Beyond the boundary: India

Despite a raft of international alliances and the growing globalisation of Indian business, the opening up of India’s legal market seems as far away as it’s been for the past 20 years

The managing partners of most international law firms would be happy if India’s legal market took a lead from cricket’s Indian Premier League (IPL). If that were the case the finest local legal talent would advise alongside rainmakers from the UK and US, with foreign lawyers able to practise on the ground in Delhi and Mumbai. It may not generate quite the same fervour as Sachin Tendulkar et al manage in the IPL’s Twenty20 games but throughout the past decade India has been a legal market to get seriously excited about.

Of course, on the ground, legal advice in India remains a purely domestic affair. Lawyers with experience of the Indian market at the major international firms offer a wan smile at the prospects for liberalisation. It has been consistently touted as ‘two years away’ for much of recent history and hopes for a change in policy by the Indian government usually dissipate on the entrenched opposition of the Bar Council of India. A series of challenges in the Indian courts have certainly not helped the prospects.

 

 

At the end of 2009, the Bombay High Court ruled in the Lawyers Collective case that the Reserve Bank of India had acted illegally in granting licences to Ashurst, Chadbourne & Parke and White & Case to open liaison offices in India in the 1990s. That ruling was followed in early 2010 by another case aimed squarely at the Indian practices of a group of 31 foreign firms, as well as outsourcing company Integreon. The case has been filed in the Madras High Court although the government has indicated that it would like to move it to India’s Supreme Court.

While foreign firms remain hamstrung by local regulations, a dynamic if still immature Indian legal market is developing at a rapid pace. In the space of a decade, a raft of spin-off practices has emerged to challenge the traditional players. Lawyers have become more specialised and experienced in cross-border work. Fed by the country’s rapid economic growth, the opportunities for talented lawyers are manifold; arguably only eclipsed by those of their Chinese peers.

While local practices do not have to compete head-on with the largest foreign practices, it’s clear that many have developed despite the regulations that govern legal practices in India. There’s a clear sense that without the opportunity to grow without limits and market in a sophisticated manner to clients, the development of Indian firms is being held back. For many local lawyers, that is of more pressing concern than letting foreign lawyers into the market.

 

Home advantage

There are few legal markets in the world in such a state of flux as India. Most client relationships remain associated to an individual lawyer and less to a firm so that an aspiring partner, frustrated by their lack of prospects for equity or by the general direction of their firm, can move and establish a successful new firm almost overnight.

‘The Indian market is not very mature,’ concedes Cyril Shroff, head of the Mumbai office of Amarchand & Mangaldas & Suresh A Shroff & Co. ‘On a scale of one to ten, with ten the most mature, I’d put it at five. Price is an unduly large component of selecting lawyers, which is a sign of an immature market.’

‘The restrictions on undertaking marketing activity need substantial modification in modern times.’
Shardul Shroff, Amarchand

Although AZB & Partners is now viewed as one of the leading players in the market, just six years after it was established, and the likes of Luthra & Luthra Law Offices and J Sagar Associates draw praise and referrals from foreign firms, Amarchand is still name-checked the most as the leading local practice. With brothers Cyril in Mumbai and Shardul in Delhi, the Shroff family maintains a prominent grip at the top of the practice. However, Amarchand is clearly evolving and gradually looking more like a developed US or UK practice.

The firm’s 17 equity partners are now remunerated on a seven-stage modified lockstep. At the end of 2009 the Mumbai office also added a chief operating officer, hiring Valerie Bowles, the former chief executive of UK regional practice Langleys, to take some of the management responsibilities away from Cyril Shroff and to help with the firm’s business development.

Amarchand needs to evolve, particularly given the ambitions of the Shroff family. According to Cyril Shroff, the firm could grow from its current level of around 500 lawyers to more than 1,000 lawyers in as little as five years. ‘India is huge, it’s the size of Europe,’ he highlights. ‘There’s so much domestic work that we’ll need to have 1,000 lawyers.’

Spin-offs and the increased movement of partners between practices have dominated the history of the Indian legal market over the past decade. For example, firms like Mumbai-based V Law Partners, established in September 2009 by a former partner at ALMT Legal, Clyde & Co’s alliance firm in India. Founder Vivek Daswaney had spent his career at ARA Law and then Kochhar & Co before joining ALMT when it was still in its infancy in 2004.

As a minority partner at ALMT (his stake in the business was less than 2%), Daswaney decided that his prospects, at least in the medium term, would be enhanced if he struck out on his own. ‘I thought if I got out and established my own firm, then if I later joined with another firm I would join at a higher level,’ he says. There was also, he claims, a gap in the market below the largest practices for a mid-sized firm focused on a select group of areas such as real estate development. Echoing one of the most prominent trends following the economic crisis, his firm has also embraced alternative billing arrangements, agreeing to effectively act as a client’s in-house legal function, handling a certain amount of work for a fixed fee each month. If the level of work then exceeds the agreed amount, V Law’s fee-earners work on an agreed hourly rate. Daswaney’s rate can reach 7,500 rupees or around £100 per hour, still well below his rate at ALMT of 12,500 rupees or around £160.

V Law’s story is just one of many similar tales in the market. Other spin-offs include Bharucha & Partners, formed in early 2008 by a 13-lawyer breakaway from Amarchand led by husband and wife MP and Alka Bharucha; and, also in 2008, Phoenix Legal – a breakaway from Trilegal. The head of Ashurst’s India practice Richard Gubbins offers a foreign lawyer’s perspective on the change in the market. ‘Indian law firms today are wrestling with their partnership structures given the 20-partner restriction,’ he says. ‘In my view Indian firms will have to change their equity structures, there are so many glass ceilings that if they don’t change young lawyers will vote with their feet.’ As a litany of examples such as V Law and Bharucha & Partners show, many have already done so.

‘Cyprus, Singapore and Mauritius are the main offshore centres for India but in general the offshore market is not well understood.’
Chetan Nagendra, Harneys

Lateral partner hires look set to increase and some in the market predict that consolidation among domestic practices is inevitable. ‘Logically mergers should happen,’ insists H Jayesh, head of 55-lawyer practice Juris Corp. ‘I’m baffled as to why they’re not happening, we would look at a merger according to the value the other firm brings to the table.’

Typically the new practices define themselves in contrast to the traditional Indian firm structure where a few family members hold equity and the prospects for promotion for most are limited. ‘There’s no limit on the number of equity partners and no inheritable stakes,’ says Justin Bharucha, a partner at Bharucha & Partners and son of MP and Alka, describing how his firm is structured. ‘Yes three members of the firm are from the same family, but we have a very flat partnership.’ The new firms are learning from past mistakes and also, increasingly, from the examples of foreign practices in developing their own businesses. Many senior partners at Indian firms view their ability to turn their hand to a broad range of work from corporate to litigation as a key strength – you can still find corporate partners who also double up as, say, their firm’s head of employment. However, there’s no doubt that there has been a trend towards specialisation as the size and complexity of work has increased.

It’s increasingly common to find firms that focus around a handful of core areas. Economics Law Practice for instance, a firm of more than 60 lawyers which was established nine years ago, concentrates the majority of its resources on tax, infrastructure and trade work. ‘We’ve added corporate and litigation expertise but the core remains tax, infrastructure and trade,’ explains Sujjain Talwar, one of the firm’s founders. ‘We try not to spread ourselves too thinly and I don’t think we’ll change unless we do a merger,’ he adds.

As firms have grown and matured, those that have entered into alliances have turned to their international allies for guidance on areas such as IT, HR and knowledge management.

 

Overseas imports

Since Linklaters announced an alliance with start-up practice Talwar Thakore & Associates (TTA) at the end of 2006 there have been a string of alliances between domestic and international firms. Allen & Overy, Clifford Chance, Clyde & Co and, among the US firms, Kelley Drye & Warren and Boston’s Brown Rudnick have all allied with local firms to offer their clients as integrated an approach as they can.

But the alliances certainly have their critics among those local practices that have opted against tying up.

‘An alliance is an engagement to marriage; merger or acquisition is the next step so there’s no point in an alliance if you don’t want to merge,’ Amarchand’s Cyril Shroff maintains. He also points to the limitations of the tie-ups. ‘It’s very difficult to integrate – there’s no formal framework, no financial integration or co-branding, so what’s the point? You don’t get the full benefits of integration and you lose referral work.’

Others echo the threat of a diminishing flow of referral work as a reason for not entering into an alliance. ‘I don’t think there’s one firm that can meet all the needs of all our clients,’ asserts Rabindra Jhunjhunwala, a partner at Khaitan & Co in Mumbai. ‘We might have a £10m deal for which a smaller cost-effective firm would do versus a £2bn deal for which a large top-tier firm may be more appropriate.’ Given that around half of the firm’s work involves a foreign law element or is referred by the likes of Slaughter and May, Macfarlanes, Berwin Leighton Paisner and Travers Smith, Jhunjhunwala points out that a tie-up would place his firm at a disadvantage.

 

 

However, those that have taken the plunge with a foreign practice insist that it’s about more than simply the flow of work between the two sides. For A&O ally Trilegal, the partners were keen to learn from the Magic Circle firm about how to put in place internal structures that would help the firm develop.

‘As we’ve built the practice, the firm’s partners have all been client-facing and it’s hard to grow beyond a certain point if everyone is client-facing,’ admits Anand Prasad, one of the founding partners of Trilegal. ‘You need systems in areas such as HR and IT, and we realised we needed support and a relationship firm could help us grow a larger organisation.’

Although Trilegal started working with A&O soon after it was established in 2000, the Indian practice also worked with the likes of Ashurst, Norton Rose, Davis Polk & Wardwell and Milbank, Tweed, Hadley & McCloy. Prasad admits that the alliance has perhaps inevitably affected its ties with other foreign firms. ‘When we established the relationship some of our other strong relationships weakened,’ he comments.

Despite the drop off in some relationships, Prasad concedes that the benefits of the tie-up, at least in the short term, are greater for the local practice. However, as Jonathan Brayne, chair of A&O’s India practice, explains, there was also a clear benefit for the Magic Circle practice. ‘When we started to focus on India and decided that we had to position ourselves in the market, we decided to look for a firm to develop a relationship with to mesh together the two practices,’ he says. ‘We wanted to give clients the same integrated approach as they get from the rest of the network.’

The alliances though, are far from ideal. ‘It’s an odd relationship to develop,’ admits Chris Wyman, India head at Clifford Chance, which set up arguably the leading alliance with AZB & Partners in January 2009. ‘You can’t have a joint venture or share financials, and the main characteristics of business transactions that we advise our clients on are missing. The relationship is based entirely on trust.’

Wyman admits that some parts of the Indian legal community doubt that the alliances are all above board. ‘There’s a suspicion in the local Bar of these relationships because they can’t believe they work like this. I suspect they think there’s a hidden contract and that we’ve paid them a substantial sum.’

The allied firms have, not surprisingly, shown up on deals together. For instance on Indian telecoms company Bharti Airtel’s $10.7bn acquisition of Kuwaiti company Zain’s African business, which was announced in June, Linklaters and TTA took the lead role for Zain while A&O and its Indian partner Trilegal advised the banks. However, the deal also showed that the alliances don’t always overcome existing client relationships as Herbert Smith advised Bharti alongside CC’s ally AZB.

Herbies remains one of the most active foreign firms on Indian mandates that doesn’t have an alliance relationship. ‘Yes we’ve thought very carefully about whether entering into an alliance is the right thing to do,’ admits Chris Parsons, co-chair of the firm’s India group. ‘But remaining independent means that we can receive work from and make referrals to more firms and we don’t step on anyone’s toes.’

Traditionally UK firms have been perceived to be more advanced in targeting India work but there’s a sense that US firms are now much more visible. As RSG Consulting points out in its recent report on the Indian legal market: ‘Despite the UK’s historic relationship with India, corporate eyes are largely turned to the US. As the US wins the most inward investment, there are a growing number of American law firms appearing in the Indian deal tables.’

‘We might have a £10m deal for which a smaller firm would do versus a £2bn deal for which a large top-tier firm may be more appropriate.’
Rabindra Jhunjhunwala, Khaitan & Co

Baker & McKenzie, White & Case and Shearman & Sterling are among those US practices that have established India groups, typically with fee-earners spread from Singapore and Hong Kong to London and the US. In July last year Jones Day, another established player, hired Sushma Jobanputra from Barclays Capital. Now based in Singapore she has brought in India-related work from the likes of ICICI Bank and Tata Technologies.

Californian firm Gibson, Dunn & Crutcher also made a significant lateral partner hire focused on the Indian market when it poached Jai Pathak from Jones Day in early 2008. Having opened his own firm in India in the 1990s between stints at Jones Day, Pathak has a long track record of working on Indian deals. Splitting his time between Los Angeles and Singapore he co-ordinates a team of around 12 fee-earners who regularly advise on work from the subcontinent.

‘Alliances are odd relationships to develop. You can’t have a joint venture or share financials. The relationship is based entirely on trust.’
Chris Wyman, Clifford Chance

However, it’s not just the major UK and US firms that target the Indian market. Offshore practice Harneys has been growing its share of India mandates since it hired Chetan Nagendra, a former Amarchand lawyer, in 2008. He points out that there is a growing demand for offshore advice on Indian matters. ‘Very few Indian lawyers have a working knowledge of the offshore market,’ he says. ‘Cyprus, Singapore and Mauritius are the main offshore centres for India but in general the offshore market is not well understood.’ Although Harneys doesn’t currently have an office in Mauritius, Nagendra claims that it has plans to open there in the next 12 to 18 months.

 

Under siege

While the alliances only amount to very loose affiliations, the Indian work that international firms handle, and the manner in which they organise their India practices, remains a controversial point for many local lawyers. Late last year the Bombay High Court announced its judgment in the long-running Lawyers Collective case, ruling that the Reserve Bank of India had acted illegally in granting licences to Ashurst, Chadbourne & Parke and White & Case which had enabled them to open representative offices on the ground. Ashurst became the last of the three firms to close their office in February this year. In its ruling the court urged the Indian government to address the issue of foreign law firms practising in India ‘as expeditiously as possible’.

If anything, however, local and international lawyers view the opening up of the market as further away under the new government. Hansraj Bhardwaj, the law minister from 2004 up until last year’s general election, was seen as a firm proponent of liberalisation. However, his successor Veerappa Moily has placed greater emphasis on court reform, essentially speeding up the litigation process, than with the liberalisation debate. ‘There’s a recognition now that it’s not an imperative objective,’ Chris Parsons, co-chair of Herbert Smith’s India group, reflects. ‘There isn’t really a great internal pressure for change.’ Unsurprisingly, like most other international firms that are active on India work, the UK practice is firmly in favour of liberalisation.

The most recent case against international practices, originally filed in the Madras High Court by local advocate AK Balaji, is more far reaching, naming outsourcer Integreon and 31 foreign firms. Among those named are all of the Magic Circle, Eversheds, Clyde & Co, Bird & Bird, as well as some US firms such as White & Case, Wilmer Cutler Pickering Hale and Dorr, and Davis Polk & Wardwell.

 

 

At issue is the advice that the foreign firms provide on India-related matters, the marketing trips they undertake to Indian clients and the arbitration matters that are handled on the ground in the country, all in contravention of the laws governing legal practice in India. The claim also asserts that it is far more cumbersome for Indian lawyers to practise specifically in the UK as compared to the accessibility of the Indian legal market for the UK firms. ‘The attitudes of both the current law minister and his predecessor are pro-liberalisation and both are keen to allow foreign firms to enter India,’ Praveen Singh, a senior associate at FoxMandal Little, explains. ‘However, the present law minister has a broader perspective than the last one.’ So moving the case to the Supreme Court, as the government has said it wants, will help move to a final decision on foreign firms.

The risk now, however, is that this new case drags on for years through the Indian courts, much like Lawyers Collective, while the Indian government maintains that it won’t move on liberalisation until the case is resolved. The UK authorities are also clearly aware of the argument that it is harder for Indian lawyers to operate in the UK market. In December last year, UK Trade & Investment published a report specifically focused on Indian firms looking to set up a UK office.

 

 

Most lawyers at major Indian firms are in favour of liberalisation. ‘I can’t see why legal services should be kept off the economic liberalisation agenda. What is so strategic or unique or sensitive to the defence of the nation that it needs to be kept closed off?’ asks Abhishek Saxena, a partner at Phoenix Legal. Several add though that the laws dictating how local firms market themselves, such as the limited information they can post on a website and a ban on advertising, need to be lifted before foreign firms are allowed in. While they remain in place Indian firms would not be able to compete with international players in a liberalised market.

‘Unless the government of India tackles issues of internal reorganisation of the legal profession and creates an appropriate environment for local firms to flourish, the opening out of the legal services sector is likely to be a remote possibility,’ Shardul Shroff, head of Amarchand’s Delhi office, warns. ‘The restrictions on maintaining a website, on producing a firm profile or brochure, or undertaking marketing activity or limiting the number of partners to 20 need substantial modification in modern times,’ he adds.

As India’s economy adjusts to rapidly modernising times, the country’s law firms are trying to keep pace. LB