Lextalk World interviews Mr. Faisal Sherwani. He is an Advocate-on-Record, Supreme Court of India and is currently a Partner in the Dispute Resolution practice at L&L Partners Law Offices, New Delhi. With an experience of over a decade in the field of dispute resolution and dispute advisory services, he has a deep understanding of procedural and substantive issues of law. He regularly practices before the Hon’ble Supreme Court of India as well as the Hon’ble High Courts at Delhi, Bombay, Karnataka, Telangana, Allahabad, and Madras as also the NCLT and NCLAT. He has a host of reported Judgments to his credit. He continuously advises and acts for clients on a range of subjects such as constitutional law aspects, arbitration laws, corporate, commercial and insolvency laws, labour legislations, white-collar crimes and penal laws. Faisal graduated in 2009 from the Faculty of Law, AMU as second in his class. He went on to gain his master’s degree i.e. LL.M in the year 2010 from the George Washington University Law School, Washington, DC, which he attended on a law school merit scholarship. Faisal is also a sought-after columnist and speaker. His work runs the gamut from law, history, and satire. His style is one that grapples with the realities and ideals of modern India. He regularly engages on issues related to law, polity and other socio-economic subjects. Faisal was recognized and has featured in Business World’s/ BW Legal World’s elite list of ‘40 under 40’ – India’s top lawyers and legal influencers, 2020
HOST: Please brief us about your journey as a legal professional so far.
FAISAL: Well, I don’t know if I would classify my time, thus far in the profession as being a ‘journey’. A decade is just a baby-step in the profession. But since you put it that way, I would start with my education and desire to study law. My parents had the typical middle-class aspirations for me i.e. that I should study medicine or engineering. But I think I had a taste for law from a rather early age and my parents were astonishingly supportive, which was clear from the fact that they ultimately granted me the respect and complete freedom to make my own intellectual and career choices. I recall, after my basic schooling, I had developed an instant fascination for political thought, history, and economics – if not earlier. I was drawn towards writings which advocated freedom of speech, religion, thought, as also life and liberty of the individual. And before I knew it, I was drawn towards law.
I attended law school in my hometown at the Faculty of Law at the Aligarh Muslim University at Aligarh. I have very fond memories of my time there. Thereafter, I did my LL.M from the George Washington University Law School (GW Law), Washington D.C., which I attended on a merit scholarship.
In the profession, I started as an apprentice to a very respectable Senior Advocate, Mr. Rakesh Dwivedi. And really, no mention of my career is truly complete without reference to his contributions. Many aspects of the law apart, more importantly – I learnt from him, how one must conduct himself in the profession as also that sheer hard work and long hours is the lowest common denominator.
Thereafter, I had a longish stint at Parekh & Co. i.e. a boutique law firm in the New Delhi area. There were several opportunities to learn and I had many rich experiences during my time there. I might mention that it was here that I had decided to prepare for and attempt the Advocate-On-Record exam held by the Supreme Court. Ultimately, I wound up at L&L Partners, Law Offices (formerly Luthra & Luthra) and gradually worked my way up to partnership.
During this time I have had the good fortune of working with a very many great individuals and for some splendid clients. I have also been extremely fortunate to have had the chance to work on an indiscriminate variety of matters and legal issues. So, it has been a pleasant and enjoyable stint, thus far – but it is just the beginning. I would characterize it as a mixed bag of experiences, where I have learnt – about law and life, about how to adapt and innovate, how not to let the little successes go to your head and most importantly, how to take failures in my stride.
HOST: Tell us about your most memorable case and what are your key takeaways from there?
FAISAL: While I suppose it is too early in the day to stop and look back, but what instantly comes to mind is the constitutional challenge to the ‘transport-technology aggregator rules’ before the Karnataka High Court. I had advanced lengthy arguments over multiple days where there was a battery of senior counsels opposing us.
The experience was the first of its kind at that time for me and I had found the whole process intellectually stimulating and professionally satisfying. This had ended in the somewhat sincere appreciation (I thought) that I received from the bench of the Karnataka High Court. What I cherish most was that the bench had not merely suggested that I had done a good job representing my client – but rather, that my submissions had been of great assistance to the bench in changing the initial view it had on the matter.
The very basic takeaways, I think are that it is rewarding to remain focused, that it is necessary to live with the matter you are involved in i.e. that you must breathe, eat and live with it. Also, that there is no alternative to hard work and long hours, and finally – that it is important to look beyond the confines of the short-sighted brief.
HOST: How do you look at Dispute Resolution in 2021 and how it's going to change 5 years down the line?
FAISAL: Well, if we are to talk about 2021 – most instantly, we are still reeling from the impact of the pandemic itself. I suppose all of the stakeholders that have a role to play in the resolution of disputes will be required to constantly adapt to the after-effect of the pandemic.
The courts are likely to continue to adopt and utilise technology more. Our courts have admiringly adopted technology during this time. Nonetheless, we will continue to debate, I think – what type of matters the virtual format is best suited to and those that are inherently unsuited to it. For now, adapting has meant little more than investing (if you hadn’t already) in a fast and stable internet connection. Also, while there has been the odd exception, the important issue of public access to virtual proceedings has arisen as a concern which in turn, has re-ignited the debate around the utopian notion of the ‘open court’.
As far as the client market is concerned, it is no secret that the pandemic has impacted businesses. The negative impact is more prominently noticeable in some sectors (leisure, hospitality and aviation) while some have fared well (pharmaceuticals, logistics and technology). Old models of business and the high demand that was conventionally enjoyed cannot be taken for granted anymore. New revenue streams have to be explored. Having a digital mindset will be critical for businesses in all sectors.
Also, the long-term implications are likely to be severe and many sectors are going to witness a more enduring negative impact, even a lasting one. Take for instance the aviation sector – we have realized that we don’t really need to travel for all those face-to-face meetings. A similar forecast may be made for commercial real estate – quite simply, because we have learnt that we are capable of working from home.
In-house legal teams have had to slash budgets and the in-house capability has had to step up in order to deliver more and to justify its own existence. In many a case, these in-house legal teams have turned around and demanded that external lawyers and firms do the same.
As far as the law firm model is concerned, I might say that we had long expected the biggest disrupter to be the entry of the foreign law firm. In that sense, the pandemic serves as a fine example of the limitations of the human mind i.e. an utter lack of imagination coupled with a very restricted ability to anticipate and prepare for the future or its disruptions. But the short term impact of the pandemic on the average law firm has been less severe than what was originally anticipated.
Coming to last bit of your question, i.e. – how it’s going to be 5 years down the line, I suppose your guess is as good as mine, but what I can say is that things will be far more complex. With each passing year – ‘disputes’ as we understand them, are likely to become more intricate. This isn’t a novel thought by any stretch of imagination. In fact, William Forsyth had long back predicted in Hortentius the Advocate (1879): “As the relations of society continue to grow more varied and complex, so will the lawyers’ profession become correspondingly more essential in the adjustment of any differences that may arise.”
And so, our relationships, professional engagements and work was always bound to get more complex with time and the development of society. Therefore, some amount of disruption, change, shift from the usual may be taken as a given at all times. This is in fact, not something to be concerned about or frowned upon, but rather something that should be celebrated.
I assume that competition will be far more profound, as it already is. Should business interests demand seeking counsel elsewhere, the average client will no longer hesitate or think twice, if we do not serve them well. So as individual professionals, we must constantly endeavour to be in a position to provide a complete view of most aspects.
HOST: You are already a coveted legal-adviser in the start-up circles in India. Would you please tell us more about the array of work that you handle?
FAISAL: ‘Array’ is certainly the right word! I take constant refuge in Lord Henry Brougham’s famous quote: ‘a lawyer must know everything about something and something about everything’. I am quite certain that he had a dispute resolution lawyer in mind, for the simple reason that despite our tastes for a particular area of law – more often, circumstances deny us the luxury of solely concentrating on one subject.
Nonetheless, I have no regrets at all, and I find this to be an extremely apt exposition of how a well-rounded lawyer should be. While we are entitled to our preferences and inclinations, our duties as general-lit practitioners demand that we be equipped to speak and be able to advise on most issues – rather than some.
And happily, so, as a dispute resolution specialist and a court-room practitioner, my responsibilities extend (or are confined, if you like) to advising and acting for clients on a range of issues and subjects such constitutional law aspects, arbitration laws, corporate, commercial and insolvency laws, labour legislations, technology and gaming laws, white-collar crimes and penal laws.
HOST: What do you perceive as the major challenges in ensuring a more robust mechanism for the enforcement of law and punishment for white collar crimes in India?
FAISAL: Well if we talk about the practice of white-collar crime in India, there is an increasing realization among professionals that the system lacks the mechanism to grant a pardon or some form of leniency. For instance, if a responsible corporate were to conduct its own internal audits and checks – and consequently, were to come to a conclusion that certain irregularities may have been committed in a branch of its wide-ranging operations, the system must permit such frank and honest disclosures to be made, without fear of excessive prosecution.
This is only possible if the system can intrinsically accommodate the possibility of a financial settlement while ruling out stringent prosecution and incarceration as a necessary and unavoidable consequence of such disclosure. In other words, we must have a mechanism that encourages private enterprise, high ranking officials, employees to come clean and admit corporate guilt.
The penal process can certainly involve imposition of heavy penalties in order to ensure an element of future deterrence. Possibly, in many a case, deterrence, even retribution – may be accomplished by imposing a financial penalty which is a high multiple of the actual amount that is the subject matter of any supposed malfeasance or irregularity. In such scenarios, where there is an admission of guilt in some form or manner and a financial penalty has been imposed, the more stringent penalties such as incarceration ought not to be pressed further.
It should come as no surprise that today, a number of corporations have their own robust internal checks and carry out regular audits in order to verify and correct any issues, allegations or suspicions relating to fudging of accounts, corruption and any other financial offences or irregularities. Such a culture of internal investigations, is really, something that should be celebrated and encouraged.
At the same time, such entities must be afforded the safe harbor of arriving at a possible resolution with financial consequences/ penalties with the investigating agencies and the prosecution, of course under the aegis of the State and the regulations that may be framed in this regard. We can learn from the example of the United States where the US Department of Justice (DoJ) as well as the Securities Exchange Commission (SEC) permit a private party to enter into an Agreement for Non-Prosecution i.e. subject to such a party arriving at a financial settlement.
Reality is, the existing mechanism i.e. granting a pardon to an accused and plea bargaining under the Code of Criminal Procedure, 1973 are entirely incompatible with the scenario I have discussed. At the end of the day, we need to ensure that our penal laws are capable of effecting the right amount of deterrence without running to extremes and endangering liberties, particularly for offences such as these i.e. where no blood has been shed and amends can be made in numbers, be it rather large sums.
HOST: How do you view the present scenario of arbitration in India? Does the regulatory landscape measure up to other arbitration-friendly destinations? Also, what is the future of ADR mechanisms in India?
FAISAL: It is promising and I think, the regulatory landscape does – in many ways, ‘match-up’ to that of the other coveted destinations. This does not mean that our system should be ‘identical’ to the regulatory framework of ‘X’ nation or ‘Y’ nation. After all, we must realise our own destiny in line with our own aspirations and laws.
I think the amendments in 2015 and 2019 to the Arbitration & Conciliation Act, 1996 in India, demonstrate the conviction of the legislature to make India an arbitration friendly jurisdiction. Apart from that there have been a range of pronouncements from various courts that mirror this theme.
Also, there is some amount of legislative and judicial sympathy today towards the sentiment that there should be minimal judicial interference in the arbitral process. Further, there is an increasing realization that ‘party autonomy’ should play the pivotal role. Courts have exercised noticeable restraint while reviewing arbitral awards.
Take for instance, the pronouncement of the Supreme Court in Vijay Karia v. Prysmian Cavi E. Sistemi SRL & Ors., earlier this year, where the court reiterated the limited grounds on which enforcement of a foreign award could be resisted and allowed enforcement even at the cost of supposed violation of the provisions of FEMA. It also clarified that for a foreign award to be unenforceable as being in contravention of the fundamental policy of Indian law, as stated in Renusagar Power v. General Electric Co. (1994), it must involve a breach of a legal principle or legislation that is so basic to Indian law that it is not susceptible to being compromised.
So we have come a long way from the time of Phulchand Exports (2011), when the court had bestowed a broader meaning to the expression ‘public policy of India’ as used in Section 48(2)(b) of the Arbitration Act and had held that a foreign award could be set aside if it was patently illegal.
That apart also, I think we can agree that the NY Convention and some other measures have brought a strong underlying uniformity to international arbitration law by providing a broad rule of enforceability of arbitration agreements and by standardizing the grounds for refusing recognition or enforcement of foreign arbitral awards.
Of course, there is room for improvement and further changes. After all, the convention did not provide an all-embracing regulation of international commercial arbitration. Instead, it preserves a substantial role for diverse national laws, such as on issues as to how those grounds are to be defined.
We must understand that issues such as forestalling enforcement of an award on grounds that it is contrary to ‘public policy’ of a nation is something that would, necessarily have to be defined by the municipal laws, in line with the aspirations of the people of that nation. So some amount of leg-room in this regard is – therefore possibly, necessary.
To begin with, it would be good if nations and the policy makers within those nations be ‘ad idem’ on the broad principles on which we can agree to refuse enforcement or recognition of an international award – mind you, there are countries that still disagree about this even today. India in that sense is far more uniform and ad idem with the other nations that follow the UNCITRAL model.
Thus to my mind, if there is a general consensus on the basic principles – we can continue to learn from each other’s experiences and precedents also. And, maybe on many a threshold, concepts such as ‘public policy’ can mean the same things to us. But on the few fine points that we disagree, we can continue to respect those diversities and move forward.
On the issue of ADR, there can be no doubt that ADR mechanisms have numerous benefits and must continue to play an important role in the times to come. Reducing the burden of pending cases before the courts is certainly a well-documented and widely acknowledged by-product of the cultural acceptance and receptiveness to these mechanisms.
After all, there can be nothing better if both parties to an adversarial process can leave satisfied (as far as practically possible), by reaching an amicable solution of sorts, say by a process of mediation or the like. The traditional process of court-room litigation often does not afford such happy outcomes. And therefore, to such an extent we must continue to bestow unflinching faith and hope in ADR mechanisms.
But I might add that the adoption of ADR ought not to be on account of an inherent lack of faith and confidence of corporates, businesses or even the common man in our traditional courts of justice. If that be so, I would suggest it is a troubling trend.
Our traditional justice delivery system must too, continue to offer a robust and dependable mechanism, and serve as the primary system of justice dispensation. Indeed, parties may continue to be at liberty to settle disputes that are of a private character between themselves by ADR, or for that matter – by any other method that suits their fancy!
If you think about it objectively, the supposed reasons that are offered as justifications to opt for ADR (i.e. that these mechanisms furnish faster, more cost effective, easily accessible, and more receptive processes, and also, furnish brighter prospects for amicable resolution) – often end up sounding like somewhat of a hidden apology for the state of our traditional judicial system. After all, any system of justice dispensation (the traditional courts included) should strive to inculcate the aforementioned virtues and attain such ideals. There is something to reflect upon there as also to be a little concerned about.
This interview is also available on youtube. Check it out here.