Mr Shardul Thacker, Partner of Mulla & Mulla & Craigie Blunt & Caroe offers clients over forty years of experience in corporate commercial law. His clients include MNCs and Indian Companies across industries: Banking, Insurance, Shipping, Steel, Subsea Engineering & Marine services, Offshore Construction, Infrastructure (LNG Ports, Oil & Gas), Tooling and Bearings, Transport, Trade and Logistics. He acts as Indian counsel to both Indian corporates and MNCs in their corporate transactions in India. His clients include acquirers, sellers and targets in M&A cross-border transactions to whom he has advised on competition and tax issues as well as red-flag issues such as pollution, product liability, non-insurable risks and the like.
In commercial practice he handles contracts of sale and purchase of goods and services, the long term takes or pay, supply chain contracts and advises on industry regulatory issues. Shardul regularly advises on various aspects of insurance laws in India in respect of diverse areas of insurance including marine, LOP, material damage and erection. He has extensively advised on EPC contractors for offshore construction projects, subsea and topside, integrated and marine services contracts. With a vast experience in litigation and arbitration for both domestic and cross-border issues, Shardul has an in-depth commercial understanding which equips him to negotiate and seamlessly support his corporate, insurance, offshore construction and banking practice offering solution-based and well-rounded advice. His acumen in strategizing and managing litigation risks for clients has facilitated resolving disputes with the least possible adverse effect on the client’s business.
Below is the transcript of the interview we had with Mr. Shardul Thacker.
Aparna: Mulla & Mulla & Craigie Blunt & Caroe are one of the leading firms in Asia. How do you outlook the competition among the firms in the field of law in the current scenario of the pandemic?
Shardul Thacker: COVID-19 has ushered in an era of Clients still expecting prompt responses to their urgent matters. Despite the challenges of working from home due to the lockdown – an unprecedented event, we have adapted to respond to Client’s requirements with promptitude. Using updated communication technology with remote access to our office servers and files. Our systems-maintained efficiency while partners and support staff work from home. We hold Video Conferences on Zoom, Microsoft Teams, Webex etc. within our firm’s team members as also clients. Fortunately, superior Courts have also installed enabling online hearings for urgent matters. Apart from rendering legal advice, for e.g. on the adverse impact of COVID-19 on Charter Party Agreements on ships underway to a Port which has declared Force Majeure we have also instituted online proceedings for e.g. in Calcutta Admiralty Court. We obtained an urgent arrest order of the vessel, and thereafter successfully negotiated security with a London based P&I club for a substantial amount in US dollars for releasing the arrested vessel. By this new norm of working from home our overseas clients as also overseas firms have been serviced even in ongoing finance transactions, due diligence exercise etc. In the current scenario of the Coronavirus Pandemic, those Law Firms which can respond with speed and clarity and are accessible to clients would be way ahead of the competition.
Aparna: You are a very experienced lawyer with a work experience of over 40 years. What do you think about the working of our current legal industry? Are they meeting the ends and expectations of the mass when it comes to serving of law?
Shardul Thacker: The constraints of working in the current legal environment especially with litigation, is often frustrating. Hence the need for the use of alternative dispute resolution methodologies like mediation and arbitration is keenly felt. We are yet to achieve the standards of Singapore in Arbitration. Dispute prevention is rarely spoken of, and yet if practised could ease the load of disputes requiring resolution. One aspect of dispute prevention is vetting a contract like a Charter Party prior to it being signed. When standard Charter Party clauses are amended without legal knowledge, contractual disputes are bound to occur. A matter of grave concern is that ADR Clauses are conspicuous by their absence in most marine insurance contracts. Insurers are reluctant to enter into an Arbitration Agreement to settle disputes arising under a contract of marine insurance and referring the disputes to Arbitrators having domain knowledge similar to LLMA and SCMA which are incorporated in shipping contracts.
Aparna: You have a wide range of knowledge when it comes to laws of all sectors but you are highly regarded for your work in the liquefied natural gas sector. What attracts you to this particular section of law more than any other?
Shardul Thacker: Having extensively practice Shipping Transport Law and Offshore Construction, both on the disputes and transactional sides, I found that legal work relating to the LNG gas sector is the spinoff of these two practices. Offshore Construction Contracts are part of project work. Marine transportation experience combined with my experience in Offshore Construction and Supply Chain Contracts has attracted me to work on the legal side of the LNG gas sector. It particularly interested me, since LNG is a future of energy it being clean gas as against the traditional coal and crude which are being imported into India to meet our countries energy requirements. Both these extensively pollute air and marine environment. The risk exposure in marine transportation of coal and crude is huge since a marine casualty would usually involve harm to life, damage to property and destruction of the marine environment. As LNG is the energy of the future over the last 15th years my practice has also extended to the finance and project work relating to LNG transactions. Having the ability to advise on the impact of decisions of technical, commercial and contractual nature for a legal perspective is essential. LNG industry in India has also now been extended to contracts relating to FPSO (Floating Production Storage and Offloading) and FSRU (Floating Storage Regasification Unit). As the law develops it throws open opportunities for both learning and earning professionally in this fascinating subject. It is equally essential to develop and deal promptly with competent legal advice competent legal responses to avoid future claims and associated litigation.
Aparna: Please tell our readers about the opportunities available in the field of maritime and commercial law as it would be helpful for the budding lawyers who wish to succeed in the field of laws related to maritime and shipping.
Shardul Thacker: Maritime Law in India has an ancient history. India being a maritime nation with a large coastline had rules and regulations which are well recorded in our Vedas and other literary works. Concepts such as General Average and Maritime Salvage were referred to as well as dispute resolution in collision cases. Presently, there are only a few law colleges (like Gujarat Maritime University) providing courses in maritime law and marine insurance law having a faculty with domain knowledge and experience in these laws. That does not mean there is no opportunity to learn these aspects of the law on a self-study basis. It is hoped that stakeholders in the shipping and marine insurance industries would lobby for more educational institutes to offer these courses.
Aparna: You have achieved a lot with your hard work and authenticity of work. Please share the story of your venture that lead you to such heights as this could inspire a lot of students and law graduates.
Shardul Thacker: Treating every case meticulously, doing painstaking research, interacting with non-legal industry professionals and promptness of response are the hallmarks of a successful legal professional. Integrity, that is credibility and competence, that is having the required domain knowledge invariably leads to effective legal advice. It sometimes is a challenge to tell a Client he does not have a good case but it always not to give false hopes to Client. Professional honest may not be immediately rewarded but in the long run, it is the only thing that is sustaining and enduring. Keeping professional objectivity is very essential for giving the correct advice.
Aparna: The COVID-19 has caused serious problems and changes in the International trade and transport fields that are the major components of the global economy. How does your firm deal with the effects and solutions of this pandemic disaster on maritime laws?
Shardul Thacker: International trade and transport have directly been effected because of lockdown resulting in an inability to perform supply chain contracts as also manufacturing the contracted goods to be supplied. This has had a knock-on effect clients performance has been impaired for reasons beyond their control. It is necessary to study the contractual terms and particularly the force majeure provisions. The issue, whether the performances of the contract can be suspended, must fall with the FM provisions of each contract often contract do not have FM provisions. What is the recourse? Can it be terminated? In a long term contract where the parties are on the longstanding commercial relationship is an important aspect before exercising legal rights qua the benefit/ adverse effect on such commercial relationships. We have advised clients extensively during the COVID period and helped them to resolve the problems.
Aparna: As a scholar in the field of maritime law, please tell us whether the machinery and infrastructure our country has in the field of marine laws sufficient to make our economy stable?
Shardul Thacker: Maritime Law has an important contribution in making the growth and stability of our economy. More than 95% of Indian’s Exim trade is conducted through ocean transport and thereby marine laws play a direct role. Though we have the seventh-largest Exim trade on the global chart, 95% of our cargo movements are on the foreign-flagged ship. India has become a country of charterers and not shipowners.
Shipping is a global industry, with cyclical ups and downs. Indian entrepreneurs, in the context of other industries, have not considered shipping sectors as ‘safe havens’ for their investments. It is a dollar-based industry, and global banks tend to focus on large fleet-owners which is rare in India except for Shipping Corporation of India and Great Eastern Shipping. The financing costs of the Indian banks are not competitive in terms of global financing, as interest rates are quite high. This has resulted in India becoming charterers and not shipowners.
Indian shipping industry does not get the governmental boost to make it tax efficient compare Singapore and other maritime nations.
As mentioned in answer to Q.4, there are insufficient law colleges offering degree coursed in maritime law and marine insurance law. It is for this reason that those desiring to pursue legal studies in maritime law and marine insurance law go to the United States or to the United Kingdom. Several practising maritime lawyers in India and present sitting Judges have obtained qualifications in maritime law by doing their Masters from US, UK, Singapore and have also been trained at maritime law firms overseas.
Professional Development for maritime lawyers and keeping abreast with international maritime case law is necessary to keep abreast with new developments in the maritime law field.
Aparna: You have received the Asialaw ‘leading lawyers’ award for dispute resolution every year between 2003 & 2016 and was also recognized by Global Arbitration Review as one of the most prominent lawyers in arbitration in India. What are the key areas where one should focus on while dealing with arbitration?
Shardul Thacker: There are several key areas to be focused on for effective and speedy arbitration. The first factor is the selection of the Arbitrator(s) – who require to be credible and competent. They should clearly discern the difference between litigation and arbitration – this is especially true for the Arbitrators who are or were practising law professional – whether on the bench or bar! Most arbitrations get bogged down either on procedural issues often siting the CPC or the Evidence Act although both are not relevant in arbitration proceedings under The Arbitration and Conciliation Act 1996 (as amended). The second factor is the many requests for postponement of dates on flimsy excuses – usually from the legal counsel of both the parties. The third factor is the reluctance of the Tribunal to appoint Expert Witnesses to assist them in technical or commercial aspects required domain knowledge and experience. Another important factor is the lack of time-bound schedules.
Aparna: What word of advice do you have for lawyers who wish to start up law firms someday? What are the important factors responsible for a law firm success?
Shardul Thacker: Apart from domain knowledge (if it is to be a firm specializing in a particular branch of law or practice), an aspiring Leader of Law Firm must increase his level of knowledge and skills in developing and leading a Team of a successful legal firm. Managerial skills in finance, corporate governance and creating a brand, require to be nurtured and mastered. Having a well-stocked Library including an E-Library (especially in these COVID-19 days) is important. Building strategic alliances both in India and abroad is important. Mentoring juniors and publishing Papers and making a presentation in National and International Conferences are also important. Last but not the lest is having a newsletter giving updates especially case law in the areas of the firm’s specialization.
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