Commercial dispute resolution
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University: St Anne's College, Oxford
The commercial Bar covers a broad range of practice areas, including banking and financial services, sale of goods and shipping, insolvency, professional negligence and civil fraud, insurance/reinsurance and oil and gas law. Barristers also handle matters for commercial clients that overlap with discrete areas of law such as employment, intellectual property and competition. Although advocacy is an important skill for commercial barristers, there is also a heavy emphasis throughout pupillage on developing a full understanding of commercial law principles and honing one’s drafting skills.
With luck and hard work, aspiring commercial barristers will have the chance to participate in high-profile disputes involving oligarchs or the collapse of big business and see news of their cases splashed over the financial press. However, commercial barrister Rajesh Pillai stresses the importance for junior barristers of balancing such opportunities against the need to earn their stripes in their own, smaller matters. “It’s still the case that you will do small trials – small insurance actions, fights with utility providers, disputed bills – on your own in the county court,” he explains. “It’s exciting running your own case, and it’s a very important training ground. This is where you develop the habit of making strategic decisions yourself and being at the sharp end of the law”
Nor is the work of a commercial junior removed from the stuff of everyday life. As Rajesh points out: “Everyday legal problems are not the widely reported one-offs, such as the super-injunctions or claims against big banks. They can be about relatively small debts, personal investment advice, fights with utility providers, disputes about the quality of work undertaken – these are the aspects of the law which most people see.”
Any doubt that this is a worthwhile apprenticeship can be laid to rest with a glance at Rajesh’s own career trajectory. An established figure on the international arbitration circuit, from Paris to Singapore, Rajesh also recently acted as part of the counsel team before the Supreme Court in Eclipse Film Partners, No 35, appearing for one aspect of the case as sole advocate. The case involved Her Majesty’s Revenue and Customs taking on a tax avoidance scheme used by various high-profile individuals and the team successfully had the various appeals dismissed. “Commercial law can sometimes be a case of pushing around money between rich people and this can seem unwholesome,” Rajesh says wryly. “But in this case the result ended up saving UK taxpayers £1 billion.”
An analytical mind and the ability to articulate and argue clearly and succinctly are vital to success at the commercial Bar. Not every aspect of the job is glamorous: Rajesh explains that, starting out, you can expect a lot of document analysis and drafting of court documents. Written skills are imperative – in particular the ability to distil complex ideas and present them simply. “It was a crucial aspect of my pupillage,” he recalls. “This is something you can practise – work on it and polish it. As a junior, your input to a case will be of most worth here. And it will be useful for you in developing your own practice – even putting together your own skeleton argument for a district judge means that you’ve considered the whole of the case and the nuances of the argument.”
Prospective commercial barristers also need to develop a business brain and to understand the commercial implications of every matter. In terms of practical steps, Rajesh advises keeping a weather eye on current affairs, particularly issues where commerce, law and politics intersect. “When I was studying in New York and then as an intern at the WTO Appellate Body in Geneva, I really got an insight into how the WTO can affect trading standards, which in turn may impact government policy,” he explains. “Look at the whole debate over plain packaging for cigarettes: this is politics, state welfare and law all colliding.”
Commercial barristers have strong earning potential and pupillages are highly sought after. So, prospective legal eagles need to ensure that their marks are as good as possible because when it comes to getting a pupillage, they will be competing against the best. In order to emphasise commitment, having some moots or advocacy experience on your CV can help to demonstrate your level of interest, while mini-pupillages can give you a feel for the different types of work on offer – the more you can do, the better. “Even if you go somewhere and you don’t like it, that teaches you something,” Rajesh points out. “You need to understand where your own interests lie. You need to know why a particular area of practice is interesting to you and why you want to do it.”
The Bar has changed substantially during Rajesh’s career and, given the recent political upheaval, further transformations are inevitable. He explains that at the top sets everything has shifted onto a bigger scale, which affects the mix of work that juniors can expect. For instance, the counsel teams for some parties to the Berezovsky litigation involved two silks and three to four juniors; the upcoming RBS Rights Issue case is due to take six months and has involved up to 13 barristers from 3 Verulam Buildings alone. This alters things in two main ways for juniors: “It means that on a big case you’re less likely to be making your own decisions and seeing things through from start to finish,” Rajesh says. “It also means that you’re less likely to be involved in developing strategy.”
This is why he is so keen to emphasise the importance when starting out of mixing led work on these big cases with a few lower-value hearings, which might include banking, insolvency and small insurance matters, and which are typically heard at county courts. “It gives you the chance to read up on law and articulate your own arguments,” he explains. “It’s also good to be in front of different tribunals, it teaches you about the rough and tumble of court life.” Aspiring commercial barristers should consider which sets will assist them in getting a variety of opportunities.
In terms of further changes down the road, Rajesh believes that the limitation on funding for courts and the judiciary is definitely an issue, especially for the commercial sector. Separately, solicitors are trying to do a lot more themselves, with bigger firms looking to use solicitor advocates in certain instances.
That said, in addition to court work, international arbitration is on the rise, meaning that commercial barristers can expect to spend a lot more time travelling and broadening their exposure to different tribunals and systems of law. Rajesh recalls a recent Indian arbitration in which he was instructed, which involved a number of witnesses and various accusations of fraud and deceit. “The Dubai-based team actively sought out an English counsel team to handle that side of things,” he says, “because the English Bar has a reputation for excellence as advocates – on paper, in oral argument and cross-examination.”
Whether this is for you comes down to the fine line between feeling the pressure and thriving on it. “You do have to enjoy it,” Rajesh says. “When you’re being asked questions by a judge and you have your opponent waiting to trip you up – if you concentrate on the pressure you’re under, you’d be a bit of a wreck.” But if you relish the challenge, and are prepared to put in the hours learning your craft, the commercial Bar could well be the place for you.
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