Young Indian lawyers are very keen to practice in international arbitration: Samuel Townend KC

Samuel Townend KC, Chair-Elect of the Bar Council of England and Wales, recently visited India to attend the Bar Council of India (BCI) International Lawyers' Conference.

Bar & Bench's Pallavi Saluja caught up with Townend a day before the conference to discuss the opening up of the Indian legal market, the recently framed BCI Rules on the same and India's potential to become a hub for international arbitration.

Edited excerpts follow.

Pallavi Saluja (PS): How do lawyers in England and Wales stand to benefit from the opening up of the Indian legal market?

Samuel Townend (ST): I am Chair-elect of the Bar Council of England and Wales, so I represent about 18,000 specialist advocates and senior advocates. We advise and represent in court at home in England, but also in international dispute forums including important international arbitration centres. The BCI has shown great leadership in producing rules with an eye towards representation in international arbitration. What I’d like to see is the ability for Indian law firms to instruct specialists like myself - I practice in construction and engineering - for international arbitration which would be seated in India, and I would work with the Indian firm to do the best case I possibly could before that tribunal. 

PS: The BCI recently signed a Memorandum of Understanding (MoU) with the Bar Council of England and Wales and the Law Society of England and Wales to allow an exchange programme for lawyers. Has any development taken place in this regard?

ST: We have been talking about exchanges and development. For example, through the Pegasus programme, some exchanges have been going on already. There’s more that can be done. I think the best route for that will be for the Bar Council of England and Wales to work with our Four Inns of Court to help and assist with arrangements for those exchanges. One of the great things of having this international arbitration setup will be that Indian lawyers will be able to meet and work with English lawyers and vice-versa. So, that will itself provide a very fulfilling professional experience and develop the skills of both sets of lawyers. 

PS: What differences do you see in the roles played by the Bar Council of India and the Bar Council of England and Wales in furthering the cause of the legal profession? 

ST: The Bar Council of India has a much wider role, because they are both the regulator and the representative body of, I think, over 2 million lawyers. My organization seems very small by comparison, because we have only 18,000 lawyers. But I can tell you that my members are very active in the international field. About 13% of our income comes from international work - that’s about £440,000,000 a year. There’s a lot that can be done on that part. At the moment, we have in the UK quite a liberal regime, so Indian lawyers are already coming over to act in international arbitration and other dispute forums, many of whom are now associated with particular sets of chambers. I’d really like to see that happening here (in India) on a reciprocal basis. 

PS: There are a large number of Indian qualified lawyers working in the UK. What are your thoughts on Indian lawyers and law firms?

ST: I’ve come across Indian lawyers on the other side of a couple of arbitration cases. They’ve been first class. Obviously, we share many things. There’s the English language, but there’s also the common law system. England and Wales, together with India, are probably the two biggest fields of common law. Many commercial transactions are done in English and have a seat in London, including those involving many Indian MNCs. 

PS: You spoke on international arbitration at the conference. Do you see India becoming a hub for international commercial arbitration in the near future? What needs to change for this to become a reality?

ST: I really think India could become a hub for international arbitration. You’ve already got centres put together. You’ve got so many natural advantages here - a growing economy with multinational commercial arrangements. But at the moment, it is not hosting the dispute resolution processes, for even any of its own big MNCs. For example, TATA, which is investing great sums of money in the UK, for their disputes, are tending to use London as a seat for that arbitration, rather than India. But the natural advantages that you’ve got - the common law, the English language, let’s not forget 80% of international commercial transactions are English and you’ve also got this cadre of very experienced senior advocates that are already coming to London. They’re already doing international arbitration, just not in India.

Finally, and importantly, you have this whole group of young lawyers who are brilliantly educated, who are very keen, hungry I might say, to practice in international arbitration. So I think it could take off.

PS: With regard to BCI Rules, have you expressed any concerns to the BCI that you may have?

ST: I would like to see some tweaking of the BCI Rules, which came out in March, to effectively remove the need for registration of individual foreign lawyers when advising or representing in an international arbitration. That would bring it in line with what happens on a reciprocal basis in London. That would then free up these international arbitration centres in India and would make them very much more successful. 

At the heart of this is the ability of India to up its international arbitration market, and I think the way of doing it will be to grow the pie while sharing a small part of it with other lawyers from other jurisdictions, including English lawyers. If you look at the jurisdictions that are succeeding in international arbitration at the moment - London, Singapore, Dubai and Hong Kong to some extent - they tend to have a liberal regime where lawyers from all jurisdictions can come together in that centre to have the arbitration determined.

PS: Is there any other concern that you have put before the BCI in terms of the Rules?

ST: Certainly. I think there is a lack of clarity about whether or not we, as English lawyers, can come to India to advise domestic Indian clients on international law. I'm not talking about advising on Indian law. That could be clarified. There are also issues about where the instructions come from for the unregistered section, I think it’s Rule 3 . At the moment, it’s not clear exactly where the instruction needs to come from. I don’t see why there should be any difficulty in the instructions coming from within India rather than an office outside India. I don’t understand why that is a problem, why it cannot be relaxed. 

PS: The hot topic in the UK has been on professional ethics and the role of lawyers as gatekeepers in the prevention of economic offences. How do lawyers reconcile their duties to their clients with adherence to laws and regulations?

ST: It’s a hot topic at the moment, but for us as barristers, we have quite a clear ethical code which is “everyone deserves representation”. The English Bar has something called the ‘cab-rank rule’, that is rather like a taxi. You have to take the first person that comes along. If you start judging your clients, you are actually usurping the role of first, the prosecution authorities, and then secondly, the judge. You’re becoming lawyer, judge and jury.

Our job is to represent our clients to the best of our abilities, within our ethical code. Obviously, we do not participate or allow any wrongdoing, but we necessarily will represent people that have committed criminal or civil wrongs. In that sense, we have to do so without fear or favour, and without judging our clients. Equally though, the other side of the coin is that we should not be associated with the cause of our clients. So, we have to retain a professional independence from our clients. Those two things complement each other and they’re good for the rule of law, they’re good for the efficiency of the justice system.

PS: While the BCI is quite openly in favour of the party currently in power in India, does the BCEW have any political affiliations?

ST: No. We are a strictly non-partisan organization. That’s essential for us, because our members vote for all sorts of different parties. I’m not there as a Labour or Conservative Chair of the Bar, I’m there as the Chair of the Bar for all barristers. So, at least in the English and Welsh setting, it is important for us to maintain that independence. 

PS: Immigration lawyers in the UK have recently been attacked by the Conservative Party for criticisng government policies on immigration and bringing in people from across the channel, and I saw a news clipping where you had replied to the Prime Minister on this. Was there a backlash?

ST: Yeah. This is a question about how all of us address lawyers, and it comes back to the point I was making about how we should not be associated with the cause of our clients. Clearly, if there’s a group of lawyers that have been fraudulent, committed wrongdoing, they should be pursued by the regulatory authorities, and if appropriate, by the police, and they should be condemned accordingly. What I disagree with is to paint all lawyers in one particular frame of mind. That’s really where my comments come from. It’s to try to maintain the independence of the profession and to, again, dissociate lawyers from the cause of their clients. 

PS: How do you see AI impacting the legal profession and lawyers?

ST: There’s been one or two cases, including in the US, where AI has been used, to bad effect. For example, some famous large language model actually ended up producing a submission which had references to cases which simply didn’t exist. AI is obviously here to stay and we need to use it. We cannot shut out progress. On the other hand, its uses, in truth, are going to be relatively limited. So, there may be more in the area of disclosure and searches and other aspects. I suspect for the sorts of work that we as barristers do - submissions, advice and of course in court - I think AI is unlikely to have a massive impact or change what we already do.