Founder Partner of Zaiwalla and Co. Solicitors-UK,
during his recent visit to New Delhi.
- Please share your experience as student at the Government Law College, Mumbai?
It was a fascinating experience. It was the time I really wanted to get into politics. I initiated a move to start a student’s union in Bombay and it was a very interesting experience. Mr.Tope was the principal of the College at that time. He was quite hostile in the beginning because of the student’s union being formed by me. I had to stand-up to him to form the union. Later Mr.Tope became the Vice Chancellor of Bombay University and remained a good personal friend. I still remember him for his teachings.
As a student of law, I was more into the student’s politics than law. In those days, legal education system was very different from what it is now. Since I was also doing CA along with my LLB Degree, I used to attend only those lectures which I used to find interesting. There was not much strictness for attendance as students were themselves conscious of their studies. So, it was a very different type of legal training at Government Law College which is not there anymore, I guess. Law colleges have become very progressive. Students are getting more exposure than what we used to get, at our time. Now the universities are more professional follows the westernised model.
- Did you find much difference in the standard of legal education in Indian universities and UK Colleges?
Yes of course. There is an enormous difference, especially at college level. Indian education system, until recently was very much a colonial education system, which did not allow the students to think. A student is expected to reproduce, whatever is being printed in the books and taught in the class rooms. Whereas, in UK Colleges, the legal education is aimed at inspiring students to think on their own and develop a subject for themselves. This, I believe is the biggest and the most significant departure between the legal education system in the two countries. I would not blame the Indian Universities for this. We have inculcated this system from the 200 hundred years of British ruling, when 4000 Whites ruled 400 million Indians and therefore they only wanted Clerks and Babus to do exactly what they are told and not to come up with their own philosophy and own thinking. This culture has still continued and we have been following the same system of not thinking out of the box. But gradually this system is changing and I am grateful that this has now substantially changed.
I would like to add, that in order to encourage foreign education amongst Indian students, I have started a scholarship at Somerville College in Oxford for one Indian law student each year. The scholarship is named after my father, late Ratanshaw Bomanjee Zaiwalla – one of the first Indians to qualify as an English solicitor in 1925 and has been set up at the Oxford India Centre for Sustainable Development. My aim is to create the scholarship and to give opportunity for young Indians who wish to study law in a prestigious university like Oxford University but are unable to do so because of financial constraints. The selection is made by the jury of eminent professors of law from various Law Colleges. I always wanted to do something back for India. It doesn’t matter how many years you stay away from your country but when you come back, you are always an Indian.
- What hardships did you face being a non-British lawyer during the early days of your career?
One does not face racism, as much from the whites than one face from fellow Indians. The British are not racist but they are classist. Unlike, USA which is the country of immigrants, Britain is the county of natives. They ruled 3/5th of the world including India and suddenly you go down there to their country and say “look I am the boss”. It doesn’t work that way. It is the human psychology. So, there was not much racism, but still it was difficult. But one has to face it and then find a way around it.
When I started my career as a lawyer in England, it was very difficult to get work from anywhere. Local Brits won’t come to me. The Indian would not come to me because they would say I will not be able to get them justice. I was struggling but I was always sure that I would soon make it. I wanted to build the first multicultural English solicitors firm with an Indian footprint. I still remember that my very first client was an English lady whom I had met while on a walk and we started talking and I told her I am starting a firm. She had some legal issues, which she offered me to undertake the same. I did that and the first 1000 pound in our client account was given by an English lady. So, in England the real support came to me from the elites of the local white community including the British Judges and the legal profession because the British are well-known to support the underdogs.
But as luck would have been, circumstances changed in my favour. Soon after I started my law firm I was noticed by Mr. Seyid Muhammad, who was the Indian High Commissioner to the UK. Mr. Seyid Muhammad himself was a barrister and he appointed me as the Indian Government’s Solicitor. I knew no one in Delhi at that time. This was the first big break for me. I was getting recognition from the British and also from fellow Indians. The second big break came when the Hindujas came in touch with me. They had come from Iran and were settling in the UK. I helped them in many issues and gained enormous experience from the work I did for them.
I would also like to make a special mention and express my gratitude to the Indian Government which bestowed faith in my abilities and entrusted with a very important case. In 1982, we acted on behalf of the Indian government, in the House of Lords in a commercial case concerning a vessel named “La Pintada”. In this case the charterer was the President of India and he paid demurrage some two years late. The owners of the vessel commenced Arbitration claiming interest on a three month compounded rate basis arguing that they had lost the use of money by the delayed payment. The Arbitrator made an award of compound interest in onus favour. The High Court sent the award back to the Arbitrator for reconsideration on the basis that the award sought to make charterer an involuntary banker. The Arbitrator once again confirmed the award which he had previously made. When Indian Government challenged the award once again in the Commercial Court, the Court referred it straight to the Supreme Court for decision. The House of Lords unanimously decided in favour of the Indian Government. We got first ever win in the House of Lords for the Indian Government and then we had two other cases.
This was a test case because in those years of foreign exchange crisis, Indian Government always paid freight and demurrage late and if India had lost in the House of Lords, they would have had to have paid over £5 million in compound interest because other ship owners would then be claiming compound interest for late payment. Incidentally in this case, the Barrister my firm had instructed at the first instance hearing in the High Court was Tony Blair who later on went on to become the Prime Minister of the UK.
Ultimately, it’s the hard work and integrity that count. Mistakes are made but reputation is important.
- What motivated you to start your own law firm “Zaiwalla and Co”.?
I have believed in the principle of one world and one mankind and we Indians are no less. I always knew that if I joined a reputed law firm then, though, I would financially be well-off, but I will never reach to the top level of the firm. The top level positions in a British law firms, in those days, were always held by the British and not by any other person. Being a brown face, I knew, reaching to the top position would be impossible. Thus, I decided to start my own law firm, instead of joining a British Firm.
When I started my practice I decided not choose places like the South Hall or Backwaters, where some Indians lawyers were already practicing criminal and immigration law, while giving fancy British names to their firms. I decided to start my practice in the main city under my own name. I wanted to keep my originality. Today my firm has survived because I kept my Indianess. This is what the British respected me for. I was not scared of being called an Indian and recognised as an Indian. No need to pretend as an English man or change to English accent as many people do. And that’s how it should be and that’s why it is accepted.
- Please tell us about your firm and core-competence of your team.
Today our team’s core-competence is international arbitration and international commercial litigation. 95% of our clients are international firms based in London. We are about 19 lawyers and support staff. We had an office in China for many years. We did not plan to start an office in India because today is an era of virtual office. Pavani Reddy is holding No.2 position in the firm. I have my daughter Freya with me. She is a solicitor. My son is a barrister. We have different departments for various levels of litigation and corporate work. We have Russia department with 4 Russian speakers. We have got Iran department with 3 Iranian speakers and then we have English solicitors. Our firms has whites, browns, Chinese everybody. It’s a small little world in my own world.
- Where do you see future of International Arbitration in India?
The international arbitration of course has a very good future because as world becomes global there is bound to be an increase in international trade and the parties may normally want a neutral jurisdiction to decide the dispute.
At present, I see the potential for international arbitration developing in India. But it is going to be a long way. The reason is that there an impression amongst the international business houses that the arbitration in India means a lot of time, pains and struggle. There have been many examples of big matters getting delayed for unwanted reasons. In international arbitration, this cannot be allowed. So, international business houses are afraid of coming to India for arbitration and would prefer to go to London, Paris or Singapore. This impression has to go. I cannot say whether this is a correct or wrong impression, but it is there. So, that needs to be changed and the arbitrators must themselves ensure that if there is a bent arbitrator then he must be eliminated. There must be a self-regulation within the legal profession and that is the most important thing. In fact, the government can pass whatever law it wants to pass but there must be a self-regulation and the arbitrators must be respected for their honesty and integrity.
The other problem which I see here is that the Indian Courts, generally, would appoint retired judges as arbitrators. This makes arbitration as a pension plan for these retired judges. This practise has to change. The Indian judges must apply their judicial mind to the facts of every case and then make a choice. If a matter is technical and requires expertise of an engineer or may be a former master mariner, then only such persons should be appointed. Why appoint a retired judge, who may have no technical or engineering knowledge? The way out of this is that the judges or the parties should act in a sensible manner and appoint an arbitrator who is the right person for the job.
- How would you compare Indian Arbitration and Conciliation Act to with those of the other developed countries?
The Indian Arbitration and Conciliation Act is itself is good and comparably at international level. But, as I have said above, it’s not the statute which is the problem but it is how the arbitration system is perceived outside India. For example, the concept of adjournments in India is very strong. Adjournments sought by the counsels or their parties or even by the arbitrators cause delays in deciding the matter. The arbitrators have to take every measure to avoid these kinds of delays. It has to be inculcated on your own and not by way of the statute.
For example, when I was sitting on an Arbitration Tribunal in Mumbai with Harish Salve with Sir Anthony Evens as chairman, Mr Salve wanted a day off from the day to day hearing because he had a commitment to appear the next morning at the Supreme Court in Delhi. He asked our chairman, Sir Anthony, for permission to adjourn the hearing for one day. The chairman refused but reluctantly he agreed the hearing to be adjourned to start at 4pm instead of 10am so that Mr Salve could come back from Delhi after making his application to the Supreme Court in the morning. There was a further term that the hearing would go on until 10pm.
The problem arises as the Indian lawyers take on too many cases at the same time or on the same day. One cannot be at two places at the same time. Thus, the easy way out is to take a postponement in one case and handle the other. Same is the issue with the arbitrators. They have too many arbitrations in hand and as such are not able to give short dates. If a matter is postponed, a long date is given to the parties. This kind of practice needs to be done-away with. This is a retarding factor and the main reason that international companies do not want to come to India for deciding their disputes. The Indian Arbitration Act is good, but the culture and manner of conducting the arbitration need to be changed, which I repeat, has to be done by one on his own.
Whenever am acting as a sole arbitrator, I make it a point well in advance to fix a date and ask the parties to consult the barristers to make sure they are available. Once the date is fixed there is no question of an adjournment in arbitration. But when there is more than one arbitrator, each arbitrator has to be strict and disciplined. I will share you another example with you, when in one case I came from London to Delhi for arbitration, the arbitrators who all three were retired Supreme Court Judges were not well prepared for the arguments and they conveniently adjourned the matter. Witnesses were brought by us. The client was very upset. We came a long way from London and we came all prepared. I could not explain the reason for this adjournment to the client, as we do not have this kind of practise in England. That was very disappointing. Efforts, time and money were all wasted because the arbitrators were not prepared. This has to change. Arbitrators have to gear-up. I am not making a generalised statement. I am sure most of them are very serious arbitrators including the retired judges. But what we need to do in reality is to give a perception that the arbitrators are not only fair but are seen to be fair and just. There should be no wasting of time and earning fees by way of adjournment.
- Given an option, would you have joined the judiciary?
Not initially when I started my career. And also, there were no chances in the earlier age for me to become a judge in England. Even today, if a person of Indian origin wants to be a judge in a British court, the chances for him would only exist at the lower level of the judiciary. Only in an exceptional case an Indian can reach to a good position. The first Indian origin Judge was Mota Singh who was never promoted to the High Court and remained as recorder in the law of courts. But things are now slowly changing. I can cite the example Mr. Ravinder Singh from the Human Rights Chamber, who is now a Court of Appeal judge in England. But personally I was never interested in joining the judiciary as I always wanted to have my own law firm. Though not in the judiciary, I am acting as a judge in many international arbitrations.
- Did you ever have an intent to practice as an arguing council in Indian court?
India is my homeland. I find my roots in this country. Infact, when I first went to London I was determined to come back to India and to join the politics. But I was not destined to practice here in India. I had married a Hindu girl (now divorced). Being a Parsi and marrying a non-Parsi was not taken well by my own community. In those days the Bar in Bombay was monopolised by Parsis and I would not be accepted or rather not welcomed into the Bombay Bar because of my marriage. I was facing a tough time in Bombay. So I decided to shift base to England and set-up my practise there. I do not have regret my decision. But I miss being in India.
- Your advice for the students who want to make career in Arbitration.
Arbitration is a developing side of law and every student has an opportunity to do well in this field. When you qualify in your academics, find a good arbitration lawyer or a good arbitrator and try to work as an intern with them, so that people recognise you and this will help you in establishing your presence in the industry. Anyone can be an arbitrator. You don’t have to necessarily be a lawyer, to be appointed as an arbitrator. But always remember that you have to be good enough to be appointed and to be known about your integrity. There is no alternative to hard work. The way to success is hard work and only hard work with integrity.