Third party funding for arbitration in Malaysia

It is submitted that currently arbitration cost is no longer inexpensive. The School of International Arbitration, Queen Mary University of London, had in 2015 carried an international arbitration survey that showed „cost‟ is the worst feature of arbitration. As such, some claimants or respondents a...

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Main Author:	Leong, Chun Yen
Format:	Thesis
Language:	English
Published:	2016
Subjects:	TH Building construction
Online Access:	http://eprints.utm.my/id/eprint/77698/1/LeongChunYenMFAB2016.pdf
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id	my-utm-ep.77698
record_format	uketd_dc
spelling	my-utm-ep.776982018-06-29T21:29:31Z Third party funding for arbitration in Malaysia 2016-09 Leong, Chun Yen TH Building construction It is submitted that currently arbitration cost is no longer inexpensive. The School of International Arbitration, Queen Mary University of London, had in 2015 carried an international arbitration survey that showed „cost‟ is the worst feature of arbitration. As such, some claimants or respondents are unwilling to participate in arbitration unless there is likelihood of success or option to mitigate the financial risks. The current trend is that the third parties help to fund claimants or respondents their arbitration costs. Although initially third party funding is practised in litigation, there is now a growing tendency to expand its scope into arbitration. Generally such funding involves an agreement between the claimant or the respondent and the funder whereby the funder agrees to fund the arbitration proceeding in return for a share of the remedies recovered therefrom. The legal position of this practice is that it is illegal under the common law doctrine of champerty and maintenance. It appears that the tendency to tolerate third party funding in dispute resolution system is unavoidable and irresistible; as such there are jurisdictions such as the United Kingdom, Australia and Singapore that have legalised third party funding by making changes to their laws. It is submitted that the practice is still illegal in Malaysia. Thus, the objective of this research is to identify a framework to legalise third party funding in Malaysian arbitration process. The method used in carrying this research is by examining the approaches taken by those countries, mainly the United Kingdom, Australia, Singapore and Hong Kong that have legalised third party funding. The finding of the examination of the approaches, it is found that there are four steps in legalising third party funding: firstly is to pass a statute that abolishes the civil liability and tortious of maintenance and champerty principle; secondly is to develop mandatory rules and practices for arbitration practitioners; thirdly, to legalise third party funding agreements, and fourthly is to build up statutory provisions that regulate third party funding practice in arbitration. It is suggested that Singapore‟s framework is just simple and clear to be emulated. In conclusion, this study established a general framework to legalise third party funding for arbitration under this rapid changing environment, and a legal reform is an essential. 2016-09 Thesis http://eprints.utm.my/id/eprint/77698/ http://eprints.utm.my/id/eprint/77698/1/LeongChunYenMFAB2016.pdf application/pdf en public http://dms.library.utm.my:8080/vital/access/manager/Repository/vital:94004 masters Universiti Teknologi Malaysia, Faculty of Built Environment Faculty of Built Environment
institution	Universiti Teknologi Malaysia
collection	UTM Institutional Repository
language	English
topic	TH Building construction
spellingShingle	TH Building construction Leong, Chun Yen Third party funding for arbitration in Malaysia
description	It is submitted that currently arbitration cost is no longer inexpensive. The School of International Arbitration, Queen Mary University of London, had in 2015 carried an international arbitration survey that showed „cost‟ is the worst feature of arbitration. As such, some claimants or respondents are unwilling to participate in arbitration unless there is likelihood of success or option to mitigate the financial risks. The current trend is that the third parties help to fund claimants or respondents their arbitration costs. Although initially third party funding is practised in litigation, there is now a growing tendency to expand its scope into arbitration. Generally such funding involves an agreement between the claimant or the respondent and the funder whereby the funder agrees to fund the arbitration proceeding in return for a share of the remedies recovered therefrom. The legal position of this practice is that it is illegal under the common law doctrine of champerty and maintenance. It appears that the tendency to tolerate third party funding in dispute resolution system is unavoidable and irresistible; as such there are jurisdictions such as the United Kingdom, Australia and Singapore that have legalised third party funding by making changes to their laws. It is submitted that the practice is still illegal in Malaysia. Thus, the objective of this research is to identify a framework to legalise third party funding in Malaysian arbitration process. The method used in carrying this research is by examining the approaches taken by those countries, mainly the United Kingdom, Australia, Singapore and Hong Kong that have legalised third party funding. The finding of the examination of the approaches, it is found that there are four steps in legalising third party funding: firstly is to pass a statute that abolishes the civil liability and tortious of maintenance and champerty principle; secondly is to develop mandatory rules and practices for arbitration practitioners; thirdly, to legalise third party funding agreements, and fourthly is to build up statutory provisions that regulate third party funding practice in arbitration. It is suggested that Singapore‟s framework is just simple and clear to be emulated. In conclusion, this study established a general framework to legalise third party funding for arbitration under this rapid changing environment, and a legal reform is an essential.
format	Thesis
qualification_level	Master's degree
author	Leong, Chun Yen
author_facet	Leong, Chun Yen
author_sort	Leong, Chun Yen
title	Third party funding for arbitration in Malaysia
title_short	Third party funding for arbitration in Malaysia
title_full	Third party funding for arbitration in Malaysia
title_fullStr	Third party funding for arbitration in Malaysia
title_full_unstemmed	Third party funding for arbitration in Malaysia
title_sort	third party funding for arbitration in malaysia
granting_institution	Universiti Teknologi Malaysia, Faculty of Built Environment
granting_department	Faculty of Built Environment
publishDate	2016
url	http://eprints.utm.my/id/eprint/77698/1/LeongChunYenMFAB2016.pdf
_version_	1747817810413748224

Third party funding for arbitration in Malaysia

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