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Interview with Aaron Kamath, Leader, Commercial and Technology Laws Practice at Nishith Desai Associates

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Aaron Kamath is a corporate lawyer currently employed by the famous firm Nishith Desai and Associates where he started after his graduation from Law College. His work primarily involves advising multi-national corporations doing or looking to do business in India on various legal and regulatory aspects including privacy-related compliances and documentation; IP structuring, strategy and prosecution.

He also advises clients on complex cross-border transactions including technology deals, mergers and acquisitions, private equity investments, legal and regulatory matters & commercial transactions across various sectors, with particular emphasis on IT, digital media, e-commerce, retail and fin-tech.

Aaron has been invited for numerous speaking engagements like workshops and seminars over the years. He has a copious number of research articles and papers in internationally acclaimed publications to his name.

In this interview, he walks us through his journey from a teenage boy to a corporate lawyer and shares certain interesting experiences which offer us insight into his various career choices throughout his years in the field. He also discusses some present issues in the field of AI, fin-tech, data protection and privacy law.

Interview with Aaron Kamath, Leader, Commercial and Technology Laws Practice at Nishith Desai Associates

Devanshi Masand: Tell us about your formative years. What factors drove your decision to pursue law?

Aaron Kamath: I am a Bangalore boy, born and brought up in the heart of the IT capital of India. I was fortunate to study in one of India’s oldest and renowned schools – St. Joseph’s Boys’ High School. Some of my favourite subjects were English (particularly Julius Caesar), Civics, Commerce and Arithmetic. During my school-going years, I enjoyed reading novels ranging from timeless classics to modern-day fiction. Reading a string of John Grisham novels was my first exposure to the legal field and gave me a peep into the hectic yet exhilarating life of a lawyer. Watching sitcoms like Boston Legal, The Practice and Ally McBeal fostered my interest in the field with the legal briefs and courtroom drama. Apart from this, I’ve always enjoyed watching and analysing sport – Cricket, Football and Formula 1, which I believe contributes to one’s strategic and analytical thinking. Given my mindset and interests, law seemed the path to take as it appealed to me as the most intellectually stimulating.

When going through the course plan and syllabus during preparation for my law school entrance exams and then on commencing with my law degree, I knew I had picked the right field for me to pursue. I was initially keen on litigating and did numerous litigation internships with law firms and advocates, though towards the end of law school I decided to be a corporate lawyer. This is with no regret as I enjoy working closely with business teams of some of the largest MNCs.

Had I not been a lawyer today, I’d have certainly been a commercial pilot. I’d like to believe that maybe that door hasn’t shut yet.

Devanshi Masand: It is safe to say that any career path involves certain achievements as well as setbacks. Please share your experience in this regard. How do you cope with setbacks?

Aaron Kamath: Achievements may have a plethora of setbacks preceding them which most do not even see, other than you. For instance, during my law school days, the competition was immense and due to the recovering financial situation, the market for hiring in law firms was scarce. Even securing internships with top law firms and advocate chambers was challenging. I remember personally writing to many of them, and in some cases even dropping by to physically leave my CV with them or their HR team hoping for a call-back if there was a vacancy.

Transitioning from my law school corridors to an office workstation at a tier one corporate law firm was probably the biggest I’ve ever faced. Since then, I have grown a lot as a person and professional, though there have been hurdles along the way and there are likely to be more ahead. It is a highly demanding and competitive field, so I convince myself that setbacks and hurdles are part of the game, and the best way to play it is to bounce back as soon as you can and not let it hold you down, psychologically or productively.

Devanshi Masand: You have authored a couple of dozen articles and papers published on various sites and several national/international journals covering a wide range of contemporary topics. How did you develop the habit of writing? What is your writing Kryptonite?

Aaron Kamath: I spent my law school days split between classroom lectures and moot courts, debates and extra-curricular activities. I was fortunate to head committees in law school, and win national level moot court, mediation and client counselling competitions. Though one thing missing then was a pen in my hand, and I’d put pen to paper only as and when necessary for class assignments and research papers. Joining Nishith Desai Associates changed that, and it instilled in me a culture to write, and for that, I am grateful for the research-focused culture of the firm.

Writing on most occasions entails doing a deep dive into a specific subject, and helps in knowledge, capability and brand building on the subject matter.  

Devanshi Masand: Out of the numerous numbers of cases that you have worked on, which ones did you find specifically interesting and challenging?

Aaron Kamath: Having worked on a variety of complex and interesting matters over the last few years, it is difficult to pick some out from the bag. During my first few years as a lawyer, I worked on numerous due diligence on organizations that were looking at investments from foreign investors. Beyond the voluminous document review, this is an interesting exercise to undertake with a steep learning curve. One can develop a deep understanding of the organization’s business, right from the back-end functions to customer-fronting activities. It gives you a holistic understanding of an organization’s incorporation and charter documents, statutory filings and financials, contracts with suppliers, customers, employees and consultants, real estate and intellectual property, not to mention a well-rounded understanding of the legal and regulatory issues that may be involved with each of the above.

Also, my work primarily involves advising MNCs on doing (or looking to do) business in India and on cross-border transactions in the IT space. This involves navigating through India’s complex legal system starting with foreign investment-related restrictions and conditions, to sectoral regulations and policy developments such as in the technology, FinTech, e-commerce, telecom, and online media space; as well as commercial considerations based on each client’s business objectives.

Devanshi Masand: Due to the COVID-19 situation, our judicial system was forced to adopt technology into its functioning abruptly. Due to lack of infrastructure, our judicial system hasn’t been very successful in the task which has led to increasing in the number of pending cases. What kind of changes according to you can be made to develop a better framework and actually utilise technology to reduce the pendency of cases in India?

Aaron Kamath: Firstly, as has been the case for a while now, more judges are needed at various levels of the Judiciary. There are still thousands of posts for judicial officers that are yet to be filled. Secondly, as we move more towards a remote and work-from-anywhere culture, virtual courts are here to stay. It may take some time and better implementation to have physical courts and virtual courts seamlessly run in parallel with each other.

Devanshi Masand: You were acknowledged by Asialaw’s survey of individual lawyers based on client feedback. What kind of relationships do you believe a lawyer must maintain with his or her clients to secure a long and stable association? Can you also please elaborate on the importance of client satisfaction and the most effective way of achieving so?

Aaron Kamath: This is a testament to the firm’s pursuit of excellence and mission to deliver value to clients. Forging a good rapport and relationship with the client is paramount. Apart from delivering legal advice or documentation of high quality which is the basic expectation, one can go a long way with also focussing on the softer points, such as interactions with clients and managing their expectations and timelines. I have learnt that most clients primarily look for proactiveness, trust and confidence in legal counsel.

Devanshi Masand: You spoke at the All-India Management Association’s annual flagship event about the legal and ethical issues involved in the use of disruptive technologies (such as Artificial Intelligence) by businesses. With the recent developments in AI technology, the debate about granting the status of a legal person to AI is rising. What are your views on the issue?

Aaron Kamath: The use of AI by businesses either for internal functions such as HR, manufacturing, supply chain and logistics or customer product offerings has given rise to multiple legal considerations and may sometimes lead to unforeseeable repercussions. As the capability of and dependence on AI-based products and services increases, the probability to make errors may also increase. For example, with recent instances of accidents caused by autonomous vehicles or even machine learning tools developing and exercising bias against job candidates based on gender or background, questions pertaining to imposition of liability have become more prominent.

As per basic legal principles, only a legal personality can be made liable for any loss or damage. Hence, the larger question is whether an AI-based tool can constitute an independent legal personality or not. For this, there are various theories that place the onus on the AI system, its developers and/or the organization deploying the systems. These concepts are largely untested under the Indian legal system and as generally the case with disruptive technologies, the law tends to play catch-up.

Devanshi Masand: The last two years have been particularly eventful for the newly emerging field of data protection and privacy law. What do you think 2021 has in store for this distinctive discipline?

Aaron Kamath: The Supreme Court of India in 2017 declared that the ‘right to privacy is a fundamental right of an individual under the Constitution of India. The Supreme Court also directed the Indian Government to enact a new, comprehensive data protection law to provide statutory protection for individuals’ personal data. Since then, there has been no looking back on the privacy regulation front.

The proposed law for personal data protection is currently under Government deliberation. It has various similarities to the EU-GDPR, and should it be enacted, it would significantly expand the data protection compliance requirements as they exist under the current law today, including consent and notice requirements for collection and use of personal data as well as limitations on collection, use and storage of such data. Independently, a committee set up by the Indian Government recently released a report on a proposed governance framework for non-personal data. The report makes suggestions to the Government on the classification and regulation of non-personal data and setting up of a Non-Personal Data Authority.

Recent privacy concerns in India have been invigorating law-making efforts, stemming from data breaches in the FinTech sector, the Government’s handling of individuals’ sensitive data via its Covid-19 contact tracing Aarogya Setu app, and evolving privacy practices of multi-national IT companies. It is likely that we could see the proposed data protection law crystallize this year and come to fruition next year.   

Devanshi Masand: As you have written an article elaborating about various aspects of a Self-Regulatory Organization for Payment System Operators, can you share your predictions on the success of this system and what challenges will arise with its operation in the long run?

Aaron Kamath: Financial Services and FinTech is an industry that has particularly interested me over the last few years. I believe that it is one of the industries witnessing the most innovation, disruption and ‘unicorns’ (one billion dollar or higher valued start-ups). Given the rapid pace of advancement in the industry, it seems preferable for the Reserve Bank of India (RBI) – the industry regulatory, to adopt a laissez-faire approach and allow for self-regulation. In fact, we already have certain forms of self-regulation in the broadcasting and advertising sectors, as well as more recently for online curated content. Hence, there are reference points to some extent when adopting such an approach.

The introduction of a self-regulatory framework during the last quarter of 2020 by the RBI bodes well with the Government of India’s policy of ‘minimum government, maximum governance. My colleagues at the firm and I analysed this self-regulatory framework for The National Law Review. While the framework is a progressive step towards the growth of the industry, it is important for the RBI to supplement it further to yield results. One of the key points that we stressed was adequate representation from consumer associations, technology providers and online merchants in the self-regulatory organization. Overall, a good balance between FinTech innovation and consumer protection would need to be upheld for the framework to thrive.

Devanshi Masand: With its recent change in policies, Nishith Desai Associates has definitely pushed itself in the top 5 list of every law student. How would you categorize your experience with the firm?

Aaron Kamath: I remember as a law student, I got an opportunity to intern twice at the firm’s Bombay offices and I was bedazzled with the firm, the kind of industry-focussed work that it did, its multi-national clientele and work culture. It remains one of the best law firms that one can start their career at as a legal professional. The focus on comparative research, client handling roles and working across practices and industries from early on, helps mould its professionals into some of the finest.

Devanshi Masand: Summing up, what advice would you offer to yourself if you could go back 10 years?

Aaron Kamath: Not everything we learn or strive for during our schooling and higher education prepares us for the professional world. It is, however, important to build a good work ethic and competency to enter the field, which is indeed a highly competitive and demanding field not only in India but largely around the globe.

I wouldn’t change a lot of what I did about a decade ago, as I either succeeded or learnt for the better. I remember a lot of us were caught up in the hustle and bustle of law school, preparing for moot courts and doing internships during our summer breaks. I’d tell my ten-year younger self to take some more time out for myself and to try my hand at new things, develop hobbies and nurture interests. For instance, cooking, painting and meditating is something that I have frequented over the last couple of years, though I feel I could have cultivated such personal care and life skills much earlier when I had a bit more time on my hands and a lot less responsibility on my shoulders.

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