Litigation finance—or more accurately, disputes finance to cover both litigation and arbitration—has never had a higher profile. But with this comes a need for those of us in the industry to continually educate, illustrate and raise awareness about how companies can adopt disputes finance as a bespoke way of funding and/or monetizing their disputes. They should be able to do so from a position of choice, not necessity, thereby making otherwise unthought-of assets work for the benefit of the business.

Single-case funding remains the default thought as to what litigation finance means, but the evolution of the industry means it is being discussed and used by companies to fund a number of disputes, including defense matters. This is corporate portfolio funding and is an example of how the industry is moving away from distressed or insolvent positions, and is now making disputes finance commercially attractive and a genuine corporate finance option for well-run and solvent businesses.

The benefits of undertaking corporate portfolio funding include: 1) mitigating the inefficiency of using a business' own money to fund disputes and the opportunity cost of doing so; 2) eliminating the inefficiency of accounting treatment in successful litigation or arbitration; 3) having a positive impact on EBITDA, and accordingly, a company's valuation; and 4), facilitating forecasting and budgeting by the use of monetization.

The market is moving to a more sophisticated dispute, or indeed, asset finance industry. The next step is to make the use of external disputes capital commonplace. In the same way that businesses lease their vehicles, their photocopiers and their buildings, businesses will lease their litigation as it is a more effective and efficient way to operate.

Disputes are assets much like any other, although as they are contingent, they are not recognized as such under international accounting principles. That does not mean they do not exist or that they can't be securitized or mortgaged. The change that is needed is to educate companies to see their disputes as assets. There are few funders able to undertake corporate portfolio funding as it is an entirely bespoke process and provides businesses with complete choice as to how they fund their disputes. Moving to a position of using funding as a choice, rather than necessity, is completely ­different from a single-case situation where a distressed and impecunious party is funded.

The biggest fundamental risk for a company using single-case funding and why to date most companies do not consider external disputes capital is pricing, and justifying this cost to shareholders and/or the board. This is something that the industry needs to deal with.

There are no issues with regard to privilege. Careful funders and lawyers deal with this issue all the time and NDAs are in place, discussions are confidential, and the sharing of sensitive information to a funder does not open it to third parties. There is, however, genuine merit in saying that those litigation funders who are listed are an ideal counterparty to companies looking at dispute financing, as they are used to dealing with regulatory disclosure and recognize how to manage price-sensitive information. It is imperative to choose your team carefully when considering external disputes funding and even more so when looking at a portfolio. Portfolios are complicated and time consuming and businesses need to work with those in the industry who understand how they work and how to structure them.

The issue of control is talked about in all forms of dispute funding, whether ­single-case or portfolios. The simple answer is that a respected and ­experienced funder is not there to take control away from the client. Instead, they work with the client and help them through the process, which adds many years of experience of litigation and arbitration from a view considerably different to a lawyer's. It is often the case that the funder-client ­relationship is more aligned than the ­lawyer-client ­relationship.

Fundamentally, respected funders and financiers remain providers of passive capital. The litigation finance industry is frequently referred to as legal finance, which is softer terminology—given the current perceptions and association of litigation and arbitration with single cases and class actions. But finance is exactly what funders provide and when you apply the corporate portfolio approach, this will realize ­significant advantages for the business.

What is needed is a change in approach and emphasis from the industry. Instead of waiting for the distressed or insolvent clients to come to them, funders need to talk to and address those corporate clients who will entertain, consider and make positive decisions to use external disputes-related finance rather than their own corporate resources.

The model must change to provide those corporate clients with a solution to their legal spend or at least some of it. This is the challenge we face to ensure that companies have a choice.

Nick Rowles-Davies is executive vice ­chairman of Litigation Capital Management in London.