Litigation funding is the process of providing external resources to cover the cost of a lawsuit and assists claimants who do not have access to financial resources to seek justice. Litigation finance companies or investors can provide financial resources to the litigant by assessing the potential return from litigation. Funds are then provided for litigation costs such as court costs, expert fees, witness fees and attorneys’ fees. Litigation finance is usually established on the basis of an agreement between the plaintiff and funding company to receive a benefit, usually depending on the outcome of the litigation, and when a benefit is obtained at the end of the litigation, the litigation finance company is reimbursed a certain percentage of that benefit. Please note that the financing provided is not a debt, it is seen as capital invested in a claim.
Litigation funding is not specifically addressed in Turkish law and there are no regulations prohibiting it. In this context, third-party funding agreements will be valid as long as their general terms are valid under Turkish law and in particular do not conflict with public order.
In addition, Article 164 of the Turkish Attorneys Act No 1136 stipulates that the value of the lawsuit or judgment or a certain percentage of the money, not exceeding 25%, may be agreed as an attorney’s fee.
Article 334 of the Turkish Code of Civil Procedure No 6100 provides for a legal aid procedure for persons who lack the means to pay the costs of litigation. A similar practice exists in criminal law matters, where a lawyer must be assigned to a suspect or defendant under certain conditions, regardless of whether the suspect or defendant requests one or not.
In the Turkish Code of Obligations, the freedom of contract is accepted as the basis for all contracts formed with the appropriate declaration of the express will of the parties over and against each other. Contracts that are not in a form or structured contrary to the contractual regulations established by law are valid unless they are contrary to the mandatory provisions of the law relating to general morality, personal rights or public order.
In this context, a non-party to the litigation may finance the litigation proceedings in accordance with the principle of freedom of contract and the general provisions of the Code of Obligations, and a litigation funding agreement may be signed between the parties. If the litigation funding agreements concluded within the framework of freedom of contract contain provisions contrary to mandatory provisions, general morality, personal rights or public order, these agreements or the offending terms may be declared null and void.
Litigation funding agreement is not a regulated concept in Turkish dispute resolution and the Turkish Court of Appeal has not issued any opinion on this mechanism to date. Therefore, non-legal rules that have been established in the system and shaped by judicial decisions do not exist for this field of application.
Turkish law does not contain specific regulations on litigation funding agreements within the scope of consumer credit rules. However, Article 17 of the Decree No 32 on the Protection of the Value of the Turkish Currency stipulates that if Turkish residents obtain loans from abroad, it is obligatory for such loans to be utilised through banks. Within the scope of this regulation, it can be argued that if funds are being provided to the claimant in Turkey then the financing companies should deliver such payments through an arrangement with a bank located in Turkey.
However, the authors understand that it is usually the case that funding arrangements are set up so that the costs and the fees for the litigation or arbitration cases are agreed to be paid to the legal counsel who is representing the claimant/plaintiff. In this case the funds do not actually come into Turkey or into the possession of the claimant/plaintiff and so the issue of localising funds does not arise.
Before third-party financiers finance a case or arbitration, they will need to be informed about its existence during the due diligence phase. In this context, the financier requests extensive information and documents from the claimant and its counsel. However, during the course of the proceedings, third-party financiers will be keen to keep abreast of the latest developments in the proceedings, and complying with third-party financiers’ requests for information may be claimed to be in breach of attorney-client privilege, a breach of confidentiality by the parties to the proceedings. Moreover, providing information to a third-party financier may lead to the third-party financier’s unlawful use of this sensitive information for its own benefit.
However, in practice, the authors believe that this risk is minimal since the funding agreement structure usually has an agreement involving the counsel of record and there are terms agreed to by both parties and counsel that client privilege extends to the lender and is covered by specific confidentiality provisions.
There is no general obligation to disclose in Turkey. The general principles of legal privilege tend to apply such that lawyers are prohibited from disclosing matters learned in connection with work entrusted to them. Lawyers have a duty to protect privileged information in the course of their communications for litigation finance, and on behalf of the client, the lawyer has a continuing obligation to make independent assessments and provide guidance to the client on the potential advantages and disadvantages of any proposed litigation finance transaction.
However, the bar associations to which the lawyers belong may also request the submission of an agreement with the parties, there is a remote risk this would include the funding agreement, in order to assess whether the statutory retainer fee has been collected.
Litigation funding arrangements may be the subject of a request from the other party to have it declared whether or not there is third-party funding. This will not usually include a requirement to provide the funding agreement. In arbitration proceedings requiring the deposit of the contract with the institution, or in cases where the existence of the contract must be confirmed to the court, such deposit or disclosure of the existence of the contract will be in question. In this case, the entire contract may need to be submitted.
In Turkish proceedings, adverse costs are the costs awarded by a reasoned judgment in proportion to the loss and the win, and imposed on the losing party in proportion to its loss. Since the funder is not party to the court case, it would not be likely for the funder to be held liable, unless they were to agree to put up a security for costs as part of the funding arrangement. Apart from that, the funder would not be liable.
Typical Litigation Costs
These costs are divided into two: the costs requested by the courts and the costs incurred by the parties themselves. Under the jurisdiction of Turkey, the adverse costs that may be the subject of litigation funding and for which a third-party funder may be liable are set out below.
Court fees
Court fees are one of the most important items to be spent on a lawsuit together with attorney’s fees. Fees are determined by the state in return for the justice-related services provided by the judicial bodies under the state. These fees, the most important of which are listed below, are regulated by Law No 492 on Fees.
The fixed judgment and writ fee is a fixed amount and is updated every year. As of 2025, the amount of this fee will vary between TRY615.40 and TRY1,013.90 before the courts of first instance, depending on the type of court.
The proportional judgment and decision fee is calculated as 68.31 per thousand of the value in dispute in the case of a decision on the merits in cases whose subject matter is related to a certain value.
At the end of the hearings, the court fees are divided between the losing and winning parties according to the ratio between the losing and winning parties. As a rule, the winning party is not liable for costs and fees in proportion to the amount it has won. If the claimant has paid the costs in advance at the time of filing the claim, the losing defendant is entitled to recover these costs from the losing defendant.
If a litigation funding agreement is entered into, the claimant will undoubtedly stipulate in the agreement that the third-party funder will also fund the legal fees. In such a case, the third-party funder will pay the legal fees on behalf of the claimant or provide the claimant with funding to pay them.
In practice, although it is accepted to pay the fees on behalf of third parties, these payments are generally made by the attorneys involved in the case through the UYAP online system (National Judicial Network Platform). In the case of litigation funding, the authors believe that the most appropriate method would be for the funding to be paid by the funder to the attorney on behalf of the claimant, within the framework of the provisions to be determined in the litigation funding agreement, and for the attorney to pay them on behalf of the claimant with the funding from the funder.
Court expenses
The expenses of the proceedings are determined by Article 323 of the Code of Civil Procedure (CCP). Some of the most frequently encountered and most important judgment expenses in practice, not all of which consist of the following, are as follows:
Unlike court fees, there is no tariff for court expenses and they are determined according to the general costs in practice in the country at that time. To give an example for 2025, notification fees vary between TRY500–1,000 and expert fees vary between TRY5,000–10,000.
At the end of the hearings, the expenses are divided between the losing and winning parties according to the ratio between them. As a rule, the winning party is not liable for costs in proportion to the amount it has won. If the claimant has paid the costs in advance at the time of filing the claim, the losing defendant is entitled to recover these costs from the losing defendant.
Attorney fees
According to Article 323 of the CCP, in cases pursued by an attorney, “the attorney’s fee to be determined in accordance with the law” is considered a litigation cost, and the attorney’s fee agreed between the parties under the Attorney’s Act, and other applicable laws are not considered a litigation cost. The attorney’s fee, which is determined as court costs, is determined on the basis of the amount that is decided as a result of the lawsuit.
The calculation of the attorney’s fee is explained in the minimum fee tariff. The minimum fee tariff is published every year in October. When calculating the attorney’s fee, it is first necessary to determine whether the case is a monetary case or a non-monetary case. Then the attorney’s fee is calculated according to these two situations.
The attorney’s fee thus determined shall also be divided between the losing and winning parties in proportion to their respective losses and gains. As a rule, the winning party is not liable for costs in proportion to the amount of the claim. If the claimant has paid the costs in advance at the time of filing the claim, the claimant is entitled to recover these costs from the losing defendant.
The attorney’s fee, which is not considered to be a legal expense and is determined in accordance with the attorney’s agreement between the parties, should be subject to the litigation funding agreement separately from this item.
Expert opinion
In principle, the dispute is resolved by the judge. However, in cases requiring special and technical knowledge, the judge decides on complex and specialised matters with the help of experts and the opinions to be obtained from them.
The expert opinion referred to under this heading is an expert opinion prepared by the expert at the request of the party, not by the court, and differs in this respect from an appointed expert opinion. It is an opinion submitted to the file by the parties on their own initiative and at their own request. In addition, the judge may consult an expert upon request or ex officio, and the selection of such an expert is entirely up to the judge, also known as a court-appointed expert.
However, it is at the discretion of the parties to request an expert opinion and to choose the expert. Furthermore, although the costs of the appointed expert are considered to be a cost of the proceedings, the costs of the expert’s opinion (submitted by the parties) are not a cost of the proceedings, but a cost incurred by the parties themselves.
In this context, the payment to be made to the expert appointed by the court will be covered by the funder from the costs of the proceedings in the event of litigation funding, but the payment of the expenses related to the expert opinion submitted by the parties will only be possible with the agreement of the party and the funder.
Please note that some of the above costs and expenses (such as court fees and expenses) may be repeated before the higher courts (Regional Court and Court of Appeal), which are the appellate courts.
Litigation
Although the term “security for costs” is a legal concept commonly used in Anglo-Saxon legal systems, Turkish courts are somewhat unfamiliar with this concept. This security means that a claimant is required by the court to provide a security or collateral to ensure that the defendant can cover the costs of the proceedings in the event that the claimant loses the case.
In Turkey, the closest practice to this guarantee is the term “foreign guarantee” or “foreign security”. Where the claimant is resident/established in a country other than Turkey, the court may require the claimant to deposit a certain amount of cash or to submit a bank letter of guarantee for the same amount. This security amount is usually around 20–30% of the amount of the claim.
The obligation to lodge a security deposit depending on the grounds of foreignness is regulated by the Law on Private International Law and Procedural Law of 12.12.2007, No 5718.
Pursuant to paragraph 1 of Article 48 of the Law, “foreign real and legal persons who file a lawsuit, participate in a lawsuit or pursue an enforcement proceeding before a Turkish court shall be obliged to deposit the security to be determined by the court in order to cover the costs of the lawsuit and proceedings as well as the damages and losses of the other party”.
Paragraph 2 of Article 48, which regulates the exemption of security, provides that the court shall exempt the claimant from the security on the basis of contractual, statutory or de facto reciprocity.
Turkey is a party to the Exemption Of Legal Persons From Security For Costs Under The Hague Convention On Civil Procedure dated 1954, which constitutes a contractual reciprocity. Therefore, claimants from countries that are party to this Convention are also exempt from this type of security for costs.
In the case of a country that is not a party to the Convention, it cannot be said that a security obligation arises definitively. In this case, the court will assess the statutory or de facto reciprocity.
Another security in Turkish courts is the amount of security required by the court when applying for an interim attachment or an interim injunction. This amount is usually between 10% and 20% of the amount requested for the interim attachment.
Arbitration
With respect to arbitration proceedings there are provisions in some of the institutional rules to allow for an order for security for costs. It is most commonly requested in investment arbitration where claimants have lost assets by government action and are being funded. However, tribunals are often reluctant to make such orders unless there is a clear basis for doing so.
Under the name of Legal Protection Insurance, there is a type of insurance in Turkey that covers the expenses related to civil lawsuits brought by the insured against third parties or by third parties against the insured.
Accordingly, the expenses covered by Legal Protection Insurance can be listed as follows:
To explain the points that are subject to this guide in detail below.
Attorney Fees
If the insured needs to hire a attorney, the attorney’s fee is covered. It is usually paid within the limits specified in the policy.
Court Expenses
Fees, expert fees and court costs incurred in the process of filing or defending a lawsuit are covered by the insurance.
Adverse Costs
If the insured loses the case and the court orders the other party to pay the costs, these expenses may be covered under the policy.
Mediation and Conciliation Expenses
If alternative remedies (mediation or conciliation) are used before or during litigation, the costs incurred in this process are covered.
The Union of Turkish Bar Associations publishes the minimum fee tariff for lawyers in January each year, and lawyers are prohibited from agreeing on an attorney fee below this fee tariff. In the fee agreement to be made between the parties and lawyer, the attorney fee can be determined hourly or in the form of a success fee. However, in any case, this fee should not be below the tariff published by the bar association.
Article 164(5) of the Attorneyship Law governs the issue of attorney fees. An attorney’s fee is the amount or value of the legal assistance rendered by the attorney.
The value of the action or judgment or a certain percentage of the money, not exceeding 25%, may be agreed as the attorney’s fee.
The agreements to be made pursuant to the second paragraph may not stipulate that a part of the property and rights other than the money subject to the lawsuit shall belong to the attorney in kind.
No attorney fee may be agreed below the minimum fee tariff for attorneys (Amended third and fourth sentences: 13/1/2004 – 5043/5 Art).Please note that this Article prohibits lawyers from doing unpaid work or work on a “no win no fee” structure.
In cases where the attorney’s fee has not been agreed upon, or there is no written fee agreement between the parties, or the fee agreement is unclear or disputed, or the provision of the fee agreement regarding the fee is deemed invalid, an amount between 10% and 20% of the value of the claim on the date of finalisation of the judgment shall be determined as the attorney’s fee by the authority authorised to examine the fee objections, provided that it is not below the minimum fee tariffs in cases and works whose value can be measured in money. In cases and affairs whose value cannot be measured in money, the minimum attorney’s fee tariff shall be applied.
At the end of the case, the attorney’s fee to be charged to the other party based on the tariff shall belong to the attorney. This fee may not be set off or garnished due to the debt of the business owner.
There are attorneys’ fees set by the courts in the course of the litigation. This is what the court awards in its judgment. These are the only fees recognised and awarded by the Turkish courts. Separate to that, the parties may also agree on attorneys’ fees set by attorneys’ agreements between the parties subject to private law. Attorney contracts are unique contracts that impose obligations on two parties and are subject to freedom of contract. It is not possible for a lawyer who attempts to finance attorneys’ fees to follow up the case pro bono. In addition, a no-fee agreement in the event of failure (losing a case) may give the client the perception that the lawyer “guarantees the outcome”. However, the lawyer cannot guarantee the outcome of the work, and such an agreement may be deemed invalid.
Within the framework of the explanations above, in the guise of litigation funding, the charging of an attorney’s fee or making a similar fee subject to litigation funding will only be valid if it is done in accordance with the Attorneyship Law. According to the Law on Attorneys, “in cases where the attorney’s fee has not been agreed upon, or there is no written fee agreement between the parties, or the fee agreement is unclear or controversial, or the provision of the fee agreement regarding the fee is deemed invalid; in cases and affairs whose value can be measured in money, ten percent to twenty percent of the value of the claim on the date of finalization of the judgment according to the labor of the lawyer for the part of the case won by the authority authorized to examine the fee objections, provided that it is not below the minimum fee tariffs between the amount of the fee shall be determined as attorney’s fee”.
As explained above, a “success fee”, which states that the fee will be charged only when the case is won, suggests that the lawyer may engage in unethical behaviour in order to be entitled to his/her fee rather than in an effort to provide justice. It is possible to conclude success fee agreements, provided that they are not contrary to the general provisions.
Providing that attorneys’ fees alone cannot be claimed (or, if claimed, will be refunded), agreements are not classified as “success-related” remuneration. This is because “even in the event of failure in “tied” agreements, a certain fee would be entitled to be paid”. Therefore, such contracts are not considered to contravene the law’s provision of no free legal aid. The important point in the law is that legal assistance can only be provided if it can be done for a fee.
There is only a very narrow category of participation by non-Turkish lawyers or firms allowed in the Turkish legal market. Non-lawyer ownership is not permitted. The narrow options are set out below.
In the regulations on attorney partnership, foreign attorney partnerships wishing to operate in Turkey within the framework of the foreign capital incentive legislation may only provide consultancy services on foreign and international law, provided that they are established in accordance with this Law and the attorney partnership regulation. This restriction shall also apply to Turkish citizens or foreign lawyers working in the foreign law partnership. For this type of law partnership, it is not required for the partners to be registered with the Bar association. The application of this rule is based on reciprocity.
Partnership shares and ratios are freely determined. Partners’ shares may only be transferred to partners or third parties who are lawyers. In the event that the transfer of the share of the partners is prohibited by contract or the partners do not approve the transfer of the share, the heir is not a lawyer or does not accept the partnership, the partner leaves the practice of law due to retirement or health reasons, is removed from the Bar register, is dismissed or dismissed from the profession, or their share in the partnership is seized, the partnership share is taken by the other partners in proportion to their shares over its real value.
A law partnership may not acquire rights and property other than its purpose, may not establish partnerships with third parties, and may not acquire shares of legal entities. Partners may not be a partner of more than one law partnership, may not have an office other than the office of the partnership, and may not pursue lawsuits and business independently.
The type of articles of association of a law partnership should include: The principles, forms and conditions of the matters such as the identity information of the partners, the title and address of the partnership, partnership shares, relations between the partners, division of labour related to the business and cases, powers of the managing partners, management and representation of the partnership, the board of partners, the duties and powers of the board, sharing of income and expenses, audit, exit from the partnership, expulsion, transfer of shares, termination of the partnership, termination, dissolution and liquidation shall be regulated in the regulation prepared by the Board of Directors of the Union of Turkish Bar Associations, approved by the Ministry of Justice and announced in the Official Gazette.
The taxes that may be applied to attorney fees are (i) VAT, (ii) income tax, (iii) withholding tax and (iv) stamp duty.
Withholding Tax
According to the Income Tax Law, legal fees paid to self-employed lawyers should be taxed in accordance with the provisions on income from self-employment. Accordingly, a withholding tax of 20% is levied on the payments made by the clients to the lawyers on the basis of their self-employed activities.
In addition, a 20% withholding tax is required not only on payments made by clients to attorneys for legal services but also in the following cases:
VAT
In Turkey, law firms and self-employed lawyers must charge VAT on their services and declare it in their periodic VAT filings. According to the regulation of the Value Added Tax General Implementation Communiqué on “Attorney Fees”, “The payment of attorney fees ruled by the courts to the winners of the lawsuit is not subject to VAT. The VAT is added to the fee charged and invoiced by lawyers for the legal services they provide for their clients. The VAT is 20%.”
If the client is a VAT-registered business and the legal fees are incurred for business-related purposes, the VAT paid on the legal fees can be reclaimed as input VAT on their VAT return, subject to the general VAT deduction rules.
Income Tax
If the attorney is self-employed, they pay income tax under the Income Tax Law on all income earned during the year. The attorney calculates and pays this tax in the annual income declaration. The income tax brackets change from year to year.
Stamp Duty
If an attorney-client agreement is concluded between the lawyer and their client, stamp duty is payable. This tax is 9.48 per thousand of the amount specified in the contract. In Turkey, all contracts involving a sum of money are subject to stamp duty. Therefore, a litigation funding agreement to be signed between the parties will also be subject to stamp duty.
Resident companies in Turkey are obliged to apply withholding tax upon certain types of payments made to non-residents.
This issue will be the subject of a cross-border payment. When a third-party funder – acting out of a body corporate registered in that jurisdiction – is subject to any portion of returns paid to it under a third-party funding agreement, withholding tax (WHT) on payments made to non-residents should be considered for the Turkish fund receiver. Whether fund repayments from Turkey to foreign entities are subject to WHT depends on the legal nature of the payment and whether there is a Double Taxation Treaty (DTT) between Turkey and the recipient’s country.
In Turkey, WHT obligations on returns paid to non-resident third-party funders under a third-party funding agreement depend on the nature of the payment and the existence of DTTs between Turkey and the jurisdiction where the funder is registered.
Some types of payments and their local WHT rates are the following.
Loan Repayment
If the payment is a loan repayment (principal amount), no withholding tax applies.
However, if interest is paid on the loan, it is subject to 10% WHT (this rate may be reduced under a DTT).
Dividend (Profit Distribution) Payments
If the repayment is considered a profit distribution (dividend payment) to investors, it is subject to 15% WHT (which may be reduced under a DTT).
Professional Service Fees
If the payment is made as a service fee (eg, to fund managers or advisers), it is subject to 20% WHT (which may be reduced under a DTT).
Capital Repayment
If the repayment is considered a return of capital to investors, it is not classified as income and no withholding tax applies.
If Turkey has a DTT with the recipient’s country, the WHT rate may be reduced or eliminated depending on the treaty provisions. If no DTT exists, Turkey’s domestic WHT rates apply.
Turkey has Double Taxation Treaties (DTTs) with the following jurisdictions from the list:
Turkey does not have a DTT with:
Without a DTT, standard Turkish withholding tax rates (eg, 15% on dividends, 10% on interest, 20% on royalties and professional services) typically apply.
Ireland
The Turkey-Ireland DTT generally allocates taxation rights to the recipient’s country if the income is not derived from a permanent establishment (PE) in Turkey.
If the Irish entity has no PE in Turkey, no Turkish WHT should apply.
If there is a PE in Turkey, WHT may apply under Turkish domestic law (typically 20%).
Luxembourg
The Turkey-Luxembourg DTT follows a similar principle.
If the Luxembourg entity does not have a PE in Turkey, no Turkish WHT applies on professional service fees.
If there is a PE in Turkey, then Turkish domestic WHT (20%) may apply.
Delaware (USA)
Under the Turkey-US DTT, professional service income is generally taxable only in the US unless the recipient has a PE in Turkey.
No Turkish WHT applies if there is no PE in Turkey.
If a PE exists in Turkey, standard Turkish WHT (20%) applies.
Jurisdictions Without a DTT (Standard Turkish WHT Applies)
Cayman Islands
There is no DTT with Turkey, and standard Turkish WHT (20%) applies to professional service payments.
Guernsey
There is no DTT with Turkey, and professional services payments are subject to 20% WHT.
Jersey
There is no DTT with Turkey, and 20% WHT applies to professional service payments.
Cumhuriyet Cad. No 25 K.6
Taksim
Beyoglu 34437
Istanbul
Türkiye
+90 212 361 50 66
+90 212 361 50 67
info@senguler.av.tr www.senguler.av.trOverview
In recent years, litigation funding has gained popularity in Turkey, particularly in relation to investment arbitration, where investors with significant claims are left with little funds due to the actions of states. There are also some examples of litigation funding being used in local court litigation which would not be pursued without funding, due to the costs involved.
What is Litigation Funding?
Litigation funding, also known as legal funding or third-party funding, is a financing model where the financier provides funds to allow a significant claim to be pursued in exchange for a percentage of the claimant’s recovery. Such funding allows a party to litigate or arbitrate without bearing the costs upfront, in circumstances where there are commercial constraints or because they prefer to use their cash elsewhere.
Civil litigation funding provides a valuable means of access to justice for litigants who do not have sufficient available funds and is a cost-effective funding tool for litigants.
From the Perspective of the Funder
The third-party funder may receive a percentage of the value of the funds recovered at the end of a case based on a pre-agreed payback formula. There is an inherent risk in the investment which often means high returns are expected from the sums invested. If the funded party loses the case, the funder is usually not able to recover its investment.
Third-party funding is an investment on the part of the funder and allows the funder to invest in the claimant’s or defendant’s claim, without any other involvement in the litigation, in return for a share of the damages awarded as a result of the litigation. In large-value claims, this can be a significant investment benefit, sometimes yielding three to four times the funds invested.
Litigation Funding in Turkey
As part of the continental European legal system, the Turkish courts have yet to make any decisions on the issue of funding. In that sense Turkish courts have not developed any decisions/precedents relating to litigation funding, in parallel with the way that Anglo-American legal regimes have considered the matter.
However, as it becomes more common, we expect that Turkish legislation and court decisions will be forthcoming. At present it can be said that there are some Turkish companies that use such funding, especially in international commercial and investment arbitration cases such as those under the rules of the ICC and ICSID.
To some extent it could be said that some lawyers in Turkey engage in a type of litigation funding, when they agree to take on a case which has strong merits for a minimal fee or a success fee. However, there are restrictions under the Bar rules which prevent a full continency fee, no win/no fee arrangement. Since the lawyer does have the duty as a quasi-public official to uphold the principles of justice, a pure contingency fee arrangement could contravene this status.
We have already mentioned that litigation funding is not very common in Turkish litigation and that the funding model is mostly seen in arbitration. Therefore, both litigation funding and the funding model in arbitration will be discussed together in this note.
Benefits of Litigation Funding
Perhaps most importantly, the funded party has the opportunity to remove the financial risk of pursuing a claim in exchange for a share of the proceeds.
In addition, some funders, particularly those with experienced legal teams, can provide effective advice to claimants as to which lawyers and counsel are best suited to the case and are able to provide a comprehensive view of the merits of the case.
The main reason for the development of litigation funding is to facilitate access to justice. However, since litigation in the Turkish judicial system can take years to conclude and getting interim injunctions to stop the dissipation of assets is tricky, it is often difficult to collect debts due at the end of the case. This means that currently many funders shy away from such a long and financially risky process.
Additionally, funding provides access to justice, especially for those who do not have the financial means to resort to arbitration.
The ability of the financially weaker claimant to obtain third-party funding significantly changes the position of the parties in the proceedings, restoring the balance where the respondent is a state with financial power, thus providing the claimant with an alternative to giving up before they start or settling for the wrong reasons.
In this respect, third-party funding levels the playing field between materially unequal parties and prevents wealthy companies from gaining an unfair advantage in the arbitration process.
An added benefit of using litigation funding is that the funders often have strong legal teams themselves and so are able to use their legal knowledge, experience and connections to the best legal teams to ensure the claimants are given the best opportunity to make their claim.
Whether to fund or not is determined after an assessment by the funder itself and a review by an independent law firm on the likelihood of winning the case and the recoverability of the money. It is always a win-win situation for the claimant if the case is assessed and approved in this way since they gain confidence that they have a strong case and a good team to run it for them.
In Which Cases is Litigation Funding Most Commonly Used?
From our knowledge of the Turkish market, we know that litigation funding mechanisms are most often used in international arbitration cases where the costs of the proceedings are very high. Arbitration is generally an expensive exercise. In addition to the costs of the institution and counsel, which are often substantial, the parties will incur expenses in relation to witnesses, quantum experts, translations, travel and accommodation. Plus, the parties’ internal costs (time spent by management and other staff in gathering information and documents and briefing counsel) can also be substantial.
Furthermore, at the outset of the arbitration, the parties may be charged a fee to cover the costs of preparing an legal assessment to present to the funder.
The most common type of arbitration cases which have attracted and received funding in Turkey are investment arbitration cases. Mostly where Turkish investors have had their investment illegally confiscated by the state. In particular, many relate to alleged breaches of the BIT between Turkey and Central Asian states. The resulting losses to the Turkish investors have left them in a weak economic position, but where they have legitimate claims, funding companies have stepped in to enable ICSID and other claims to be brought against the offending states.
How Does the Process Work?
In practice, litigation funding agreements mean the funders agree on a budget for legal fees and other costs which they fund during the arbitration. They agree with the claimant that if the claim is successful, they will be entitled to an uplift on their funding amount and then once that has been paid to the funder, the claimant receives the rest of the award monies.
The role of the funder in litigation funding is usually that of a passive external investor. In practice, the funder may monitor the case after agreeing to fund the case. In this context, the funder monitors the communications, documents and pleadings filed in the case.
Defendants also benefit from litigation funding, although less frequently than claimants. Parties may apply directly to litigation funding companies or through their lawyers. The party with a legitimate claim but which is in financial difficulty will first contact the funding company and seek an assessment to see if they can get funding assistance.
After conducting detailed due diligence on the case file, the funding company will decide whether or not to provide litigation funding. Finally, a litigation funding agreement is signed between the claimant (and, in some cases, the defendant) and the third-party funder, whereby the funder will provide some or all of the financial resources necessary for the claimant to participate in the proceedings.
What Are the Risks?
For the funder obviously the risk of losing the case is the biggest issue, which is why they are so keen on their due diligence. Some potential litigants are concerned that there could be some comeback to them and they could face bills from the funder. That is usually taken care of by the funding agreement whereby the funder only has the right to seek recovery where the party seeking funding has breached their obligations.
The criticism of third-party litigation funding is that it commodifies justice by creating a market for investing in litigation.
Third-party funding can also raise ethical issues in some cases. For example, the principle of confidentiality of information and documents in the attorney-client relationship. Depending on the terms of the funding agreement, the fact that a party is being funded by a third party may also reduce the claimant’s willingness to settle.
Conclusion
Although litigation funding is not very common in Turkish court cases, in recent years, it has been seen as a great opportunity for Turkish litigants in international arbitration such as ICC and ICSID. In particular, for a claimant whose economic situation is such that they are unable to pursue the case, but who has a strong case, the possibility of funding is the greatest remedy.
Proceedings in Turkish courts are lengthy and the judgments handed down at the end of these long periods are not fully satisfactory to claimants due to the fluctuating financial situation of defendants after many years. For this reason, funding companies are often reluctant to fund such cases.
Not only because of the Turkish judicial system, but also because funding companies prefer to fund claims denominated in foreign currencies, defendants of foreign origin and cases with a defendant of TRY10 million or more. Claims in Turkish lira which take time to conclude are subject to the negative effects of inflation and devaluation, such that the original claim amounts can be seriously eroded.
Nevertheless, the involvement of a funding company in litigation should be seen as a great opportunity for plaintiffs to get justice when faced with a good claim but where they do not have the means to pursue it. Funding can right the balance of justice.
Cumhuriyet Cad. No 25 K.6
Taksim
Beyoglu 34437
Istanbul
Türkiye
+90 212 361 50 66
+90 212 361 50 67
info@senguler.av.tr www.senguler.av.tr