Complete WP-0004 and WP-0005 jurisdiction research (8 of 8 each)
Executes all remaining shared jurisdictions across both workplans: Germany/EU (deepened contract-law angle), US (deepened), UK (deepened), Argentina, India, China, Africa (South Africa + OHADA), and Asia-Pacific (Singapore, Japan, Australia) - 13 new history/ research artifacts. Highest-priority findings: - Australia's Unfair Contract Terms regime (expanded Nov 2023) covers standard-form contracts with any business under 100 employees/$10M turnover by default - the CUA is exactly such a contract, and most realistic Customers fall within this threshold. Unlike every other jurisdiction's consumer carve-out, this is not an edge case. - China requires a "foreign-related" contract even to select foreign governing law, subject to a vague public-interest override even then - confirms a dedicated China rider is needed for both the License/CUA and the Enforcement Partner Agreement, not a shared global clause. - India flatly prohibits advocate contingency fees (no exception gates, stricter than Germany) while explicitly permitting third-party litigation funding - the cleanest confirmation yet that the Litigation Funder/Local Counsel split-role model is both necessary and legal there. - Japan's Article 12 fee-splitting rule means even the split-role fallback needs jurisdiction-specific structuring - the first case where the workaround itself, not just the original mechanism, has an open compliance question. - Contingency Share ceilings vary widely where available: UK 50% (exact match), South Africa 25%, Argentina 35% (50% only with risk assumption), China 18% down to 6% on a sliding scale that shrinks as claims grow. - Recurring cross-jurisdictional pattern (Germany, EU, US via CCPA, Argentina): B2B governing-law/liability clauses are respected, but an individual/sole-proprietor Customer's consumer-protection status is the operative risk everywhere, not a one-off edge case. Updates specs/EnforcementNetworkConcept.md §8.1 with a full 12-jurisdiction findings table and three cross-cutting conclusions. Updates both V1C1 documents' Appendix A items (governing law, liability cap, data protection) with the most consequential findings. Both workplans now have only their human-gated synthesis tasks (T09-T10 / T10) remaining. Co-Authored-By: Claude Sonnet 5 <noreply@anthropic.com>
This commit is contained in:
parent
7e9cb08ce6
commit
11f2dc3a6d
19 changed files with 643 additions and 27 deletions
|
|
@ -157,16 +157,32 @@ Many legal systems restrict or prohibit a lawyer taking a direct percentage of a
|
|||
|
||||
Where a jurisdiction does permit a lawyer to be both funder and counsel (the US being the clearest case), the Enforcement Partner role can collapse back into a single party, as originally envisioned. This split-role model is a **proposed design response to a real legal constraint**, not yet confirmed to be sufficient in any specific jurisdiction — third-party litigation funding is itself separately regulated (registration, disclosure, and champerty/maintenance doctrines in some common-law jurisdictions) and needs its own per-jurisdiction check.
|
||||
|
||||
### 8.1 Findings so far (`workplans/TREV-WP-0005-enforcement-network-research.md` T01–T03, T09)
|
||||
### 8.1 Findings so far (`workplans/TREV-WP-0005-enforcement-network-research.md` T01–T09, all 8 jurisdiction/family tasks done)
|
||||
|
||||
Four jurisdictions researched confirm the hypothesis above is directionally correct and give it concrete shape:
|
||||
All eight jurisdiction/family tasks are now complete. The pattern is more varied than a simple "civil law needs split-role, common law doesn't" split:
|
||||
|
||||
- **Germany** — the single-role model is very likely **not** viable: RVG §4a permits contingency fees only for claims ≤€2,000, debt-collection, or cases where the client would otherwise be deterred, and even then requires a fixed-fee/uplift structure rather than a pure percentage. The split-role structure (§8) is the realistic path (`history/260729-TREN-Jurisdiction-Germany-EU.md`).
|
||||
- **France** (second EU data point) — a fixed-fee-plus-uncapped-result-fee structure is permitted (pure percentage-only fees, *pactum de quota litis*, are void); likely single-role-viable with the right fee shape (`history/260729-TREN-Jurisdiction-Germany-EU.md` §2).
|
||||
- **United States** — single-role is directly viable; the practical precondition is timely copyright registration of the Milestone Release to unlock statutory damages and fee-shifting that make contingent engagement economically attractive to counsel (`history/260729-TREN-Jurisdiction-US.md`).
|
||||
- **United Kingdom** — single-role is directly viable via a Damages-Based Agreement, and the **50% Contingency Share proposed in §5.5 is exactly the UK's statutory maximum** for this case category (not personal injury or employment) — the first jurisdiction where the original 50% figure lands precisely on a real regulatory ceiling rather than an arbitrary round number (`history/260729-TREN-Jurisdiction-UK.md`).
|
||||
| Jurisdiction | Single-role viable? | Realistic ceiling | Note |
|
||||
|---|---|---|---|
|
||||
| Germany | Very likely not | N/A — narrow §4a gates, not percentage-based | Split-role realistic path |
|
||||
| France | Likely yes | Uncapped (fixed-fee-plus-result-fee structure) | *Pactum de quota litis* (pure %) void |
|
||||
| United States | Yes | No fixed cap (state-bar reasonableness) | Needs timely copyright registration to be economically attractive |
|
||||
| United Kingdom | Yes | **50%** (DBA statutory max, "all other cases") | Only jurisdiction where 50% is exactly validated |
|
||||
| Argentina | Yes | 35% ordinarily (Buenos Aires City); 50% only with risk-assumption | 50%-with-risk-assumption resembles the Litigation Funder model natively |
|
||||
| India | **No** — flat prohibition, no exception gates | N/A | Cleanest confirmation of split-role necessity; funding explicitly permitted |
|
||||
| China | Yes | **18% down to 6%**, sliding scale by claim size (larger claims get a *smaller* ceiling) | Also likely needs its own governing-law/venue rider (§8, cross-refs License Appendix A item 6) |
|
||||
| South Africa | Yes | **25%** (or 2× normal fee if lower) | Hard statutory cap, confirmed via the Contingency Fees Act itself |
|
||||
| OHADA zone | Not confirmed | — | Genuinely unresearched; do not assume the French pattern applies |
|
||||
| Singapore | Only for arbitration/SICC/mediation | N/A | Ordinary litigation likely needs the fallback structure |
|
||||
| Japan | Yes, broadly | No fixed cap | **Article 12 bans lawyer fee-splitting with non-lawyers — a compliance risk for the split-role model itself**, not just the single-role fallback |
|
||||
| Australia | Only Victoria, only class actions | N/A | Litigation funding market is mature nationally — split-role by default, for a different reason than Germany/India |
|
||||
|
||||
A concrete Litigation Funder/Local Counsel mechanism design and payment-flow diagram, synthesizing these findings, is at `history/260729-TREN-MechanismDesign.md`. Five jurisdiction/family tasks (Argentina, India, China, Africa, Asia-Pacific) remain open in WP-0005 — the pattern above must not yet be assumed to generalize beyond the four jurisdictions actually researched.
|
||||
**Key findings beyond the per-jurisdiction ceiling:**
|
||||
|
||||
1. **50% is not a safe global default anywhere except the UK.** Most jurisdictions cap meaningfully lower (18–35%), several ban direct lawyer contingency outright, and the "with risk assumption" pattern that unlocks higher percentages (Argentina) or avoids professional-conduct problems entirely (Germany, India, Australia) recurs often enough that the split-role Litigation Funder structure should probably be the **default** EPA option, with single-role as the jurisdiction-specific exception — the reverse of how the concept was originally framed in §8.
|
||||
2. **The split-role structure is not universally safe either.** Japan's Article 12 fee-splitting rule is the first finding in this program suggesting the Funder/Counsel split needs jurisdiction-specific structuring, not just jurisdiction-specific *availability* checking.
|
||||
3. **China likely needs a dedicated EPA governing-law rider**, not just a dedicated fee structure — the same foreign-related-contract constraint found in `workplans/TREV-WP-0004-global-jurisdiction-research.md` T06 applies to the EPA itself.
|
||||
|
||||
A concrete Litigation Funder/Local Counsel mechanism design and payment-flow diagram (built from the first three jurisdictions researched) is at `history/260729-TREN-MechanismDesign.md` — its §4 feasibility table is now superseded by the fuller table above and should be read alongside it, not in place of it, pending T10's formal synthesis and human-accept update.
|
||||
|
||||
## 9. New legal instrument: Enforcement Partner Agreement (EPA)
|
||||
|
||||
|
|
|
|||
Loading…
Add table
Add a link
Reference in a new issue