BEING A LAWYER IS NOT A HUNDRED-METER SPRINT, BUT RATHER A MARATHON

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 S

olicitor 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 t he 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...

Legal Era (LE): In his time, your father, Milon Kumar

Banerji, was Attorney General for India.

How has the family's predisposition for law

shaped your career?

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.

LE: You served as Additional Solicitor

General from 2009 to 2014. Could you

please take us through some of the leading

cases during your tenure?

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.

LE: You represented the Government of

India in the recent Italian Marines case?

Could you brief us about the case and the

role you played?

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.

LE: You are the first Indian lawyer to

become part of the Essex Court Chambers

in London. How does it feel?

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.

LE: What prompted you to make a career in

international arbitration?

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.

LE: What is it that you love about this field?

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.

LE: Also, what is it that you think can be

changed?

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.

LE: Could you brief us about your

present role as arbitration counsel and

advisor to clients engaged in international

arbitration? Please take us through some

of your momentous cases as arbitration

counsel.

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.

LE: Arbitration is a field that is constantly

evolving. Do you foresee any radical

changes in international arbitration in the

near future?

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.

LE: You also specialize in Bilateral

Treaties. Please share your thoughts on

this specialized area.

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.

LE: What would be your advice to young

lawyers?

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.

LE: When not the law, what is it that you

love the most?

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.