Cross-Border Litigation Funding: Structuring Capital for Multi-Jurisdiction Disputes

How funders address governing law, currency risk, and enforcement asymmetry in cross-border matters.

Cross-border litigation funding supports disputes that span multiple jurisdictions, whether through parallel proceedings, international arbitration, or claims requiring enforcement against assets located abroad. These matters introduce complexities absent from purely domestic litigation, and funders structure arrangements to address them explicitly. The governing law of the funding agreement, the currency of capital and recovery, and the mechanics of cross-border enforcement all require careful attention.

Choice of governing law for the funding agreement is a threshold decision. The agreement's governing law determines which champerty and maintenance rules apply to the funding itself, how disputes between funder and funded party are resolved, and which professional responsibility rules govern disclosure. Parties often select English or New York law for the funding agreement regardless of where the underlying dispute is litigated, choosing a well-developed legal framework with predictable treatment of funding arrangements.

Currency risk arises when capital is deployed in one currency and recovery is expected in another. A funder that advances capital in dollars against a recovery denominated in euros or pounds bears exchange-rate risk over the multi-year life of the matter. Funders manage this by funding in the currency of the case where possible, or by building hedging or currency-adjustment provisions into the agreement for matters with multi-currency recovery profiles. Unmanaged currency exposure can materially erode returns.

Enforcement asymmetry is often the binding constraint. A favorable judgment or award has value only to the extent it can be enforced against the defendant's assets, which may be located in jurisdictions with varying recognition regimes. Arbitral awards benefit from the New York Convention's broad enforceability, while court judgments face a patchwork of bilateral and multilateral recognition treaties. Funders assess where the defendant's assets sit and how readily a judgment or award can reach them before committing capital.

Criterica Capital structures cross-border funding with attention to governing law, currency, and enforcement, drawing on outcome data and enforcement analysis tailored to the relevant jurisdictions. Our underwriting reflects the realistic prospects of recovery, not just success on the merits. Parties and counsel pursuing cross-border disputes can contact our international team to discuss structuring.

Discuss your matter with our institutional team.