Funding reshapes post-M&A arbitration
As part of the OPEN de Arbitraje 2026, in Madrid, discussion focused on post-M&A arbitrations and the use of third-party funding as an alternative for outsourcing arbitration risk, during the panel entitled “W&I Insurance and Litigation Funding in M&A Arbitration.”
According to the experts, third-party funding is consolidating its position in a more mature and sophisticated market as a support mechanism not only for litigation but also for major arbitration proceedings.
Participants were Cristina Soler, CEO of Ramco Litigation Funding; Emma Morales, partner in the Arbitration Department at Simmons & Simmons; Roger Rubio, partner at Rubio Arbitration and president of AmCham Peru; and Juan Francisco Nasser, partner at HKA. The session was moderated by Miguel Relaño, managing partner at Clyde & Co.
The moderator, Miguel Relaño, explained the challenges and opportunities presented by post-M&A arbitrations. The increasing sophistication of transactional structures, the involvement of third parties with an economic interest in the outcome of disputes, and the use of risk-transfer mechanisms—such as litigation and arbitration funders—have profoundly transformed this type of arbitration.
According to Cristina Soler, “arbitration funding is a risk-outsourcing mechanism that can be very useful in post-M&A disputes, as it involves covering the costs and assuming the risks of the proceedings.” She adds that “the interests of the funder and the funded party are aligned around a common objective: achieving success in the case.” Soler also notes that “the funder provides not only flexible financial solutions but also specialised expertise in arbitration funding,” and adds that “working with a financial partner with extensive arbitration experience adds significant value in these cases, beyond simply covering procedural costs.”
A successful arbitral award is often not the end of the arbitration process, experts say. Claimants who obtain a favourable award may require additional support to pursue annulment and/or enforcement stages through to final recovery. As Cristina Soler pointed out, “Litigation funding is an ally of the funded party, assuming the risk of the proceedings with a shared objective: achieving a successful outcome.”
A natural forum for post-M&A disputes
Roger Rubio noted that arbitration has become the natural forum for post-M&A disputes. He highlighted the key issues affecting this category of arbitration, as well as the most effective current approaches to successfully managing this growing trend.
Emma Morales analysed the most relevant contingencies affecting these arbitrations, particularly in relation to the quantification of damages—one of the crucial aspects to manage in this type of dispute. She also shared her professional experience regarding the management and main challenges of international post-M&A arbitrations.
Juan Francisco Nasser emphasised the importance of economic expert evidence in post-M&A arbitrations and outlined the main issues that arise in such proceedings from his perspective as an expert.
According to them, the quantification of damages is one of the most complex and decisive aspects of post-M&A arbitration. Disputes arising from breaches of representations and warranties pose specific difficulties: identifying the relevant damage, defining the contractual scenario, separating economic loss from the ordinary evolution of the business, and determining the timing of the damage.
