Maintenance

Maintenance is the related but distinct common law tort of intermeddling in litigation by providing support — financial or otherwise — to a party to a lawsuit with whom the supporter has no legitimate interest. Where champerty requires a bargain for a share of proceeds, maintenance covers broader intermeddling even without a financial stake in the outcome. Like champerty, maintenance has been largely abolished in most U.S. jurisdictions as courts have recognized that access to capital for litigation serves legitimate public interests. Funders operating in jurisdictions that retain maintenance doctrines — including some offshore arbitration venues — must ensure their involvement is limited to passive financial support with no direction of litigation strategy.

Funders draft agreements to ensure their support remains strictly financial — no direction of strategy, no control over counsel selection — specifically to stay outside the scope of maintenance exposure in the jurisdictions that retain the doctrine. This is one of the reasons institutional funders insist on express non-interference language even where the doctrine has been abolished domestically, since the same agreement may need to withstand scrutiny in an offshore arbitration seat that still recognizes it.