“What is so special about senior advocates?’- Senior counsel Gourab Banerji

Gourab Banerji is one of the leading arbitration experts in the country. In this interview with Bar & Bench‘s Smrithi Suresh, Banerji discusses arbitration in India, the country’s Bilateral Investment Treaties and why we should not replicate the arbitration models followed in London or Singapore.

Excerpts below:-

Smrithi Suresh: Talk to us about your early days and the decision to take up law.

Gourab Banerji- I did my schooling at St. Xavier’s, Calcutta before shifting to St. Columbas in Delhi. Even while I was in class VII or VIII, I was clear that I wanted to be a lawyer. So I went to Cambridge immediately after school in 1986 and did the three year law course, which was a wonderful experience as much as it was a culture shock! UK in the 80s was very different than what it is today so going to study there at the age of 17 was a different experience.

I was fortunate enough to be taught by excellent teachers. One of my favorite teachers was Sir Christopher Greenwood, who is presently a judge at the International Court of Justice.

I supervised for a year in Cambridge after which I became a barrister, though by this time I was pretty sure that I wanted to come back here. So although I got into an LLM program in the United States, my father rightly said that funding was an issue and if I wanted to continue then I had to work there, which I was not interested in.

Smrithi Suresh: How much of an influence has your father, former Attorney General Milon Banerji, had on your professional life? 

Gourab Banerji: In all fairness, quite a lot. I saw him functioning in Delhi as an ASG in the Supreme Court while my mother was still in Kolkata. My father was a big influence and definitely one of the main reasons for joining the profession.

Of course, it also helps to have someone backing you in the profession and more so in the first 5-10 years. As a litigator, it is not that simple to make your mark.

My father was working with the government so I did not get the benefit of getting private clients but certainly it did help. You had access to a great library, everyone knew you, it was a much smaller profession back then and the Supreme Court also was a smaller place. Every judge and every lawyer identified you from day one which had its own advantages and disadvantages.

Smrithi Suresh: What were the disadvantages?

Gourab Banerji: Well, you were expected to meet a higher standard and having a family history implied that you were measured against that benchmark. Of course, everybody has friends and enemies. You inherit the good with the bad.

You had a family history which implied that you were measured against that benchmark. Of course everybody has friends and enemies. You inherit the good with the bad.

Smrithi Suresh: How did the interest in arbitration develop?

Gourab Banerji- I began doing arbitration virtually in my third or fourth year of practice. It so happened that there was one particular arbitration where Mr. Andhyarujina had requested Rohinton Nariman to assist him. Rohinton was already a senior and they needed a junior and since I had done a few matters with Rohinton, he suggested that I join the team.

So that is how it started. Albert Jan van den Berg , a big name in arbitration was the presiding arbitrator in this case and he was brilliant, possibly one of the best arbitrators that I have ever seen.

Bar & Bench: Tell us about your experience working with Essex Court Chambers.

Gourab Banerji- It has been an interesting chapter. What I have seen is that it is a very different system in terms of the quality of work and professional attitude.

Suppose an arbitration hearing is in December next year, you are deemed to be on the job and are required to do everything that needs to be done from the beginning.

Arbitration is like a mini trial. The fun part of it is that you get to construct the case, cross examine witnesses which is a dying (if not dead already) art in appellate courts. So if you want to have the thrill of cross examination, evidence, analysis, case laws, witnessing a case trajectory from start to finish, then arbitration is a great forum.

Arbitration is like a mini trial. The fun part of it is that you get to construct the case, cross examine witnesses which is a dying (if not dead already) art in appellate courts.

Smrithi Suresh: How do you perceive the growth of arbitration in India?

Gourab Banerji: I am not as positive as many others in this regard. I feel that we have two entirely different sorts of arbitration which we are trying to lump into one group; namely international arbitration and domestic arbitration.

Domestic arbitration is mainly driven by disputes against PSUs and they follow their own course. There are very few domestic arbitrations between private individuals. But otherwise, people prefer to mediate or settle, and certainly not be dragged into arbitration.

So far as International Commercial Arbitration is concerned, we have major issues regarding [arbitral] seats, challenges etc. Personally, I do not think that we can really compete with the arbitration model followed in Singapore or London. And nor should we be really looking to do that as there are many other important aspects of law which are much more important to the common man here such as criminal law, high stake commercial disputes etc.

Though lots of people think otherwise, unless we work towards stabilising our court system, just focussing on arbitration and making India a seat of arbitration doesn’t seem to be that practical.

Though lots of people think otherwise, unless we work towards stabilizing our court system, just focusing on arbitration and making India a seat of arbitration doesn’t seem to be that practical.

Smrithi Suresh: What is your opinion on the entry of foreign law firms entry in India? 

Gourab Banerji: Frankly, the foreign law firms are not interested in day-to-day litigation. They’re interested in legal advice, arbitration and the reality is that many of them are doing majority of their work sitting in Dubai, Singapore, Malaysia etc.

The question as to why has it not happened yet is a political one and there really isn’t any answer to that. There doesn’t seem to be any real reason as to why it shouldn’t be happening. I do not feel that it will have a negative impact on Indian advocates. In fact, it will be a positive development.

Lots of our young graduates will then get professional job opportunities and it would be good for senior counsels like us. It seems to be a win-win situation. But there has always been resistance and we have been facing it for the last 10 years. The previous government had the same problem as does this regime. Maybe there exist commercial motives to stop them.

Smrithi Suresh: What are your thoughts on India’s Bilateral Investment Treaty?

Gourab Banerji: My views on that have been reflected in the Law Commission’s report. Basically, I have framed a 20-30 page note which has been incorporated in Justice Shah’s report, which analyses all our treaties clause by clause.

You would be surprised to know that even the Government does not know when certain treaties were signed or what their texts entailed etc. I hope that this analysis was helpful to them as now we have a comprehensive idea of actually how many treaties we signed and what does each one of them say.

Smrithi Suresh: How was your experience as the Additional Solicitor General of India?

Gourab Banerji: As an ASG, initially I had a very negative view of the bureaucracy but surprisingly after five years, I feel that there were some extremely competent and helpful officers from the Joint Secretary level upwards. So in any high stake matter, such as the Italian marines case, you got very quick responses. The problems arose with the average, run of the mill matters. Even there, with a little bit of initiative it wasn’t a problem as much as the volume of work was.

I did a lot of tax matters and the volume was personally a huge problem for me because I must have done 4,000-5,000 Special Leave Petitions in taxation in a span of five years. So that was a problem which also took a toll on my health and it feels much better now that one is out of it. But it was a good experience. Not that I would do it again but it was a good experience, nonetheless!

Smrithi Suresh: Which are the most memorable cases that you have worked on?

Gourab Banerji: Oh that’s a difficult one. There are lots that I can slot in that category but I think the recent case would be the Italian Marines case where essentially, the entire law under the UNCLOS (United Nations Convention on the Law of the Sea) was discussed and most importantly we won.

There are some litigations which I do pro-bono and among these, one which is very important to me concerns the Mehrauli Archaeological Park which is continuously encroached. These are virtually world heritage sites that are being damaged and encroached upon.

Bar & Bench: What do you have to say about the recent senior designation controversy?  

Gourab Banerji: I have a very different view on the issue. One solution which Mr. Nariman has proposed is that the practice should be abolished. It does not exist in the US and is inherited from the Queens Counsel system in the UK. The fundamental system there is that if you’re a QC or a Senior Advocate, then you deal only with law firms and with advocates who in turn deal with clients. But that’s not the model that many senior advocates follow here and it is a practice only known to us in Calcutta and Bombay, which also is historic.

My view on senior advocates is slightly different. I feel that ultimately the market will decide. After a certain level of seniority, it should just be a qualification that should be given, if at all you want to retain the system. Then the market will decide. If you’re good, you’re good. There are many seniors with less work and there are many “non-designated” seniors who are doing extremely well and have an excellent reputation.

It is very difficult to define merit. Wherever you have people, you will have discretion. A lot of my friends in the UK have become QCs and they are asked questions about their ability to empathise with minorities, ability to react to matters which really have nothing to do with their competence as lawyers. This is not a public office. Ultimately, you should be judging how good or bad a lawyer is in terms of their ability in court or court practice.

My solution would be simple. Don’t tighten the net but loosen it. Like they have NET exams, maybe after 20 years of practice, one can have a similar test for advocates for testing basic qualifications.

What is so special about senior advocates? Why should it be bitterly fought over like this? And why should you have a reduced pool and why not more people? The more the merrier.

What is so special about senior advocates? Why should it be bitterly fought over like this? And why should you have a reduced pool and why not more people? The more the merrier.