“Now with last amendments and a proactive approach by the bench over time, we are able to see arbitration proceedings working close to its objectives of being quick and efficient”- Varun Nischal, Partner, Q & A- Advocates

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

Could you walk us through your journey from completing your LL.B. to specializing in corporate compliance and dispute resolution, particularly in arbitration?

After completing the 5 yr LL.B. (H) program I joined a law chamber for about a year. The idea was to get an exposure to the trial work and gain an understanding of the ‘real world’ dispute resolution system. I remember on the first day of law school our constitutional teacher told us “you will spend 5 yr in law school to learn certain things that you will spend the next 1 year unlearning when you start practicing”. It was quite true. In fact interacting with a client and analysing facts to understand his underlying desired outcome is something I started learning during that period. I also wanted to add work experience before applying for LL.M. to improve chances of getting admission to a good university. During the LL.M. my focus was on ADR and business transactions. The classes on ADR introduced me to the advanced Mediation process being followed in the US at a time when Mediation was still not considered an effective alternative here. The Arbitration law had undergone a generational shift a few years ago and it was early days. The classes I took in LLM helped me grasp universally applicable principles in Arbitration which helped me when I came back and gradually focussed on ADR practice. Over the years working with several good corporate clients we realised that they were focussed on being legally compliant and always needed legal advice to avoid any pitfalls. I guess I kind of developed the necessary expertise to address the regular compliance issues of clients.

What motivated you to pursue a Master of Laws (LL.M.) degree with a specialization in ADR and international business transactions law at the University of Southern California (USC)?

The idea of doing LL.M. from a foreign university is not only to learn but to also develop additional skill sets and make new connections. Most of the faculty are practicing professionals from top tier firms and share the industry specific best practices. At that time there was a lot of focus on Bharat and with a lot of cross border transactions there was a growing market in the US for lawyers with working knowledge of Indian law and understanding of the legal ecosystem here. With the major focus on Arbitration as a dispute resolution option, the International ADR course seemed a logical extension of being prepared for practicing in that area. Unfortunately, the subprime mortgage crisis led to a prolonged economic downturn and cut short the plans to work on transactions but being taught ADR by some of the best faculty motivated me to focus part of my practice area on Arbitrations. It only helps to service clients today with a global presence as I am still connected to my fellow classmates from the LL.M. program who are based in Europe, Middle East and SouthEast Asia.

Your work involves representing both private and public sector corporations (PSU). How do you navigate the differences in handling legal matters for these different types of clients?

Whether you represent a government entity or a private party, a counsel’s approach towards finding a solution to those disputes remains largely the same. However, there is a wide difference between the two sides when it comes to the work culture and decision-making process especially when it comes to matters related to litigation or Arbitration. Whether its negotiating contracts or working on case strategy the private client is either more willing to settle with a reasonable outcome or pursue legal options up to the Apex court but there is finality in the decision making, however when it comes to PSU client we have to weigh the slow decision making process and also impact of any policy decisions made by government on the strategy being followed. We also have to understand that decisions for PSU clients are impacted by legal costs involved as it will burden the exchequers ultimately. I must add that though some lawyers may feel less incentivised to pursue government side work however, I feel that working on the government side allows one to get great exposure to a variety of complex legal problems and it is also a matter of great pride as one gets to be of service to the public in a way.

Could you share a particularly challenging case you’ve worked on and how you approached resolving it?

Every case comes with its own sets of challenges and in fact sometimes a case involving most basic issues can throw a completely new challenge at you at any stage of the case. Once a client came to us who was a defendant in a claim involving recovery of money which he was unable to pay due to the financial crisis. His right to cross-examine had been closed by the Court due to failure on part of his legal team, therefore he was clearly facing an adverse outcome ultimately. We were able to get the appeal admitted on legal issues and also conveyed our willingness to the court for closing the matter for a reasonable settlement. Since our client had previous long standing business relations with the plaintiff, I advised him to have the settlement discussion with the management of the plaintiff directly and fairly convey his difficulty and work out a structure for making reasonable payments over a period of time which included a large chunk of interest accrued. During the hearing the Judge appreciated the genuine effort being made by us and understood the financial distress caused during Covid period and prevailed upon the plaintiff to accept a reasonable payment structure. It ultimately saved our client from going out of business.

You’ve been heavily involved in advising on labour and HR compliance, as well as issues related to Sexual Harassment at Workplace (POSH Act). What are some common challenges you encounter in this area, and how do you address them?

Most common challenge we face when it comes to HR related issues is that there is a lack of awareness about the enforceability of various clauses that are put in contracts or conditions in the HR manual being followed by the entity. Sometimes the policies put in place are outdated and not in sync with the current legal scenario. Another issue we see is non implementation of policies across the offices in different places of the same company. For example, some organisations have policy for Maternity benefits under the Act but their implementation varies depending on the location and economics involved. When it comes to POSH related issues, I feel that implementation of the law in its true spirit is missing. Sometimes even the top management is not sensitized enough to understand that   training sessions are not meant for female coworkers only but requires equal participation from male coworkers as well. I think the law itself requires to be redesigned to address some of the grey areas, the current issues and evolving work culture. But there is a serious need to at least have a system for enforcing the provision, as they exist, so that it is followed uniformly in every organisation / entity covered under it. 

Your involvement as a certified Mediator and being empaneled with various legal bodies is impressive. How do you balance your role between advocacy and mediation, and what benefits do you see in offering both services to your clients?

I am a certified mediator empanelled with the Delhi High Court Mediation and Conciliation centre called “Samadhan” as well as the Mediation cell with NCDRC. In my 6-7 years of experience in mediating a range of disputes, I have realised that settling disputes through mediation is much more fulfilling professionally as it helps the litigants with timely relief compared to endlessly litigating with greater costs and worsening relationships. As a mediator, I do not have to think about the interest of only one party as there is no side to choose and the ultimate goal is to help parties in reaching an amicable solution to the entire dispute. While at the same time the process helps me in honing the negotiation skills as well.

I must confess that many of our colleagues believe that mediation is antithetical to a lawyers’ dispute resolution practice which is incorrect. In fact being a certified Mediator helps me in advising the client holistically. I always initiate a counselling session with the client to understand their underlying expectation of the outcome of either a negotiation or litigation with the opposite party and use mediation skills to help them understand their best-case scenario in case of failure to settle. The process helps the client to have a realistic assessment of his case and the actual time and costs involved. The ever growing importance of mediation was highlighted by the CJI Hon’ble DY Chandrachud at the National Conference on Mediation held last year, who called for a ‘Youth-based mediation’ and even J. Manmohan, the current acting Chief Justice of Delhi High Court remarked that mediation be made a part of curriculum for students as early as possible to ‘catch them young’.

I find mediation to be very rewarding and I hope more lawyers consider taking up mediation as a prominent part of ADR practice. In fact at a recently concluded Arbitration event, Hon’ble J. Sanjiv Khanna, Judge, Supreme Court of India remarked that some mechanism needs to be evolved to merge mediation process with the Arbitration Act in order to have a quick, party-driven dispute resolution mechanism. 

With nearly 17 years of practice, what changes have you observed in the legal landscape, especially concerning arbitration and dispute resolution, and how have you adapted to them?

Arbitration proceedings in India were very different prior to the amendments introduced in 2015. Though the time consuming issues were addressed but still it was fraught with difficulties that made it challenging to obtain the arbitral award and far more challenging to execute it. Now with last amendments and a proactive approach by the bench over time, we are able to see arbitration proceedings working close to its objectives of being quick and efficient. However as recent decisions have shown, that many issues involved are still getting adjudicated and will take some more time to authoritatively address many complexities in interpretation of the clauses and unfettered powers of arbitrator which sometimes lead to situations where outcome in similar situations are not based on legal principle but on the understanding of particular arbitrator. I believe that greater push is rightly being made by the government towards institutional arbitration in the country to bring some sort of uniformity in the whole process. 

When it comes to the dispute resolution system, I believe the greatest change brought in recent years is through complete digitisation of the court records especially in Delhi High Court and the availability of virtual hearings which has truly taken the justice delivery to every doorstep. As lawyers, efficiency and productivity of our practice has immensely grown due to the above changes and in almost all the Arbitrations I am involved in they are being conducted through virtual platforms. I believe that the continued promotion of digitisation of courts led by the Hon’ble Supreme Court and equally adopted vigorously by the Hon’ble High Court is commendable and deserves appreciation.

As a member of various legal associations and advisory boards, how important do you think networking and community engagement are for legal professionals, and what advice would you give to those looking to establish similar connections?

Aristotle is famously quoted for saying “Man is by nature a social animal” I believe he was thinking of lawyers when he said it!  But on a serious note, I think networking for lawyers is as important as any other skill and maybe some have used it exceptionally to be quite successful. Not only does a good network allow one to bounce off different ideas and broaden their own horizons but can also help by opening doors for more opportunities and growing as a professional especially when it comes to young lawyers. I think young lawyers who are not part of lawyer networking events should try to attend conferences and lectures as much as possible which can help them with finding an opportunity or connecting with the right mentor. Also take up the membership of at least a couple of associations even if they are not connected with any particular court.  Being a member of various bar associations especially at Delhi High Court has helped in connecting with colleagues over various sports activity or cultural programs and seminars which are organised regularly and in fact are equally supported by the bench also.

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