In conversation with Sameer Jain, Managing Partner of PSL Advocates & Solicitors
Mr Sameer Jain is the Managing Partner at PSL Advocates & Solicitors. He talks about his journey, use of AI in legal practice and the road ahead for young lawyers.
Mr Sameer Jain started the firm as PAMASIS Law Chambers in the year 2012 with four Partners. And in 2017 the firm was renamed as PSL — Advocates & Solicitors— to form a 7-partner, 25-associate strong Delhi and Mumbai practice. In a very short amount of time the firm is now recognized as Tier 1 in Disputes: Arbitration by Legal500, Top Tier in International Arbitration, Ranked firm in Corporate & Commercial, Notable Firm for Tax Laws and also Insolvency by Benchmark Litigation Asia-Pacific 2020 among many other recognitions over the years.
In this conversation, we speak with Sameer Jain about his journey, use of AI in legal Practice and the road ahead for young lawyers.
Where did this journey begin?
People ask me if I always wanted to be a lawyer, as much as I want that question to be in affirmative. No, I did not. I am talking about early 2000-2003, I was in Lucknow at that point in time. And like every other student, I wanted to be in IIT and do my computer engineering. I finished my class X, class XI and XII, somehow I realized that I couldn’t sit for twenty-two hours a day and study. And I did not want to be in any other college, but IIT, so I decided not to do engineering, and also rejected my dad's wish of becoming a doctor.
Then, of course, I chose the commerce stream and I did my plus two in commerce. That was a point of time when I really wanted to go to St. Stephen's or SRCC to do my Economics Honours. And my dad at that point of time said, “Son, why don't you try law?” And my idea of law at that point of time was a derived from my dad's position as a district court judge in UP, which with all due respect was not what I wanted for myself in life.
So, he knew what I really liked and, at that point of time in Lucknow high court, I think there was a matter going on of patent of some technology. And my dad took me to the court and Mr Nariman was arguing. I sat and I heard, and I was bewildered at the sheer eloquence with which he was explaining to the judge all about technology and all about the patents. That was the day that sealed the deal for me. I said I’ll be a lawyer and haven't looked back since.
You worked with Goldman Sachs, Ernst & Young, Luthra & Luthra before you started your own firm, how did that shift happen?
It was kind of a planned move. I was in college and I am talking about 2007-08 when I graduated in 2008. The last year of college was spent with friends discussing whether litigation is good or corporate law is good or investment banking. I was at that point of time interning in Goldman Sachs, which extended to the recruitment period in college and the 2008 meltdown had happened just then. My position in Goldman was confirmed, but in 2008 they came back, just before I was about to graduate that we can't confirm your position. That's when I decided that I will try and test everything. I worked in-house at Goldman, I worked with Ernst & Young to get an experience of a consulting firm, and with Luthra & Luthra to see litigation and law firm practice. That's when I decided that litigation is my calling and that's when I started my own firm.
Yours is a boutique law firm with a wide range of services, and your individual practice primarily focuses on International Commercial Arbitration, Corporate & Tax Litigation Insolvency and Bankruptcy, I.P. Media and Entertainment, so on and so forth. Please tell us more about how you built your practice.
Yes, we have had a very slow progress. We were very conscious not to jump into doing anything and everything. However, at the same time, we were very conscious that with the passage of time, you have to keep on providing relevant services in the market. Disputes might sound as one broad area of law, but it practically encompasses within itself every other area of law, you can be a securities disputes lawyer while you can be an IP lawyer, you can be an arbitration lawyer. So, within the realm of dispute, corporate advisory and tax, we started giving a niche area of services in Disputes. We also made a conscious call to be an association of litigators and not only solicitors, so we do most of our advocacy ourselves.
Most of our partners, associates, senior associates go to the courts regularly and that was a conscious call over the period of 2012-2020. In eight years, we slowly and slowly built up a practice. I was historically doing tax in EY and Luthra & Luthra, I still do a fair amount of taxes as a standing counsel for CBIC, but I'm the kind of person who likes doing everything.
You can say I'm a Jack of everything. That's what I love about this profession. One day I'll be arguing in an arbitration matter on another day it would be testamentary, then criminal...while the focus remains arbitration as such and corporate commercial disputes, with enough preparation and enough material and brilliant colleagues around, I think we end up doing justice to every matter.
There’s so much that's happening in IBC and Arbitration and IP spaces. What are your views on the Insolvency and Bankruptcy Code?
Well, it's a very interesting new area from a practitioner's perspective. While it started as an alternative to winding up proceedings it more or less also got focused on recoveries because the procedure mentioned was very efficient and initially the time which was taken for a petition to get disposed of was very less. So, people thought that ‘yes, why not during an undisputed debt go to NCLT’. Now I feel that unfortunately, NCLTs all across the country are also clogging up with the numbers of matters in sight. While it still remains good law in place, its implementation needs to be more efficient in terms of more number of courts, which I see that the government is constantly trying to do.
Would you detail it for us, what is happening in the corporate insolvency and the fresh start process for individuals.
As far as the corporate insolvency is concerned as you would be aware, that there is a blanket hold on any new matters in respect of debts, which have arisen during the COVID-19-period. I think that was a very smart move by the government because as the situation has it, everyone in the industry is defaulting on one debt or the other. To prevent companies from going to CIRP, they have firstly increased the threshold, which was earlier 1 Lakh, and also suspended the proceedings under sections 7, 8, 9 and 10.
So, while the corporate insolvency process—a new one, is absolutely on hold right now, the initiation proceedings one must understand make only 10% of the whole IBC litigation. The more complex litigation starts thereafter when you have to either represent a client from the RP’s perspective, the COC’s perspective, or that of the resolution applicant. It's heartening to see that more and more people, more and more great counsels and firms are coming in, establishing practices on the insolvency laws. I believe that corporate insolvency litigation is on a good run right now. As far as the fresh start process is concerned, I have my own concerns there. One, of course, it's yet to be brought in place, but it all depends upon the threshold, the eligibility of a person to apply in a fresh start process, I think is some 60,000 rupees per annum of income by a person. I am at a loss to really explain that. There would be people who would be falling in that bracket, but would those people be in a position to approach an NCLT to get their grievance heard or take benefit of the Fresh Start Process. So, I think that the whole threshold system needs to be reworked once the government actually thinks of implementing it.
Many young graduates and lawyers have taken a shine to this practice. What is your advice to lawyers wanting to establish practices in this space?
My advice to younger lawyers is that the beauty of law is to do all that it offers you to do. I think before you get on to a particular area of law and zero in on a particular area of law, try and attempt to work in a lot of other areas so that you know that what you thought was your calling in life in college that remains the same. And I say so, because I, for one did my honours in international trade law and WTO. I spent five years of my career doing tax and then started doing arbitration, in the process, I dealt with so many other areas and over the period of eight years, I realised where I wanted to specialize. It just may not serve everyone well to only decide in your fourth or the third of the fifth year of law school, to think “I just want to do Arbitration’ or ‘I just want to do Insolvency’ because things from outside are very rosy and very shiny but what it actually entails is very different. And I feel that unless and until you have an experience of a lot of other things, you really can't do Arbitration or Insolvency. Arbitration is a procedure, it's an alternative dispute resolution mechanism. The law remains the applicable law of the contract, and you have to work on those areas in court related disputes in your domestic arbitration. You just can't say that ‘no international arbitration is the only thing I want to do in life’. That's a little myopic. I personally feel that you will be very well suited and very well placed if you spend the first few, four or five years, doing everything and then decide what you want.
Coming back to arbitration. So how close are we to becoming the hub of arbitration? Earlier arbitrations in India were plagued by court interference. And now we see that the courts have moved to the other side of the spectrum with little to no interference. Is that a good sign?
That’s, of course, a very good sign Ashima. At least where my majority practice lies is in the Delhi high court and Supreme court. It's heartening to see that judges really don't want to interfere with arbitral awards. They take the provision and the basis on which you can actually challenge an award very strongly.
However, that attitude needs to spread to more courts, to trial courts as well. Say, for example, in the state of Haryana the pecuniary jurisdiction and also in UP the pecuniary jurisdiction of the courts is unlimited. So in Rajasthan, UP, Haryana—a challenged arbitral award under sec 34 will always go to the trial court. It's very difficult to explain to a judge that you are not sitting on an appeal. That your hands are tied, that you cannot look into the way an evidence has been appreciated. That you only have to look at the volition of the public policy of India and some other limited grounds. That attitude needs to change, which will change slowly and slowly. I'm very hopeful that at least the majority of the high courts and trial courts will buckle up and not interfere with the awards.
As far as India becoming a hub of arbitration is concerned. That is a question which has been asked to any and everyone for the past five years. We have seen a lot of developments in terms of MCIA being formed; in terms of the government taking a very active interest in getting the ICADR, which is the International Centre For Alternative Dispute Resolution in Delhi; the Delhi High Court Arbitration Centre, they are very very efficiently working but as far as the infrastructure is concerned it is something, which we need to look at. Either private players need to come in to set up brilliant arbitration hearing infrastructures and also to have an Indian institution, which gets up to the line and competes with the SIACs and HKIACs of the world.
Of course, it will take some time, but establishing them and managing them and making sure they are working with the same efficiency is the first step towards it. I think infrastructure and institutions are two things which, which really, really need to, improve in this country. And I know for a fact that steps towards that are being taken as we speak. I wouldn't say it's a one-year dream or a two-year dream. But we should look at a 10-year span for India to be considered as a hub for arbitration
What are your thoughts about ODR, especially in the COVID-19 period?
Online dispute resolution is a necessary alternative to physical hearings. No one can escape it. A situation which remains today, I think all will be in place, but for the next seven, eight months you can’t have your arbitrations hanging. As far as international arbitration is concerned the community is well versed to have hearings internationally.
So online dispute resolution is going on well but the technology needs to be updated. There are concerns of witness examination, witness tampering because there's no one in front of you. Every tribunal is devising their own procedures to make sure that doesn't happen.
Speaking of the digital era and looking at the social media trends these days—does India need to revamp its IPR law in view of the Instagram generation?
I have a different view on that than what people have been saying globally. I don't think we need to really revamp our laws. I think we need to make sure that the implementation becomes efficient. So is under criminal law. People say we need to revamp our criminal laws to deter people from doing crimes. No, we don't. We already have provisions, which cover most of the areas that are in dispute. I think the implementation is where the problem is. Having said that, the silver lining the COVID-19-situation has seen is that everyone within the system, be it the private side or the government side, have been working at very high efficiency. Because the mode of high efficiency is on this is a time when revamps in terms of implementation laws can be done. A lot of other things will be taken care of when the Data Protection Bill gets implemented. I think the parliamentary commentary report is still due and most of the European companies and India are anyways following the GDPR regulations.
We just need to make sure that our data protection law and the GDPR and the global data protection landscape kind of matches with each other. We don't want a law, which is absolutely starkly different from what is happening globally, because then there'll be a lot of issues for multinational corporations to have a separate set of Data Protection laws in India and a separate set of data protection regulations where they are holding a subsidiary outside of India. I think laws are very well in place, we just need to implement them better.
What would you say about other live legal issues plaguing the industry currently, given the COVID-19 environment?
Well, I think the real pandemic right now is not Covid-19. The real pandemic is Force Majeure. I think since March till date if you were to scan my inbox, 60% of the emails would be in relation to one or the other aspect of Force Majeure. That's one area, which really needs to get settled sooner than later. Because the jurisprudence on Force Majeure is extremely limited in India, it is not statutorily recognised, it is a creature of contract, and not many situations luckily have arisen in the past, which would have led people to invoke Force Majeure. So, there are very few judgments to that effect; Delhi High Court has come out with a couple of judgments on the Force Majeure aspect. That's one aspect, which is really plaguing the legal industry today. There are a couple of issues that are not related to COVID-19 but have been pending consideration at the Supreme court, for example, arbitration under lease agreements. Landlord-tenant disputes will top the list of disputes, which will be filed or under process during Covid-19 and to prevent the courts from getting clogged with these landlord-tenant disputes, a lot of big leases already have an arbitration clause, but the whole concept of arbitrability of re-attested disputes under the current Transfer of Property Act is pending consideration before a larger bench. If that gets decided soon, I think that will clear the way for alternate dispute resolution in these areas. Apart from that, I don’t see any other major issue, which is plaguing our system as of date. These issues are also not plagues, these are issues which really need to get settled for smoother functioning of the justice delivery system.
What would be your advice to your clients when it comes to claiming Force Majeure and what have you been advising your clients?
My only tip is—read your contract very specifically. There is a very rampant misconception in the minds of people that just because the words ‘Force Majeure’ appear in your contract, anything and everything is covered under that. People don't realize that merely having a Force Majeure term in the contract means nothing. It needs to be defined well; it needs to be followed to the tee in terms of the contract and your situation which you are claiming—the COVID-19 situation—should actually be contemplated, not in the exact words of a pandemic or an epidemic but even if there's a general sentiment in that clause, which intends to cover a situation like this, needs to be there.
So, my only advice is before raising a dispute or unnecessarily resisting a dispute or resisting a request for waiver, it's imperative that everyone reads their contracts. Well, I've been advising all my clients that right now is the time when the work is less. You have more time. So why not internally have a review of all your contracts? Not only real-estate contracts, supply contracts as well, because everything is getting impacted. So have a matrix prepared where you know, what needs to be done when a dispute under the contract arises. That's what I have been advising my clients on Force Majeure at least.
That brings another question to mind that how has COVID-19 impacted the legal space in India? For instance, the boom of technology has been a very welcome change but how do you see this would shape our system. And what are your views on the legal tech and AI in the legal space? How far are we from replacing lawyers with AI?
Okay. So, let me get the elephant out of the room first. I think no one is replacing lawyers. That scare needs to get out of people's mind. Technology is only there to assist and it will assist. What would happen is that if you needed 10 people for a job for reviewing documents that can be done by three people. But that doesn't mean that rest seven are irrelevant. It only means that you can now allocate your human resources in wider aspects of your practice rather than having them blocked on one assignment. It's only meant to assist us as lawyers to give more error-free advice and have a better review of documents.
Recently our firm took an artificial intelligence and machine learning-based software and used it in one of our massive arbitrations to review 10 lakh emails and some gigabytes of data. At least I think we were able to save around 80% of the time, which we would have taken in manually reviewing all of them.
So yes, technology is a boon. COVID-19 is forcing people to adopt technologies and how Covid-19 has impacted the legal profession is a very interesting question because I think when it all started in March, I could see despair everywhere. Including myself, no one was prepared for this. There was an absolute hold on any new work coming in. There was an absolute hold on the continuing work getting continued. There was an absolute hold on your invoices getting cleared. So everyone was thinking, where's the water going? The crude fact remains that yes, people have been impacted, our profession has been impacted, but again, why I love lawyering so much is that that there is always a way out of any situation, like in a case.
So we, as a firm decided that there's no point sitting and brooding. Let's do something productive at this time. We researched and we created research wings and we created teams researching specific areas of law, arbitration, data protection, insolvency, insurance, and I think now three months down the line, looking back we didn't feel that we were out of work for some time. And the work started coming in again. The world kind of balanced itself out. We are humans we kind of find a way out of everything. And it's as good as it was pre-COVID.
Like you mentioned, you've already used AI for your arbitration. What are your other future plans for your firm?
Yes, knowledge and innovation it was an idea that came to all of our minds during Covid-19 and how technologies will be assisting all of us. We decided to develop in house technologies, which would assist us in workflow management. Which would assist us in better interaction with the clients, more transparency in terms of work. It gave us a lot of free mind space to think of more innovative things, which we can do on the professional floor. I think the whole notion that law is an archaic profession where you cannot really innovate is something which we want to crack. That's why we have hired one resource very recently. The idea is to constantly look for newer technologies, thinking of incubating tech guys who can develop applications, develop a portal and an app for use by our clients and internally for a lot of other things you will shortly get to know when we announce it.
So, so our future plan is to be one firm, which provides, very cutting-edge technology-assisted services to our clients. As I already said, as far as our disputes team is concerned, we would focus more on in-house advocacy. My idea of this firm is to be one where we churn out maximum number of senior counsels, ASGs out of here. Appears to be wishful thinking for now but that's at least how aligned everyone in the firm is in terms of the future.
Do good matters, but do them well. That's the motto. We don't want to flood ourselves with any and everything because then we won't be able to do justice to any of them.
What would be your advice to fresh graduates who want to pursue their LL.M in this current environment or considering to study further in future?
You know, I always tell students that while it's a great idea to do an LL.M, always try doing that once you have had some experience in the industry. I've seen a lot of students finishing there three years or five years of law school and immediately going abroad to do an LL.M. For me, it's just an extension of your law school. So rather than three or five years, it is like finishing graduation in four to six years, which does not give you a practical experience, which is just another study course for everyone. What I advise them is that come in the market, work for two to three years, see what you like to do. You may want to do tax when you were in college, but three years down the line you realize, ‘oh! tax is just too complicated for me, I will do’ say ‘arbitration, I want to do’ say ‘criminal law.’ Once you've set your mind on one area, seen the nuances of that particular area and practice, you will be able to appreciate your LLM course much better. So, if you're doing an LL.M, if you're investing a lot of money, make it count.
To fresh graduates. I know the situation is kind of unstable right now. There are lesser opportunities, a lot of the firms have hiring freezes but from where I assess the situation's going to improve and it will improve for the better, the situation will be better than what it was pre-COVID because a lot of reorganization will happen on the corporate side. A lot of renegotiations will happen on the corporate side or dispute side. As we know, a lot of disputes will come. So, the amount of work will increase, maybe luxury litigation will reduce. I know for a fact that most corporates are now reducing their litigation budgets. They're reducing their legal budgets. So, there will be more work; lesser fee, but just wait it out. The key to surviving this pandemic is to stay positive and wait it out. It is just a couple of months out of your life. Life is very long. You don't have to fret about things. The world is not ending.
What would you say is the bent of mind of law firms while seeing applicants with LL.M from India and from foreign universities. Any thoughts on that?
Everyone has a different choice to make. Yes, there is some difference in LL.Ms in India and abroad. I personally think LL.Ms in a couple of colleges abroad is really an extensive course, which also helps you make a lot of connections with people, relationships with people, your vision gets more global. That, of course. is a problem when you're doing an LLM from India, but it depends on the objective on why you want to do an LL.M. If your objective is solely and solely to expand your knowledge in a particular area of law, then if an Indian college is good in a particular area of master's in law, why not, go there.
While, if you think that say a disputes course or an international law course, or IP course, is better abroad, go there. If your objective is to better your perspective in terms of this whole global legal profession, choose an LL.M abroad but again, you need to first sit down and think, ‘why do I want to do an LL.M’. Do I want to do it only to show it on my CV, let me tell you from a recruiter's perspective, it really doesn't matter. You may get an interview with an LL.M on your CV, but if you don't really have that knowledge, when you're interviewing with a recruiter, it doesn't really help. So, it all depends. There's no straight jacket answer to this. I would always want to see someone do an LL.M after they have actually slogged it out in the real world.
Lastly, would you please share a success mantra for our audience.
Passion is the key and that's a success mantra, not only for lawyers but for anything that you do in life. If you were to do law just because it's your bread earning mechanism. No! You need to love what you do. If you love what you do, then you enjoy what you do. And once you start enjoying it, then there is no way that anyone can stop you from being successful. And when I say successful, it doesn't mean that you need to earn crores and crores. I think a good matter, a good relief in the court, a good outcome of a negotiation would give you a better high than anything else in that world.
The idea is to be in love with what you do, and specifically in the area of law because I think it's a very, very demanding profession. Once a client comes to you and gives you a brief, you take all the tensions worries away from that client and get it on your head. You are carrying your own burden, you are carrying your client's burden and not one, maybe multiple clients. It's imperative that you really give it your best. There are some matters that by the time they end, they take a small part of your life away. You should be able to sacrifice that, you should be willing to sacrifice that and you'll be willing to sacrifice it only if you love doing what you do. I may sound very philosophical on this, but that's what I believe. If you're not in love with law, rethink about it.
Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house
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