One of the key aspects in arbitrations is to read and decipher the terms of the contract-Abhay Itagi, Partner at MV Kini Law Firm

This interview has been published by  Priyanka Karwa and The SuperLawyer Team

Can you tell us about your journey and how you ended up pursuing a career in law, particularly  in litigation and arbitration? 

Being born to a leading lawyer in a tier-2 city, the choice was clear with limited options to  embark and explore. My interest in litigation developed in law school, primarily by participation  in Moot Courts, while I took interest in arbitration in my 5th year of law school.  

You have experience as lead counsel in domestic and international ad hoc arbitrations. Could  you share with us a notable case or experience from your arbitration practice that was particularly  challenging or memorable? 

Arbitrations are born out of commercial contracts. One of the key aspects in arbitrations is to  read and decipher the terms of the contract. The more prudent reading of the contract is expected  to prevail. Recently, we successfully defended a claim of damages of Rs.350 crores against our  Client POSCO-Steel. The terms of the contract appeared to be skewed but on threadbare reading  the reciprocal obligations were found to be not fully filled. As a lawyer, every case is challenging  and an add-on to one’s memory and of course makes the journey memorable.  

As part of your role, you draft various legal documents such as pleadings, written submissions,  and petitions. What are some key considerations you keep in mind when preparing these  documents for arbitration cases or other litigation matters? 

Every lawyer enjoys freedom to present the case. Speaking for myself, I prefer to keep my  pleadings to the material facts and not dump voluminous bald statements or documents. Material  facts are to be carved out by marshalling the facts, as presented by the Client. One of the cardinal  principles that I follow is to not plead the law in the pleadings. Secondly, it is of paramount  importance to not suppress the facts or documents even if they are not in favour of your client.  Lastly, ensure that the client has disclosed all the facts without any judgment of relevance on such  facts. 

You have appeared before various tribunals and courts, including the National Company Law  Tribunal, Bombay High Court, and National Green Tribunal. How do these appearances differ in  terms of the skills and strategies required

The fundamental difference between different fora is the law under which a person  approaches. One of the aspects that I found was the lingo, language and communication to be  different. The fora that you mentioned, in ordinary course, do not conduct full-fledged trials but are  summary proceedings, so in that sense these fora are different from civil or commercial courts.  Secondly, the time available to a lawyer to present his case in these fora is limited as compared to  trial courts, therefore, precision is key. As a matter of skill and strategy, the stage of recording of 

evidence is absent in these fora and the matters argued and decided on the basis of facts, as  presented and the documents that are relied upon.  

In addition to your contentious work, you also have experience in non-contentious matters  such as providing strategy advisory and legal opinions. How does your approach differ when  working on non-contentious matters compared to litigation and arbitration? 

Non-contentious matters are not limited to advisories and opinions, it can include drafting of  agreements, liasoning and compliance with regulatory authorities. The approach while drafting a  strategy or an opinion, the primary focus is on the business of the client and to the extent possible,  avoid potential litigation or non-compliance. Whereas, in arbitration the focus is on the claims  already raised either to seek or defend depending upon which side one represents.  

During your time at Reliance ADA Group, you were involved in strategic planning of litigation  matters across the group’s businesses. Could you share an example of how you approached  strategic planning and mitigating legal risks for a complex business case? 

Litigations are planned sounds like cases are filed with malice, which is incorrect. Secondly,  I was one of the juniors in the team of the General Counsel, and as a junior your role is to follow  the orders. But I must say that I did get opportunities to be part of the team engaged in drafting  Share Purchase Agreements, Shareholder’s Agreement. The exercise was to modify the corporate  structure in compliance with regulatory requirements. One such work which I found interesting  was to draft an Agreement of Sale for a yacht, for which I was exposed to a completely new  regulatory and review Charter Agreements.  

You’ve also worked as Counsel for Tata Consultancy Services in New York, primarily  focusing on contract negotiation and drafting. What are some key challenges or considerations that  arise when dealing with IT contracts, IT infrastructure, and BPO contracts? 

IT contracts revolve around a variety of intellectual property and intellectual property rights (IPR). The challenge is always to ensure assignment of IPR that may be required and to put or  negotiate a value. The second aspect is flexibility in licensing. The software is made available on  license basis and to ascertain the limitations on the usage of the software under the license. During  my time, the concept of SaaS i.e. software as a service was developing, but back to back service  level agreements would provide uptime and backups in case of a glitch. Therefore, clauses in  respect of indemnity and liability had to be drafted carefully.  

As a foreign associate at Translegal LLP in Washington DC, you advised U.S. clients on  investments in India and provided opinions on multinational business transactions. What were some of the unique challenges or cultural differences you encountered while working with  international clients and navigating cross-border transactions? 

I took up the engagement right out of college to understand and acclimatize the nature of  transactions between business entities in India and the USA. One of the aspects that I observed was that the decision making process is completely different. US businesses go back to the drawing board  only in case of a deviation or an addition, whereas Indian businesses go back to seek approval.  When the transactions are both inbound and outbound, the time spent on the decision making  process becomes vital.  

With your educational background in litigation and international dispute resolution, how have  your studies influenced your approach to resolving disputes and handling international cases? 

The fundamental qualification of LL.B is the only requirement whether you are a lawyer or  judge of the Apex Court. The other qualifications are only to accentuate one’s understanding of  law or out of academic interest. Fortunately, for me, I pursued my post-graduate studies with  emphasis particularly on litigation and international dispute resolution. During my LL.M, I got an  opportunity to work as an intern on a case involving a ship that was registered in the Cayman  Islands, fitted with a German engine that got spoiled during its voyage in Norway, and had a Chinese crew. The ship was insured by a US Company. I can only say this to convey the complexity of  various entities. But as a student, I could observe how the approach to a dispute varies depending on the party making the claim.  

Lastly, based on your extensive experience in the legal field, what advice would you give to  fresh law graduates who are starting their careers or considering a specialization in litigation and  arbitration? 

I don’t claim expertise in my field except to continue to remain a student. My suggestion to  my friends is that the key to flourish is to read. When I say read, I mean books that may or may not be  related to law. During my consistent interaction with current law students, one of the dangerous  trends that has crept in is to read and borrow mostly incorrect information from substandard books.  This practice has to be curbed. Another aspect is to always, as much as possible, be aware of the  developments that are taking place at the local and the policy level and form opinions and debate. 

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