This interview has been published by Anshi Mudgal and The SuperLawyer Team
Not being from a legal background, what motivated you to pursue a career in law? Was there a particular factor or experience that led you to this profession?
Entering the sphere of law was a culmination of several reasons and some factors which did influence my ultimate decision. The reasons influenced my decision by chance but the factors influenced my decision by choice.
The reasons of chance, which I mentioned above, were instrumental in aiding my decision. This was a prolonged litigation involving a close relative’s property, which dispute had been on-going for over 20 years. This was rather paradoxical for me, since, in my formative years, the elusiveness and unpredictability associated with the field dissuaded me from even considering it. Perhaps, the age old adage “tareek pe tareek” was not inspiring for a young school boy.
But my interactions with a school senior, who was at the time pursuing law and a third generation lawyer, somewhat redirected my focus to discern the importance of applicability of law to societal intrigues especially in the Indian landscape. “Tareek pe tareek” has a much deeper connotation in a legal system like ours, where justice is dispensed on the principles of equity, good conscience and after affording sufficient opportunity of hearing.
Additionally, I may highlight the factor which enabled me to exercise my choice for pursuing this field. I completed my high school education at the Sanskriti School, New Delhi. Sanskriti is a civil services school and the predominant student pool belonged to the services background. Naturally, growing up there was an innate sense of contributing to the society by pursuing a profession having elements of public discourse and service. The first choice was to pursue the administrative/police services which involved studying various subjects including law.
As time progressed and my understanding developed, I sensed a natural affinity towards the field of law, both in terms of an academic disposition as well as the practical nuances. This etched my curiosity further and although I had the option to enrol myself for a bachelor’s in political science degree at a prestigious college under the Delhi University, I decided to take the plunge. The relevance of law to shape the Indian democracy, whether in terms of administration, economy and society and my enthusiasm for contributing to the public in aggregate could be an arguably strong reason in retrospect.
I also keep a healthy regard for acting and used to think to myself whether I could pursue the profession of acting. Being a lawyer however, helps in putting up a sincere act.
Having spent nearly a decade with the same organization and being a first-generation lawyer, what were some of the key learning experiences early in your career that helped shape your understanding of the law and have had a lasting impact on your professional journey?
The inter-play of law with every facet of life must be understood in its right context in order to garner a profound interest for the field. I believe, the yearning to acquire knowledge about diverse subject matters, businesses, industries, and economies broadens perspective and assists in hyperlinking and interlinking bringing conceptual clarity. Law does not operate in a vacuum and spreads across different spectrums. The ability to earnestly apply the flexible nature of law to the proposition requiring resolution can be developed through awareness of the entire spectrum.
I have always taken discipline very seriously and have come to realize that discipline as an attribute takes precedence over everything else if one endeavours to meaningfully contribute to the profession. Overall discipline is a practice and must be consciously cultivated till it becomes a way of life. I lay emphasis on discipline since the profession can be daunting at any stage of one’s professional journey if the foundational structure is frail and that is bound to happen in the absence of discipline. While I can credit myself for being disciplined from the inception of my professional journey, I must express gratitude to the Seniors whom I have worked with/assisted in channelizing the discipline for shaping me into the professional I am today.
Doctrine of precedents is a fundamental principle of judicial decision making in India. Therefore, assisting the Court through precedents applicable to the factual matrix is an extremely integral skill in Advocacy. The manner of reading a judgment and sifting through it to examine what constitutes the ratio decidendi of the case and what is obiter may sound elementary, but it is often overlooked for being so elementary.
I have been privileged to receive guidance from all the Senior Counsels I have briefed and the Senior Partner (Mr. Sumeet Lall), I was and am currently working with on the various aspects of advocacy. Every sentence in a judgment, pleading and document must be carefully examined, orbitally analysed and tactfully applied within the acceptable framework of the statute in question. Every word carries weightage and it can be overlooked not at your peril but at the peril of the party you may be representing. Training in Insurance law taught me that even a punctuation must be heeded to, since it can alter coverage of an insurance claim for an insured and deny it indemnity.
Illustratively, some invaluable teachings which I have imbibed from Senior Counsels and my mentor in the profession are fairness while assisting the Courts, mastering the facts so that research of the laws and precedents is expansive and detailed, articulating submissions in an uncomplicated manner while balancing the in-depth research, measured pleadings without any casual averments and a penchant for finding novel propositions supported by research and provisions which could aid in overall development of the law.
What led to your decision to remain with CSL Chambers, despite the opportunity to pursue an LLM at prestigious universities abroad? How do you believe this decision has influenced your career path?
My admission to various universities for an LLM in the field of dispute resolution/arbitration was in the year 2020/2021. Incidentally, this was during the onset of COVID-19. It created an extremely complicated situation for me and reminded me of the book, the Road Less Travelled. The uncertainty of pursuing higher education in a different country across the world during a global pandemic and the complexities associated with staying back at CSL Chambers, where I had planned my transition for over 6 months was unsettling.
I was in the 4/5th year of my practice and the time was ripe to pursue an advanced academic disposition with an aim to immerse myself in examining cross-border issues through a specialized masters’ program. The decision was a well thought out one since I had spent considerable time and focus on a particular field of law i.e. dispute resolution/arbitration. The uniquely structured courses, the quality of education, integration with academicians and foreign practitioners are some of the illustrative reasons which formed my belief to pursue an LLM. Knowledge is liberation and thus, higher education would have contributed significantly to my professional journey.
Sunlight is the best disinfectant. I decided to confide in the Firm’s Managing Partner about this quandary I was facing. I was cognizant of receiving advice having a negative bias against proceeding for an LLM since a familiar resource of the Firm should be retained. However, I received extremely dispassionate and neutral advice which brought clarity for me to pursue the graver challenge. It was a question of whether pursuing the LLM at that juncture would significantly contribute to my professional journey or could I cultivate my on-going professional journey to make an impact greater than I would, had I pursued an LLM, since ultimately I would come back and pursue my practice in dispute resolution.
I decided to defer my admission to all the Universities and some even obliged by granting a year to year deferment. COVID-19 brought with itself myriad challenges to businesses, economies, personal and professional lives. Strictly from a professional standpoint, I viewed it as an opportunity to make meaningful contributions towards the Firm’s growth story and service Client needs. As an example, I started writing articles on vexed issues related to COVID-19, which ranged from issues of force majeure, impact on commodities trading covered by trade credit insurance and business interruption claims under insurance to name a few. These articles attained relevance for individuals/corporates operating in different spheres, which led to significant support being rendered by the Firm on their legal requirements.
The pandemic years had an adverse impact on the litigation landscape, although there was a rise in the number of cases. Policies of work from home, transitioning into virtual systems and the innate sense of conservation of resources led to challenges of remaining relevant in the field as well as sustaining practices. Navigating some of these challenges with the Firm during the pandemic helped me develop a sense of responsibility, leadership and an ability to craft legal solutions in innovative ways. Perhaps, an LLM would have aided my understanding on an academic level, but to assist with steering the Firm and its Clients and assisting Courts respectively during this period has matured my appetite to understand the finer prints and operation of various laws.
The decision to stay back with the Firm has been enriching both in terms of personal growth and professional advancement. Given the circumstances over the 4 years from the on-set of the pandemic, I have been able to meaningfully contribute to the development of law while augmenting my knowledge through learnings at the bar while assisting Senior Counsels, continuously researching on legal propositions and making an endeavour to seamlessly assist Courts. In fact, staying back helped me find my passion in assisting Courts as counsel. Additionally, I have been privileged to be a part of some of the landmark decisions in the field of arbitration, insurance, insolvency and SARFAESI on novel points of law.
You’re widely recognized for your work in the field of arbitration and insurance. Could you share your experience working on the landmark case GMR Energy Limited v Doosan Power Systems India Private Limited? What were the main issues, and how did you approach and strategize to resolve them?
The Doosan decision passed by the Hon’ble Delhi High Court was a pathbreaking decision at the time in the year 2017. It involved intricate issues of law which were far from settled by any Court. Some of the issues which were decided by the Court were whether two Indian parties can be referred to arbitration outside India, joinder of non-signatory to an arbitration including the power of a Tribunal to join such non-signatory and the scope of Section 45 of the Arbitration Act.
We successfully represented Doosan before the Delhi High Court as the parties were ultimately subjected to arbitration in Singapore. The decision of the Delhi High Court in Doosan has been subsequently upheld by the Supreme Court on various occasions while adjudicating similar issues and settling the law.
Our arguments were led by Mr Nakul Dewan, whose approach to the case was inspiring to say the least, on all levels of advocacy and strategy. This was a case which involved interpretation of laws of different jurisdictions, since there were no direct precedents in India which had examined or settled the propositions emerging in the facts of the case.
Developments in the case took place rapidly and any step being taken by a party in one jurisdiction would have a bearing on the rights and contentions of the respective parties’ in the other jurisdiction. Time was extremely scarce as the hearings were taking place daily. As someone with 2 years’ experience at the time and assisting with a case of that magnitude as the only junior from the Firm, I had to embrace my discomfort and lack of experience. One could feel lost in the initial years when everything is happening on a larger scale and the expectation is able assistance without fetters. Therefore, taking the next step in the supply chain is very important i.e. apply yourself and attempt to contribute to the best of your ability. Rely on the Seniors once you have diligently done your homework. An attempt at developing a submission/proposition even if it may not work is always welcomed by Seniors provided the background work has been sincerely carried out. I immersed myself completely in carrying out extensive research of legal principles, case laws, commentaries across jurisdictions and prepared notes with an endeavour that they could be relied upon for arguments. This would lead to enriching feedback from the counsel, where further propositions would emerge and those propositions would then advance our case. Here was a case where the law on the issues highlighted above was unsettled and thus, reference points and text in India was scarce.
Nevertheless, handling the case in terms of managing correspondence with the Tribunal in Singapore, drafting and filing pleadings overnight and assisting with day to day arguments ensuing before the Court with 2 years of practice, was an extremely enriching experience which provided innumerable lessons and learnings for life. The judgment of the Delhi High Court examined judgments from the US, Singapore and England in finally deciding the lis between the parties.
What challenges have you encountered when advising clients on the enforcement of foreign arbitral awards in India, and how do you assist entities in overcoming these challenges?
Over the years, the Indian Judiciary has taken pains to pass seminal judgments settling various issues arising in enforcement of New York Convention awards in India. While there are only 7-8 material provisions which govern the enforcement of foreign awards regime, it is a complex subject within itself with its own set of challenges for Clients and Courts.
An immediately identifiable issue is exercise of jurisdiction by the concerned Court in India while dealing with challenge to enforcement of foreign awards. This is often a moot question since the language dealing with jurisdiction of a Court under Part II leaves room for ambiguity, although judgments of different High Courts have expressed views to clarify the issue. CSL Chambers successfully represented a foreign award holder before the Hon’ble Delhi High Court where this issue of jurisdiction was raised by the judgment debtor and exhaustively settled by the Hon’ble Court.
Another area in the realm of enforcement of foreign awards which is highly litigated is the issue of withholding tax on a foreign arbitral award once it is recognized as enforceable. I was fortunate enough to be a part of the judgment passed by the Hon’ble Delhi High Court which settled the issue holding that once a claim merges into a decree of the Court, it transcends into a judgment debt, the decree should be executed according to its tenor and no deductions or adjustments are permissible except those permissible under the Code of Civil Procedure, 1908.
The two broad issues have been highlighted above since these go to the very root of realizing the fruits of a foreign award. Therefore, the approach for resolving the issues needs to balance the internationally followed practices and customs as well as testing the legitimacy of challenges mounted to the enforcement of foreign awards within the narrow pigeon holes provided under the Arbitration Act.
At the first blush, recent precedents could suggest that armed with a foreign award, a party is duty bound to succeed in its endeavour of enforcement. However, the statutory in-built safeguards to object to enforcement of foreign awards still posit novel issues and complexities which require extensive study of transnational text and foreign precedents which must be presented before the concerned Courts for further shaping the arbitration landscape of the country.
It is difficult to summarize the nature of assistance to the Clients in helping them navigate challenges faced in enforcing foreign awards. However, as a suggestion, one must have regard to foreign commentaries, prevailing institutional rules, statutes and precedents for gaining perspective which can bolster seamless operation and development of the domestic law. Needless to state, foreign precedents can only aid in arriving at a decision where there is no existing domestic precedent but it is not the only tool to be considered as the Arbitration Act is a self contained code. This field is such that considering the novelty of propositions and untested propositions, lawyers must be always ready with proposed solutions through research to better assist the Courts when examining issues under part II of the Arbitration Act. Perhaps, that is how BALCO came to shape the arbitration landscape.
What advice would you offer young lawyers who wish to specialize in arbitration and build a successful practice similar to yours?
One must bear in mind that as lawyers, we are serving the interests of third parties and espousing the larger cause. There is significant trust reposed by Clients as well as the Courts in lawyers for aiding the process of justice dispensation. Naturally, the only way to honour this trust being reposed is to step up and take full responsibility with sincerity. There must be a sense of ownership for every task being performed and a transparent approach. One should always remain curious to learn and enhance their knowledge base, both practical and academic. Remaining abreast with the latest developments in law, case laws and activity in Courts must be inculcated in the daily routine till it becomes a subconscious habit.
Your own comfort and ease come last, always and every time. The concept of work life balance may have diverse connotations. However, if one is passionate about and honest to the profession and willing to immerse themselves without regard to the self, then equanimity transcends the struggles associated with the demanding nature of our profession. The search for work life balance may limit productivity and skill development since our profession is extremely dynamic and requires us to constantly remain ahead of the curve. Balance can be achieved when work is not designated as “work” but discharging a duty which inspires others to strive for equity and justice. Mental and physical discipline goes a long way in balancing the requirements of the profession.
Always approach any proposition, problem or case without any bias or prejudice. A clean slate approach, which brings out novel dimensions for problem solving through application of existing principles of law. Short circuiting the long, laborious hard work route will catch up and reflect somewhere in the scheme of things. It could then erode the confidence of third parties which was reposed in you. One must follow and learn through the journey, experience and immeasurable hard work of Senior Lawyers in the profession, who possess great clarity and problem solving abilities due to their proclivity for learning the law every day.
Ultimately, the path which one adopts is personal but the customary teachings about the profession and resilience required to sustain in the profession continue to remain relevant till this day and age. In the words of the great Late Fali Nariman, once a student of law, always a student of law. Law being a practice, one can never think they have understood, acquired, or known it all. As an example, a provision under a statute could be interpreted in so many ways and therefore, in my view, a good lawyer is always a student of law. In this regard, it is also very important to remain in Court and sit in Court to observe arguments in other on-going cases for the day since the propositions emerging therefrom could be applied and be relevant for some of your own cases. It also adds to the knowledge bank in terms of identifying judgments on different issues.
You have a strong passion for writing and contribute to various legal publications. How do you manage to balance your demanding legal practice with writing updates, analyses, and insights on judicial pronouncements?
Reading and understanding judgments in a vacuum contributes in a limited way to professional development. The essence lies in linking the observations in a judgment, the ratio, obiter to the proposition, case or issue which one is dealing with. This interlinking helps developing new arguments or further provides the scope to appreciate the operation of a statute from an untested standpoint which could ultimately become another precedent. One way of building this expertise is through summary writing since it entails distilling the entire case law into a short piece for readers who may or may not be lawyers.
Therefore, it is very important to appreciate the text of a judgment holistically and apply it in the context of your existing on-going matters. Alternatively, holistic reading of a judgment contributes immensely for a new case with varied propositions.
Articles, publications and other academic contributions are a significant tool for acquiring knowledge, understanding the finer nuances of legal principles and gaining experience on the approach of Courts in adjudicating cases. Articles and publications are also important means to disperse knowledge to the concerned audience since it assists with streamlining the dispersed legal developments in a consolidated form. It is also an integral tool for connecting cross border practitioners who may be looking at the Indian jurisdiction as a destination for dispute resolution.
Frequent articles or contribution to publications helps build a repository of information which can be utilized and relied upon in the future as reference for a case which one may be involved in. Therefore, more than a balancing act, it is a branch of Advocacy which only supports and stabilises the pyramid.
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