“At the heart of Competition Law lies the welfare of the consumer.” Suhail Nathani, Managing Partner, Economic Law Practice

Mr Suhail Nathani, you are widely recognized as a leading lawyer in India and amongst the top 30 International Trade practitioners in the world by the best of the best expert guides. You are also known for your expertise across M&A, regulatory, securities law, trade and competition law matters. Chambers & Partners Asia-Pacific succinctly describes you by saying your knowledge on these subjects is “encyclopedic.” 

FORMATIVE YEARS IN LAW

Would you please share with our viewers where this illustrious journey began and the initial years of your journey in the legal industry?  

I am of the vintage when very few people did law unless you had family in the profession. I am a third-generation lawyer. My grandfather was a lawyer, my uncle was a lawyer and my father still practises. So, I come from a family of lawyers. Sadly, I am one of those boring guys who always wanted to be a lawyer. So, nothing exciting, no great stories of wanting to be an astronaut, pilot or any other exciting choices – no eureka moment; just always wanted to be a lawyer. 

Would you please tell us more about your life in college, your specialisation, and the people you consider your guiding North Stars in this journey? 

I consider my father first north star in my career.  Ironically, he did this by discouraging me from joining him. He said, “whatever I know I will teach you in any case, so you should go out learn from others and practise law on your own.” I genuinely believe my father did the right thing for me.  He has always been there for me throughout my career.  Recently, when he came to our new space in Mumbai, he told me he was happy for me; and made it a point to say not proud – but happy; as pride intangible assets has a tinge of arrogance attached. So, he is a great all-around influence in my life.  

You also asked me about people I looked up to - in the early days of my profession. I started working in the chambers of the great barrister late Mr Hotchand Advani. He was a great lawyer of his time and when I joined the firm he was still active. There were many illustrious judges including Justice Bhagwati who spent some time in that chamber post retirement. There was also Justice Shahani from the City Civil Court - it was a very modern chamber for its time. These retired judges were very encouraging and welcoming of a young inquisitive student.    They discussed anything, including even moot court scenarios.  

In that chamber, I spent some time working briefly with Hiroo Advani (Mr. Hotchand Advani’s son) who was in many ways ahead of his time. I also worked with Mr Salman Khurshid and Mr. Javed Gaya. These people have played a significant role in the early years of my career. 

With respect to my education, in my time, there were no national law schools like there are today and there were very few choices for colleges. I went to one of the most reputed colleges of that time. But when I got there, I found the standard of teaching was, unfortunately, very disappointing; for a while, I even contemplated giving up law. But I was fortunate enough to get admission along with a scholarship into Cambridge University. So, I took off to Cambridge, where I completed my law degree. Then I went to the US to do my LL.M, took the Bar Exam in New York and lived and worked in D.C. for about 8 years before I came back to India.  

You mentioned moot court—it is nice to know that’s a concept coming and continuing from that time. 

It was the most exciting part of law school. I was in the college moot court team,  both  in Cambridge as well as at  Duke. No matter how much advisory one may do; I think going to court enables you to advise better. 

It is for this reason that when any law college invites me to speak, I seldom decline.  I think it is a great way to share experiences and give back to the young student community and it also keeps you up-to-date because you have to prepare to speak to these inquisitive young minds. That is always a refreshing opportunity.  

You must have handled scores of challenging matters. Would you please tell us about a few that to your mind were special or exceptional? 

One of the most vivid memories that really prepared me to practise law in India was when I was in my first job at Advani & Co.  We were doing an exit in JV of an international company in India. They were selling one of their companies and we were acting for the buyers.  I remember that on the course of working on the matter, someone raised an issue of BIFR and negative networth  - there was a mandatory referral to the BIFR. That completely upended the transaction. It was a huge eye-opener to me about practising law in India. There were so many different statutes hiding that one had to be aware of.  It was true learning experience for a law student, that there is a plethora of laws that impact every aspect of business and transactions in India  

My late uncle used to say that law is an ocean and you keep swimming in it and keep learning and that is why we're one of the few professions that are blessed to say that we are still practising - we are never perfect.   

The absolute highlight of my career was representing the Government of India at the WTO, around 15 years ago. The Wines and Spirits dispute against the European Union. In those days in the WTO, there were only foreign lawyers who were hired by the Government of India. The then Commerce Secretary was Mr G. K. Pillai and Mr Rahul Khullar was the special secretary.  They were keen to build that bandwidth in the country.  I represented the Government of India on a very complex issue of Wines and Spirits issue on taxes.  

Other than work, what else keeps you busy? Would you please allow us a peek into your life outside of work.  

There are two things. One, I used to be very active in theatre. I don’t have the time to do that now, but I still love going to the theatre and try to support the arts. I am involved with some NGOs that support performing arts. I think that is a great learning tool for developing minds. Second, my plan B profession is cooking.  It helps me on two fronts – cooking helps me relax and I like to eat! 

FUTURE OF LAW AND COPING WITH COVID-19  

Mr Nathani, how has COVID-19 impacted your firm? How are you handling the sea-change in the justice delivery system of India from ‘Courts to E-Courts’? What can law firms do today to ensure they survive in an era of disruption or what are the most critical changes that we must make to face the future effectively? 

The impact which COVID-19 has on our clients, will affect us too. We feel the same stress our clients feel because eventually, we work for their betterment.  Luckily, ELP has several areas of practice and at any given time, several of those verticals are in high gear while some may be in low gear. Also, we have many clients who have seen an uptick on their business during these Covid times. 

Our tax, litigation, trade, competition, and all verticals are in overdrive. There are some verticals like M&A which are a little slower. Some like defence, which are picking up much interest, thanks to policy initiatives by the GoI.  What we need to do- and I keep reiterating this to the young members in our firm- that in their career, the only thing that is a given is change. The second requirement is that there must be adaptability. Adaptability in the firm, team and individual. Technology impacts everything that we do. We are a long way from being made redundant by technology but that may happened one day to some of our offerings as AI keeps evolving.  

Recently, in the early days of the lockdown, we appeared in an NCLT matter in Chandigarh where we had no connectivity, no ability to get video/ audio pictures and bandwidth—everything was an issue. One month later, when we appeared in the same tribunal and there was a sea change. The judges were completely at ease. There is now a WebEx system where you log in, they let you know that your matter is next while you wait in the virtual lobby.  It has made the profession so much more efficient. Yes, the hearing is not the same but a lot of hardships that this profession and our clients were facing through litigation in person may be alleviated.  

I also recently read Justice Chandrachud’s view that even when things open up, there may be a hybrid model for court proceedings.  Today you can be sitting in the interior part of Andhra Pradesh and appearing in the Supreme Court through a video conference. This will help clients immensely.  

Apart from India, you are also admitted to the State Bar of New York. By way of comparison, would you say other countries and jurisdictions are also equally placed? Are they also feeling the brunt of the pandemic in equal measure? 

Justice cannot differ.  The core has to remain the same.   The only thing that sets India aside is the numerous laws, regulators and scale of the litigation. I remember once meeting a retired Supreme Court judge from  India who said he once met the iconic Ruth Bader Ginsberg. He said, “When I met her, she said she had a very busy last term at the Supreme Court as they delivered over 60 judgments in that term.” He said, “I told her madam, I wrote 180 judgments last month.” So, it is a different scale.  Sadly, we need more efficiency in the system because there are under trials spending more time waiting for a trial than they would if they were to be convicted. The question is when are we going to deliver justice to the people who need it the most? When will the “ease of doing business” really make business easy?  Today the burdens of compliance are burdening management and boards alike. 

TOPICAL ISSUES 

You have vast experience in handling corporate and other matters in the commercial space. What are the other legal issues plaguing these domains right now? 

IBC is a huge reform in the commercial landscape in India today.    We need to unlock these non-performing assets far more efficiently that is being done today.   

The Government has put IBC on pause on account of Covid. I apprehend that this will create a huge backlog of cases from companies who are severely affected by Covid today.   

Another aspect is force majeure clauses.  Many contracts which are affected by Covid conditions are relying on this to delay or excuse performance.  This has further cluttered up the court system. Perhaps a blanket extension on certain limited types of contracts could have been done by the legislature – akin to the IBC pause that was enacted. 

Compliances, as I said before, are becoming a huge burden on businesses.  Sadly, some of our legislations are knee jerk reactions to specific cases – I believe it is not appropriate to taint the entire business community for one bad player.   

Mr Nathani, would you be able to tell us something about the implications of the Indo-China & US-China relations on domestic and international trade and Commerce.  

There was a phase of multilateralism, which peaked in the mid to late 90s and early 2000s when the WTO was the largest multilateral agreement in the world, and everybody globally benefited, and standards of living went up.  Unfortunately, The WTO regime is a rule-based organisation and if you don't adhere to these rules it creates problems.   

Now, many countries including India and several others feel that some members like China did not play by the rules and that gave the Chinese an unfair advantage.  This has led to a deep re-think on the benefits of multilateralism.  Add Covid and border tensions to this sentiment and China stands out as a target for many countries.  Now we are in the age of bilateralism with a huge influence of geopolitical realities. Now countries only want to trade with other friendly countries.   

China used the one belt one road initiative to leverage their influence in the world.  This helped build their trade relations, but now other countries like Japan and India are also leveraging trade – of course in a more long-lasting manner.  India’s relations with Israel, US, Japan at one level and our outreach to Bangladesh, Maldives and Nepal are great examples of this new trading with friends approach.  New geopolitical realities will drive world trade in the next decade. 

Are our antitrust laws well-equipped to handle the Big Tech operations and corporate behemoths in India? 

Does India have the laws? Yes, we have one of the most modern competition laws in the world. I believe we had some really good regulators as well. At the heart of competition law lies the welfare of the consumer.   

Technology has undoubtedly raised the standard of living globally.  Given the very nature of mass adoption in technology, it has made a few players very rich and powerful.    However, due to their growing power and humongous influence in all spheres of life, regulators around the world now feel they need to be reined in and that shift is happening around the world - starting with the most aggressive of competition regulators in the EU and the US.  India too has been looking at the impact in our markets, and it is fair to assume that more scrutiny is on its way.   

SPEAKING TO THE NEXT-GEN LAWYERS 

What would be your advice to the next generation of lawyers? And as a law firm head, what would be your advice to lawyers who want to pursue their LL.M in this current environment. Does a good degree from a foreign university trump an Indian one?  

Let’s take that in two parts. One, on the education part: today, the legal education available in India is of good quality and there is no need to go outside of India. In fact, if you want to practice in India there is a compelling need to stay in India. However, an LL.M is a good option, if that’s an option available to the student.  It is a one-year program, gives you a global perspective and builds your network.   

What do we look at in lawyers? When I get the chance, I interview the entry-level associates. I always look to distinguish between people who actually have love for the law and people who are only going through the rigours of education. I will give you one example. When I was a law student in Cambridge, I worked with the law firm in the summer and we were handling a case which required me to go to the High Court every day and just make notes and report to my partner. After the internship, when I went back to college,  I kept calling back the partner I worked with just to find out what happened to the case that I was working on in the summer.  I was genuinely invested in the matter.  

Nowadays, I feel that because of the intense internships, some of the practical training has become more about just checking boxes rather than a true passion for the law.  

And another point that I want to make to the law students is that getting a job with a law firm is not the end-all and be all. The 5-year program in India which delivers a dual degree is an excellent foundation which opens many doors – even without practising law.  I really don’t need to tell the millennials this, they are very conscious of everything around them and they make much smarter choices than my generation made and don’t want to be boxed in.  I think the law is a great study that gives you the ability to fit into many roles in your life. I have experienced that with my own son and so many of his classmates and they are all doing well in their own choices. 

Does good experience outweigh additional degrees? Would you prefer somebody who did Masters after their LL.B degree or would you advise them to get some experience and then go for an LL.M? 

Yes, I would advise everybody to work for a few years. I made that mistake. I didn’t get experience before I went for my LL.M. Today given the state of the world and given the state of the profession, I would recommend getting some work experience.  Typically, your peers from other parts of the world in the LL.M. class will have three to five years of experience.  

In terms of hiring, it doesn’t bias my mind in any manner. I just look at the person and how they come across in the interview and the quality of the institution they attended and the grades. I look at grades because those are objective benchmarks.  But it's not the only measure.  

Other than LL.M or good legal acumen are there any other courses or skills you’d like to see in a lawyer joining your firm in the age of LegalTech? 

One needs to be articulate for sure because it is the profession where you have to do a lot of convincing whether you're negotiating or when you're standing opposite a judge. So, one has to be articulate. You need to have command of the language – written and spoken - and when I say command of the language, I don’t mean only English. We have some excellent people who have great command of Hindi and Marathi and are so eloquently persuasive.  You also need to be extremely well organised in your thoughts and that takes diligent preparation – work hard on your brief!   

Would you please recommend to our readers your favourite book or movie/series that left a lasting impression on you. 

Even before I became a lawyer, I started reading these books by Lord Denning who was Master of the Rolls.  He went to the House of Lords in England and then opted out of the House of Lords to go back to the High Court. He wrote a series of books on his learnings in the law, which I found very enriching for myself. On the lighter side, I found the Rumpole of the Bailey series by John Mortimer hilarious.  I often used to read them before moot courts, not case law – they never failed to lighten the mood.   

And of course, all the landmark and latest judgments in your areas of interest in India are a necessity and always very useful to one’s development as a lawyer.   

As a final note, would you please share a few words with our readers to keep them motivated during these harsh times. 

You can’t lose hope at this time. Look at every major crisis in the world, mankind has always bounced back. The late Winston Churchill said you should never let a good crisis go to waste. I am certain the people will emerge stronger from this. We may not emerge into the same world. Some professions may be fundamentally impacted, change or even disappear. But there are huge new opportunities that will come. I think given the information they are exposed to and abilities of our new generation, they are going to make a better world than we lived in. Rely on knowledge, learn to adapt and believe in your own abilities.  Some luck, loads of hard work and infallible integrity can never fail you in any time—harsh or otherwise.