Legal Era Virtual General Counsel Meets (West & South) Conclude Successfully

The topics discussed included attributes of a good General Counsel; Corporate Governance before and after the pandemic; virtual hearings in Alternate Dispute Resolution; crisis management by corporates and their GCs, crisis preparedness and strategies to cash in on potential new opportunities.

The first panel titled GC as a Strategist For The New Normal was moderated by Anubhav Kapoor - Group Vice President - Legal & Group Company Secretary, Cummins India Limited and saw participation from Dr. Akhil Prasad - Country Counsel India, Boeing International Corp India Pvt. Ltd.; Dr. Vivek Mittal - Regional Counsel - METAI Region Diagnostics Platform, Danaher Corporation; GhanashyamHegde - Director & General Counsel - Indian Sub-Continent, Procter & Gamble and BadrinathDurvasula - Sr. Vice President & Head Legal, Essar Capital. The takeaway was that good GCs, as commercial lawyers, should understand the business and support swift business strategies.

Anubhav Kapoor said that GCs are the protectors and enablers of legal values and should be ready to give their inputs whenever required by the business. "GCs have risen to the occasion and have helped businesses as strategists and business enablers," he averred. BadrinathDurvasula stressed the importance of good qualifications. Qualification is the first benchmark of a good GC and one needs to be well qualified to be respected by the industry, he said. He also spoke about the significance of knowledge sharing. Vivek Mittal opined that GCs as risk managers should envision the future and be prepared to manage the M&A and reputational risks as risks are dynamic and evolve on a daily basis. "GCs are responsible for applying any newly enacted legislations, and have become risk managers. Financial risk is a major risk and should be mobilized" he stated. Dr. Akhil Prasad said, "GCs should have an eagle's eye view." They should map risks for every stakeholder in the company and be prepared accordingly. They should also communicate effectively with the management and become business managers in the process, he said. GhanashyamHegde said, "It is the duty of General Counsel to bring culture to the organization and do the right thing even when no one is watching."

The second panel was titled Corporate Governance & Compliance - Recap before Pandemic & in Current Times. The panel was moderated by Harish Dua - Founder & CEO, Institute of Good Governance and the panelists were Srivals Kumar - Former General Counsel, Raheja Universal; ZameerNathani - Senior Vice President and General Counsel, UFO Moviez India Limited; Parveen  Mahtani - Chief Legal Officer, Mahindra Lifespace Developers Ltd. and KanaiyaThakker, Jt. President & Head – Legal, Ambuja Cements Ltd. (Holcim CementSwiss MNC).

Srivals Kumar said that the most important aspect of Corporate Governance is to imbibe the culture of value creation and value addition.  "Companies with high Corporate Governance enjoy high reputation," he emphasized. ZameerNathani said that good governance revolves around good behavior and that fraud by the management leads to dissolution/closure of the business. Early detection of fraud is very important to mitigate loss. A GC has to run the business ethically and add value creation. GCs play an important role in setting the culture in an organization, he said.  According to Parveen  Mahtani, a GC has to guide the CEOs so that the organization is built on a strong cultural foundation. A GC has an impactful role in building the cultural foundation of the company. She insisted on having uniformity in compliance across states for companies having a pan India presence.  Having a Whistleblower policy is  important as is fairplay and observing a code of ethics. KanaiyaThakker said, "Compliance is an investment. A culture of Compliance  should be imbibed in the organization." The panelists also stressed on the need to be proactive and forward thinking. The importance of digitization and transparency in corporate governance was also discussed.

The third panel titled Aspects of Resolving Disputes - Virtual Hearing, Arbitration & Mediation - Reality Check On What's Working & What Will Work? was moderated by Dr. Sanjeev Gemawat -  Executive Director & Group Company Secretary, Dalmia Bharat Group. The panelists included Vyapak Desai - Partner, Nishith Desai Associates; NeetiSachdeva - Secretary General and Registrar, Mumbai Centre for International Arbitration; and Sameer Chugh - Group General Counsel, Bharti Group.

Vyapak Desai threw light on the flexibility of the Alternate Dispute Resolution (ADR) mechanism in times of the pandemic. India has an opportunity to change the justice delivery system as virtual hearings have been taking place throughout the country due to the COVID-induced lockdown, he said, adding that virtual hearings can be used to save time. Sameer Chugh was of the opinion that in a majority of the cases, any one party might not agree to Alternate Dispute Resolution. In commercial disputes, Alternate Dispute Resolution is a great option and people have to opt for ADR so that disputes are resolved quickly instead of litigation that goes on for years. He said that regulatory disputes cannot be resolved by ADR. The legal industry is cognizant about moving towards ADR and that There is a subtle shift from litigation to ADR. NeetiSachdeva said, "Mindsets have to change and people have to embrace Alternate Dispute Resolution and virtual hearings. We have to continuously find loopholes in virtual hearings and come up with solutions." When Dr. Sanjeev Gemawat asked if there would be confidentiality breaches during online/virtual hearings, the panelists expressed the view that although virtual hearings are an excellent option and will be adopted going forward, physical hearings cannot be replaced in certain cases. Physical hearings and Virtual hearings would co-exist. None can replace the other as both have their own pros and cons. All the panelists were of the view that the legal industry needs to change its mindset and adopt new techniques of virtual hearings in Alternate Dispute Resolution. The journey has just started. In India, Alternate Dispute Resolution had taken a backseat. But Covid has drawn attention to it again.

The fourth panel titled Crisis Management & Crisis Preparedness - Way Forward was moderated by Srivals Kumar - Former General Counsel, Raheja Universal and the panelists included Atulya Sharma - Director - Legal, Compliance and Regulatory Affairs, Max Healthcare; Aannaaand Deshpande - Director – Data Privacy and Data Protection, Mastercard; ManjareeChowdhary - General Counsel, Maruti Suzuki India Limited and Agnidipta Sarkar ¬- Evangelist Emeritus & Director Cybersecurity, CMS IT Services Pvt. Ltd.

Srivals Kumar said that in an uncertain world, GCs need to be prepared. "GC is the brand and reputation custodian of any business and the best person to assure business continuity and manage a crisis effectively." He said that crisis management is to have a skeleton structure of how to carry on the business in times of crisis and be prepared. ManjareeChowdhary started off the session and said that the role of GCs is very critical as GCs look at problems holistically and from the enterprise level. Crisis management is not a one-time process. It is a dynamic exercise which needs to be managed according to the changing environment. For effective management of crisis, business continuity plans should be under constant check. A GC should foresee the regulatory aspects. According to her, "The biggest learning from the pandemic is to keep ourselves on our toes. Anything can happen anytime." According to Atulya Sharma, there should be an integrated approach to handling crisis with well-defined roles in critical times. The aftermath of the Covid pandemic would be devastating and some of the sectors have been the worst hit. He said that organizations are today geared up for business continuity and crisis management. Issues around cyber security and data leaks should be addressed effectively to ensure business continuity. It is the duty of General Counsel to give early regulatory warnings to their organizations as governments bring about changes in regulations after pandemics like these. Aannaaand Deshpande expressed the view that as an enabler of business, GCs have to take rapid action in times of emergency. Crisis disrupts regular business operations. Technological disruptions such as cybercrimes have increased significantly as more and more people are working from home. Business continuity can be a real challenge for MNCs having people working from home from different parts of the world. In such cases, the role of a GC is very important as the GC might have to revisit some clauses for the different countries according to their geographies. Agnidipta Sarkar was of the view that an enterprise has to accept the quantum of change that the pandemic has brought. Crisis preparedness is an understanding of what to do when hit by crisis.  Crisis management is beyond learning. Crisis management needs an attitude and requires contingency plans to be kept in place. He emphasized on the need for a business continuity document.

Virtual GC Meet - SOUTH | 28^th August 2020

The first panel was titled Investment & M&A in Covid Times - How GCs Focus on Due Diligence & Cope Up With M&A With Digitised Documents & Online Documentations? Are We Evolved For a Digitised World? The panelists included VenkatSatyanarayana – Partner, Link Legal India Law Services; SameetGambhir - Jt. Vice President (Corporate Legal/ Compliance &Admn.) & Company Secretary, DCM Shriram Ltd.; Sormistha Ghosh - General Counsel & Chief Risk Officer, Strides Pharma Science Limited; NavitaChaubal - General Counsel, Wipro GE Healthcare Pvt. Ltd and Mini Raman – Partner, LexOrbis.

According to the panelists, negotiations are going to the next level with digitization. They also spoke of confidentiality in Non-Disclosure Agreements (NDAs). With digitization, travel time is saved. They expressed the view that in the background of the Covid pandemic, local consultants are hired and therefore consultants from small jobs are getting jobs. They also said that one needs to be open to change and adopt digitization. Today even Regulators are working from digitized platforms. 'We are learning to pivot with the times', was the opinion of one of the panelists. Digitized documents and digital signatures were also discussed where the joint opinion of the panelists was that although digital signatures were available much before, they were never used till the Covid outbreak. They spoke about holdback in cases of warranties and extension of long stop date contracts. Duty of a General Counsel to conduct Due Diligence before entering into any contract was also discussed.

The second panel was titled Covid-19 Being the New Normal & Known Reality - Force Majeure Laws Cannot Apply to it. The panelists were - JyotiPawar - SVP & Deputy General Counsel, Global Infosys; BalaRamanan - Director - Risk & Compliance, Microland; Neha Mahyavanshi – Director and Field Compliance Officer, South Asia SAP; SonalBasu - General Counsel, Mindtree; Vinod Kumar Bhaskaran - Legal Head - Arco Lab Private Limited and R.S. Sachdeva President (Group - Legal), JK Organization.

The core point of discussion was Force Majeure and how clients' interests were safeguarded after the pandemic. All the panelists spoke about the challenges they faced. They discussed about having a close collaboration with clients, IT arm and employees. It is very important to have AI analytics as many companies were already ahead in the race and the rest cannot afford to be behind. Doctrine of frustration and its consequences was discussed. The panelists discussed that no thumb rule can be followed as far as Force majeure is concerned as different businesses across different jurisdictions vary. They also spoke about the Business Continuity Plan (BCP). According to one of the panelists, with the right BCP in place, businesses should come up with plan B in case plan A does not work. In order to invoke the Force Majeure clause in a contract, it is important to prove that steps were taken to complete the contract and mitigate the loss and in spite of that, it was not possible for one of the parties to complete the contract. General Counsel should look at the contract from the commercial aspect and ensure that there is no loss. One of the panelists spoke about judgments in various courts in the country where Force Majeure clause played a crucial role. Another panelist was of the view that the pandemic has changed the whole scenario in which Force Majeure is being viewed and that a big revolution is brought about in the manner in which Force Majeure clauses would be drafted in uture. It was also said that "If the remedy is onerous, one cannot invoke the Force Majeure clause for non-performance." Indemnities and Liabilities were also discussed. It was felt that as business enablers, GCs should concentrate on implementing provisions in contracts where there can be no scope for negotiations or discussions and bring sustainability and ensure that losses are mitigated. The key takeaways were to look at the Force Majeure clause, concentrate on workable remedies, and how to cross hurdles and move forward and get success out of the contracts.

The third panel was titled E-Commerce & Consumer Protection Act 2019 - New Act with New Set of Liabilities for All. The panelists were Anubhav Kapoor – Group Vice President Legal & Group Company Secretary, Cummins India Limited; Panduranga Acharya – Director - Legal, Swiggy; SachinKalra – Deputy General Counsel, HT Media Limited; YogeshWadhwa – General Counsel, Nissan Middle East and AnanyaSanyal – Head of Legal & Compliance Officer (India Distribution Centre & ITC), Herbalife International India Pvt. Ltd.

The moderator started the session stating that after three decades, the Consumer Protection Act, 1986 (CPA 1986) has undergone a change. The CPA 1986 was a magna carta of consumer protection in India and laid a strong foundation in the regime of consumer protection. It has significantly empowered consumers. The 2019 amendment to the Act is an important milestone as it covers e-commerce, tele-marketing, multi-level marketing, direct sales etc. It has given more powers to the consumers. They discussed as to how the new Act (Consumer Protection Act 2019) has impacted e-payments and e-transactions. It also brings more clarity on product liability specific points. There has been a paradigm shift as the new Act introduces a Consumer Protection Authority which can take suo moto actions and prohibit wrong doings and protect consumers. According to a panelist, the new Act is a game changer for consumers. He gave his perspective on online sales. Anyone who sells online has to comply with certain provisions. Marketplace compliances are imposed on online platforms which restricts unethical practices on the part of the manufacturers and sellers. The panelists discussed product liability and product recall in cases of deficiency in services. The new Act casts a responsibility on all the people involved in the supply chain. Unfair trade practices were also discussed. In case of brand endorsements, it was discussed that whenever a brand is endorsed, due diligence has to be done by the endorser of the product. They also discussed punishments and fines. According to them, every company has to have a redressal cell for addressing the grievances of the consumers. The panelists emphasized that "Consumer is the King".

The last panel was titled Data Sovereignty vs. Data Transfer. The panelists were Abhishek Malhotra – Founding Partner, TMT Law Practice; Agnidipta Sarkar – Evangelist Emeritus & Director Cybersecurity, CMS IT Services Pvt. Ltd.; Nirupam Srivastava – Strategy, M&A & Digital Transformation, Hero Corporate; Sivaram Krishna Prakash – Senior Corporate Counsel, CISCO Systems India and Aannaaand Deshpande – Director Data Privacy and Data Protection Mastercard.

This panel discussed the legal requirements of storing data in certain countries is fundamental to building a strategy. They spoke about data residency.  It is a concept where an industry body or a Government specifies as to which data should be stored in which geographical location. This is done to take advantage of certain laws that may exist in that country. Data sovereignty means that when data is stored in a designated location, it will be subject to the laws of that country. One of the panelists was of the view that data and competition laws have to be dealt together. They also spoke on having a data life cycle specifying how long the data should be retained; who should have access to the data etc. Cyber security will create a security resilience within the entire data processing. Every business should follow a 'consumer first' principle. They should not compromise consumer data. Consumers should feel confident while sharing their data that their data has been collected through secure means. Businesses have to ensure that in the post retention period also, data is not abused.

Both the virtual GC Meets - West and South concluded successfully.