Is third-party litigation funding permitted? Is it commonly used?
Third-party litigation funding is allowed in the Netherlands. It is already common in mass claims, which are often litigated or settled through special claims vehicles. With regard to individual claims, third-party litigation funding is not very widespread, but the market is emerging. This applies to both court litigation as well as arbitration.
There seems to be no particular interest from the judiciary as to whether or not litigation in the courts is funded by a third party; a possible explanation is that, as explained in question 17, costs awarded in proceedings in state courts are fixed and bear no relationship to the real cost incurred by a litigant. At present, the legislator does not seem inclined to regulate third-party funding. However, as the market is emerging and third-party litigation funding will thus become more common, some form of regulation is to be expected, most likely in the domain of consumer claims.Restrictions on funding fees
Are there limits on the fees and interest funders can charge?
There are, in principle, no limits on the fees and the interest third-party funders can charge, other than the general limits of enforceability of contracts and the powers of courts to mitigate the effect of or amend contract clauses that should qualify as wholly unreasonable. These powers are rarely exercised in practice. The ultimate test for the validity of an agreement on fees and interest is whether the agreement runs contrary to good morals or public policy, in which case it is null and void. There is no published precedent for litigation funding, but one could imagine this could apply to a usurious arrangement.Specific rules for litigation funding
Are there any specific legislative or regulatory provisions applicable to third-party litigation funding?
Do specific professional or ethical rules apply to lawyers advising clients in relation to third-party litigation funding?
There are no specific professional or ethical rules applying to lawyers advising clients in relation to third-party litigation funding, but general professional and ethical rules apply. In this regard, a lawyer leaves no doubt as to whom he or she is representing; either the litigant or the funder, or both. If representing both with regard to the drafting of the funding agreement a lawyer should, for example, be aware of possible conflicting interests and confidentiality obligations.Regulators
Do any public bodies have any particular interest in or oversight over third-party litigation funding?
The Ministry of Justice and Security has demonstrated an interest in third-party litigation funding. The Ministry observed in 2013 that the market is emerging, but did not take steps to regulate it. The Ministry’s main concerns seem to be the accessibility of the legal system and the protection of the litigant in relation to the funder, especially if the litigant is a consumer.