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LexTalk World Talk Show with Udayan Jain, Advocate

Udayan has a counsel practice with focus on Civil and Commercial Litigation. He has carved a niche for himself in the Anti-Trust/Competition Law practice in the country and is regularly engaged in contentious and high-stakes Competition Law matters. He has been involved in cases that have resulted in landmark judgments with high precedential value. He regularly appears before Supreme Court of India, Delhi High Court, NCLAT and Competition Commission of India.


Host: Tell us something about your journey.

Udayan: I am a fourth generation lawyer. I saw my grandfather and my father going to Court and was very attracted to the spotless white dress with black coat which they would put on every morning. My father had his office in the residence and I would see long line of people waiting to take his advice. He would work late in to the night and very frequently after his staff left he would tell me and my brother to fetch books, files and help him by taking dictation for him. I found all of that very fascinating. I would listen to interesting stories of his criminal law practice, how he would end up investigating on his own, to reach to the truth of the matter and then unravel the deep embedded conspiracies to finally succeed in his cases. I was also influenced by his approach to provide justice to people who otherwise could not afford it, by doing his bit free of cost for them. Very early in life I got my lessons on justice, ethics and service in the legal profession. Inspired by this I and my elder brother both naturally turned towards law as a profession.

I have done my law graduation from Campus Law Centre, Delhi University and my Masters in Law from Kurukshetra University. I’ve been working since the year 2002. I started my career in the Chamber of Sh. Anil Gupta, Advocate and worked with him for two years. When I joined his Chamber he had said that during my time in his Chamber he would make a lawyer out of me and he stood true to his word. I got a lot of exposure to draft, file cases and argue critical cases which were at different stages, including final argument cases, which gave me a lot of confidence to build my own practice. I got some recognition as a counsel in that early stage of my career and some friends and juniors started trusting me with arguing briefs. I started my own practice in 2004 and with a stroke of luck I got a chance to join the Chamber of Sh. A.N.Haksar, Senior Advocate. On my first day in his Chamber he said to me that I’ll learn law while I work on briefs in the Chamber but he would teach me ethics of the profession. True to his word I learnt a lot about law while I was in his Chamber, picked up my niche in Competition Law but the most important take away from my long tenure at his Chamber was the lesson in legal and professional ethics, which I would not have learnt elsewhere. I was lucky to have found seniors who were patient and took interest in my growth. I try to replicate and pass that on to the juniors in my Chamber.

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

Udayan: Even though the complexity of issues that a lawyer deals with changes with the stage of the profession he is at. I was fortunate to have had an opportunity to work on some of the most complex and path breaking issues in the Competition Law arena since the beginning of my career.

One of the most celebrated and first of its kind case that Competition Commission of India decided was the Stock Exchange Case. It was a case where the allegation was regarding Abuse of Dominant Position under Section 4 of the Act. Currency Derivatives was a new segment which was opened up by SEBI in 2009, there was a new entrant with lot of potential to provide good competition, who was also granted a license in that segment. The already existing market player with strong presence and immense financial resources at its end was the first to start providing services in that segment and since the beginning they waived the charges for not just their service to the transactions done on their platform but they plugged all other revenue streams as well in the said segment. As a result of which the players that entered next had to match and they also could not earn any revenue out of the business in the said segment. The afore-said conduct created the obvious trouble for the whole business, as it was run on losses. The existing players having the advantage of earning from other segments continued to waive the charges for a considerably long period of over a year, which is when an Information was filed with the Competition Commission of India.

Competition Law is an interesting field in itself and its made more interesting on account of the interplay it has with economics and commerce. We have to enhance our engagement with concepts of economics and interweave those with law. The Competition Law jurisprudence in India had not evolved till then, therefore, we did a lot of research in both economics and law around different international jurisdictions relating to Abuse of Dominant cases. There were no direct cases which we could find even in other international jurisdictions so we developed our arguments based on the knowledge we gathered and the facts we had. One of the important criterion for Abuse of Dominance cases is the market definition and contrary to the general trend of narrowing down the market for establishing dominance we were trying to expand the market definition which added to our difficulties. The defence set up by the other side was also very credible. The difficulty was whether the newly launched segment with its unique product was the market in itself or were the stock exchange services the overall market. We were able to convince the CCI on the predation but not on the market definition but we were able to convince the Appellate Court on both the market definition and on predation. Whichever way one looked at the case, it was a case of egregious conduct where the dominant player was making sure that it remains dominant in the market at the expense of other players. What turned the tide in our favour was simplifying the whole complexity to bits and presenting what was at the core of our contention, that the case was more about the services and not the product in question.

Most interesting aspect was that the complexity of the case did not end with winning the case because under Competition Law once you succeed in convincing the Courts regarding the perpetration of Abuse, there is a provision to claim compensation. So after succeeding we were the first ones in the country to file a claim of compensation under Competition Act. Again there is no precedence on such a claim being filed under Competition Law and it required a lot of economic analysis along with application of legal precepts, for which we worked very hard. This is a case where the price was zero for all revenue streams, so difficulty was on how does one set about making a claim for losses when no one was charging any price and what would be the parameters for doing so. It is one of the most complex drafts that I worked on but most satisfying as well once we were able to set out our claim petition, which is still pending adjudication.

The other first of its kind case which I was engaged in was a sham litigation case. It too is the first of its kind case under Competition Law jurisdiction in India. Sham litigation under Competition Law is a kind of Abuse of dominance case where a litigation is filed by a dominant player with an eye not as much on the relief which one gets at the end of the litigation but with an eye on the adverse impact that it would have on the other market player and on its capacity to compete.

Another case which I’m engaged in is the case with underlying issue that is being debated across different Competition Law jurisdictions of the world. The huge impact the said issue has created on businesses across industries is something which has made it worth investigating. The issue is regarding the pricing model of deep discounting/predatory pricing strategy. Such strategies have visibly been adopted by the leading taxi service providers and e-commerce players.

For all complex issues the approach I feel is simple. First step is to understand the facts involved with clarity, the complexity involved in relation to law and if it’s a commercial case than interplay of facts and law with economics and commerce. Second step is to do extensive research on the subject. Final step is to simplify it all down to few basic issues which would require the decision of the Court. Once you know facts and the issues involved then application of law becomes easier.

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?

Udayan: New challenges throw up new opportunities. Like demonetisation ended up hastening the adoption of the electronic payment mechanism in our day to day life. Pandemic has also pushed us to adapt to usage of internet in our day to day life, be it doing classes, doing work, having family get together etc. We are ranked second in the world in terms of internet usage. Therefore, it is natural that we need to utilise the technology and resources related to internet the best we can. Adaptability to online hearings is in its nascent stage and it’s not free from its own set of difficulties but the point is whether we can use this mode and adapt it where we can or do we discard it altogether. The result of online hearings have been encouraging, people sitting in remote corners did not have to travel and yet they could address Hon’ble Supreme Court and different High Courts on regular basis. So lawyers who practice in South India could argue cases in Delhi and vice versa.

There are cases which would still require physical mode of hearing and there are cases for which we can adopt online mode of hearings. If we can iron out the creases, we can work well with technology as well. We have to be open to adapt and welcome. Initially I was also very suspicious but I’ve argued cases and the more we do hearings online, more we feel comfortable with it and see its benefits. We would have to identify forums and type of cases which can be handled online, or cases which can be dealt with online up till a certain stage. We can also have hybrid modes, where people who are comfortable with physical hearings can agree to go in physical mode and others can request for a virtual hearings.

There are difficulties for students, interns and young lawyer to access Court rooms for learning Court craft, we can open registrations for those who want to attend Court hearings to learn. Others who do not have access to media devices and internet can utilise the set ups established by each Court where one can go and access online hearings. Each Court has set up facilitation centre and rooms with computers for online hearings.

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

Udayan: Awareness is the key for access to justice. We need to create mechanism to generate more awareness in sections of society where justice is still a long way to reach. Courts, Legal Aid branches, Bar Associations, Bar Councils etc. can set up legal clinics to create awareness and inform about ways to approach Courts or alternate modes of settlement of disputes. Mediation Centres established as alternate dispute resolution centre is one such example which is helping seek faster resolutions to issues that were pending since long or would otherwise take up a lot of time. Compulsory conciliation in commercial cases, etc. are all drives towards faster settlements, which would eventually increase access.

We at individual level can also contribute in creating awareness around us and doing our bit of pro bono work whenever someone in need approaches us.

Host: In the era of legal technology, what are the mostly common used tools for you?

Udayan: Although there is no replacement to books but some of the tech oriented tools that we commonly use are SCC Online, Legal Eagle, Legit quest, Live Law, Bar and Bench for legal research and to keep updated with latest in law and then apps like Zoom, Cisco WebEx, G-meet, Microsoft Teams, etc. to connect with people for meetings and to do online hearings. Then for organising our meetings and work schedules we use Google Calender, Calendely, etc

Host: Time is money in any profession and in legal it's most of all. How do you ensure to make the best of your time as a lawyer?

Udayan: Time management is an elusive art. Organising your day is most important in order to make the most of the day. We need to lay down an agenda for the day, create a priority wise list of things required to be done, so that one knows what requires to be done first. That’s the best way to save time and get work done. Now with tech we can save travel time and get meetings done sitting in our offices. We can also add reminders in the calendar in our phone so that we don’t miss out important events.


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