This summary is written by Ankur Mukherjee, Brainware University.
Dated: 05/05/2020
The Guest Speaker: Sarosh Zaiwalla is a renowned lawyer who worked for London, China, Russia, Sonia Gandhi. In 2004 he was awarded with Indian National Law Day Award by Atal Bihari Vajpayee for outstanding contribution in ADR.
The Host: Ramnauj Mukherji is an alumnus of the National University of Judicial Sciences, Kolkata. He is the CEO of LawSikho and co-founder of iPleaders. His previous work experience includes being part of the Private Equity and M&A Team at Trilegal, Mumbai.
Background of the Speaker:
He is the Founder and Senior Partner of Zaiwalla & Co. Solicitor on International Arbitration firm, overseeing all the firm’s activities. He began his career in shipping law and arbitration and then branched out into non-shipping arbitration. Over the years, he has been involved in over 1,000 international litigations and arbitrations in the fields of Energy, Maritime and Construction either as solicitor, Counsel, Party-Appointed Arbitrator or Sole Arbitrator.
Over his career, Sarosh has acted for clients ranging from the President of India, the Government of the People’s Republic of China (PRC) and the Iranian Government to the Bachchan and Gandhi families in India. Over the years he has been involved in over 1200 International Energy, Maritime and Construction Arbitrations in London and worldwide either as a solicitor, Counsel, party-appointed Arbitrator or Sole Arbitrator. He has acted for many prestigious clients including the President of India, China National Petroleum Corporation, Bank Mellat and NIDC of Iran and various International Public Corporations.
Sarosh was a member of the International Court of Arbitration of the ICC, Paris, from 1990 to 2002. He is also a CEDR (Centre for Effective Dispute Resolution) mediator. He was asked by the Dalai Lama to facilitate a dialogue with the Government of People’s Republic of China (PRC) with a view to finding a peaceful resolution relating to Tibet.
He was also invited by the United Nations Secretary General Mr. Ban Ki Moon for an extensive consultation on issues relating to World Order. Sarosh has undertaken several overseas visits as part of the business delegation accompanying the UK Government Ministers and the Lord Mayor of the City of London.
Participated in over 1,200 International Arbitrations either as Solicitor, Counsel, Party-appointed Arbitrator or Sole Arbitrator.
He has conducted the following Arbitration:
- Conducted Aa major Energy Arbitration in London on behalf of Chinese Petroleum Corporations CNPC and CPTDC, which concerned a joint venture with LG Caltex for the construction of an LPG storage tank in Maoming, China.
- Conducted Ffor CPECC (China Petroleum and Engineering Construction Company): An Arbitration in London concerning the construction of a gathering station for the Kuwait Oil Corporation.
- Conducted a large two-week Maritime Arbitration before Cedric Barclay as Sole Arbitrator in New Orleans.
- Conducted numerous International Arbitrations in London for the Government of India, ONGC, IOC and other Indian multi-nationals.
- Handled an Arbitration for the National Iranian Oil Company in London concerning the Russian Oil Rig Sakhalinskaya.
He has been appointed as an Arbitrator in the following:
- ICC – Appointed to a panel of arbitrators in US$multi-million dispute between a Gulf state-owned satellite agency and a Lebanese television company. The Tribunal is chaired by Professor Herbert Kronke, President of UNIDROIT, and the dispute is under UNCITRAL rules.
- Appointed as Sole Arbitrator to determine a US$multi-million dispute concerning a joint venture between English and Chinese companies. ICC – Member of the Arbitration Tribunal chaired by the former Court of Appeal Judge Sir Anthony Evans, along with the former Solicitor General of India Mr Harish Salve, which sat for four weeks in Mumbai, India. This US$multi-million dispute concerned the construction of a power plant in Karnataka in India and was governed by Indian Law.
- Appointed Arbitrator by a Danish Company, Volund, in a Tribunal chaired by Lord McKenzie Stuart (former President of the European Court of Justice) along with Mr Pathak (former Chief Justice of India and Member of the International Court of Justice). This US$multi-million dispute concerned the construction of a power plant near New Delhi.
- Appointed as Sole Arbitrator by the ICC Court to determine a US$multi-million dispute between a Japanese multinational and Indonesian Company concerning the construction of water pipelines in Malaysia.
- LMAA – Appointed as Arbitrator by a Ukrainian Shipping Company in an arbitration concerning a charter-party dispute governed by English law. Appointed as Sole Arbitrator by the ICC Court to determine a maritime dispute between an Iranian Shipping Company and a Far-East Shipping Agency.
- Appointed as an Arbitrator, in a US$ 300m international dispute, to a panel chaired by Bruce Harris, former President of the Chartered Institute of Arbitrators.
- Appointed as Sole Arbitrator by the President of the Law Society of England and Wales to determine a contractual dispute between a well-known British food manufacturer and a Jordanian company.
- Appointed to an Arbitration Panel by the Russian Federation in a US$400m dispute concerning the exploration of a coal mines in India.
- Appointed Sole Arbitrator by the President of the Law Society of England and Wales to determine a US multi-million dollar commercial dispute concerning parties from Israel.
- Accredited Mediator of the Centre of Effective Dispute Resolution (CEDR), London. In 1994 facilitated a Third Channel confidential dialogue between the UK Prime Minister and the Chinese Government to resolve certain difficulties that had occurred relating to the Hong Kong handover in 1997.
At the personal request of the Dalai Lama, initiated a dialogue with the Government of the Peoples Republic of China in relation to the resolution of the Tibet dispute. Facilitated a successful 2-day mediation in Dubai in relation to a shipping partnership dispute.
As a solicitor, handled numerous cases in the English Courts, up to the House of Lords and now the UK Supreme Court, as well as the Courts of the European Union. Conducted the UK Supreme Court case of Hashwani v Jivraj, “the UK’s most important court case of 2011.” Recently succeeded for Bank Mellat of Iran against the UK Government in the UK Supreme Court challenging legality of Iran nuclear sanctions. Advising clients on complex multi-jurisdictional transactions. Advising on major projects and delivery contracts.
Table of Contents
What were the initial challenges as a Solicitor you faced in your life?
Our firm has acted for the President of India in over three hundred Indian shipping maritime arbitration cases in London at a time when the nation was facing an economic crisis and had limited foreign exchange. We have worked closely with the Gandhi family on numerous occasions. For example, Rajiv Gandhi hired him to defend Special Organizing Committee of 9th Asian Games in Delhi in legal proceedings brought in the English Court by Metco, a company from Dubai. He was successful and Mr Gandhi would refer all his friends who require legal services in London to Mr Zaiwalla.
The firm has represented countless UAE clients for their cases before the English Court and in London Arbitrations. Zaiwalla & Co was the first firm instructed by the Chinese government in the UK and the firm had a representative office in China for several years. Additionally, we have helped to facilitate numerous contentious issues in China. For instance, the Chinese Ambassador called on his expertise in the handing over of Hong Kong and also to help resolve the India China border dispute.
He has also been approached by the Dalai Lama to give advice on how to negotiate the Tibet problem. Between 1995 and 2002 I was instructed by the Chinese State Corporations CNPC and Min Metals in possibly the only five international arbitration cases in London involving hundreds of millions of dollars with international companies. It was a fascinating experience for me to work with the Chinese as part of their internal team in the legal cases and gain full understanding of the Chinese culture.
Will India ever become the manufacturing province like China?
China’s economy has suffered an unexpected double whammy. The trade war unilaterally launched by US President Donald Trump first sent businesses on a frantic search for alternative supply chains, and now the Covid-19 pandemic has further disrupted global supply chains. The answer hides in a paradox: India needs China before it can replace China.
When Prime Minister Narendra Modi launched the “Make in India” campaign in 2014, it was a policy mélange that hardly differentiated between the industrial sectors in which India had comparative advantages and those where it had none. As a result, under “Make in India”, the share of manufacturing in terms of India’s gross domestic product even fell – from 15 per cent in 2014 to 14 per cent in 2019.
What do you feel about challenges about International Disputes in India?
Experienced lawyers typically include dispute resolution provisions in their transaction documents, even when all parties expect that their relationship will be a successful one. Subtleties in Indian law and recent decisions by the Indian courts, however, complicate the task of crafting meaningful dispute resolution mechanisms in cross-border Indian deals. Dispute resolution in Indian cross-border transactions lacks the clarity that lawyers and clients have come to expect. Until the Indian legislature or courts bring practice under the ACA more in line with that of other countries, there are several precautions lawyers should take in drafting transaction documents:
If the parties intend for their disputes to be adjudicated in court, they should specify England, Hong Kong, or Singapore as the forum, since India recognizes the judgments of those jurisdictions. If the parties intend for their differences to be arbitrated, they should specify that the seat of arbitration is a country “notified” by the Indian government, such as the United Kingdom, the United States, or Singapore.
Until India expands its list of notified territories, the arbitration agreement should avoid specifying such non-notified jurisdictions as Dubai and Hong Kong, despite their prominence as centers for dispute resolution. If tax issues and other structural considerations permit, at least one of the parties should be incorporated and headquartered outside of India to avoid the unanticipated application of ACA Part I. This may be more practical in M&A deals and joint ventures than in other forms of transactions. The parties should expressly exclude the provisions of Part I in their arbitration agreement.
Whenever possible, parties should specify that arbitration will be held before internationally recognized bodies such as the International Court of Arbitration of the ICC, the London Court of International Arbitration, or the Singapore International Arbitration Centre, instead of ad hoc arbitration panels, since Indian courts are more likely to uphold awards given by established and reputable arbitration authorities. Finally, because Indian law is likely to remain ambiguous for some time, lawyers handling cross-border Indian transactions should take the additional step of engaging Indian counsel to advise them of developments in the area of dispute resolution. Lawyers should do so even when representing clients that have no direct presence in India if the transaction could foreseeably lead to proceedings in India.
What is holding India to become an attractive place for investment?
India’s ranking, in terms of FDI inflows among developing countries (as per UNCTAD data), has jumped from 13th in 2005 to 4th (in 2009). Its share of world FDI inflows has jumped from 0.78% in 2005 to 3.11 per cent in 2009. India is today rated as one of the most attractive investment destinations across the globe.
What changes are to be made in the arbitration process in India?
A new term “Arbitral Institution” has been introduced in the Act which shall mean, an arbitral institution designated by the Supreme Court or a High Court under the Act. The Supreme Court and the High Court shall have the power to designate, arbitral institutions, from time to time, which have been graded by the Council, where no graded arbitral institution are available, then the Chief Justice of the concerned High Court may maintain a panel of arbitrators for discharging the functions and duties of arbitral institution and may review the panel of arbitrators from time to time.
The appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of International Commercial Arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be. The parties are free to agree on a procedure for appointing the arbitrator/s (within 30 days from the receipt of a request to do so from the other party), however, in absence of any agreement, each party shall appoint one arbitrator and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.
In case, the two arbitrator fails to agree on the third arbitrator within 30 days from their date of their appointment, after the amendment comes into force, the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court in case of International Commercial Arbitration, or by the High Court, in the case of arbitrations other than international commercial arbitration, as the case may be.
Questions by audience
What advice do you have for a recently qualified lawyer whose age is 40 years?
Another advantage of attending law school later in life is that older students have lived through successes and failures that can be relevant in law school. Experienced students bring knowledge that benefits all students to the classroom. Many law schools have part-time, evening programs, and online courses that accommodate older students. The outside-of-school-contacts older law students have typically allow them to find jobs quickly. Their personal lives are often more stable than younger students which allows for more study time. Older students had the opportunity to explore other fields of employment and have an idea of what they plan to do on a more realistic and detailed level than younger students.
Many young law students have admitted they attended law school because they had no other plans after completing their undergraduate education. Older law students are usually embarking on a second or perhaps third career. Law school is a pursuit of something they love rather than a means of making lots of money. Their expectations of the requirements and the profession are reasonable.
What qualities do you see if you want to employ a trainee in your firm?
- Self-managed. Manage yourself and your work by knowing your role and responsibilities in the business and meeting all job requirements;
- Be productive. Prioritizes your work and manage your time well;
- Goal-oriented;
- Patient and hardworking;
- Passionate.
Why Indian courts delay the cases and do does not have proper activism?
The courts have varying degrees of control over these factors. Causes include: an increased caseload; increased length of hearings; insufficient court resources; problems with the management of court resources and caseload; inefficient legal procedures and court processes; party delays; and others.
How have the courts in UK evolved the process in the current pandemic?
The courts have also shown increased flexibility regarding court deadlines, in light of potential difficulties arising from the COVID-19 outbreak. As an early indication of this, one counsel’s chambers published an update regarding what they referred to as the first “Covid-19 Direction”. In that case, the court granted an order doubling the period for which the parties can agree extensions to procedural deadlines without further order from the court (to 56 days, up from 28 days under CPR 3.8(4)). The position has since been formalized by the introduction of a new Practice Direction (PD) 51ZA on 2 April, with immediate effect. It is designed to introduce additional flexibility for parties to agree extensions of time where their ability to comply with deadlines is affected by the COVID-19 pandemic, and to ensure that the court takes into account the impact of the pandemic when considering whether to grant an application for an extension. Under the new provisions, parties can extend time by written agreement for up to 56 days, rather than 28 days as was the position previously.
Any extension beyond 56 days will require the court’s permission, which will be considered on the papers (though an order made on the papers must, on application, be reconsidered at a hearing). It also provides: “In so far as compatible with the proper administration of justice, the court will take into account the impact of the COVID-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings, and applications for relief from sanctions.”
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