“As a transactional lawyer, one has to comprehend all the future eventualities while drafting agreements and documents between parties”- Hemant Kothari, Advocate and Legal Consultant

This Interview has been published by Pragya Chandni and and The SuperLawyer Team

Sir, can you share a bit about your journey in the field of law, from your early days to establishing your own chambers? What inspired you to pursue a career in law?

I come from a small town in Rajasthan called Merta, where we stayed for the major part of my childhood before moving to Jodhpur where I completed my schooling. In Merta, my Nanaji (Maternal Grand Father) was practicing as a Sales Tax Attorney and had established a small but niche and respectable practice advising the businesses in and around Merta, on their Sales Tax compliances. Even though he was not a traditional court going lawyer and mostly did departmental practice, he was fondly referred by everyone in the town as ‘Vakil Sahab’, which I used to consider a title of respect. 

Also, despite coming from a predominantly business family, I had keen interest in social sciences while growing up. 

Therefore, with the benefit of hindsight, I think my choice to pursue law was the fortunate amalgam of having grown up looking up to a tall and respectable figure in my Nanaji and the opportunity to explore my interests in social sciences when I got to know about NLUs after moving to Jodhpur.

Coming from a small town, the opportunity to study law at NLU Delhi was a privileged experience, which for me was not only a place to train as a lawyer but opened the world to me in a manner that I had not envisioned. I am what I am today because of the five years spent in the company of the dearest friends and peers, apart from some of the most exceptional faculties at NLU Delhi.

After completing college, I joined Khaitan & Co (KCO) in Mumbai. In my first year at KCO, I rotated and worked with the Banking & Finance team, Indirect Tax team and the Investment Funds team, before finally joining the Banking & Finance team. I had a great mentor and guide in my partner at KCO, Mr Kumar Saurabh Singh from whom I have tried to imbibe the ability to think holistically as a lawyer, instead of a tunnel view, on any given issue. 

During my time at KCO, the Insolvency and Bankruptcy Code, 2016 (IBC) had just been introduced and top 12 defaulting companies then were referred to the process under IBC. With the team at KCO, I was involved in the CIRP proceedings of three (3) companies, being Essar Steel India Limited, Alok Industries Limited, and Electrosteel Steels Limited, apart from other assignments under IBC. Invariably, all the processes went into litigation, which gave me the opportunity to work on both transactional and litigation aspects in the aforesaid matters and to closely interact with the leading Senior Advocates in the country.

The exposure to handle litigation in high stakes matters re-affirmed my interest in litigation but at the same time, I did not want to completely forego working on the transactional side. 

From a long term perspective, I always wanted to settle in my home state, i.e. Rajasthan.

Accordingly, after a stint of around three and half years with KCO, I moved to Jaipur and for the first few years, I wanted to just learn as much as possible in terms of managing court practice, advocacy and understanding the intricacies of litigation. In Jaipur, I initially worked with Chir Amrit Legal LLP as a Senior Associate, where I was fortunate to learn under Mr Sanjay Jhanwar (Sr. Advocate) and Mr Prakul Khurana.

In 2020, I joined the Chambers of Major RP Singh, Sr Advocate and the then Additional Advocate General (AAG), as Assistant to AAG and continue to work under his guidance even today. Under his guidance, I received intensive training in court craft and advocacy, which has certainly helped me improve immensely as a lawyer. He graciously allowed me the flexibility to take up my own matters and to gradually build an independent practice. 

With the support and blessing of my Seniors, I was fortunate to set up my independent Chamber in August, 2022 after extensive training of more than six (6) years.

Your experience includes representing the Government of Rajasthan in key disputes. Can you highlight some of the challenges and highlights from your time handling matters related to finance, revenue, indirect taxes, and other departments?

The experience of representing government departments does help one to gain a deeper strategic understanding of matters from the perspective of the government; in understanding how the institutional machinery works on policy matters; and generally in terms of how the decisions are taken. 

Now practicing on the private side, the learnings from my experience in representing and advising government does help me in having a better perspective in matters where the government is on the opposite side. 

Also, governments are the biggest litigators in our legal system and in representing it, one gets to work on a diverse range of matters and really fast forwards the pace of learning.

In your current chamber practice, you cater to both transaction advisory and dispute resolution mandates. How do you balance these two aspects of legal practice, and what unique challenges do you face in each?

As I said, during my time at KCO, I had the unique opportunity to work on transactional and litigation aspects simultaneously, for matters under IBC. While traditionally there is a clear segregation between transactional work and litigation work, but in my experience I have realised that one is a better transactional lawyer with the experience of litigation and similarly, one is a better litigation lawyer, with the experience of transactional work.

As a transactional lawyer, one has to comprehend all the future eventualities while drafting agreements and documents between parties. Having a perspective that how the document so drafted will be construed in arbitration or courts, if it goes in dispute, helps one to give better advise at the transaction stage. The reverse is also true for litigation lawyers, particularly for those practicing in commercial laws. 

I have experienced so while representing and handling complex commercial arbitrations or court matters involving large volumes of contracts such as Concession Agreements, Financing Agreements, Shareholders Agreement, EPC contracts, Service Contracts, etc. 

In terms of managing a practice to advise on both transactional and litigation aspects, I have separate teams in my Chamber which work exclusively on transactional and litigation matters, respectively and the final advise or work product is reviewed by me. The chamber also focuses on training the associates to have multi-disciplinary understanding such that they are also trained to deliver a holistic solution to the client. 

Obviously, with my litigation practice when I am in Courts for a good part of the day, it may at times be difficult for me to singularly manage the transactional practice which requires more desk work. Therefore, I have focused on retaining and nurturing experienced associates dedicatedly working on transactional matters to be able to deliver holistic work products in a timely manner in a Chamber set up, where the end responsibility remains mine.

Could you share an anecdote or case that was particularly challenging and how you approached it?

There are various interesting and challenging matters which I cannot talk about since they are still sub-judice in appellate forums. 

One of the challenging matters I did was a road construction arbitration during the COVID-19 pandemic. I found it challenging since (a) I was the only Counsel responsible for preparing, drafting, researching, coordinating with the Government Officers and also to brief the Senior Counsel on behalf of the Government to defend a claim of more than Rs. 250 Cr.; and (b) barring last one hearing in the arbitration, the entire arbitration was held virtually including for cross-examination.

The work on this arbitration went on for around one and a half year and I had to really burn the midnight oil on many nights to prepare and be ahead of the opposite side, which was represented by a Tier-1 law firm. 

Generally as a lawyer one is only trained to look at legal principles, but the added interesting work involved in the matter was to understand the intricacies of road construction and engineering to be able to do proper synthesis of technical matters. I cannot say I became an expert in road construction after this matter, but it certainly tells you that as a lawyer, one gets to work on a variety of matters that keeps the urge to learn alive on each day.

While we succeeded only partly in the matter, I was humbled to have received the kind appreciation from the Presiding Arbitrator, upon conclusion of the final hearings, as also from my Senior.

As retained advisor to large Indian business and startups, you describe your role as an external general counsel. What does this role entail, and how do you oversee both transactional and dispute mandates for your clients?

I do not have any title as External General Counsel but in order to summarise the range of services that I deliver to my clients, I use the term in an informal manner and also because most of the clients may have in-house legal team for general compliances but not to advise and coordinate with the management / business teams on complex legal-commercial issues. 

As I have already explained, my chamber caters to both transactional and litigation services, which has fortunately been appreciated by a number of large businesses, who have retained me for overseeing and helping them with all their transactional and litigation matters with the expectation that I understand their business and commercial needs while advising them holistically. 

Increasingly, I have felt that the upcoming businesses or for that matter even established businesses require steady and continued legal support from a lawyer, who is in active practice interacting with other clients and not in their in-house system, to be able to have a better outsider or on-field view on various issues, as early as possible before they rake up. This is possible only based on continued association with the clients to be able to understand and appreciate the needs of the client from a broader perspective while advising on specific issues.

In this capacity, it is not necessary that we undertake the entire work but sometimes depending on commercial requirements of the client, I advise my client to engage services of other professionals/law firms with whom my chamber works in coordination. The underlying principle being that my role is not only to provide legal services but to keep the best commercial and legal interests of my client to help them navigate their requirements. 

Thankfully, I have been receiving positive feedbacks from my clients so far on this working model and hope to grow this area of practice more.

Your advisory work spans restructuring, insolvency transactions, GST matters, investment fund advisory, and more. Can you share a specific transaction or advisory mandate that you found especially interesting or complex?

The earliest and cherished experience for me was to work on a large multi-jurisdictional financing transactions during my time at KCO. Apart from the long night calls due to the difference in time zones, I learned how one has to apply the prevailing laws and regulations to tailor make an agreement by incorporating the commercial wishes of the parties in the best manner possible. Being a multi-jurisdictional financing transactions, we dealt with the rules under FEMA and the RBI directions to accommodate the terms of the transaction between parties. The entire process of negotiating on the commercial aspects with the legal interpretation of the applicable laws was something that I found really interesting and complex, as it then helped me build an understanding that as a lawyer when one negotiates or takes a position, it has to be backed by sound legal reasoning else the other side can simply roll you over.

There are many such experiences and learnings but the core principle that I have come to understand is that as a lawyer, one must not stop thinking or prematurely jump to assumptions or conclusions and one  must keep exploring and reinterpreting the bare texts of law as much as possible.

Considering your diverse experience and success in both private practice and government representation, what advice would you give to law graduates entering the field today? Are there specific skills or mindsets they should cultivate for a successful legal career?

From my experience so far, I can only say that give your best at your work place. Whatever assignment or work comes your way, take responsibility for it like you have to be personally answerable to the Court or the client, for your work. If you start inculcating such an attitude, your work will speak for you.

In terms of skill set, the fresh graduates should focus on developing a multi-disciplinary understanding and keep themselves abreast with all the new legal developments to gain knowledge about other areas of law, in which they may not be working. Law evolves and develops every day and as new entrants into the profession, you have the benefit of looking at everything from a fresh perspective to contribute to better development of law.

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