Legal Era in conversation with Gourab Banerji , Senior Advocate, Supreme Court of India...
Law runs in the genes of Gourab Banerji , Senior Advocate, Supreme Court of India, and former Additional Solicitor General of India (2009-2014), what with his father Milon Kumar Banerji, a former Attorney General for India, and his elder brother, Debal Banerji, a Senior Advocate of the Supreme Court.
Gourab was born on November 14, 1967, and studied law at Magdalene College, Cambridge University, from 1986 to 1989. Having secured a First Class in the Law Tripos and having been awarded the Norah Hunter Dias Prize in Law, Gourab in 1990 was called to the Bar from Lincoln’s Inn. He enrolled as an advocate with the Bar Council of Delhi in 1989 and started practice at the Supreme Court. In 2003, he was designated Senior Advocate at the age of 36. Recently, Gourab joined Essex Court Chambers in London, a leading light in the field of international arbitration, as an overseas associate. Legal Era caught up with him to know more about his journey thus far...
Gourab Banerji (GB): My late father has undoubtedly been the single greatest influence in my choice of career. In 1979, he moved from Calcutta to Delhi after being appointed Additional Solicitor General of India. When I followed him to Delhi after my class 10 exams in 1984, I had a wonderful opportunity of closely observing him on a day-to-day basis in the Supreme Court. That influenced me no end, and from then on, I knew that the only profession for me was law. Right through my professional career and till he passed away, he was a sounding board for me. One of my happiest moments was when I was appointed Additional Solicitor General of India in 2009, exactly 30 years after he adorned that post. I credit a significant portion of my achievements to his guidance.
GB: It would be difficult to narrow it down because one of the joys and also challenges of being a law officer is the wide variety of cases entrusted to you.
I remember an income tax appeal which I argued as my very first matter as ASG. Income tax was not an area of specialization for me prior to 2009, to put it mildly. The matter was argued before a Bench presided over by Justice Kapadia. It was a steep learning curve for me. The issue concerned the scope of deduction under Section 80I, 80IA and 80IB. At first, it seemed a very dry area, but then, I realized that there were significant policy implications having a cascading effect on public revenue. The judgment is Liberty India v Commissioner of Income Tax (2009) 9 SCC 328 . This case set the tone and at the end of my tenure of five years, I had appeared in probably five thousand income tax cases before the Supreme Court as ASG on behalf of the Union of India.
One interesting case from a jurisprudential view was a Civil Appeal where notice was issued to the Attorney General. It concerned the constitutional validity of a provision in the Arms Act which provided for a mandatory death penalty. In the background of the Punjab problems in the early 1980s, the President had thought it fit to amend the Arms Act and introduce Section 27(3) to bring in a mandatory death penalty for those using any prohibited arms resulting in death of any other person. Having been asked to appear by the AG, I was of the view that the provision was unconstitutional as it fettered judicial discretion to tailor the sentence to the crime. When I discussed this with the AG, he gave me carte blanche and said that if I was of this view, he was happy for me to argue along those lines as an officer of the court. We researched the issue across the world. I found that almost all countries (including the UK, USA and several African nations) viewed mandatory death penalty as unconstitutional. The sole exception was Singapore where their court had upheld such a mandatory death penalty for drug offences. The judgment State of Punjab v Dalbir Singh (2012) 3 SCC 346 is worth a read. Then, of course, is the Italian Marines case, though I guess that you will ask about separately.
GB: The Italian marines’ case has generated a lot of heat in both the domestic and international sphere. The facts are quite well known. In 2011, the Republic of Italy enacted a law to protect Italian ships from piracy in international seas. Pursuant to this, a Protocol of Agreement was signed between the Ministry of Defence - Naval Staff and Italian Shipowners’ Confederation. As a result, the petitioners, who were Italian marines, were deployed along with four others, as “Team Latorre”, on board a ship called “M.V. Enrica Lexie”, to protect the vessel from pirates. While on its way from Galle in Sri Lanka to Djibouti, the ship came across an Indian fishing vessel, St. Antony, which it allegedly mistook to be a pirate vessel, at a distance of about 20.5 nautical miles from the Kerala coast. Owing to firing from the Italian vessel, two persons in the Indian fishing vessel were killed.
The state of Kerala decided to prosecute the two marines for murder at which point, the Italian Government intervened in support of the marines. Italy argued that the domestic courts in India had no territorial jurisdiction, apart from raising the defence of sovereign immunity. The case was interesting as it raised public international law issues in a domestic context. It was heard over many months. The marines would attend, kitted out in their white naval uniforms. I was fortunate that friends from across the globe pitched in to help me. I remember opening the arguments with an Italian professor’s blog that supported India’s case. One had to first explain to the judges what a blog was, before telling them that the views were as authentic as those expressed in any printed article.
The case ended in victory for the Government of India. There were two judgments, but both concluded that the Government of India did have jurisdiction to prosecute the case. Though Justice Kabir’s judgment is the one which is usually referred to, the concurring judgment of Justice Chelameswar is worth reading because of its incisive analysis. The case is Republic of Italy v Union of India (2013) 4 SCC 721. Of course, after the judgment was delivered in January 2013, there have been further developments in the public eye and the dispute is now before ITLOS.
GB: It has worked out quite well for me. Essex Court Chambers is the leading set of chambers in international arbitration and public international law. Having read law at Cambridge, I was familiar with many members of the Chambers.
My supervisor, Chris Greenwood, was a member of the chambers before he left to become a judge at the International Court of Justice. What I like the most here is the collegiate feeling in the chambers. Even though there are some really big names who are members of Chambers (i.e. V.V. Veeder QC, Toby Landau QC), everyone is very friendly. Though our senior advocates are very bright and can compete in equal terms with them, they have the advantage of quality over quantity. The professionalism is what I admire and the style of working is very detail-oriented.
At the same time, I will never desert my primary love which is Delhi and practice before the Supreme Court, though international arbitration does beckon. So I have remained an overseas associate.
GB: I was involved in domestic arbitrations from the very first year of my career though I came into the international arbitration field almost by accident. The first major international arbitration I got pulled into was a case called NFL v Karsan. The matter was being handled by the then Solicitor General of India, T.R. Andhyarujina, and senior counsel (now Justice), R.F. Nariman. They needed a junior to assist them and Mr. Nariman recommended my name. It was a lucky break and I got to appear in Amsterdam before a Tribunal presided over by the legendary Albert Jan van den Berg. In fact, it was a rare instance where the Indian PSU won the arbitration. Since then, I have been instructed in quite a number of international commercial arbitrations.
GB: Normally, proceedings in an International Commercial Arbitration are over in a year or a year and a half. The preparation necessarily has to be intensive and detail-oriented. The evidence and closing submissions usually happen back to back. Though the process is demanding, the thrill of appearing before seasoned arbitrators who are usually well-known figures in the field, and the professionalism and the pace of the proceedings more than make up for it. In short, there is real job satisfaction during and at the end of the process.
GB: As to what could be changed, it would be helpful if the arbitral panel is more diverse and representative. That would address genuine concerns about the legitimacy of the process, particularly the perceived bias against parties from developing countries such as India. Unless the process is reformed, the disquiet will soon lead to a crisis of confidence.
GB: Necessarily, in the field of arbitration, proceedings are confidential, so I am constrained to mention only those cases that are now in the public domain. One case that was bitterly fought was the arbitration between Essar Oil and United India Insurance. I was briefed for UII. Essar had been constructing its oil refinery in Vadinar, Gujarat, which was struck by a cyclone. Apart from the material damage to the refinery, Essar claimed advance loss of profits, which United Insurance disputed. Lengthy hearings were held in Mumbai and London. Ultimately, we were successful. It is another matter that Essar has challenged the Award, which is languishing in a District Court in Gujarat.
Similarly, in Enercon v WWIL, which arose after a landmark judgment of the Supreme Court reported in (2014) 5 SCC 1, I was instructed to appear on behalf of Enercon GmbH,, the German company. These are only the recent arbitrations. Apart from this, I regularly appear before the courts in arbitration- related matters. Quite recently, I was successful in persuading a bench of three judges of the Supreme Court in Centrotrade Minerals & Metals Inc. v Hindustan Copper Ltd. to uphold the validity of two-tier arbitration clauses in India. I appeared for Centrotrade in the matter. Similarly, before the high court recently, I appeared in Xstrata where objections against a foreign LCIA Award were dismissed. Last, and by no means the least, I am appearing on behalf of Antrix Corporation in its challenge to an Award given in favor of Devas for a sum of USD 562 million.
GB: My personal experience has been that Indian clients, who are particularly involved in many international disputes, do not prepare from day one of the dispute, like their counterparts in the West do. They are still not comfortable being witnesses or even briefing foreign lawyers. In my opinion, this needs to change. Secondly, there is still a lingering perception that the attitude of some of the arbitrators, particularly in the West, towards the developing world, is biased. Somehow, the belief is that there is a pro- investor and pro-claimant bias. False as it may be, serious measures will have to be taken by arbitrators or institutions to address this concern. The formulation of certain professional norms governing arbitrators’ conduct may be one amongst several methods to help alleviate some allegations of institutional bias.
GB: I have written the India Chapter of the Investment Treaty Know-How which is published in the Global Arbitration Review. This analyses all the treaties India has entered into. For those interested in this area, it should make an interesting read.
The field of BITs is especially tricky for several reasons. Unfortunately, for reasons of confidentiality, I cannot say very much about certain issues but surely, the arbitrations taking place under BITs have the potential of raising significant problems since the awards have massive financial implications. This problem is exacerbated by the fact that the best Indian lawyers have primarily been appearing for the investors, and against the Government of India. The Government of India has to be a lot more careful while drafting and signing of fresh BITs and proactive and professional in defending itself in such arbitrations. Some positive steps have been taken by the present Government in this area.
GB: Well, there will always be people who you think are doing better than you in the profession, who you think are better connected, and getting ahead. Whenever a thought like this strikes you, please remember that this is not a hundred- meter sprint, but rather a marathon. If you stick it out, it will work out for you. Importantly, even after twenty five long years in the profession, I still feel that it is essentially the hard work that counts. Try and read every page of your brief, and work as hard as possible. Lastly, compete only with yourself. Make an assessment at the end of each year as to whether you are doing better than what you were last year. There is space for everyone here. The rewards, should you persevere, far outweigh the trials and tribulations.
GB: My juniors often complain that the term ‘free time’ is Latin and Greek to me. While I may be constrained to partly admit this, I very much like traveling and reading historical mysteries and do that as and when I have time to myself.
Submit your email address to receive the latest updates on news & host of opportunities.