Comparative Analysis of Litigation Funding Frameworks in the DIFC and ADGM: A Strategic Legal and Regulatory Assessment

Constitutional Foundations and the Sharia Context

The judicial landscape of the United Arab Emirates operates on a dual-tier structure that divides the domestic civil law “onshore” jurisdictions from the common law “offshore” financial free zones¹. While the federal civil courts are heavily influenced by Sharia jurisprudence, the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM) operate as independent, self-contained judicial enclaves⁴. These offshore centers have established their own civil and commercial laws, procedural rules, and specialized infant judiciaries designed to align with international standards⁴. Understanding how these two jurisdictions approach third-party litigation funding (TPF) requires an examination of their constitutional foundations and their relationship with both domestic Sharia principles and English common law⁸.

In the onshore UAE courts, TPF is not governed by any dedicated statutory framework¹. While not explicitly prohibited, its validity under onshore law remains a complex question of public policy¹. Under Sharia law, financial transactions must avoid riba (usury or unjust interest), gharar (excessive speculation or uncertainty), and maisir (gambling or games of chance)¹. Onshore litigation funding arrangements must be carefully structured to avoid these prohibitions¹.

Legal scholars and practitioners argue that commercial litigation funding does not violate Sharia principles when structured as a non-recourse investment rather than a speculative bet or an interest-bearing loan². This is supported by the Sharia principle of maslaha (public interest), which recognizes TPF as a tool that provides access to justice for economically disadvantaged claimants².

However, because onshore courts award only nominal legal costs to successful parties, a funder’s return cannot easily be recouped from the losing opponent³. This commercial reality makes onshore litigation funding rare and highly risky³.

Conversely, the offshore jurisdictions of the DIFC and the ADGM have established clear rules for TPF¹. Both jurisdictions have moved away from the historical English common law doctrines of maintenance and champerty—which once prohibited third-party funding to prevent speculative litigation⁸. The DIFC and ADGM courts recognize that TPF supports access to justice and allows corporate litigants to manage legal risk off-balance sheet⁸.

However, the legal mechanism through which English law is integrated differs between the two zones⁴. The ADGM directly imports English common law, including the rules of equity and specific English statutes, “in force in England” via the Application of English Law Regulations 2015⁴. The DIFC, on the other hand, drafts its own independent statutes modeled on English common law principles, using English precedents primarily as persuasive authority⁴.

The UAE litigation funding landscape differs significantly between the onshore UAE courts, the Dubai International Financial Centre, and the Abu Dhabi Global Market.

The onshore UAE courts operate under a civil law system influenced by Sharia principles. Third-party litigation funding is not regulated by a dedicated statutory framework, although it is not expressly prohibited. Its validity depends on general contract law, public policy considerations, and careful structuring to avoid issues such as riba, gharar, or maisir. Cost recovery in the onshore courts is generally limited, which makes litigation funding commercially more difficult in practice.

The Dubai International Financial Centre, or DIFC, operates as an independent common law jurisdiction with its own courts and procedural rules. Third-party funding is expressly permitted under Practice Direction No. 2 of 2017. The DIFC adopts a disclosure-based and flexible approach, allowing parties to use litigation funding while requiring transparency regarding the existence of the funding arrangement and the identity of the funder.

The Abu Dhabi Global Market, or ADGM, also operates as an independent common law jurisdiction, but it directly applies English common law through its own legal framework. Third-party litigation funding is expressly permitted and regulated under the ADGM Litigation Funding Rules 2019. Compared with the DIFC, the ADGM framework is more prescriptive and includes specific requirements relating to funder eligibility, capitalization, mandatory contractual terms, and conflicts management.

In practical terms, the DIFC offers greater contractual flexibility, while the ADGM provides a more codified and structured regulatory model. Both jurisdictions are more developed than the onshore UAE courts in their treatment of litigation funding.

Funder Eligibility and Capitalization Requirements

The regulatory frameworks of the DIFC and the ADGM diverge significantly in their approach to funder eligibility and capitalization requirements¹⁴. The DIFC uses a light-touch regulatory model that does not impose net-asset requirements or institutional licensing on third-party funders¹⁴. Under Practice Direction No. 2 of 2017 (PD 2/2017), a “Funder” is defined as any person or entity independent from the funded party and their legal representatives that provides funding in exchange for an economic benefit linked to the outcome of the proceedings²¹. This broad definition permits corporate parents, boutique investment funds, or private individuals to act as funders¹⁴. The DIFC court relies on party autonomy and professional legal ethics to manage funder competence and liquidity¹⁴.

In contrast, the ADGM uses a prescriptive, statutory approach designed to ensure the institutional credibility and solvency of funders operating in its jurisdiction²³. Under the ADGM Litigation Funding Rules 2019, a Litigation Funding Agreement (LFA) is valid and enforceable only if the funding entity satisfies strict statutory criteria⁹:

• Principal Business Test: The funder must carry on the funding of proceedings to which it is not a party as its principal business²³. This prevents casual, ad-hoc commercial entities from entering into enforceable LFAs within the ADGM²⁴.
• Capital Adequacy Threshold: The funder must hold qualifying assets, defined strictly as cash or cash equivalents, of not less than USD 5 million (or its foreign currency equivalent)²³. This threshold ensures that the funder has the financial capacity to meet capital calls throughout the life of the dispute²⁴.
• Continuous Compliance and Notification: These financial requirements are ongoing²⁴. If a funder foresees or has reason to believe that its qualifying assets will fall below the USD 5 million threshold, it must notify the funded party immediately²⁴.
• Independence and Ownership Bans: To prevent structural conflicts of interest, an ADGM-compliant funder must not be owned, directly or indirectly, by a lawyer or law firm representing the funded party, or by any legal practitioner who referred the funded client to that specific funder²³.

Mandatory Provisions of Litigation Funding Agreements

The contractual freedom of parties to draft LFAs is structured differently in each jurisdiction¹⁴. In the DIFC, the court does not mandate specific contractual clauses or regulate risk allocation, termination rights, or settlement vetoes¹⁴. Under PD 2/2017, these elements are left to commercial negotiation and professional judgment¹⁴. While this provides flexibility, it places a higher drafting burden on legal practitioners to ensure that the LFA remains enforceable and does not trigger common law objections¹⁴.

The ADGM Litigation Funding Rules 2019 reject this laissez-faire model, requiring specific mandatory provisions to be included in the text of any LFA²³. If these statutory terms are omitted, the agreement may be declared unenforceable⁹. An ADGM-compliant LFA must be in writing and contain clear provisions addressing the following elements:

• Scope, Quantum, and Tranche Timings: The LFA must define the scope of the funded proceedings, the total capital committed, and the exact timing or conditions for releasing each funding tranche²³.
• Funder Recovery Mechanism: The agreement must specify the funder’s recovery terms, including the timing and manner of payment from any settlement or judgment⁹.
• Adverse Costs and Insurance Premium Liability: The contract must state whether the funder is liable to meet any adverse costs orders and pay the premiums for adverse costs insurance²⁴.
• Settlement Control Limitations: The LFA must define the funder’s role in settlement discussions²⁴. It must ensure the funder cannot influence the lawyer to take control of the dispute or reject a reasonable settlement²³.
• Statutory Grounds for Termination: The funder cannot terminate the LFA at will²⁴. The agreement must list the specific, limited circumstances under which the funder may terminate, and explicitly state that termination is prohibited on any other grounds²⁴.
• Confidentiality and Privilege Protection: The LFA must contain mutual confidentiality clauses and place an explicit duty on the funder to preserve legal professional privilege²⁴.

The DIFC and ADGM take different approaches to funder eligibility and capitalization.

In the DIFC, there is no prescribed minimum capitalization requirement for litigation funders. Practice Direction No. 2 of 2017 defines a funder broadly as an independent person or entity that provides funding in exchange for an economic benefit linked to the outcome of the proceedings. The DIFC does not require the funder to conduct litigation funding as its principal business, nor does it impose mandatory statutory terms on the funding agreement. Independent legal advice is recommended as a matter of good practice, but it is not imposed as a strict statutory condition. Conflicts of interest are managed through general professional conduct rules and court oversight.

By contrast, the ADGM imposes more detailed statutory requirements. Under the ADGM Litigation Funding Rules 2019, a funder must carry on litigation funding as its principal business. The funder must also maintain qualifying assets of at least USD 5 million, or the equivalent amount in another currency, in cash or cash equivalents. The funding agreement must contain mandatory provisions addressing matters such as the scope of funding, timing of funding tranches, termination rights, adverse costs, insurance premiums, settlement control, confidentiality, and privilege protection. The ADGM also restricts ownership links between funders and legal practitioners representing the funded party in order to prevent conflicts of interest.

Accordingly, the DIFC framework is more flexible and commercially open, while the ADGM framework is more prescriptive and designed to ensure funder solvency, independence, and institutional credibility.

The Disclosure and Notification Regimes

To maintain procedural transparency and prevent conflict of interest issues, both the DIFC and the ADGM enforce strict disclosure rules¹⁴. However, they apply different standards regarding the information that must be disclosed to opposing parties and the court¹⁴.

Under DIFC PD 2/2017, a funded party must notify all other parties to the dispute and the DIFC Courts Registry of both the existence of the LFA and the specific identity of the funder¹⁰. The funded party is not required to disclose a copy of the actual LFA, or any of its specific commercial terms, unless the Court orders otherwise¹⁰.

In contrast, the ADGM rules require a funded party to provide written notice of the fact that an LFA has been entered into, but they do not require the automatic, upfront disclosure of the funder’s specific identity or the terms of the agreement²⁴. If an opposing party requires the funder’s identity or access to the LFA’s terms, they must apply directly to the ADGM Courts for a disclosure order²⁴.

Both jurisdictions enforce strict timelines to ensure that funding arrangements are disclosed before key procedural steps¹⁴.

In the DIFC, a funded party must notify the other parties and the DIFC Courts Registry of the existence of the litigation funding agreement and the identity of the funder. Where the funding agreement is executed before case management in a Part 7 claim, disclosure should be made in the Case Management Information Sheet submitted before the Case Management Conference. For other claims where the funding agreement exists before proceedings begin, disclosure should be made as soon as practicable after commencement, such as in the claim form or particulars of claim. If the funding agreement is entered into after case management or after commencement of proceedings, written notice must be served within seven days of execution.

In the ADGM, the funded party must provide written notice that a litigation funding agreement has been entered into. Where the agreement exists before proceedings commence, notice should be given as soon as reasonably practicable after commencement. If the funding agreement is entered into after proceedings have begun, written notice must be served within seven days of execution. Unlike the DIFC, the ADGM does not automatically require upfront disclosure of the funder’s identity or the full terms of the funding agreement. A party seeking that information must apply to the ADGM Courts for a disclosure order.

The result is that the DIFC follows a broader upfront disclosure model, while the ADGM adopts a narrower initial notification model, with further disclosure available by court order where appropriate.

Legal Practitioner Ethics and Codes of Conduct

The integration of TPF into offshore dispute resolution is supported by strict professional codes of conduct that regulate the relationship between legal practitioners, their clients, and third-party funders²². These ethical codes are designed to preserve the independent professional judgment of legal advocates and prevent commercial funders from controlling the litigation²².

In the DIFC, these ethical boundaries are defined by Order No. 4 of 2019, which establishes the Mandatory Code of Conduct for Legal Practitioners²². This is supplemented by the Supplementary Code of Conduct Practice Direction (Supplement)²⁹. Under these rules, DIFC practitioners face specific professional restrictions:

• Preservation of Independent Professional Judgment: A legal practitioner must not be swayed by any instructions or commercial interests of an involved funder²². The practitioner is prohibited from taking instructions from the funder rather than the client, unless the client has provided explicit, written authorization allowing the practitioner to do so²².
• Written Disclosure of Referral Fees: Practitioners are strictly prohibited from collecting or receiving any referral fees, commissions, or benefits in kind from a third-party funder for referring a client, unless full written disclosure is made to the client²². Where a practitioner recommends a specific funder, that recommendation must be based on the best interest of the client²².
• Mandatory Cost and Risk Advisory: Before an LFA is signed, a DIFC practitioner must advise the client on the impact of the agreement²². The practitioner must explain that the client remains personally responsible for the payment of legal fees and expenses in full, regardless of any standard cost recovery order, unless the LFA explicitly shifts this responsibility to the funder²².

If a DIFC practitioner violates these rules, the matter is referred to the DIFC Courts Registrar for formal investigation²². If a breach is established, the Registrar is empowered to impose severe professional penalties on both individual practitioners and their firms, including private or public admonitions, administrative fines, temporary suspension, or permanent removal from the Register of Practitioners²².

The ADGM Litigation Funding Rules 2019 manage these ethical risks through structural restrictions on the funder rather than solely on the practitioner²³. The ADGM Rules prohibit any terms in an LFA that could induce the funded party’s lawyer or law firm to breach their professional duties under the ADGM Courts Rules of Conduct²³. Furthermore, if an LFA involves more than one funded party, the ADGM Rules require the agreement to contain explicit, contractually binding provisions for managing conflicts of interest between the funder, the funded parties, and their legal representatives²³.

Alternative Fee Arrangements and Statutory Limits on Recovery

The financial viability of TPF is closely tied to the availability of Alternative Fee Arrangements (AFAs), such as Conditional Fee Agreements (CFAs) and Damages-Based Agreements (DBAs)¹¹. The DIFC and the ADGM differ significantly in their statutory authorization of these fee structures¹¹.

The ADGM provides a highly integrated statutory environment for hybrid funding models, permitting both CFAs and DBAs¹¹. Under Section 222 of the ADGM Regulations, a practitioner may enter into a CFA where they receive no fees if the client loses, but are entitled to their normal fees plus an agreed percentage uplift (typically up to 100%) if the client wins¹¹.

Furthermore, Section 224 of the ADGM Regulations explicitly permits DBAs¹¹. Under a DBA, the legal practitioner’s fee is calculated as a percentage of the compensation recovered by the client, capped at a maximum of 50%¹¹. This statutory permission allows ADGM litigants to negotiate sophisticated funding packages that combine ATE insurance, a third-party funder, and a law firm working under a DBA¹¹.

In contrast, the enforceability of DBAs in the DIFC remains restricted¹¹. DIFC Court proceedings generally prohibit contingency fee agreements where the lawyer’s fee is calculated as a percentage of the recovered damages¹¹.

While CFAs are permitted in the DIFC, they are limited to “uplift” models¹¹. Under this structure, a practitioner may receive their normal fees plus a pre-agreed success premium or uplift in the event of success, but they are strictly barred from receiving a direct share of the proceeds¹¹. This regulatory restriction means that TPF in the DIFC must be structured alongside traditional fee models or success-based uplifts, rather than direct lawyer-led contingency fee percentages¹¹.

The two jurisdictions also differ in their statutory limits on funder recovery²⁰. In the DIFC, there are no statutory limits or legislative caps on the fees and interest a third-party funder can charge²⁰. The funder’s return is governed by party autonomy, subject only to common law principles of public policy and champerty⁴. If an LFA contains an element of impropriety, such as the recovery of an excessive profit that deprives the funded party of the majority of their damages, the DIFC Courts may rule the agreement void under common law rules⁸.

In the ADGM, the statutory recovery mechanism for funders is regulated by Section 225 of the ADGM Regulations². The sum to be paid to the funder must consist of any costs payable to the litigant together with an amount calculated by reference to the funder’s anticipated expenditure in funding the provision of services².

Crucially, this sum must not exceed such maximum percentages of anticipated expenditure as may be prescribed by the Chief Justice². This statutory limit is calculated by reference to the funder’s actual expenditure on the dispute, rather than a raw percentage of the total recovered damages².

Adverse Costs, Security for Costs, and the Decline of the Arkin Cap

Both the DIFC and the ADGM operate under the standard common law “loser pays” principle, where the unsuccessful party is ordered to pay the reasonable legal costs of the successful party⁷. This cost-shifting framework exposes litigation funders to significant financial risks, which are managed differently in each jurisdiction²².

In the DIFC, the courts have inherent jurisdiction to make third-party costs orders directly against non-parties, including litigation funders, when appropriate³. Funders must evaluate this risk carefully, as standard cost assessments in the DIFC recover a high percentage of actual costs²². Over the past decade, the average rate of costs awarded on a standard basis in the DIFC has been just over 85%, which is higher than in other common law jurisdictions²².

Furthermore, under DIFC Practice Direction No. 1 of 2017, indemnity costs—which are not subject to standard proportionality assessments—are routinely awarded against parties who unsuccessfully challenge arbitral awards²².

The ADGM regulates this exposure by requiring the funder to submit explicitly to the jurisdiction of the ADGM Courts for all costs-related disputes⁹. Because the ADGM rules require the LFA to define the funder’s liability for adverse costs and ATE insurance premiums²⁴, the successful opposing party has a clear, contractually backed pathway to recover costs directly from the funder²⁴.

The practical issue of security for costs arises frequently in both jurisdictions, especially in insolvency-related disputes where the claimant is an assetless estate¹⁴. Security for costs requires a claimant to provide a financial guarantee, such as a bank guarantee or court payment, to cover a potential adverse cost award before proceeding with the claim³¹.

Under the Rules of the DIFC Courts (RDC) Part 25, a defendant may apply for security for costs¹⁷. DIFC Courts will take the existence of an LFA into account when determining whether it is just to order security, but the presence of third-party funding is not, on its own, determinative³.

Similarly, under the ADGM Arbitration Regulations 2015 and ADGM Court Rules, tribunals and judges have the power to order security for costs³⁴. The existence of an LFA may influence the court’s assessment of enforcement risk, but it does not automatically trigger an order for security¹⁴.

The historically significant “Arkin Cap”—established in English common law to limit a commercial funder’s adverse costs liability to the exact amount of funding provided—has been significantly weakened³⁵. In line with recent English appellate decisions, both the DIFC and ADGM courts treat the Arkin Cap as a discretionary guideline rather than an automatic rule²². This discretion allows courts to hold funders liable for adverse costs beyond their total capital investment if necessary to achieve justice³.

Judicial Precedent and the Enforceability of Funders’ Rights

The practical application and enforcement of litigation funding agreements has been tested and upheld by the judiciary, particularly in the DIFC¹¹. The litigation in Rafed Al Khorafi and Others v. Bank Sarasin-Alpen (ME) Ltd and Vannin Capital PCC PLC v. Rafed Al Khorafi established key principles regarding the validity of LFAs and the enforcement of funder rights¹¹.

The dispute in Vannin Capital v. Al Khorafi arose from a Restated Litigation Funding Agreement (RLFA) executed on April 21, 2013³⁹. Under this agreement, Vannin Capital funded the Khorafi family’s landmark financial mis-selling claim against Bank Sarasin-Alpen (CFI 026/2009)³⁷. Following a successful judgment that awarded the Al Khorafis substantial damages, a dispute emerged regarding their payment obligations to Vannin under the RLFA³⁹.

To protect the funder’s interest, the DIFC Court ordered that the total awarded sum of USD 11.44 million (representing damages and an interim award of costs) be paid directly into court pending the resolution of the funding dispute³⁸.

The Al Khorafis subsequently applied to release USD 945,593 from the funds held in court to pay their current legal representatives, arguing that the RLFA was invalid and that they had been misled by the funder³⁸. Vannin Capital opposed this release, maintaining that they held a secured contractual right to the funds under Clause 10.1 of the RLFA, which was protected by a contractually binding “waterfall provision”³⁹.

The DIFC Court of First Instance, with Justice Sir Richard Field presiding, dismissed the Al Khorafis’ application³⁹. The court held that the Al Khorafis had received independent legal advice at the time of executing the RLFA, and that their claims of misrepresentation were unsupported by the evidence³⁹.

Crucially, the court refused to intervene in the separate arbitration proceedings (DIFC/LCIA D-L-14043) initiated by Vannin Capital to resolve the underlying funding dispute³⁹. Relying on Article 13(1) of the DIFC Arbitration Law, the court ruled that it possessed no jurisdiction to interfere in matters subject to a valid arbitration agreement³⁹.

This landmark decision established that the DIFC Courts will enforce the contractual terms of an LFA and protect a funder’s right to recovery³⁹. It confirms that the courts will not readily interfere with litigation funding arrangements or stay related arbitrations simply because a party is dissatisfied with the funding terms³⁹.

The Global Regulatory Landscape and Regional Arbitral Integration

To understand the strategic position of the DIFC and ADGM, their frameworks must be compared to international developments and regional arbitration regimes¹.

In international arbitration, TPF has become a standard tool for managing cost and risk³¹. This regional integration is led by the Dubai International Arbitration Centre (DIAC) under its 2022 Arbitration Rules, which contain explicit TPF rules¹.

Under the DIAC Rules, a funded party must disclose the existence and identity of any third-party funder to the tribunal and all other parties¹. Notably, DIAC prohibits a party from entering into a TPF arrangement after the arbitral tribunal has been constituted, if that arrangement would create a conflict of interest for any arbitrator¹². This unique rule protects the integrity of the arbitral process from late-stage conflicts¹².

The legislative frameworks of both the DIFC and the ADGM are also undergoing modernization¹. The DIFC has launched a consultation on proposed amendments to its Arbitration Law, which would update the statutory framework as the Arbitration and Mediation Law of 2026³².

These reforms will expand the statutory powers of arbitral tribunals, providing an explicit legislative basis for issuing security for costs, joinders, consolidations, and summary determinations³². This modernization will give tribunals a clearer statutory basis for managing procedural issues in funded disputes³².

These developments contrast with the current regulatory environment in England and Wales⁴². The UK litigation funding market has faced significant regulatory and enforcement uncertainty following the landmark Supreme Court decision in PACCAR in 2023⁴¹.

In PACCAR, the court held that LFAs providing for a funder’s return calculated as a percentage of recovered damages constitute Damages-Based Agreements (DBAs)⁴³. Consequently, many existing LFAs became unenforceable because they did not comply with the strict requirements of the UK’s DBA Regulations 2013⁴³.

While the UK Government has proposed reversing the PACCAR ruling through the Litigation Funding Agreements (Enforceability) Bill, its progress has been delayed, leaving the UK funding market in a transitional state³⁵.

The offshore financial centers of the UAE are structurally insulated from these English regulatory issues²⁰. In the ADGM, LFAs are regulated as a distinct statutory category under Article 225 of the ADGM Regulations and the Litigation Funding Rules 2019, separating them from the DBA regime under Section 224¹¹.

Similarly, the DIFC regulates TPF via its independent Practice Direction No. 2 of 2017²¹. This regulatory clarity protects the offshore UAE markets from the statutory and judicial volatility currently affecting the litigation funding market in England and Wales²⁰.

Strategic Synthesis of DIFC and ADGM Frameworks

For international litigants, institutional funders, and corporate counsel, selecting between the DIFC and the ADGM as the governing framework for funded disputes requires a strategic assessment of their regulatory models⁸. The key differences are summarized below.

The ADGM’s codifying framework offers high regulatory certainty and structural safeguards for litigants²³. By enforcing minimum asset thresholds, independent legal advice requirements, and mandatory contract terms, the ADGM protects parties from undercapitalized or overreaching funders²³.

Additionally, the explicit statutory permission for both Conditional Fee Agreements and Damages-Based Agreements allows parties to construct highly integrated, risk-sharing fee structures alongside their funders¹¹.

However, the ADGM’s prescriptive model is less flexible¹⁴. Funders that do not meet the USD 5 million asset requirement, or structures that do not satisfy the “principal business” test, cannot execute valid LFAs in the ADGM²³. This excludes smaller, bespoke, or intra-group funding arrangements that are easily accommodated under the DIFC’s more open framework¹⁴.

The DIFC’s flexible, disclosure-driven model prioritizes party autonomy and transactional freedom¹⁴. By avoiding mandatory contract terms and capital adequacy thresholds, the DIFC enables parties to negotiate customized risk-allocation profiles¹⁴.

This flexibility is supported by a strong body of judicial precedent, such as Vannin Capital v. Al Khorafi, which demonstrates the court’s willingness to protect a funder’s contractual recovery and enforce related arbitration clauses³⁹.

The primary limitation of the DIFC framework is its restriction on alternative fee structures¹¹. Because DBAs remain prohibited for DIFC practitioners, funding structures are limited to traditional fee models or success-based uplifts¹¹.

Additionally, the DIFC’s broader upfront disclosure rules require the automatic disclosure of the funder’s specific identity to the opposition¹⁰. Litigants who prefer to protect the identity of their funder during early case management may find the ADGM’s narrower initial disclosure requirements more advantageous²⁴.

Both the DIFC and the ADGM have established sophisticated, common-law-compliant litigation funding frameworks that compare favorably with leading international dispute resolution centers⁸. Their differing approaches offer distinct strategic advantages depending on the commercial complexity, risk profile, and desired fee structure of the dispute¹⁴.

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