary based in Switzerland with a special focus on Latin America. 

Founder and Managing Director Dr. Detlef A. Huber comments: ”AURIGON LRC is combining two worlds, litigation finance and insurance. Both areas are increasingly overlapping. Insurers offer ever more litigation risk transfer products and funders recur to insurance to hedge their risks. Hence complexity and advisory requirements are increasing, especially in still developing markets like Latin America. With our team of lawyers and former re/insurance executives trained in Latin America, the US, UK and Europe we are perfectly suited to advice our clients in any stage of the funding process or in related insurance matters. Our goal is to become the preferred partner for litigation and arbitration funding projects out of Latin American jurisdictions and I am looking forward to this new adventure.”

ABOUT AURIGON

AURIGON Advisors Ltd. is operating as re/insurance consultancy since 2011 with a special focus on dispute resolution and auditing. With AURIGON LRC an intermediary for litigation funding has been launched servicing our clients out of Argentina, Chile, Brazil and Switzerland in Spanish, English, Portuguese and German. With our experience setting up the first Swiss litigation fund dedicated to Latin America (founded 2018), and in the insurance advisory area (since 2011), we are bringing together knowledge of processes and mindsets of the funding and the insurance world. 

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