International arbitration funding trends in Australia and APAC and the new ACICA Rules


The Australian Centre for International Commercial Arbitration (ACICA) recently approved and adopted the 2021 Edition of the ACICA Arbitration Rules and Expedited Arbitration Rules.


The Australian Centre for International Commercial Arbitration (ACICA) recently approved and adopted the 2021 Edition of the ACICA Arbitration Rules and Expedited Arbitration Rules.

The rules reflect numerous developments in international arbitration, including revisions that—for the first time—make multiple references to legal finance, or “third-party funding”. These new rules not only signify the increased adoption of legal finance in international arbitration in Australia, but also highlight important trends in the funding of international arbitration across the Asia-Pacific region.

Key takeaways from the ACICA Rules


The most notable of the new rule changes is Article 54 of the ACICA Arbitration Rules and Article 41 of the ACICA Expedited Arbitration Rules, both of which specifically address disclosure requirements of third-party funding. Both provisions define “third-party funding” broadly to include entities that fund claims as well as insurers. Article 54.2 specifies that “a party and/or its representative shall, on its own initiative, disclose the existence of third-party funding and the identity of the funder.” Article 54.3 further describes that the arbitral tribunal can order a party to disclose those details at any time during the arbitration proceedings. These provisions create a very limited disclosure obligation on the parties and do not impose any broader obligations to disclose either documents or communications relating to third-party funding.


The new rules also include provisions on third-party funding costs. Article 48 of the ACICA Arbitration Rules include third-party funding costs within the definition of “costs of arbitration”. Under Article 35 of the ACICA Expedited Arbitration Rules, “costs of arbitration” is defined to include “the costs incurred in obtaining third-party funding”. This is significant as under ACICA rules, the unsuccessful party generally bears those costs, subject to the tribunal’s discretion to determine whether apportionment of those costs is reasonable and how apportionment should occur. Given the sizeable investment needed to pursue arbitration, the inclusion of third-party funding costs in overall arbitration costs is a step towards ensuring that parties have access to the required funds.


The confidentiality and data protection provisions in both sets of new rules have been revised to account for parties sharing confidential information with third-party funders. Specifically, Article 26.2(f) states that the parties, the Arbitrator and ACICA shall treat any matters relating to the arbitration as confidential except “to a person for purposes of having or seeking third-party funding, where the person has agreed to keep the material and information confidential”. The same language appears in Article 15.2(f) of the ACICA Expedited Arbitration Rules.

New rules compare with reforms across APAC and other arbitral institutions


In Singapore, the arbitration funding framework is provided by the Civil Law Act and the Civil Law (Third-Party Funding) Regulations 2017, and obligations of the parties relating to disclosure, costs and confidentiality are set out in various related instruments. The Legal Professional (Professional Conduct) Rules 2015 (as amended in 2017) deal with the disclosure requirements relating to third-party funding and is similar to those under ACICA rules as only the identity of the funder is required to be disclosed.

On parties’ costs, “the Tribunal may take into account the existence of any external funder in apportioning the costs of the arbitration”, and the tribunal “may take into account the involvement of a [funder] in ordering […] that all or a part of the legal or other costs of a [party] be paid by another [party]”.¹ There is no elaboration on the scope of the costs in question, but a tribunal would, in practice, have the power to take into account amounts payable to a funder when awarding costs to a funded party.

Confidentiality and privilege are dealt with in a Law Society note² and the Guidelines for Third-Party Funders published by the Singapore Institute of Arbitrators. The guidelines enable funders to obtain information relating to a claim as long as they do not breach privilege or a lawyer’s confidentiality obligations.

Singapore has generally supported third-party funding, as evident in its recent submissions as part of the UN Commission on International Trade Law (UNCITRAL) Working Group III Rule Amendment Project. In addition to emphasizing its access to justice benefits—for example for small and medium-sized enterprises—Singapore’s submissions noted that states have also used third-party funding and cautioned against rules that might stymie this use.


Likewise, the Hong Kong International Arbitration Centre (HKIAC) published a new version of its Administered Arbitration Rules in 2018 (the HKIAC Rules) which expressly addresses third-party funding in arbitration. Parties that obtain funding are required to promptly disclose the existence of a funding agreement, the identity of the funder and any subsequent changes to that information.³ The purpose of disclosure is to identify any potential conflicts involving tribunal members at the outset. Notably, no award has ever been set aside due to such conflicts.

The HKIAC Rules also permit an arbitral tribunal to consider any third-party funding arrangement in determining all or part of the “costs of the arbitration”.⁴ Such costs include the fees of the arbitral tribunal, as determined in accordance with Article 10 of the HKIAC Rules; reasonable travel and other expenses incurred by the tribunal; reasonable costs of expert advice and other assistance; reasonable costs for legal representation and other assistance, including fees and expenses of any witnesses and experts, if such costs were claimed during the arbitration; and registration and administrative fees payable to HKIAC.⁵

On confidentiality, a funded party is also permitted to disclose arbitration-related information to its existing and potential funders.⁶ Including this acknowledges the importance of a third-party finance provider being party to information required for the ongoing assessment of the funded matter.


Beyond APAC, leading institutions including the Stockholm Chamber of Commerce (SCC) and International Chamber of Commerce (ICC) have introduced similar disclosure requirements, albeit in different forms. In September 2019, the SCC introduced a policy to encourage the disclosure of third parties with an interest in the outcomes of SCC administered disputes. In January 2021, Art. 11(7) of the 2021 ICC Rules came into force, requiring that parties disclose the existence and identity of “any non-party which has entered into an arrangement for the funding of claims or defenses and under which it has an economic interest in the outcome of the arbitration.”

Recoverability of the costs of funding was also considered by the ICC in its report on decisions in costs in international arbitration, published in December 2015.⁷ It concluded that there may be circumstances where it would be reasonable for the successful funded party to recover the costs of funding. This was the approach taken in Essar Oilfields v Norscot Rig, in which the English court upheld a costs award in an English seated ICC arbitration.⁸ The arbitrator in the case considered it reasonable and in the interest of justice to award indemnity costs and included £2 million in funding costs in his costs award.

Not all institutions deem specific rules regarding third-party funding to be necessary. Most notably, the LCIA chose not to include any funding-specific rules in its 2020 revisions, notwithstanding the fact that funded arbitrations regularly occur under the LCIA rules.

The normalization of legal finance in international arbitration

The inclusion of specific rules regarding arbitration funding in Australia, Singapore, Hong Kong and beyond demonstrates that legal finance in domestic and international arbitration is now commonplace across the globe. This comes at a crucial time as international arbitration is gaining more prominence across APAC, with 21 Australian arbitrators and 31 Singaporean arbitrators appointed to ICC-registered arbitrations in 2020 alone.

In Australia, the use of legal finance has evolved from its origins in class actions and insolvency-related disputes to include high value complex commercial disputes. The broadening of the funding framework is consistent with developments witnessed in other key jurisdictions.

In Singapore, the Ministry of Law expanded the scope of third-party funding framework to include domestic arbitration, certain proceedings in the Singapore International Commercial Court (SICC) and related court and mediation proceedings. This expansion furthers the development of the Singapore jurisprudence and could lay the foundation for the further broadening of the framework to cover other forms of litigation in Singapore.

Third-party funding has gained prominence in APAC in part due to the emergence of Hong Kong and Singapore as global arbitration hubs. In 2021, Singapore and Hong Kong ranked as two of the top three most preferred seats for arbitration behind London. The gains made by Singapore and Hong Kong are notable: For example, Hong Kong was chosen as a seat of choice by 22% of respondents in 2015 and by 50% in 2021.⁹ Recent ICC statistics affirm the importance of these seats, with a total of 45 ICC arbitrations seated in Singapore (26) and Hong Kong (19) in 2020.¹⁰ The ICC is now a confirmed authorized institution under the China-Hong Kong arrangement on interim relief.¹¹


The new ACICA Arbitration Rules and Expedited Arbitration Rules are significant for what issues they address and do not address. While Article 54 establishes disclosure requirements regarding the existence of funding and the identity of the funder, the information is often used for the purpose of running routine conflict checks. Notwithstanding those requirements, it is clear that the rules do not invite parties to engage in fishing expeditions over communications between a claimant and a funder or insurer for the purpose of obtaining funding or coverage. Similar efforts have been made in Singapore and Hong Kong to strike a balance between the disclosure of limited information for the purpose of conflict checks and avoiding satellite litigation that defendants and respondents often deploy or agitate as a means of delay. Across jurisdictions, there are clear cost disincentives for this type of activity.

Another notable trend has been the focus on establishing clear rules for streamlined and effective interim measures. For example, Article 37 of the ACICA Arbitration Rules sets out specific interim measures that an arbitral tribunal can order, which includes providing security for costs of any party.

Furthermore, Article 37.4 states that “[t]he Arbitral Tribunal may require a party to provide appropriate security as a condition to granting an interim measure”. The combined impact of these rules will likely give parties reason to pause before making applications for interim relief and will disincentivize defendants and respondents who might otherwise have pursued weak, or even baseless, applications for interim relief.

Lastly, the Hong Kong-Mainland China arrangement on interim measures improves the enforceability of Hong Kong awards against Mainland Chinese respondents. Hong Kong is the only seat outside Mainland China offering interim measures in Mainland China under the arrangement. In September 2021, HKIAC reported it has processed 50 applications under the arrangement since coming into force on 1 October 2019. Out of the 50 applications, 47 were for the preservation of assets. To date, 23 different Mainland Chinese courts have issued preservation orders which together cover RMB 10.9 billion or approximately $1.7 billion worth of assets. However, the arrangement is nascent, so parties should continue to monitor these developments.

Now that the framework is in place, it is important that both claimants and respondents involved in arbitrations in APAC become familiar with how best to avail themselves of funding opportunities. As they do, we expect to see both further revisions to the rules and significant growth in the demand for legal finance in the region in the near future.

1 SIAC Practice Note on Arbitrator Conduct in Cases Involving External Funding PN – 01/17.
2 Guidance Note 10.1.1., paragraphs 25-29.
3 Hong Kong International Arbitration Centre Administered Arbitration Rules 2018 (HKIAC Rules), Article 44.
4 HKIAC Rules, Article 34.4.
5 HKIAC Rules, Article 34.1.
6 HKIAC Rules, Article 45.3(e).
7 Decisions on Costs in International Arbitration – ICC Arbitration and ADR Commission Report, 2015, issue 2, ICC, 2015,
8 Essar Oilfields Services Ltd v Norscot Rig Management PVT Ltd [2016] EWHC 2361 (Comm).
9 International Arbitration Survey: Adapting Arbitration to a Changing World—2021, Queen Mary, University of London,
10 ICC Dispute Resolution 2020 Statistics,
11 ICC Dispute Resolution 2019 Statistics,

Matt Lee is a Principal at Burford with responsibility for leading its business in Australia. An Australian and US-qualified lawyer with trial, arbitration and appellate experience around the world, he works with companies, law firms, funds and investors engaged in complex commercial litigation and arbitration in Australia and in multi-jurisdictional disputes.

Emily Tillett is a Vice President at Burford with responsibility for leading its investment activity and operations in Hong Kong. A Hong Kong, Australian and New Zealand qualified lawyer, she has multijurisdictional expertise in complex commercial disputes. Prior to joining Burford, she was Of Counsel at Allen & Overy in Hong Kong.

Quentin Pak is a Director who leads Burford’s office in Singapore with responsibility for expanding Burford’s resources to support clients in Asia. Prior to joining Burford, he was the head of the Asia commodities business at Commonwealth Bank of Australia.