This article is written by Abhyuday Agarwal, COO, iPleaders.
Yesterday, senior person who is an advocate on record in my LinkedIn network shared something very insightful. He shared the lament of a trial litigator that there is nothing left for litigators to practice in civil courts.
He remarked that 30 years ago, civil courts used to entertain all types civil suits under Section 9 of CPC.
However, the civil litigation landscape has undergone a sea change since then. Now, service matters have gone to tribunals (service law), consumer cases have gone to consumer courts, family cases have been moved to family courts and cases where the government is a party are no more filed in Civil Courts, but instead as writs in High Court under Article 226. Litigation in other areas such as specific performance, land title, etc. has reduced as procedures of registration have become very clear.
Based on these trends, some trial court lawyers believe that prospects of a civil court lawyer have become very dim. However, the person in my network saw a silver lining and explained that new types of cases around torts and cases for damages can still be filed in civil courts.
This is a huge insight, but it opened up a new question for me – how can someone build a reputation and a career as a civil litigator in today’s age? What are the subjects he or she must acquire expertise in?
From time to time, the economy and the legal system will undergo these shifts, and not just lawyers, but people in any other profession will have to improvise and adapt in their careers.
Those who don’t improvise, those who practice today based on the beliefs of the past, will struggle to survive.
What are the emerging areas in civil litigation today?
Today’s civil litigator is not working on family law matters, property disputes or enforcement of wills, but is working on a wide variety of matters before diverse forums (not necessarily in civil courts):
Most civil litigation matters today arise from commercial disputes. The foundational understanding for commercial disputes is available in the contracts that were entered into by the parties. Most commercial contracts include an ad hoc or an institutional arbitration clause. Depending on the outcome your client needs, the work of a commercial litigator can involve:
- Drafting necessary documents to frame the dispute and initiate arbitration
- Get interim relief from court (this is something you actually argue in civil courts for, and not in any tribunal)
- File petitions in court for appointment of arbitrators and commencement of proceedings before the tribunal
- If it is an institutional arbitration, then initiating arbitration by invoking necessary procedures of the arbitral institution
- Oppose applications for referral of the dispute to arbitration, or for interim relief or file various challenges against appointment of arbitrators (if that is your client’s goal)
- Representing the client through different stages of the arbitration before the arbitral tribunal
- File necessary challenges to awards which are not in your client’s favour
Necessary skills to do the above will require you to understand civil procedure and functioning of civil courts, arbitration and contract law. Those of you who are interested in learning practical aspects about arbitration will find them here.
2. IBC Litigation
The Insolvency and Bankruptcy Code, 2016 completely overhauled the insolvency framework in the country.
The money recovery landscape has been completely altered – any creditor to whom you owe a debt of more than INR 1 lakh which is overdue has the ability to commence insolvency proceedings against you. Many organizations are using this as a powerful tool to recover their dues.
Once IBC proceedings are accepted by NCLT, the responsibility of the management ceases and vests in the resolution professional. For this reason, many companies are now scared of receiving IBC notices and have started paying up.
IBC notices can also be used maliciously by unscrupulous vendors to extort money from unsuspecting entities. If an entity which has unpaid dues fails to raise a dispute right at the first step when it receives notice of an unusually high claim, it will find it difficult later to avoid insolvency proceedings.
As a lawyer, you could be involved in one or more of the following roles:
- Support an organization or a consultant in recovering unpaid dues
- Act for a financial institution who intends to commence insolvency resolution against a debtor
- Act for a financial institution or creditor who is preparing a resolution plan for the debtor
- Support a debtor in processing claims, which includes disputing bogus or unscrupulous claims
- Participate in arriving at a consensus about the terms of the restructuring of the corporate debtor
Each of these roles involves you to send multiple notices and communications, draft and file legal documents with NCLT and participate in negotiations with multiple parties.
Those of you who are interested in learning more about how the Insolvency and Bankruptcy Code works and upskilling yourself in this area will find this course, anchored by an ex-Trilegal Associate, useful.
3. SARFAESI and DRT work
SMEs and large companies take various kinds of business loans for their expansion. Many of these loans are taken on the backing of the security of the company’s property and assets. The value of the security may be sufficient to or exceed the amount of the loan. In such cases when there is a default, the lender banks do not need to proceed under insolvency – they directly take possession and sell secured assets. For this, specific procedures are to be followed under the SARFAESI Act and Recovery of Debts Due to Banks and Financial Institutions Act, 1993.
As a lawyer, you may be involved in acting on the part of the lender and lead the proceedings against the defaulter, or you could be engaged by the defaulting organization to protect its interest.
4. Company law matters at NCLT
Many litigious aspects under the Companies Act are now handled by the National Company Law Tribunal, which has benches in around 10 locations across India. Thus, if you are to deal with share transfer disputes, oppression and mismanagement claims regarding how the company is being administered, creditor’s objections against reduction of share capital or approve schemes of arrangements or mergers, developing expertise in Companies Act and corresponding litigation around it is necessary. This is highly specialized work and very different from ordinary trial litigation under Code of Civil Procedure, 1908.
To learn more about this, try out the Diploma in Companies Act, Corporate Governance and SEBI Regulations or the Executive Certificate Course in Companies Act. These are all courses with live classes and a bunch of exercises containing simulations from real world work.
No matter what you are working on, you will need to apply a combination of skill-sets. For example, a shareholder dispute may have an NCLT angle and an SHA which specifies an arbitration clause may go to arbitration. If there is a government shareholder involved you may even be able to invoke writ jurisdiction of a court in certain situations.
5. Regulatory Litigation
Depending on the sector in which the company is operating, there may be a lot of other regulatory work for companies. For example, a fintech company may receive a show cause notice from the RBI. Almost any company will receive a tax notice over the course of its lifetime. From time to time, a competition law scrutiny will be required for M&As and joint ventures, especially for a company which is a market leader in its space. Litigators are ideally suited to make representations and handle any proceedings before regulators.
Being a successful civil litigator today requires a very different set of skills today from what was required even ten years back.
What’s your plan for acquiring these skill-sets? Which skill sets will you acquire next and how?