What is commercial law? A guide for aspiring barrister pupils

Commercial disputes can attract significant media attention, and may require a PR strategy throughout. Commercial practice is intellectually challenging and the disputes are often high profile. It can sometimes be stressful and paper heavy, but that is not unique to commercial work. Below, Shane Sibbel, barrister at Blackstone Chambers, offers targetjobs his overview of commercial law at the Bar. Shane read jurisprudence at the University of Oxford, completing his undergraduate degree in 2007. He stayed at Oxford to complete a masters (BCL) in 2008. He was called to the Bar in 2010.

• What is commercial law at the Bar?
• What do commercial barristers do?
• What is life like as a commercial law pupil?
• What skills do you need to be a commercial law barrister?
• Types of law practised within commercial law
• How much can I earn as a commercial law pupil?
• Specialisations of commercial law

What is commercial law at the Bar?

Commercial law concerns disputes connected in some way with business or commerce. The paradigm commercial dispute will involve one or more contracts, but the legal issues which arise in this area are wide-ranging and may include fraud, unjust enrichment, conflicts of law, fiduciary duties, intellectual property principles, company law principles and other matters. Factually the dispute can involve almost anything: mine currently relate to everything from Formula 1 drivers and popstars to alleged fraud over Guinean mining rights.

What do commercial barristers do?

Generally commercial litigation will run for at least a year or two, often much longer. It will typically involve preliminary advice, statements of case, disclosure, factual and expert evidence, trial and enforcement. There may often be settlement discussions running in parallel, which can inform and encourage tactical skirmishing.

Commercial cases often have an international element, and you may find yourself attending meetings, hearings, or arbitrations abroad. I once narrowly avoided taking a witness statement in a Mongolian prison.

You will have many different cases on at the same time (at least five or six, often more). You may be in hearings less often than in some other areas, but when they happen the hearings are often heavy, thoroughly prepared and hard fought. As you become more experienced it becomes easier (if you choose) to maintain a decent work/life balance. The work is most intense around trials and urgent interim applications.

The best aspects of commercial practice is that it is intellectually challenging and the disputes are often high profile. It can sometimes be stressful and paper heavy, but that is not unique to commercial work.

What is life like as a commercial law pupil?

Pupils at our chambers are expected to work between 9.00 am and 6.00 pm, occasionally longer where necessary. Typically a pupil will prepare research notes on legal issues, notes on evidence, and first drafts of statements of case, submissions and cross-examination outlines. There are also advocacy assessments.

What skills do you need to be a commercial law barrister?

Commercial law is the area of practice that tends to have the strongest requirement for excellent academic grades, factual and legal analytical skills and clear drafting. Good commercial barristers also need persuasive advocacy skills and good teamwork skills.

When deciding which chambers to apply to, there is a lot of information online, and you should try, where possible, to complete a mini-pupillage in the relevant set. It can also help to look at recent cases involving the practitioners from the relevant chambers.

Types of law practised within commercial law

• Contract
• Tort
• Property
• Private international law
• Civil procedure

How much can I earn as a commercial law pupil?

You will likely shadow a number of different members of chambers alongside your pupil supervisor and may later specialise in one area of law (generally one of chambers’ specialties) once you have been in practice for some time. As such it can be tricky to nail down exact earnings for early tenants, but you can take a look at our overview of How much you can earn as a pupil barrister to get a general idea of how much each chambers offers to pupils. Sets in the more commercially orientated areas tend to offer between £40,000 and £75,000 for 12 months but there is a huge variation by practice area.

Specialisations of commercial law

As mentioned above, commercial law can be used as a bit of an umbrella term. Shipping law, for example, is highly specialised area of law in its own right, but will still bear all the contracts, disputes and claims that are endemic to commercial law. While there are some solicitors that build a practice broadly within commercial law with commercial clients, it is likely that at some point fairly early on in your career that you’ll specialise in another area of law related to commercial law. We’ve included some overviews of other areas of practice that have a strong tie to commercial law below:

Arbitration

Arbitration is a form of dispute resolution involving settling disputes in specialist tribunals in a private, confidential setting rather than by a judge in court. Typical arbitration clients are international business and multinational companies, often undertaking transactions across borders or continents. In any given year, you might be in conference with experts in Norway, defending a claim in Dubai and meeting clients in Singapore. Cases might concern the effects of piracy off the coast of West Africa, the construction of a World Cup stadium or a breach of bilateral investment treaties.

Cases can be technically and legally complex, and often require the digestion of a significant volume of documentation. However, because the process is consensual and in some respects less formal, it may be easier to plan and manage deadlines than in other areas of practice. A single, very large case could take up more than half of your available time over two years, while at other times, it is perfectly possible to be instructed and to work concurrently on a number of smaller arbitrations, which may be at different stages in their life-cycle.

Banking and finance

Banking and finance law focuses on resolving disputes arising in the context of banking relationships or other finance backgrounds. Clients are typically banks, private equity houses, fund managers and financial advisers and their customers. Around 80% of work is conducted from chambers, with the remaining 20% in court. The work does not usually require overseas travel, but there are opportunities for counsel to appear in courts in, for example, the British Virgin or Cayman Islands if they wish.

>It may take some time to familiarise yourself with banking jargon since it is not taught as part of a law degree or conversion course. However, this intellectual stimulation is one of the best parts of the work – both in figuring out how the law and complicated banking instruments in issue work. You are also allowed the time to make sure your client’s case is presented in the best possible light. As banking evolves, you may also be exposed to blockchain, cryptocurrency, cyber fraud and fintech, which are all having an impact on this practice area.

Company

Company law work covers a broad spectrum that frequently involves matters of statutory or contractual construction and equity law and cases increasingly have an international dimension.

Company cases often cover: director and shareholder disputes, unfair prejudice, corporate governance, financial services disputes (eg under the Financial Services and Markets Act 2000), insolvency and director disqualification proceedings.

Cases vary in value, size and complexity, ranging from low-value contractual disputes heard in a county court, through to applications that might take a few hours or a day in the High Court, up to large-scale litigation with a multi-week trial. Most cases (unless particularly small) start in the Insolvency and Companies Court, which is part of the Business and Property Courts.

Construction

Construction law revolves around contractual disputes arising out of building projects, and will require the application of black-letter law to complex technical issues. The range of projects likely to be covered is broad, from disputes about an extension to a domestic house to multi-billion pound pieces of litigation or arbitration.

Clients in this area of practice might be the contractor, the developer, often the government, or a professional such as an engineer or architect who is alleged to have been negligent. A construction barrister works with experts to become sufficiently expert themselves in order to cross-examine with equal knowledge.

Energy

Energy covers everything from digging the foundations for a power plant or wind farm through to the electricity arriving at the plug socket of a user. The essence of energy law is the law surrounding contracts for all the stages of the energy sector, from the development and sharing of oil and gas fields, for example, through to the construction of energy-related facilities, and the provision of energy between suppliers or between suppliers and consumers. Energy work is normally undertaken as part of a broad commercial or construction practice.

EU and competition law

Competition law protects the process of competition in free markets across the whole economy; it prohibits cartels, and the abuse of monopoly power, and regulates mergers. EU law is the application of the law made by the EU within the UK. EU and competition cases generally fall into two categories: appeals against regulatory decisions (such as fines or decisions prohibiting mergers), where barristers act either for the business or for the regulator; and civil litigation in which a cartelist or dominant company is being sued by its customers for damages or by its competitors seeking an injunction.

Insolvency

Insolvency legislation (the Insolvency Act 1986 and the Insolvency Rules 2016) is aimed at rescue, restructuring and getting a better result for creditors than a liquidation or bankruptcy. It deals with realising and distributing the assets of an insolvent individual (bankruptcy) or company (liquidation). In all cases, the estate is administered by a licensed insolvency practitioner (IP).

Insurance and reinsurance

Insurance comes in many forms, from domestic policies for private individuals to large-scale insurance covering businesses against damage or against their liabilities to others. Insurers vary in size and type from large multinationals to syndicates in the Lloyd’s market. Reinsurance is arranged by insurers to spread the risk they cover.

Planning

A planning barrister generally has three types of work: advisory work with local authorities on planning applications; inquiries where you’re instructed by a local authority or developer that has been refused planning permission; and challenges to planning decisions at the High Court via judicial review.

Disputes typically occur where housing developments are planned for green field land and a decision needs to be reached over what is more important, environmental protection or the need for housing.

A barrister is instructed to provide proofs of evidence from expert witnesses, undertake a site visit and to hold conferences with the client and witnesses to identify potential weaknesses in each side’s arguments. Generally, cases last around three or four months culminating in an inquiry, which could last one day for a simple application, to three or four weeks on larger projects.

Property

Landlord and tenant relationships and property are covered by this area of practice. There might be trespassers on a property, a flood on a property, or a factory nearby conducting industrial processes and creating horrific smells.

Barristers in this area tend to have a 50/50 split between claimant and defendant work, which is useful for learning the types of argument opposing counsel is likely to put forward. Clients are wide-ranging, from neighbours disputing a property boundary to huge multi-million-pound companies dealing with protesters in their buildings.

Shipping and admiralty

The shipping industry is international, but much of it still relies on English law. Barristers in England and Wales can be involved with disputes relating to ships and other marine craft, eg oil rigs.

Shipbuilding is a specialised field of construction with its own contracts, many of which include English law and/or London dispute resolution clauses. Barristers in this area will often be called in to resolve disputes between shipbuilders and buyers.

Other disputes can arise once a ship has been put into service. Barristers argue in the Admiralty Court about who was at fault in ship crashes. Disputes over chartership, cargo, hire and docking can also arise. Shipping disputes can be highly technical but can hinge on the meaning of just a few words. A large proportion of shipping cases are decided by arbitration or in the Commercial Court in London.