Q: 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 student to think. A student is expected to reproduce whatever is being printed in the books and taught in the classrooms. 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 ruled 400 million Indians and therefore they only wanted Indians to do exactly what they were told and support their own philosophy. 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 Rustom 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 at 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 does not matter how many years you stay away from your country but when you come back, you are always an Indian.
Q: 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. Top 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 from time to time. Later Mr. Top 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 politics of the 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 strict enforcement 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 when they go to get us to at our time. Now the universities are more professional follows the westernised model.
Q: 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 faces from fellow Indians. The British are not racist the way they are. Britain, unlike USA which is the country of immigrants, Britain is the country of natives. They ruled 3/5th of the world including India and suddenly you go down to their country and say “look I am the boss”. It does not mean that way. It is the human psychology. So, there was not much racism, but it was difficult. But one has to face it and then find a way around it.
I had started my career as a lawyer in England, it was very difficult to get work from anyone. 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. It is remembered 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 about starting a firm. She had the same legal issues, which she offered me to undertake. It became 1,000 pounds in our client account 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 and 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. Seyed Muhammad, who was the Indian High Commissioner to the UK. Mr. Seyed Muhammad himself was a barrister and appointed me as his 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 from the Hindus and the Iran Court with me. I had come from Iran and we were settling in the UK. They helped them in many issues and gained enormous experience from the work I did for them.
Ultimately, it’s the hard work and integrity that count. Mistakes are made but reputation is important.
Q: 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, I would never reach to the top level of the firm. The top level positions in a British Law firm, 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 of Backwaters, where some Indian 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 every firm has survived because I kept my Indianness. 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.
On one occasion, our firm had a substantial victory. There were matters concerning repayment and compound interest. On a major case involving India and the House of Lords, there was a possibility that if India had lost in the House of Lords, they would have had to pay over £5 million in compound interest because the 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 hearing in the High Court was Tony Blair who later went on to become the Prime Minister of the UK.
Q: 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, but we did not plan to start an office in India because today it 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 Iran department with 3 Iranian speakers and then we have English solicitors. Our team has whites, browns, Chinese, everybody. It’s a small little world in my own world.
Q: 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, I would never reach the top. The top positions in a British law firm in those days were always held by the British. Being a brown face, I knew reaching the top position would be impossible. Thus, I decided to start my own law firm instead of joining a British firm.
Q: Where do you see future of International Arbitration in India?
The international arbitration of course has a very good future because as the 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 is 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 bad arbitrator then he must be eliminated. There must be a self-regulation within the legal profession and that is the most important thing.
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 practice 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 architect, then only such persons should be appointed. Why appoint a retired judge, who may have no technical knowledge?
Q: How would you improve Indian Arbitration and Conciliation Act to coexist with those of the other developed countries?
The Indian Arbitration and Conciliation Act is itself in good and comparably at international level. But, as I have said above, it’s not the statute but the problems but it is the culture. In foreign arbitration system, it is important that the tribunal should be aware and consider the matters on merits. For example, when I was sitting on an Arbitration Tribunal in Mumbai with Harish Salve with Sir Anthony Evans as the third arbitrator, the case was a lengthy one. It happened to be a very long hearing case. The reason, Court in Delhi, had adjourned the hearing for one day. The chairman refused but reluctantly he agreed he would ask it for an adjournment but I walked off. I am not sure if the Salve could come back from London after he went away from Delhi after making his application to the Supreme Court.
Q: Did you ever have an intent to practice as an arguing counsel in Indian court?
India is my homeland. I find my roots in this country. In fact, when I first went to London I was determined to come back to India and to join 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 Parsi and I would not be accepted or rather not welcomed to 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 practice there. I do not have regret my decision. But I miss being in India.
When I 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 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 consequently 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 practice 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.
Q: Your advice for the students who want to make career in Arbitration.
Arbitration is a developing field of law and every student has an opportunity to do well in the 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 that 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.