LexTalk World Talk Show with Dr. B. Gopalakrishnan , Founder at BGK Law Associates


LexTalk World interviews Dr. B. Gopalakrishnan, He is a dynamic and result oriented legal professional with over 4 decades of experience in legal areas encompassing Banking, Corporate, Capital Market and Business Laws, Cross Border Transaction and Procedures, Human Resource Issues and Employee Grievance Redressal, Litigation and International Arbitration and Mutual Fund Documentation. Formerly worked as Legal Advisor heading the Legal Operations & Human Resources Group of Asset Reconstruction Company (India) Ltd. (Arcil), Mumbai, one of India’s largest and premier ARCs. Prior to that, was the President and Head of Law Department and was heading the Legal Department of Axis Bank Ltd., Mumbai for 14 years.


In-depth understanding of matters related to Corporate Law, Banking Finance Documentation, Structured Finance, Mergers and Takeovers, Capital Markets, Capital Raising, GDRs / Cross Border Acquisition, setting up of Foreign Branches, financing companies for foreign acquisition, Private Banking, Taxation Laws, Banking Laws, Intellectual Property Rights (IPR), E-commerce Transactions, Suit Filings and Litigation, Civil and Criminal Laws, Recoveries of Debts including SARFAESI related issues, IBC, appearing before NCLT, Documentation of all types of Loans and Structured Finances, IPR, Trade Marks and Copyright Laws, Corporate and Structured Finances and compliance besides advising companies and NBFCs on various issues.


Proficient in drafting legal documents and appearing before Courts and Tribunals. Practical and business focused approach to achieve organizational goals coupled with strong inter personal skills. Adept at maintaining cordial business relationship with Senior Counsel and external agencies. An effective communicator with exceptional relationship management skills.


A well known solution finder of problems and a risk taker. Apart from this, known and admired speaker in many of the National and International Conferences on various subjects as also a Guest Lecturer and a Visiting Faculty for many institutions on Banking Laws, Mergers and Acquisitions, Tax Laws in India and is a part- time Lecturer in many Law Schools. Contributes to many professional magazines and newspaper.


Interview :


Host: Tell us about a complex legal issue you worked on. Describe the complexity and tell us how you approached it?



Balakrishna: I have had the opportunity to deal with lot of complex issues in my career spanning more than 35 years. I am also one of the few successful legal counsel who was in a position to switch from a practising lawyer to an in house counsel and back to a practising lawyer who is ready to sweat it out in courts.


One case among many is still fresh in my memory. Bank ‘A’ through its branch at country ‘S’ financed an Indian company who through its offshore subsidiary won a contract to build and operate and then transfer an airport in a small country where neither the bank or the contractor had any presence. Bank ‘A’ financed the deal through its offshore branch and the said sanction was supported by a guarantee issued by the country which awarded the contract. Things were fine till there was a regime change in that country. When the Government changed in that country, the contract was nullified by the new government and the land on which the airport was being developed was asked to be handed over to the Government.


The contract which provided for the airport development had a condition that any bank which is financing the contractor to build an airport in that country will be provided with a guarantee from the said government guaranteeing the due repayment of the financed amount to the Bank. In short it was a third party guarantee provided by a government who awarded the contract to build an airport in their country. Further, the contract between government and the contractor provided for an arbitration with regard to any dispute arising out of the said contract under the Singapore International Arbitration Centre.


When the new regime cancelled the contract and directed the contractor to surrender the land where the airport is constructed on and as is where is conditioned, the contractor approached the Singapore Courts for the stay of the order of cancellation of contract pending arbitration. While the High Court of Singapore granted a temporary stay, the contractor requested the bank also to approach to HC to grant a similar stay in his capacity as a financier. This was resisted by me on the plea but as a financier the bank cannot seek such a stay and the bank remedies lies in the encashment of the government guarantee and or approaching the Arbitration.


The Singapore Supreme Court took suo moto note of the stay granted by the HC and took charge of the case and cancelled the stay and directed the parties to arbitrate. The ground on which Singapore SC cancelled the stay granted by the HC was on the following principles:


  • Singapore being the sit and venue of arbitration in accordance with the agreement cannot and should not order or grant any stay preventing from a sovereign country to reclaim its land given for construction of an airport.


  • Singapore court have no authority to grant such a stay and if such a sty is granted Singapore will lose its charm of being the one of the sort after arbitration venue and sit.


This view taken by the Singapore court fortifies the stand taken by me as the In-house counsel of the bank who advised that the bank has no locus standi to approach the HC seeking a stay. This is one of the many cases I have done in my career as a legal counsel of the bank. The list maybe endless.

Host: The pandemic saw some courts begin moving towards more remote proceedings and availability. Is this sustainable, and a possible way to increase access to justice, in your opinion?


Balakrishna: Like other sectors of the economy, the judiciary too could not escape the wrath of the pandemic. Administering justice is so essential that the courts could not remain closed for a substantial period of time. Despite the glitches and opposition, courts started functioning online.


  • Various judicial and quasi-judicial bodies, led by the Supreme Court, have been conducting hearings through video conferencing. However, the prevailing circumstances have also provided an opportunity to embrace, and maybe even integrate, technology into our judicial system as a permanent feature. This is the need of the hour and judicial administrators are responding proactively to the challenges posed by the pandemic.


  • A petition had been filed by the All-India Jurists Association, seeking declaration that right to participate in court proceedings through virtual courts via video conference is a fundamental right under Article 19(1)(a) and (g) of the Constitution. The plea also sought a direction to abstain other high courts from denying access to lawyers through virtual hearings and video conference on the ground that there is availability of the option of physical hearing


  • In the case of Anuradha Bhasin v Union of India (2020), it was held by the Supreme Court that the right to access to the internet and various applications/websites is a facet of various Fundamental Rights and Freedoms available under Article 19 of the Constitution of India. Swapnil Tripathi vs Supreme Court (2018) that in the fast-changing globalised world, it is obligatory for the Indian Judiciary to use Information, Communication and Technology (ICT) in the most optimal manner to make Justice available at the cheapest possible price for one and all.


  • In the coming times, what needs to be considered is that though these measures are commendable, are they sufficient and is India ready to adopt virtual courts as a permanent part of the justice dispensation system? The Supreme Court bench headed by Justice DY Chandrachud, who is presently the head of the Supreme Court E-Committee, while delivering judgements on 13 April 2020, is reported to have said that the technology being used for the Supreme Court has been advancing in some respect, however live broadcasting and viewing of proceedings and hearings would not be open to and accessible by all for the time being.


  • On the other hand, Justice GS Patel of the High Court of Judicature at Bombay issued special directions for live streamlining of matters listed before him between 8 April 2020 and 14 April 2020.


Some advantages of adopting a system of virtual hearing:

  • Speedy dispensation of Justice

  • Preservation and protection of Fundamental Rights

  • Issues to ensure “fair hearing”

  • Conflicts with “open court” mandate under law


Host : How would you rate the current legal system drive towards encouraging access to justice? Is there tangible movement in closing the justice gap?


Balakrishna: The Covid-19 pandemic has disrupted the justice delivery system like never before. The compulsions associated with “social distancing” coupled with lockdown directives have led courts and tribunals to shut their premises to the public. At the same time, recognising that a complete shutdown of the justice-delivery system is undesirable, the judiciary has turned to technology to meet the challenges posed by the pandemic.


The present situation clearly depicts the effect on society and economy if the justice system comes to a halt. It causes great hardships to the legal system, practitioners, and mainly to the litigants. One cannot rule out altogether, the occurrence of a similar situation in the future that causes a disruption such as the current Covid-19 pandemic, therefore, it is essential that we prepare ourselves with a better virtual court setup.


Justice Chandrachud stated that “apart from facilitating access to justice from remote areas, video conferencing is cost effective, reduces carbon footprint, and substantially reduces the attempt of employment of dilatory tactics by parties.”

The video-conferencing methods will also help in dealing with the issue of pendency of cases. It will significantly minimise the hundreds of transfer petitions that waste the Supreme Court’s valuable judicial time while also being cost effective for the parties.


There is no doubt that virtual hearings enabled the administration of justice during the pandemic times. However, we can’t fully rely on virtual mode and have to evolve a hybrid model for delivering justice.


Despite all the limitations, virtual hearings are our best bet to deal with the pandemic. As WHO Chief Scientist Soumya Swaminathan recently said, Covid-19 may be entering a stage where it will become endemic. It was “very very feasible” that the situation may continue like what it is now, with ups and downs in disease levels in different parts of the country.


Therefore, the stakeholders of Indian Judiciary should take appropriate steps, such as development of infrastructure, and raising technological awareness, in order to make sure that all the hurdles regarding virtual hearings are effectively dealt with.

However, we must also ensure that courts calling themselves hybrid are also functioning as one.


In view to the above, online hearings enabled the courts to ensure administration of justice, thereby creating a new age legal system drive in order to close justice gap as may have been caused as a result of the unforeseen pandemic.

 

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