Legal Era in conversation with Gourab Banerji, Senior Advocate, Supreme Court of India...
Law runs in the genes of Gourab Banerji, Senior Advocate, Supreme Court of India, and former Additional S
olicitor General of India (2009-2014), what with his father Milon Kumar Banerji, a former Attorney General for India, and his elder brother, Debal Banerji, a Senior Advocate of t he Supreme Court.
Gourab was born on November 14, 1967, and studied law at
Magdalene College, Cambridge University, from 1986 to 1989.
Having secured a First Class in the Law Tripos and having been
awarded the Norah Hunter Dias Prize in Law, Gourab in 1990 was
called to the Bar from Lincoln's Inn. He enrolled as an advocate
with the Bar Council of Delhi in 1989 and started practice at the
Supreme Court. In 2003, he was designated Senior Advocate at
the age of 36. Recently, Gourab joined Essex Court Chambers in
London, a leading light in the field of international arbitration, as
an overseas associate.
caught up with him to know more
about his journey thus far...
Banerji, was Attorney General for India.
How has the family's predisposition for law
shaped your career?
Gourab Banerji (GB): My late father has undoubtedly been the single greatest
influence in my choice of career. In 1979, he moved from
Calcutta to Delhi after being appointed Additional Solicitor
General of India. When I followed him to Delhi after my class
10 exams in 1984, I had a wonderful opportunity of closely
observing him on a day-to-day basis in the Supreme Court.
That influenced me no end, and from then on, I knew that the
only profession for me was law. Right through my professional
career and till he passed away, he was a sounding board for
me. One of my happiest moments was when I was appointed
Additional Solicitor General of India in 2009, exactly 30 years
after he adorned that post. I credit a significant portion of my
achievements to his guidance.
General from 2009 to 2014. Could you
please take us through some of the leading
cases during your tenure?
GB: It would be difficult to narrow it down because one of the joys
and also challenges of being a law officer is the wide variety
of cases entrusted to you.
career and till he
passed away, my
father was my
I remember an income tax appeal which I argued as my
very first matter as ASG. Income tax was not an area of
specialization for me prior to 2009, to put it mildly. The matter
was argued before a Bench presided over by Justice Kapadia.
It was a steep learning curve for me. The issue concerned the
scope of deduction under Section 80I, 80IA and 80IB. At first,
it seemed a very dry area, but then, I realized that there were
significant policy implications having a cascading effect on
public revenue. The judgment is Liberty India v Commissioner
of Income Tax
(2009) 9 SCC 328
. This case set the tone and at
the end of my tenure of five years, I had appeared in probably
five thousand income tax cases before the Supreme Court as
ASG on behalf of the Union of India.
One interesting case from a jurisprudential view was a Civil
Appeal where notice was issued to the Attorney General. It
concerned the constitutional validity of a provision in the
Arms Act which provided for a mandatory death penalty. In
the background of the Punjab problems in the early 1980s,
the President had thought it fit to amend the Arms Act and
introduce Section 27(3) to bring in a mandatory death penalty
for those using any prohibited arms resulting in death of any
other person. Having been asked to appear by the AG, I was of
the view that the provision was unconstitutional as it fettered
judicial discretion to tailor the sentence to the crime. When I
discussed this with the AG, he gave me carte blanche and said
that if I was of this view, he was happy for me to argue along
those lines as an officer of the court. We researched the issue
across the world. I found that almost all countries (including
the UK, USA and several African nations) viewed mandatory
death penalty as unconstitutional. The sole exception was
Singapore where their court had upheld such a mandatory death penalty for drug offences. The judgment
Punjab v Dalbir Singh (2012) 3 SCC 346
is worth a read. Then,
of course, is the Italian Marines case, though I guess that you
will ask about separately.
India in the recent Italian Marines case?
Could you brief us about the case and the
role you played?
GB: The Italian marines' case has generated a lot of heat in
both the domestic and international sphere. The facts are
quite well known. In 2011, the Republic of Italy enacted a
law to protect Italian ships from piracy in international
seas. Pursuant to this, a Protocol of Agreement was signed
between the Ministry of Defence - Naval Staff and Italian
Shipowners' Confederation. As a result, the petitioners, who
were Italian marines, were deployed along with four others,
as "Team Latorre", on board a ship called "M.V. Enrica Lexie",
to protect the vessel from pirates. While on its way from
Galle in Sri Lanka to Djibouti, the ship came across an Indian
fishing vessel, St. Antony, which it allegedly mistook to be a
pirate vessel, at a distance of about 20.5 nautical miles from
the Kerala coast. Owing to firing from the Italian vessel, two
persons in the Indian fishing vessel were killed.
The state of Kerala decided to prosecute the two marines for
murder at which point, the Italian Government intervened in
support of the marines. Italy argued that the domestic courts
in India had no territorial jurisdiction, apart from raising the
defence of sovereign immunity. The case was interesting as
it raised public international law issues in a domestic context.
It was heard over many months. The marines would attend,
kitted out in their white naval uniforms. I was fortunate
that friends from across the globe pitched in to help me. I
remember opening the arguments with an Italian professor's
blog that supported India's case. One had to first explain
to the judges what a blog was, before telling them that the
views were as authentic as those expressed in any printed
The case ended in victory for the Government of India.
There were two judgments, but both concluded that the
Government of India did have jurisdiction to prosecute the
case. Though Justice Kabir's judgment is the one which is
usually referred to, the concurring judgment of Justice
Chelameswar is worth reading because of its incisive analysis.
The case is Republic of Italy v Union of India (2013) 4 SCC
721. Of course, after the judgment was delivered in January
2013, there have been further developments in the public
eye and the dispute is now before ITLOS.
become part of the Essex Court Chambers
in London. How does it feel?
GB: It has worked out quite well for me. Essex Court Chambers is
the leading set of chambers in international arbitration and
public international law. Having read law at Cambridge, I was
familiar with many members of the Chambers.
My supervisor, Chris Greenwood, was a member of the chambers before
he left to become a judge at the International Court of Justice. What I
like the most here is the collegiate feeling in the chambers. Even though
there are some really big names who are members of Chambers (i.e. V.V.
Veeder QC, Toby Landau QC), everyone is very friendly. Though our senior
advocates are very bright and can compete in equal terms with them,
they have the advantage of quality over quantity. The professionalism is
what I admire and the style of working is very detail-oriented.
At the same time, I will never desert my primary love which is Delhi
and practice before the Supreme Court, though international arbitration
does beckon. So I have remained an overseas associate.
primary love which is
Delhi and practice before
the Supreme Court, though
does beckon. So I have
remained an overseas
GB: I was involved in domestic arbitrations from the very first year of my
career though I came into the international arbitration field almost
by accident. The first major international arbitration I got pulled into
was a case called NFL v Karsan. The matter was being handled by the
then Solicitor General of India, T.R. Andhyarujina, and senior counsel
(now Justice), R.F. Nariman. They needed a junior to assist them and
Mr. Nariman recommended my name. It was a lucky break and I got to
appear in Amsterdam before a Tribunal presided over by the legendary
Albert Jan van den Berg. In fact, it was a rare instance where the Indian
PSU won the arbitration. Since then, I have been instructed in quite a
number of international commercial arbitrations.
GB: Normally, proceedings in an International Commercial Arbitration are
over in a year or a year and a half. The preparation necessarily has to
be intensive and detail-oriented. The evidence and closing submissions
usually happen back to back. Though the process is demanding,
the thrill of appearing before seasoned arbitrators who
are usually well-known figures in the field, and the
professionalism and the pace of the proceedings more
than make up for it. In short, there is real job satisfaction
during and at the end of the process.
GB: As to what could be changed, it would be helpful if the
arbitral panel is more diverse and representative. That
would address genuine concerns about the legitimacy
of the process, particularly the perceived bias against
parties from developing countries such as India. Unless
the process is reformed, the disquiet will soon lead to a
crisis of confidence.
present role as arbitration counsel and
advisor to clients engaged in international
arbitration? Please take us through some
of your momentous cases as arbitration
GB: Necessarily, in the field of arbitration, proceedings are
confidential, so I am constrained to mention only those cases that are now in the public domain. One case
that was bitterly fought was the arbitration between
Essar Oil and United India Insurance. I was briefed
for UII. Essar had been constructing its oil refinery
in Vadinar, Gujarat, which was struck by a cyclone.
Apart from the material damage to the refinery,
Essar claimed advance loss of profits, which United
Insurance disputed. Lengthy hearings were held in
Mumbai and London. Ultimately, we were successful.
It is another matter that Essar has challenged the
Award, which is languishing in a District Court in
Similarly, in Enercon v WWIL, which arose after a
landmark judgment of the Supreme Court reported
in (2014) 5 SCC 1, I was instructed to appear on behalf
of Enercon GmbH,, the German company. These
are only the recent arbitrations. Apart from this,
I regularly appear before the courts in arbitration-
related matters. Quite recently, I was successful in
persuading a bench of three judges of the Supreme
Court in Centrotrade Minerals & Metals Inc. v Hindustan
Copper Ltd. to uphold the validity of two-tier arbitration
clauses in India. I appeared for Centrotrade in the matter.
Similarly, before the high court recently, I appeared in
Xstrata where objections against a foreign LCIA Award were
dismissed. Last, and by no means the least, I am appearing
on behalf of Antrix Corporation in its challenge to an Award
given in favor of Devas for a sum of
USD 562 million.
evolving. Do you foresee any radical
changes in international arbitration in the
GB: My personal experience has been that Indian clients, who
are particularly involved in many international disputes,
do not prepare from day one of the dispute, like their
counterparts in the West do. They are still not comfortable
being witnesses or even briefing foreign lawyers. In my
opinion, this needs to change. Secondly, there is still a
lingering perception that the attitude of some of the
arbitrators, particularly in the West, towards the developing
world, is biased. Somehow, the belief is that there is a pro-
investor and pro-claimant bias. False as it may be, serious
measures will have to be taken by arbitrators or institutions
to address this concern. The formulation of certain
professional norms governing arbitrators' conduct may
be one amongst several methods to help alleviate some
allegations of institutional bias.
Treaties. Please share your thoughts on
this specialized area.
GB: I have written the India Chapter of the Investment Treaty
Know-How which is published in the Global Arbitration
Review. This analyses all the treaties India has entered
into. For those interested in this area, it should make an
The field of BITs is especially tricky for several reasons.
Unfortunately, for reasons of confidentiality, I cannot say
very much about certain issues but surely, the arbitrations
taking place under BITs have the potential of raising
significant problems since the awards have massive
financial implications. This problem is exacerbated by
the fact that the best Indian lawyers have primarily been
appearing for the investors, and against the Government of
India. The Government of India has to be a lot more careful
while drafting and signing of fresh BITs and proactive and
professional in defending itself in such arbitrations. Some
positive steps have been taken by the present Government
in this area.
GB: Well, there will always be people who you think are doing
better than you in the profession, who you think are better
connected, and getting ahead. Whenever a thought like this
strikes you, please remember that this is not a hundred-
meter sprint, but rather a marathon. If you stick it out, it
will work out for you. Importantly, even after twenty five
long years in the profession, I still feel that it is essentially
the hard work that counts. Try and read every page of your
brief, and work as hard as possible. Lastly, compete only
with yourself. Make an assessment at the end of each year
as to whether you are doing better than what you were last
year. There is space for everyone here. The rewards, should
you persevere, far outweigh the trials and tribulations.
love the most?
GB: My juniors often complain that the term 'free time' is Latin
and Greek to me. While I may be constrained to partly
admit this, I very much like traveling and reading historical
mysteries and do that as and when I have time to myself.