Nilanjan Sen graduated with an LL.B. Degree from Vidyasagar University in 2013. He completed his LL.M. from the prestigious Leiden Law School in the Netherlands specializing in Investment Treaty Arbitrations and International Commercial Arbitrations and additionally also has expertise in Dutch and European commercial laws. He has represented and holds a clientele comprising of Fortune India 500 companies and leading Indian as well as International corporations including the Government of India. Currently, he practices litigation in multiple jurisdictions including Calcutta High Court, Delhi High Court, Supreme Court of India as well as other Tribunals and also, a Partner at Seven Seas Partners LLP. Along with his legal practice, he is an academician delivering lectures and holding workshops for students in leading Indian universities.
Below is the transcript of our interview with Mr. Nilanjan Sen.
Apuroopa: You did B.Com. Accounts (Hons.) and Post Graduate Diploma in Personnel Management (PGDPM) course. After this what inspired you to take law and why did you choose law as your career?
Nilanjan Sen: I come from a family that has a history of over three generations of legal professionals. So from my perspective, I can say that I always wanted to pursue law because it was imbibed in me since childhood seeing my father and my grandfather, who were both High Court judges. Somewhere in the crossroads of youth, I decided against it, being enamoured by the lull of the fat paycheque that a corporate job offers, vis-à-vis the initial struggles of a lawyer. Thereafter, in the course of my stint in the corporate, particularly while I was working for AREVA T&D India Limited, I had the opportunity to experience industrial litigation. The constant rounds of labour tribunals and frequent visits to lawyer’s chambers in Old Post Office Street of Kolkata, re-ignited my profound love for the profession and eventually, I decided to ditch that paycheque and walk in my father’s footsteps.
Apuroopa: During your LL.B. at Vidyasagar University, as well as in course of your Post Graduate Diploma in Personnel Management from Xavier Institute of Social Service, you participated in many activities such as community works, dissertation, debates, group presentation etc. and also, you did a detailed case analysis and memorandum on Euthanasia. How far these activities helped you in your legal career and do you think it is important for a law student to take part in many activities for a better career?
Nilanjan Sen: I’ve had a knack for pro-bono service since my days in high school and therefore community work is something which I do out of interest. But I highly recommend these activities to all budding lawyers who are still in College, because apart from the fact that it helps develop client counselling/handling skills, more importantly, it helps to foster a sense of empathy in individuals, which is the foundational building block behind the concept of fundamental rights enshrined in our Constitution. Also since the term ‘pro-bono’ has a historic connection with the legal profession, it is something, that I feel, must be inculcated amongst all budding lawyers because that is the stark reality which one faces upon entering the profession. Lawyering is a vocation, it is a journey of learning and not earning from the very start. It, therefore, requires immense patience, after all, we ourselves are responsible for upholding the majesty of the gown which we adorn in court corridors, and if we are not careful, the drive to make money can often bring disrepute to the nobility of the profession.
Other activities such as dissertations, debates, case studies are a regular feature in most law schools these days and I feel, if taken seriously, they truly help develop the essential skills of reasoning, research and pleading, which lawyers need irrespective of whether they join a law firm or get into practice. I remember doing interesting 5-minute debating activities in my Law College, where I was expected to present both sides of arguments on a legal topic, before an audience. Activities such as these help in developing what my senior would often call as “open-minded legal reasoning”, where a lawyer develops her/his arguments in a case by pre-empting the argument of the opposite party and this can be immensely helpful both at the time of arguments as well as preparing petitions.
Apuroopa: At what point of time did you decide to pursue LLM? Why did you decide to do LLM from a foreign university? Do you think that pursuing LLM from foreign universities is a better choice as compared to Indian universities? Do you think more importance is given to the LLM graduates from foreign universities as compared to the LLM graduates from Indian universities?
Nilanjan Sen: I decided to pursue LL.M. even before I had completed my LL.B. For me, masters was something that I wanted to do out of a need for personal achievement, professional development and recognition, and I must say, that it has benefitted me immensely. An LLM is unlike any other masters programme, in the sense that, the benefits more than often do not yield immediately, but enure over a period of time, depending largely upon how exactly one puts their degree to use. I’ve used it to return to India, and use the network that I was able to build while living in the Hague, to enhance the possibility of widening my institutional clientele because, private institutions tend to place LLMs from foreign universities in greater regard, as compared to those from many Indian Universities, and also to further my prospects of developing international practise, and this was my intention from the very beginning. Having said that, it was immensely important for me to decide which branch of law I would want to specialise in, and who is the best in that arena, hence my choice of Leiden University, which is considered one of the best and most prestigious institutions in the world, when it comes to facets of International Law. A foreign LLM provided it is from a reputed law school, has the potential to open up a world of interesting opportunities over a period of time, from jobs to connections. It must be borne in mind, however, that for Indians students, to be able to find jobs in non-English speaking countries after their masters, is not an easy proposition as the competition is stifling, but it is nonetheless a great platform to make connections, that can definitely spring up interesting opportunities in future.
Whether or not an LLM from a foreign university is given more importance over an Indian university, also depends on what exactly, the candidate wants to do after the masters is complete. If one wishes to pursue a PhD in India and/or apply for Government jobs or assignments, no special treatment is conferred to a foreign University LLM, irrespective of the brand. This is exactly why I advise aspirants to thoroughly think their masters through, ask themselves what they want to do after their programme is over research on the fields of law where they want to build their careers in, look at the Universities that are best in that particular area of law, explore the costs and funding options. To put this simply, ask themselves what they want from their masters, rather than what their masters can give them because this is going to be one expensive investment. Therefore, if the thought of well, this can turn out to be the best decisions in one’s career and me for one, can definitely vouch for this.
Apuroopa: Why did you choose International Dispute Settlement and Arbitration as your area of specialization? Do you think arbitration is going to have a good scope in future? Why do you think people still prefer litigation over arbitration?
Nilanjan Sen: As mentioned earlier, it’s the purpose behind doing my masters that made me select my area of specialisation. International Arbitration has historically been the alternative to gunboat diplomacy, and unless the world plummets into war spending trillions to resolve disputes, consent-based adjudication is here to stay, and will definitely develop in myriad ways in the coming future. From disputes involving complex Inter-Country public issues to private contractual disputes, arbitration is the preferred means of settling disputes that are binding on parties. In fact, a lot of countries across the world encourage parties to resolve their disputes by means of arbitration, as long as the subject matter is arbitrable. Interestingly, India too seems keen on becoming an arbitration-friendly jurisdiction. With the opening up of the International Arbitration Centre in Mumbai, as well as the proposed introduction of the New Delhi International Arbitration Centre Bill, 2018 in the august house of Parliament, the Government of India definitely seems to be keen on addressing concerns of foreign investors by enhancing India’s image as an arbitration-friendly jurisdiction. These steps are also welcome in wake of the gargantuan backlog of cases, pending adjudication, before the country’s immensely overburdened Courts. Recently, the Hon’ble Supreme Court of India has also laid down, that in case of contracts which feature arbitration clauses, Courts must give precedence to arbitration in place of litigation. Such decisions, do give a very strong indication that arbitration is something that even the judiciary wants to have, as the preferred mode of commercial dispute resolution, so long as the proceedings are not held contrary to the laws of India.
Apuroopa: You have been an advocate for six years. Could you share your experience as an advocate? During this time, what kind of changes did you notice in the profession of law? What areas of law do you think are experiencing the most growth?
Nilanjan Sen: I joined under the able guidance of Mr. Sekhar Kumar Basu, who happens to be the top criminal lawyer in the State of West Bengal, and is regarded as an authority for his knowledge, by even some of the top names in the Supreme Court. Thereafter within a short span of about a year and a half owing to Mr. Basu’s rigorous training and my enthusiasm for being an independent counsel, I was able to develop myself and branch off as an independent counsel. During the four and a half years thereafter, I have had the opportunity of being appointed Commissioner by the Hon’ble Calcutta High Court for purposes of witness examination. I’ve also been appointed Special Officer empowered to inspect and seize premises by the Hon’ble Calcutta High Court, I’ve represented large and medium-size corporate houses such as Royal Sundaram, Energy Efficiency Services Limited, amongst others, as well as have handled cases across multiple jurisdictions and in divergent branches of law such as, writs in respect of service and tender matters, criminal matters, corporate insolvency proceedings before the NCLTs, consumer litigation before various Consumer Commissions, environment matters before the Kolkata National Green Tribunal, to name a few.
Six years isn’t a very significant amount of time to notice many changes across the profession, but speaking from my perspective, the notable changes according to me, has been in the quality of candidates joining the profession. I’ve observed a heightened drive for awareness, amongst newcomers both in terms of law, as well as in terms of procedural aspects of the workings of Courts. Also, technology seems to be catching up really fast, we now have apps that can update lawyers and litigants about their cases, thereby doing away with the tediousness relating to checking the cause lists. One most significant changes are in the increased impetus on alternative dispute resolution, particularly Commercial arbitrations. The Insolvency & Bankruptcy Code of 2016 is also one of the very rapidly evolving branches of Indian Corporate Law. Also, owing to India’s stance on FDIs and the renewed Bilateral Investment Treaty programme, there is growing interest amongst newcomers in the field of International Investment law and the Kulbhushan Jadhav case has certainly pushed the desire for awareness amongst lawyers and students alike on the highly interesting facets of public international law.
Apuroopa: You are also working as a vising lecturer at law schools like National University of Study and Research in Law. In your opinion, what kind of differences do you find in the quality of students now as compared to the time you graduated? In your opinion, what kind of skills do you think the students are lacking in?
Nilanjan Sen: I think students in the country, by and large, are evolving owing to the easy access to free information, thanks to the relentless work of platforms such as yours, who work relentlessly at disseminating legal information. Also, as I already mentioned, that students nowadays come with a heightened drive to be aware of the laws, this coupled with the recent changes in laws which have been widely debated, have in general created a trend amongst students, to be inquisitive and which, in my opinion, is extremely beneficial for building an evolved profession. All of these have led to an overall enhancement in their quality. However, sadly the focus of most universities on International Law seems to not be enhancing at the same pace as I see only very few Law Schools, focussing their curriculum on facets of International Law and arbitration. This is ironical, since India is witnessing an era of rapidly increasing international commerce, and if White Industries like instances are to be avoided while still holding onto the advantages of the accelerated pace of globalisation, then we must have indigenously developed repertoire amongst our lawyers, to be able to cope with the challenges of doing business with multiple sovereign States.
Apuroopa: Recently, COVID-19 has become a jolt for everyone. The impact of COVID-19 has placed cash flow strains on many businesses, particularly those which are thinly capitalized. Most commercial contracts will have a termination right for (non-insolvent) parties if another party experiences one of a number of insolvency-related events. What is your take on this? In your opinion, what steps should be taken to overcome these kinds of situations?
Nilanjan Sen: Termination on insolvency or bankruptcy clauses are also known as ipso facto clauses. This is because they are triggered, ipso facto on the happening of a condition, in the case of the question at hand, insolvency or bankruptcy of one party by the another. Normally, these are a common feature in contracts, however, the enforceability of these clauses is questionable across many jurisdictions including India, for the simple reason that, they completely eliminate the possibility of the economic recovery of a party, that has otherwise had a terrific performance record in respect of contractual obligations. To my knowledge, many jurisdictions such as Germany and the US, do not allow the enforceability of such clauses. Also, Australia has put a stay on the operation of such clauses in the wake of the pandemic. COVID-19 is an exceptional event in human history and almost all small and medium-size enterprises have been affected by it. In my experience, unless a force majeure clause is present in the contract in question, which contains a specific reference to a pandemic, ipso facto clauses will open the possibility of contractual breaches and in effect disputes, thereby aggravating the condition of a party that is facing insolvency. Moreover, insolvency is not an easy problem to cope with for any enterprise including creditors, and the possibility of securing compensation out of a contractual breach, from such an enterprise that is facing bankruptcy, particularly as a result of COVID-19 is highly unpredictable. This is also because it will reduce the amount realisable out of an insolvent estate, in proportion to the contractual claim which will invariably prejudice other creditors. Therefore, it is in the interest of the economically healthy party, to consider supporting an otherwise well-performing party weakened by the pandemic, if they wish to have their business activities and investments linked to their contracts, secured against COVID-19. Recently, the Central Government had notified that COVID-19 should be treated as a force majeure event, however, it must be borne in mind, that the notification will benefit only those parties that have entered upon such contracts with applicable Government entities, and not to contracts between private entities.
Apuroopa: Lastly, what advice would you like to give to law students or law graduates who are looking forward to being an advocate? Also, what kind of tips would you like to give to those who are thinking to pursue LLM at foreign universities?
Nilanjan Sen: As I’ve already mentioned, lawyering must be seen by students and law graduates as a form of vocation, it is a journey of learning and not earning from the very start. Be patient, there is no shortcut to the sweat and toil that have gone into making our seniors who they are. Most importantly, be mindful of your actions, this is a noble profession which is deeply rooted in the notions of pro-bono and the majesty of the gown that we adorn, is in our hands. An LLM from a foreign University can indeed be an amazing choice, provided they are clear of what they want from their masters, rather than what their masters can give them. It must be one of most well-advised decisions in their careers and if they wish to succeed in their long term goals as well as secure return on their investments, it is imperative that they do their homework thoroughly, prior to making their applications to different universities.
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