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Thought Leaders

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Thought Leader

WWL Ranking: Thought Leader

WWL says

Percival Billimoria is “a key name” in the Indian market when it comes to high-value disputes relating to various matters, from joint ventures to infrastructure claims.

Questions & Answers

Percival (Percy) Billimoria, who is also a chartered accountant by qualification, is a well-regarded arguing counsel. He has represented clients in adversarial matters (litigation and arbitration). He specialises in corporate-commercial matters and is especially known for setting some of the early jurisprudence in competition law. Percy has represented clients before the Supreme Court of India and the High Court of Delhi, as well as tribunals such as the erstwhile Competition Appellate Tribunal.

Describe your career to date.

I first started my career with Arthur Andersen as a rookie accountant before setting up a law practice as a litigator. At one point, after economic liberalisation, there were so many M&A matters that I had to divert attention to those. However, I have always been happiest arguing a case as counsel before a court. Even while chairing litigation practices at large law firms – AZB & Partners and later CAM – I represented my clients as counsel. Earlier this year, I set up chambers at New Delhi and practise as a counsel.

What first attracted you to working in the field of competition?

I understand economics and markets and it was therefore an obvious area of focus. The rules of statutory interpretation cannot be used on this law without also applying these concepts. When the law was enacted in India I was fortunate to have the guidance of some of the finest lawyers in the USA and the EU. Bill Blumenthal particularly comes to mind. He was general counsel at the DoJ during the Bush era and had just come into private practice. It was fascinating to discuss these concepts with him.

You are known to act on regulatory matters, and in litigation and arbitration. To what extent do these different facets of your practice complement one another?

There are domain areas and then there are the skill sets. A counsel needs a particular set of skills – that of being able to identify the key issues of the case and then articulating these before a judge. These skills are the same whether he or she is before a court or a tribunal. However, domain knowledge may straddle different areas of work or industry sectors. 

The domain areas complement each other because it is my corporate-commercial and accounting experience that enables areas of work, such as competition law and tax, to fold into each other. Even in white-collar crime, there is a commercial background to the matter at hand that it is essential to appreciate.

Having said that, “corporate/commercial” is a very general description and within this space there can be several areas that may not be within my range of experience. For instance, I would hesitate to take on intellectual property or environment law matters. In regulatory litigation also, I have done a lot of telecoms, aviation and insurance, but not much else.

What makes your practice stand out from others in the market?

At this level, there is not much to choose between counsel. And it is not appropriate for me to comment on anything distinctive that may come across as immodest. However, if any distinction is to be made, my decision to focus only on matters pertaining to my domain knowledge and experience would be a plus that most clients would readily identify. That, and the fact that my emails always end with the refrain that I am available 24/7.

How has the Indian legal market changed since you started practising?

Practices have changed, though not the procedures. Fortunately, fee rates have only gone steadily northwards. Lawyers are more aware of ethical standards and the need to do the right thing by the client. And yes, it’s a lot more competitive than ever before. All good tidings for the profession.

What are the major trends facing competition lawyers in the jurisdiction at the moment?

The market for merger control work depends on M&A trends. I have had the opportunity to set some of the first gun-jumping precedents, but my focus in competition law is on behavioural matters since that’s the adversarial part of it. It’s fair to say that the regulator has been very discerning and is investigating only those that need looking into, and not just everything that comes their way. This may mean fewer matters coming to the courts – but that is just as well since it’s a more mature outlook, and really the way it should be. 

Looking back over your career, what is the most interesting case you have worked on?

That’s a difficult pick. In competition law, it’s got to be Schott Glass, which was one of the earliest abuse of dominance matters in India. It’s a complex question and even now not everyone fully gets the differences between volume discounts and loyalty discounts – or understands margin-squeeze, for that matter.

What advice would you give to younger practitioners hoping to one day be in your position?

That doesn’t change from one generation to another. Dedication is a bigger factor than in other areas of work. I think to be a successful lawyer you’d better be passionate about the law. There’s no other way.

WWL Ranking: Thought Leader

WWL says

Percival Billimoria is “a key name” in the Indian market when it comes to high-value disputes relating to various matters, from joint ventures to infrastructure claims.

Questions & Answers

Percival (Percy) Billimoria, who is also a chartered accountant by qualification, is a well-regarded arguing counsel. He has represented clients in adversarial matters (litigation and arbitration). He specialises in corporate-commercial matters and is especially known for setting some of the early jurisprudence in competition law. Percy has represented clients before the Supreme Court of India and the High Court of Delhi, as well as tribunals such as the erstwhile Competition Appellate Tribunal.

What inspired you to pursue a career in law?

There has always been a significant overlap in the commercial world between what concerns a lawyer and what concerns a chartered accountant. Having first qualified and practised as a chartered accountant it was a natural transition, and made eminent sense.

What qualities do clients look for in an effective litigator?

There is no substitute for preparation and strategy. While most general counsels understand that a counsel is only as good as the merits of their case, the endeavour is to maximise the probability of a favourable outcome. The only way to outperform the odds is to know your brief inside out and then craft your strategy. Litigation is like a game of chess. You must know what the response to your submission will be and then what turns on that. Get into the head of the other side and understand what their thought process is. Companies are beginning to understand the importance and value of this approach.

How has commercial litigation developed in India since you started practising?

Matters are taking far less time now. Some suits still take time, but the commercial courts have ushered in good practices. Further, commercial litigation has become more strategic for the client – the main battle is the interim order. Thereafter, both parties are happy to settle the matter. Commercial disputes are therefore shorter and sharper. Another development is the range of new areas – when I started there was no competition law or insolvency code, for instance. And white-collar crime is a whole new field. These are exciting times and it is quite a different thing to see case precedents evolve under your nose, rather than read about it later as a student.

Do you expect the role of third-party funding in litigation proceedings in India to change over the next few years?

Everyone I speak to says “Yes, of course” except the funding companies who say “Well, maybe,” or “No, not really.” The real answer is yes, it will, but there are a few regulatory challenges that need to be ironed out. Moreover, the funding companies are worried about the time taken. Litigators are apprehensive of having strategy taken out of their hands and also being forced to reach a settlement for a lower amount than they expected. A lot of this can be put down to lack of understanding, so I do believe it will happen – but not anytime soon.

How do you see your practice developing over the next five years?

One of the things that will happen in India is that counsels will be forced to choose between litigating in court or focusing on arbitration. It is already very difficult to do both and the demands of doing so will force the choice to be made. Further, there will be an increasing amount of domain knowledge specialisation. Although today we are more specialised than before, counsels are still known for their skill sets and not domain specialisation. This will change dramatically.

What advice would you give to someone looking to start their own practice?

First, don’t even think of it unless you are prepared to make personal sacrifices. It is a demanding profession and even if you have a godfather or two, you will not reach anywhere unless you are ready to bend your back. Everyone has the ability and willingness to work hard, but to do so at great cost to your personal life takes a different kind of passion.

Second, start with original side work. There is no better learning ground for a young litigator.

Third, never ever lose your temper in court. It is hard to do and the younger generation believe in getting aggressive to win the day. This is plain wrong and moreover counterproductive.

Fourth, find a very good counsel who is conceptually strong and get him or her to mentor you.

Fifth, don’t be afraid of doing or saying the wrong thing in court. It’s a great profession and junior lawyers are often given more indulgence by judges. Lose the fear of messing up very quickly or else change your career.

What has been your greatest achievement to date?

It’s hard to pick one case but I will always remember the Monday when I did a cross-examination and destroyed the witness, despite my mother having suffered a stroke the day before. I remember it not for the outcome, but for the steely mental discipline it took to do that.

What is the best piece of career advice you have received?

Move to New Delhi if you want to be anybody in litigation. Although I actually moved for personal reasons, in hindsight this is definitely advice I will always recall.

Global Leader

WWL Ranking: Recommended
Litigation 2019

Professional Biography

WWL Ranking: Recommended

WWL says

Percival Billimoria is “a key name” in the Indian market when it comes to high-value disputes relating to various matters, from joint ventures to infrastructure claims.

Biography

Mr Percival Billimoria (Percy), also a chartered accountant by qualification, is known for his extensive experience as an arguing counsel (litigation and arbitration), representing international companies and investors doing business in India.

Percy specialises in commercial disputes, especially transnational matters arising from joint ventures, financing documents, construction and infrastructure projects, oil and gas exploration projects, insolvency and restructuring, corporate oppression and mismanagement actions, class actions, writ petitions against regulators and court petitions for execution of decrees of foreign courts.

He also specialises in antitrust matters before the Competition Commission of India (CCI), and appeals to the former appellate tribunal (COMPAT), now the National Company Law Appellate Tribunal (NCLAT) and thereafter to the Supreme Court of India; white-collar crime, including trials, revision petitions, quashing petitions and appeals; and tax litigation before the various tax tribunals (especially the Delhi Income Tax Appellate Tribunal), the High Court and the Supreme Court of India.

Percy was formerly a senior partner of Cyril Amarchand Mangaldas, head of the New Delhi office and national chair of the firm’s disputes, regulatory, advocacy and policy (DRAP) practice. Prior to that he was a senior partner at AZB & Partners, chairing their litigation practice from New Delhi.

Some landmark matters in which he successfully appeared as lead counsel include his representation of a Swiss company in the Supreme Court in a landmark decision that settled the question of whether an allegation of fraud is “arbitrable”; a US multinational in the Supreme Court, in a case that addressed a pathological arbitration clause and referred the parties to arbitration by virtually redrafting the clause; a Swiss company in a case where the Supreme Court intervened to stop coercive steps by the authority in a relief seldom granted when the authority pleads the cause of public health and safety; a leading German manufacturer of speciality glass before the former Competition Appellate Tribunal, in a matter that settled the law on margin squeeze, in line with international jurisprudence; an Indian subsidiary of a multinational travel agency before the former Competition Appellate Tribunal in the first appeal against a finding of “gun jumping” by the CCI set out the jurisprudence on the question of when a merger filing is mandatory; and a leading telecom service provider in the Telecom Disputes Settlement and Appellate Tribunal in a matter where the Tribunal decided the manner of computation of “adjusted gross revenue” for the purpose of levying licence fees. This ruling settled disputed sums amounting to several billion rupees and also resulted in a recurring benefit for telecom companies in India.

He also acted for a leading international company and its CEO before the Special CBI Court, the High Court of Delhi and the Supreme Court, in a matter where the clients were absolved of all charges of corruption and conspiracy, leading to closure of the trial as well as the quashing of proceedings against the CEO, which established the jurisprudence on the question of circumstantial evidence in relation to an alleged conspiracy.

He specialises in large-scale litigation and arbitrations with an emphasis on various multi-jurisdictional disputes, including white-collar crime and ADR. He appears and represents clients before the Supreme Court of India, Presidency Town High Courts, quasi-judicial bodies and arbitral tribunals.

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