A litigation funding agreement is a financial product within s 763A(1)(b) of the Corporations Act 2001 (Cth) because it is a facility through which the funded party manages financial risk, and the risk management aspect is not merely incidental to the funding purpose under s 763E. Litigation funders must hold an Australian financial services licence or be exempt; otherwise, the funded party may rescind the agreement under s 925A. On the construction of early termination provisions in funding agreements, clauses providing for an early termination fee upon change of control operate as a complete code for the funder's entitlements, excluding any ongoing entitlement to a funding fee. The question of whether a litigation funding agreement is a 'derivative' under s 761D was not resolved by majority — the three judges reached different conclusions on this issue.
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