tegwick
11f2dc3a6d
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>
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TREN Jurisdiction Research: India
Document status: Research artifact, Stage 0 (workplans/TREV-WP-0005-enforcement-network-research.md T05)
Not legal advice. Findings drawn from web research (searched 2026-07-29).
1. Advocates are flatly prohibited from contingency fees — and litigation funding is explicitly not
Rule 20 of the Bar Council of India Rules, 1961 is unambiguous: "an advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof." This is reinforced by Rule 21 (no buying/trafficking in an interest in the litigation's subject matter) and Rule 9 (no acting where the advocate has a pecuniary interest). Unlike Germany's narrow-but-existing exceptions, India has no exception gate at all for advocates directly — this is a flat, unqualified prohibition, the strictest single-role bar found in this research program so far.
However, research confirms third-party litigation funding is not prohibited in India: a non-lawyer funder may fund litigation and be repaid based on outcome, and there is no prohibition on that funder being paid on a percentage/outcome basis — the restriction applies specifically to the advocate's own fee, not to funding arrangements generally.
Direct implication for TREN: India is the clearest, cleanest confirmation of the split-role model's necessity and validity. The Litigation Funder/Local Counsel structure (history/260729-TREN-MechanismDesign.md) is not a workaround of uncertain legality here — it maps exactly onto a distinction Indian regulation already draws cleanly: the Litigation Funder takes the Contingency Share (percentage-of-outcome, permitted for a non-advocate funder), and Local Counsel is paid separately and cannot receive any part of that percentage (rule-mandated, not just cautious drafting).
2. A live legal-reform debate exists — worth monitoring, not designing around yet
Research surfaced ongoing academic and practitioner debate (e.g., "Feevolution," Kluwer Arbitration Blog) about whether India's prohibition should be relaxed specifically for arbitration matters, given contingency fees' role in access to justice and given India's push to become an arbitration hub. This is a live reform conversation, not yet a rule change — do not assume future liberalization when designing the current EPA template for India, but note it as a jurisdiction to re-check periodically.
3. Summary for the WP-0005 feasibility matrix (T10)
| Question | India |
|---|---|
| Direct lawyer contingency fee available? | No — flatly prohibited, no exception gates (Bar Council of India Rules, Rule 20) |
| Structured alternative needed? | Yes, mandatorily — split-role is not optional in India |
| Litigation funding regulatory status | Explicitly permitted for non-lawyer funders, including outcome-based fee |
| Recommended TREN structure | Split-role: Litigation Funder holds the Contingency Share contract; Local Counsel is retained and paid separately under an ordinary (non-contingent) fee arrangement |
4. Open items for T10 synthesis
- Whether India's split-role structure requires any additional registration or disclosure for the funder specifically (a distinct question from "is it permitted at all," which this pass confirmed cleanly) — not researched in this pass.
- Monitor the ongoing arbitration-specific contingency-fee reform debate for future EPA template updates, without designing around it now.