UK chambers model would translate well to India: Bankim Thanki KC

Bankim Thanki King's Counsel (KC) is a barrister at Fountain Court Chambers, one of London’s leading commercial sets. His practice spans a wide range of commercial litigation, arbitration, regulatory investigations and inquiries, and other civil work..We met Thanki during the recently held London International Disputes Week. In this interview with Bar & Bench's Pallavi Saluja, he highlights the differences between the Indian and UK bars, speaks about India's potential to be a hub of international arbitration and reveals his opinion of Indian arbitrators..Edited excerpts from the interview follow..Pallavi Saluja (PS): What are the key differences you see between Senior Advocates in India and barristers in the UK, and Indian and UK law firms?.Bankim Thanki (BT): Comparing the Indian Bar and the barristers of the UK, the working practices have struck me as very different. The upper end of the Indian Bar is very court-based and has less engagement with the case throughout its life. In contrast, the expectation of the English Bar now is that they like to bring in the leading counsel at a fairly early stage of the proceeding, and will sign pleadings and be involved right from the outset of the case. The upper end of the Indian Bar seems to be much more focused on advocacy than strategic development of the case and living with it throughout its life. That’s the main difference, but I think that seems to be changing. The younger generation of the Indian Bar - possibly many of them have had more exposure to international work, particularly in the arbitration forum. Some of our door tenants are much more used to working in what I would describe as a more English tradition of KCs being involved. In terms of the solicitors’ profession, I have not noticed much difference. The bigger Indian law firms I’ve been working with seem to be very similar to their English counterparts: very professional and very client-focused. I am very impressed with the Indian firms I have been working with. I have been working with Trilegal, and I’m impressed with the client care and the quality of the work..PS: In India, Senior Advocates have their own offices. There’s no concept of sets like in the UK. So do you think the chambers model followed in the UK can work for the Indian market?.BT: I think it could and that is probably the way it develops in the future. At the moment, it’s very small. Leading Indian silks will have a few people they work with, nothing like a set which has about 100+ members. Our Indian door tenants come here, see the chambers model working, and go away thinking it’s a good model. It will require more people to see it as a model for the Indian Bar to become a bit less individualistic and a bit more collegiate. They’ll see the advantages of cooperation, particularly on a large scale. It’s really useful.I’ve just done a case that involved different fora in New York, London and Chile. Building a team of barristers, all from within the same chambers, was really useful. So it was me, a senior silk and a junior silk from Fountain Court, and then a junior barrister from Fountain Court. That was really advantageous - we communicated very quickly and readily. So, I think the chambers model would really translate well to India, but it can’t happen overnight. .PS: Over the years, Singapore and Dubai have also come up as big commercial hubs. Do you think London still has an edge over these jurisdictions? Did London lose a lot of work to Singapore?.BT: Not really, not yet, we haven’t seen that. I think that in the arbitration world, Singapore, because of its location, has a gravitational pull for some work from Asia. But at the moment, London is a growing market for legal work. So, we haven’t seen a decline in work. It’s a win-win situation in the sense that Singapore is certainly growing as a commercial hub. But the international feeling is that the Singapore International Commercial Court (SICC) hasn’t really taken off yet. That may make a difference, but at the moment, London has been a growth market. Singapore arbitration has also been a growth market, but it doesn’t seem to be at the expense of London, so far as our experience goes..Singapore, because of its location, has a gravitational pull for some work from Asia.... But at the moment, London is a growing market for legal work.Bankim Thanki KC.PS: English barristers are now increasingly doing more India-related work. Has this opened up a market for Indian lawyers looking for a position in the English Bar?.BT: We have seen some Indian lawyers qualify for the English Bar. Normally, after a period of study in England, in the very early days, there were a few Indian dual-qualified lawyers. I think it will be a growth area, and I imagine it’ll be very attractive for barristers' chambers to have Indian dual-qualified lawyers. For example, I’m currently doing an arbitration in Singapore involving contracts governed by Indian law. So, having a junior counsel available who is qualified in Indian law would be a huge advantage. The more Indian work we see in London, the more attractive it will be for barristers chambers to recruit dual-qualified lawyers. That will be a real driver in the future. .PS: What is your take on the quality of Indian arbitrators?.BT: Good overall. The Indian arbitrators I have encountered tend to be very high-powered, retired Supreme Court judges. They are very good lawyers, commercial-minded, and I’ve been very impressed by them. Those have mainly been in Singapore seated-arbitration. They tend to be appointed by Indian parties because they have more confidence in Indian arbitrators. Quite often, they’ll be a wingman in a three-man panel. The panels come across as very high-powered.The English retired judges and the Indian retired judges actually enjoy the experience of working together. Cross-personalisation between different jurisdictions is really healthy, and you can see that not just with lawyers, but also with arbitrators. So, that’s a very welcome development..PS: Do you think India has the potential to become a hub of international arbitration? What works in India’s favour, and what needs to change to make this a reality?.BT: At the moment, I see more Indian clients choosing Singapore arbitration. Indian court work is seen as something that Western advocates and English advocates will always have a very hard time accessing. In terms of Indian arbitration work, I think it’s a pity that there’s not more arbitration work seated in India. I think the logistics and so on are improving in India. Whereas in Singapore, their infrastructure is superb; there are readymade arbitration suites, facilities. In many ways, it’s a saturated legal market. There are great opportunities there for India, but I think it needs to become a bit more user-friendly in terms of developing facilities for arbitration. It’s a great market, largely untapped. To become more like Singapore would be the answer. I don’t see any reason why, in 10 to 20 years time, India shouldn’t be as popular an arbitration venue as Singapore and other places..PS: Do you think the Indian market will open up now? .BT: Although there was an indication that it was opening up, I felt it was a bit illusory. The rules that came up were very difficult to comply with and were quite restrictive. I think the market will open up one day; it’ll be a very slow burn. I’ll probably be retired by the time the market opens up. We live in hope. I think it would be very good for the Indian market, English lawyers and Singapore lawyers. Cross-personalisation has been very healthy, as we found in having an exchange of experience between places like Hong Kong, Singapore, London and even New York in the arbitral world. I think that’s been a healthy development. .PS: Can you tell us about Fountain Court’s journey in Asia, from setting up an office in Singapore? .BT: It’s been very successful. We set up about 10 years ago under my predecessor, Stephen Moriarty. Stephen in particular devoted a lot of time and energy to developing it. He’s there full time, and also as a barrister in Singapore. That makes a big difference. That is why Fountain Chambers has a significant presence in Singapore. That has developed and given us access to more Indian and regional work. I’ve done arbitration involving the Philippines, Malaysia and Indonesia; they tend to be Singapore-seated. It’s been a great hub in terms of success. You can’t measure it just in terms of Singapore originating work; we need to look at the whole region while having a base in Singapore. So, yes, it has gone very well. It has involved a lot of time and energy and effort to make it work; it doesn’t happen automatically..PS: Where do you see Fountain Court going next?.BT: It would be very nice to have a base in India. We’ve got three really distinguished Indian door tenants, and we like to think that we’ve covered three corners in India - having a door tenant each in Mumbai, Delhi and Chennai.So, having an office in India one day would be very nice. If we can achieve it, that would be my ambition. Barristers’ Chambers don’t have the same resources as large solicitor firms, so it would be quite an investment for us, but that’d be something I would really like to see happen. I am not the head of Chambers anymore, so it wouldn’t really be my decision..It would be very nice to have a base in India.Bankim Thanki.PS: The Arbitration Act of England is primed for some key reforms. What are some of the lessons from these reforms that emerging jurisdictions should keep an eye on?.BT: In terms of management of the process of appeals from arbitral awards, which is manifestly wrong, I think that the regime is still too narrow; there should be more court access. The quality of arbitral awards really varies depending on the quality of the arbitral panel that you have, and the right of challenging arbitral awards is a little bit too limited. I totally get the advantages of finality to arbitration - not having elongated appeal processes and so on - but I think the right to appeal from manifestly incorrect decisions is still too narrow. I don’t think we have reached a point where I would want to recommend rolling out the reforms to other jurisdictions at the moment. I am a bit wary of suggesting our arbitral legislation and the quite modest reforms that have been made to the model. There’s quite a long way to go..PS: The Indian courts recently passed judgments legitimising litigation funding. Based on your experience with the PACCAR case, should jurisdictions treat this kind of emerging jurisprudence with caution? Does litigation funding need some regulation?.BT: Personally, I think so. In England, it’s basically approved by the judiciary and the State. After we won in the Supreme Court in the PACCAR case, the government rushed through this emergency legislation to reverse the outcome of PACCAR, but it was swallowed up by the election. That Bill is dead at the moment, and it remains to be seen whether the incoming government renews it or not. The problem is everybody seems to think that litigation funding is a good thing. I’m not convinced it always is. Sometimes, the model of litigation funding could do with some more regulation to avoid bad practices. The advantage of the Supreme Court judgment was that it operated to restrict the amount that funders could recover effectively. They were limited to a multiple of the outlay that they made into the litigation. Some of the damages-based funding, which takes a cut of the damages, leaves the claimants with very little money. I would be very cautious about adopting the current English model of litigation funding. I think it needs to be regulated, particularly having caps on the amount the funders can recover. Litigation funding has become quite embedded in London and it’s generated a lot of litigation, but I don’t think it’s always going to be to the advantage of claimants. It’s great if you can fund a case that otherwise would never be brought before the court..PS: What are the important lessons you learned through the course of your career as a barrister?.BT: It’s quite a hard job, and it requires a lot of stamina. You have to find something interesting in every new case. In one of my first cases, I came in as a junior barrister for the Bank of England in a very famous piece of litigation called the Three Rivers, where the liquidators of BCCI sued the Bank of England. I came in as a baby junior. The first leader on the case was Sam Stamler, a well-known English QC; he was in his seventies when I was first instructed. He was a lovely man, and he invited me to his chambers for a cup of tea. He was genuinely interested in hearing my views on the case because I was new to it. He wanted to know what perspective I had of the case. While I was sitting with him, his senior clerk brought him a new set of papers. He said, “You know what? I still feel a thrill when I get a new set of papers.”That enthusiasm stuck with me. He had been going for years and was still enthusiastic about a new set of papers. So, I think curiosity is really important. Obviously, all the normal attributes of advocacy skills and intellect are important, but curiosity and stamina keep people going and make the difference between having a successful career and becoming quite jaded..PS: Who has been your mentor?.BT: My first pupil master was a barrister called Trevor Philipson. He died in his early 50s when he was at the peak of his career. He was a relatively junior QC, and he became very suddenly ill and died. I always modeled my advocacy style on him. He was very smooth-talking, very relaxed and calm, not aggressive at all in court, but very firm, never discourteous, and a very good cross-examiner. It was like picking pockets. You would think you’re having a nice chat with him, and he’d get all the answers he wanted without them realising it. He was like a graceful swan on top of the water, but underneath, he paddled furiously because there was ferocious preparation every time he went to court. He was so well-prepared. He knew every case backwards, and I thought 'That’s a good model to follow if you want to be successful.'Trevor Philipson has been my mentor. It's a very sad loss to the Bar, but he left me with a big legacy..PS: What advice would you give to the young members of the Bar?.BT: Don’t take it too seriously, because sometimes, it feels like a life or death thing, winning or losing. You discover afterward that you cannot win every case because not every case is winnable. I know a lot of junior barristers I work with who get upset; it knocks them for weeks if they lose a case. Particularly when you expect to win a case, but you don’t win it, that can be very upsetting. You have to move on from losses quickly and move to the next case rather than dwelling on things. Look for whatever is interesting in the case. It can be a very dry commercial case, but every case has some interesting angle to it. Even if the law isn’t particularly interesting or you don’t think the facts are very interesting, there’s always something. I find people get put off too quickly by the superficials of a case. You need stamina and need to pace yourself. Some people burn out too quickly. You need to make sure you get proper time off and devote proper time to family. Don’t regard work as the be-all and end-all. I’ve spent a lot of time and money on proper holidays.