Transcript: 

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration practice. I hope you enjoy the industry commentary, insights and anecdotes. We share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers and with that, let's get started.

Gautam: Hello, everyone and welcome back to our Arbitral Insights podcast series. And I'm delighted today to have as our guest, Sudhir Mishra, the managing partner of Trust Legal in New Delhi. Hello, Sudhir.

Sudhir: Good afternoon Gautam. Very grateful for this opportunity and I really look forward to discussing with you.

Gautam: Well, it's wonderful to have you and I'm delighted that you accepted our invitation to be on this podcast. I've been wanting to do a podcast with you for a long time and for many reasons. But there's one major reason and that is that you amongst other things, have a great reputation and specialism in environmental law and you are very well regarded and rightly so well regarded. One of the foremost experts on Indian environmental law and you have a great affinity for this area. And I, and in the course of this discussion today, I would like to uh engage with you in a discussion around how arbitration and environmental law meet and what the future is for the resolution of environmental law disputes by arbitration. And we'll talk about that and about a number of other things. But before I do all of that about environmental law, just a quick few words about you, for our listeners. For those of our listeners who don't know you or haven't come across you before. Sudhir, apart from being a wonderful person, and I must say that is his greatest attribute in my view. He's a wonderful human being. He's also a wonderful lawyer and his firm Trust Legal uh has a number of very, very good specialisms uh including dispute resolution of many kinds, but also environmental law. And one thing that we're not going to talk about in this podcast with regret is that also it's a very well regarded firm in the area of media and entertainment law. But uh but we are going to be focusing on some other areas today with Sudhir because in fact, I could do a whole series of podcasts with Sudhir. We, we could do the Sudhir Mishra podcast series. Such is the range of issues which he could talk about, but Sudhir set up Trust Legal many years ago and it's now rightly a very well respected firm in India and Sudhir, as I mentioned, is an expert amongst other things in environmental law. Uh So it really is wonderful to have you with us on this podcast. Sudhir. Let me, first of all, ask you a little bit about your background if you could tell our listeners because it's always interesting to, to know how things began because things always begin from somewhere. And I know a lot about you myself, but I want the listeners to know a little bit about your backstory. So a little bit about your background and how you found the law or indeed, how the law found you. So I'll hand over to you Sudhir.

Sudhir: So Gautam, thanks again. And while you are the toast of this entire country in India, because of what you have achieved in last many decades, and more specifically in last 3 to 4 months with regard to the large public sector Indian banks. And it's in a rare honor for me to come on this podcast. My journey is very different, very different journey than a usual lawyer. Law was not my first choice of career. I come from eastern UP part of the country which is very poor. My entire education happened in villages and most of the time under the trees and if the rains will come, we'll go back home. I have come from that background and I was preparing for civil services because my father was very keen. In India thanks to Great Britain, we have a Indian administrative service, which was the steel frame even during the East India company and the British Raj. And it continues to be a very important service in India which binds the country and administration is run through the civil services. So I was preparing for it and I wrote a very important interview of it in 1998 when I was supposed to clear the civil services, that was my fourth attempt and the last attempt as provided under the scheme of this competition. And I didn't clear it. And the best part is I didn't clear it more than 1 million people appear for this exam. I had come in last 1000 people for the interview and I didn't clear it and the reason why I didn't clear it was that my marks were very bad in the law paper. And I came as a reluctant lawyer, a graduate from Delhi University Law as a legal professional. But what I found that there were very few law firms and there were virtually no opportunity to join any one of them because my marks were not great and my class 10th and 12th and graduation was not very inspiring despite the fact that I was into it for civil services. So I had a deep interest in the environment right from my law school days. And one reason was we had a very robust Environmental Law Society in Campus Law Center in Delhi University. And I was somehow associated with that. And I was the Secretary of the Environmental Law Society. I used to invite people like Maneka Gandhi to come and speak in the law faculty. And that became my first calling. So I realized that if I'm not able to join any established chamber or a law firm, why not I specialize in environmental law? And the initial practice was advising various NGOs how to oppose the bail applications of a poacher or a wildlife criminal or a trader, which was a very difficult thing because you are assisting the public prosecutor and you are basically creating problems for the defense. And that was something which nobody wanted to do because it was very risky, time consuming and you had to go and be in the trial court. The long and short is that from 1999 right up to 2008 and 9, I was primarily doing environment, forest and wildlife. And the practice was actually growing in front of my eyes while the Supreme Court of the country at that time had a forest bench and that forest bench used to assemble every Friday and lawyer of the nature of Harish Salve was the amicus in that forest bench. He was devoting an entire Friday afternoon with the King's Council in the United Kingdom now. On forest matters where only issues affecting forest, wildlife, biodiversity, wetlands will be discussed and more than 40 to 45 public interest litigations I was doing which are class action suits. They are called in United Kingdom, other jurisdictions. And I used to travel across the country for different wildlife matters, whether it's opposing a bail application of a poacher or a trader appearing in a class action suit on the issue of wildlife or a critical biodiversity area or a critical wetland which has to be protected. And these issues used to pay you very nominal fee. But I had the opportunity to see a practice being created. A turning point came in 2005 in fact. When I was taken in International Visitors Leadership program of the U.S. government, which is under the Full Bright Act. And I was sent to United States and I traveled to different cities across the United States and we were put in important forest areas. And one of the change of heart was when I was sent to a place called Okefenokee Wildlife Refuge in Florida. Now, that's a very interesting place and I can never forget it's more than 18 years now. So that was the place where Dupont had actually done lot of environmental issues were there and they were part of the restoration plan. So one of the things which they said, they said we not only restore, we'll make it a state of art, nature conservation place. And they did change that entire area. And they made it such a place of conservation that on private side, perhaps the best private forest, best laboratories best in house scientists were found in Okefenokee Wildlife Refuge. And that was the opening of the eyes. I realize that in India, primarily we have two pole positions. Either you allow a project which is for infrastructure purposes or you go and file a class action suit. There is no meeting of the mind and that was the time Gautam, you know that there were no talks of climate resilience ESG SDG goals. It was not even - there was not the word sustainability. So I thought that you need a more rounded legal practice to address the issues of the climate. And then Trust Legal was born and we became quite mainstream.

Gautam: Well, and you certainly and that's a wonderful story. And uh you know how you got to where you got to and how your interest developed in environmental law. And it's amazing, isn't it some of these things that happen in our careers? They happen often by accident and then we and then we jump on them. I should have mentioned in my, in my, in my introduction also that your expertise has now meant that it's not just you being recognized in India, you are also a Door Tenant at No5 Barristers Chambers in London, which again shows your international expertise. And but let, but let me ask you this because we all need mentors and inspirations in our career and in our lives, quite frankly, if you look at your progression from that boy in UP who was learning from under the trees to now the international jet setting lawyer, which you are, can you, can you tell us a little bit about some of those mentors, some of those inspirations in your career so far?

Sudhir: Yeah. Gautam, my father had a huge impact and I have heard from you also. And when we, whenever we met and we have talked, we talked about parents. And I never actually told you this part that my father believed in my capabilities more than me. He is no longer in this world. And he always used to be super confident about law as a second career. Of course, he wanted me to become a civil servant and I was totally against doing law. I wanted to major in history and teach in a college. But he was so adamant sometimes whether whichever country we live in, we don't understand that the parents are the actual living gods, whatever religion you follow, whichever place you stay and they know something which you realize after 30-40 years. So he compelled me to take law as a course after my graduation where I taught my college in history. And I was very convinced I'll be a great historian. I had no major interest in anything whether it's civil services, but I had a great interest in history and Gautam, you'll be very happy to know even now my writings in Hindustan Times or my podcast in history is more popular than my Sudhir Mishra show for Law.

Gautam: That's, that's destiny.

Sudhir: I have no time for that and I always find time to do more in more work on history. So when I didn't clear the IS interview in India, there is a movie which has come last month, which is called 12th Fail. It's about a aspirant who after a lot of difficulties finally clears the civil service exams. It's a monumental loss if you face a competition, which 1 million people are writing and you are in last 1000 people and you don't clear it. It's like India losing the World Cup in the finals with Australia. So my father sent a telegram to my local guardian in Delhi. I was not talking to him. There were no mobile phones. Thankfully at that time, he said my son will become a successful lawyer and I guarantee him tell him to call me and talk to me. And then he convinced me. Once we talk that you take it in writing, you'll be very successful. I had no idea what he was talking. So he was my first mentor and rest is I will actually say that my, one of the few mentors was who actually introduced and got me in the baby steps in the legal profession was Mr. Parag Tripathi. And how I started with him I actually got few of the litigations with him when he became a senior advocate in Delhi 99. And he needed a competent junior attorney who can take over the role of advocate on record and Gautam, they were arbitration matters and they became very high stake arbitration matters. They had no connection with environmental law while I was regularly going to the trial courts trying to find some work to have daily standard of living. And I used to do work for the NGOS. I was also working on some very high pitch energy arbitrations which were where I was representing Power Grid Corporation of India Limited, which was newly bifurcated from National Thermal Power Company. And I was assisting Parag Tripathi And then I learned the entire aspects of arbitration with him and he was a great mentor. He gave me the confidence I was making mistakes, but he was very, very large hearted. My other mentor I would say was my friend and those are the people I will never forget Sridhar Potaraju, one of the lawyers I respect. We both were learning together. We were classmates and roommates. We were learning from our mistakes and we were having the courage to reject the easy options. Like he was working in a larger law firm at that time. And one fine morning, he decided to get independent and he's in line to become a senior advocate. Now you're doing very well. So my mentors were very unusual people. I never had the luxury of a top class senior working under him or even joining a large law firm even till now, of course, now the issue is very different that for last 2-3 years, virtually every major law firm uh wants me in some way, either through a module or through in any other capacity and it has all changed.

Gautam: Well, yeah, I mean, and, and that doesn't surprise me at all. Sudhir. And, and you know, you know, that talk about your inspirations is inspiring because we all need that and we need people to believe in us. And I'm so glad that people believed in you and, and you know, look like so many things that our parents say they come true and your dad did say that uh my son will be a successful lawyer and you certainly have become one. So um you know, so that's a very, very powerful story. Thank you for sharing that. Now let me turn to environmental law as a subject matter. I mean, as you rightly said a bit earlier on in this podcast, when you got into the area ESG was not on people's radar. Climate change wasn't really on the radar. The amount of coverage we get in the media about climate, environmental issues was not there. Now we get a lot of it. And rightly so because it's a very, very important issue and the environment is something that rightly has a lot more focus on it. When we think about the resolution of disputes involving environmental law. One of the developing trends is obviously how can these disputes of whatever kind be resolved in the best way? And inevitably, a lot of discussion is about the role of international arbitration and arbitration as a mechanism for resolving environmental related disputes. I wonder if you could share with us your thoughts on on is it a realistic objective that arbitration can be an effective tool for resolving and environmental disputes? And, and if so, why do we have enough people who are knowledgeable enough about the issues to be arbitrators in the field? I wonder if you could just share some of your thoughts on that, please. Thank you.

Sudhir: So Gautam before that allow me to tell you the journey of environmental lawyering in general for India, I would say India journey is my journey because most of the work on environmental law across the world, even if people feel that certain European jurisdictions were quicker and faster. In 1990s, the entire world actually started working towards 1994-95 and it continues. India became very conscious of its environmental damages after the 1985 Bhopal gas tragedy. And we had a lot of legislations which happened but our Supreme Court when they created a dedicated forest bench in 2002 and just see with the they are starting a forest bench and my starting environmental career, it happened parallel. So I got benefited out of the kind of opportunities which were happening in this country. Virtually more than 10 high courts, we're dealing with environment, forest, wetlands, climate change, wildlife issues, elephant corridors, tiger population matters. And there was a climate which was happening in India. There was a climate of those litigation which was happening in the U.S. There are a lot of cross border cooperation happening. Judges were interacting very freely and judicial academies were collaborating with each other. And I was part of that exchange program and I was seeing it actually from my own eyes, how U.S. Fish and Wildlife Service is cooperating with Indian forest environment. And it had a huge impact. India had a forest score of 9%. And today we have a forest score of 17% because much of it has happened. Despite our population and the geographical limitation, India has managed to save its tiger, its elephants, its wild population hunting is completely banned in India. And much of this has happened because of judicial activism on the environmental side. What was really bothering me since 2008-9 when I became more central about the environmental law and I became, you can say from more left to most central, I won't say more right because I'm still more central. I'll always think about the air pollution first before about a Catholic convector. So I would say that 2010 onwards, I was wondering what kind of planet you will save if you're not engaged with the companies, if you not talk to the corporate houses or you will not understand their contractual obligations, how will you resolve an environmental damage issue? And even if you're going as a nongovernmental organization against a company or against the government in an environmental court, like National Green Tribunal in India or maybe in some court against the automobile company in France or Germany. How will you take care of the community issues? And how will you expect the company to understand all those community issues? So I'll say the robustness in this entire understanding started happening post 2012-13 when ESG and the SDG goals came into being for the whole world. Now, if you see that's a movement which is going on for last 10 years now and it is going to do wonders. No, if we understand that first, then we'll understand the contractual part of it which are normally going to arbitrations. So what is happening now? 1000 plus companies which are now being directed by SBI, which is the securities exchange board of India and equivalent across the world. Every country, their top companies have to be ESG compliant. They need to have responsible green boards, their term sheets and their lendings have to have green commitments and green pledges. Now this is the background, new age arbitrations are happening. Now, what is the arbitration's main sector today? Construction industry, infrastructure, energy, oil and gas. These are the four major sectors for large commercial arbitration. Now, if you see all of them have some issue of the environment, water, air or some kind of forest or some kind of interface with the ecological issue. So you need the pollution expert, you need the social scientist, you need the the flora expert, you need the forest survey of India maps. You need the entire species understanding how they roam around, which are the go areas, which are the no go area. You are doing a contract with the government agency that I will go and mine in this particular area and your forest clearances have not come on time and tomorrow you're suing another company in an arbitration. Now you had no understanding of the entire environmental dimensions. So you need to now understand those environmental dimensions. That's the first part. The second part is which I'm learning right now. I was an expert witness in one of the initial environmental arbitrations, which was the oil and gas sector arbitration. And I realized that the insurance company was being sued for environmental damages. And I understood the importance of clear understanding of the environmental periphery. Now in London, we are having this Chancery Lane project Gautam. You would be aware about it where commercial contracts are having a specific environmental words and the environmental commitments as per the CUP commitments and those will be decided in your claim and counter claims and the expert evidence will be laid on them.

Gautam: Yeah. Ab absolutely. There's been a lot of development as, as you rightly say, and this is a really, it's been an interesting trend, you know, but do you think that there are enough people who are specialist in the area who could act as arbitrators in this field? Because one of the things is if you compare commercial arbitrations of one kind or the other, be it contractual disputes, JV, disputes, manufacturing disputes, pharmaceutical disputes, whatever you want to say, most arbitrators doing that sort of work would likely be able to say, yeah, I can do that. But environmental law and climate change, you know, and you know, the whole area like that is quite specialist. Do you think there are realistically there are enough people around who could act as arbitrators to ensure that arbitration has the best chance of success as the dispute resolution mechanism for these sorts of issues?

Sudhir: No, Gautam, I feel that we are in a very early stages and I compliment you for even suggesting me to blend my environmental expertise with the entire arbitration scene and I'll talk more about it. But you know, we are presently dealing with a very large oil and gas issue in India. During the pandemic. there was a gas accident where gas came out and people went right up to Supreme Court under Article 32 of the Constitution, Supreme Court was very much inclined to award a very large compensation. Long and short is for three years we kept on fighting and the way we fought was also something it's for every litigator. Uh He should understand what we try doing. We try to basically create a parallel narrative which is what people can't do unless you have a huge environmental expertise. So the court was going with the experts like they had appointed a committee. So the experts were relying on a particular set of maps. I started first demolishing those things only. I said these maps are not by the accredited agency which can prepare the forest survey of India maps. They are from the Google and other places which are not actually that authentic. Then when you talk about restoration of that area, I said already so much has been restored. Now, if I say I'm for the for the company which is supposed to have committed a wrong. So I got a Nobel Prize awarded consulting organization like the Energy Research Institute and they said that look your soil is better, your agriculture is back, your livestock is better, the human health is better and all those reports, we are much better than what the Supreme Court Committee was actually able to put it together and you imagine the consequences. So that's one part. Now, that particular company has initiated the arbitration against a contractor who was in charge of that entire. Now, if the arbitration has to be now fought, it's a large arbitration, what will, what will be the claim issues? What are, what all will be the heads of clean there will be again, the same restoration which will be talked about the ecological issue, the damage to the wildlife damage to the soil. So who will give those expert advice if you know in India, I don't know about UK, in India. If you're doing an infrastructure, large claim petition for a large public sector undertaking, at least some of my partners were telling me that the client comes with an expert. He says I have got an ex-head of their arbitration division who is now in his private capacity will prepare the claim petition. That is what you were saying that they have that expertise,

Gautam: Absolutely.

Sudhir: Who is that? Who is going to do that part if you have an ecological coloring of the entire commercial dispute. So there is a huge lack of lack of expertise. I think we need a complete different kind of mentoring where we need new crop of arbitrators, who will be the green arbitrators who will have a background in biodiversity, social sciences. Like one very important aspect, Gautam, which is often missed even in mainstream commercial arbitrations because I was representing POSCO in the entire National Green Terminal issue when they're being challenged, that you can't set up the project or the large work which happened on Vedanta in India when they had certain problems which they faced in Orissa. No. What was the biggest factor which became the detrimental factor, the social factor. So when you are talking about environmental expert, I think arbitration proceedings which have environmental dimensions also need social scientists who know which are the go areas if a particular pipeline is going, whether it can go through a particular village or a particular secret place, because those are the people who go and convince those communities that you have to allow this thing. So we need very different kind of skill sets for New Age green arbitrations.

Gautam: Yeah, I, I agree with you in short. I think it's uh it's too important and too specialist an area to not have it. So, but, but look, thank you for sharing those great thoughts and uh it's particularly great to hear that from someone like you who really knows this area who lives and breathes this area. And I think it's the first time for sure, in this podcast series, we've ever had anyone with this level of expertise in this area. And we wanted to highlight this whole area of environmental and climate and the interlink with arbitration. So thank you so much for your wonderful thoughts there. Now, as we draw to the to the close of this podcast, Sudhir, we always love to have some more lighthearted conversation because it because, and actually this segment is very popular with our listeners. They like to get a feel for our podcast guests and they've already got the feel of your legal expertise. But let me ask you some more lighthearted things. You're a very busy man. You've got, um, you know, your children to keep you busy. What are your favorite hobbies when you have time to indulge in your hobbies?

Sudhir: It keeps on changing. My favorite hobby is actually to think about food. I'm a foodie. I get up in the morning. You want me to be candid. And I still remember - I do my show and I had Priti Adanii who is, who called just last week. We were talking about you and she said he is my God brother and she said about you. So she said, can I ask few questions to you? And she asked almost on the same lines. So I am not prepared for real questions. So I'm a foodie. I think about food if I travel to London and if I'm in the flight, if I come out of the Heathrow, my first thought is to go to a particular place where I get the best Turkish food. So that plays in my mind. Movies have a huge, huge place in my mind. I, I love movies and there was a time when I used to watch all the movies on first day, first show. And so when I meet people who say I'm homesick and I have left my home and I have come to Delhi or I have come to any other place when I came to Delhi, leaving my rural background, I, I never had enough money to eat well or something, but I used to save money and feel very, very happy that I can watch a movie and without being accountable to my father who was quite against watching movies all the time. So I remain a movie buff and I drag people also for all kind of movies. For me, the definition of a good movie is that either it will be a good movie or very good movie.

Gautam: I love that. I love that classification. It's a superb classification. You know, it reminds me of that uh superb lyric. I'm going to sort of slightly adjust the lyric from James Brown who said, “I don't mind what you play as long as it's funky.” Um So, so, so, so that's, that's very, that's very, very good. And then let me ask you, I, well, since I talked about music, let my final question to you on this podcast. Be about music. OK. Do you have any favorite music or any particular groups or singers that you really enjoy listening to?

Sudhir: I listen to Nusrat Fateh Khan every day and Gautam, I listened to him because he's less a musician. He's more a Sufi saint and he was born in Pakistan and he is part of a Ganga Jamuni Tehzeeb and he's part of the uh I would say inclusive culture, which this entire subcontinent should have and which it had like in his music in his Qawwali's. you will also have the mention of Krishna. You will also will have mention of many other things which are very Indian. And I find a great resonance with the entire aspect and I find it a therapy like one of his very famous music and I encourage you to listen to it. Anybody can understand Tum Ek Gorakhdhanda Ho like He questions God for 21 minutes in this Qawwali. And he said that you say you are everywhere still, you can't be seen anywhere. So what is this contradiction? And what exactly is your entire game? So in that 21 minutes, he keep on asking God and keep on saying something sarcastic. They say so I'm a huge fan of Nusrat Fateh Ali Khan.

Gautam: Well, and you know, he's a fantastic, well, he's more than a musician. He's actually I think he, he tells stories as you rightly say and, and as you mentioned, a very interesting point, he transcends communities and he really brings diversity. In fact, you know, just what you said has just reminded me, in fact, has reminded me of something. And I'm going to ask you one final quick question actually. But let me first will tell you what you of what you said. Just reminded me as, as a young boy. I remember watching the wonderful film, Amar Akbar Anthony, in one of the classics. And there's a lovely scene in that film where the character being played by Rishi Kapoor who was playing Akbar was singing a devotional song to a Hindu deity, but he was playing a Muslim character. And it's, and it was a very uh it just, it, and that, that song has always been one of my favorite from any Indian film, not just because of its significance, but because of the diversity it showed. Um So that was one and I'm sure you know exactly the song that I'm talking about. So, so now let me ask you one final question because I can't resist because you are an international man. Is there one particular place apart from India that you love to travel to or around?

Sudhir: But you will have to allow me to say one place in India also.

Gautam: of course, please do, please do it. It's, it's your prerogative.

Sudhir: In India, in India. One place where I always love to go and I never liked it when I was growing up is my place of birth, Banaras, Varanasi the sacred city of India. And I managed to go there every two months or three months. If I'm in the country and internationally, it has always been London. For last 22 years I have been going there. There is no other place if I have any wish. If, if I can travel any time of the year and anything which I read about London also excites me and like I was, I was curious to find out that it was in the number grade in LCIA and Singapore International Arbitration Center. How far behind is that? I was talking to a few large law firm partners who had and for me, London is very close to my heart. I love everything about it. The kind of inclusive culture or the vibrancy it has and the depth of democracy it breeds is something which takes my breath away.

Gautam: Well, thank you. And on that lovely note, I want to thank you very much Sudhir for being such a wonderful guest. I've loved the conversation with you. Of course, I've had the great privilege of knowing you for a long time, but doing a podcast with someone is an, is an extremely enjoyable experience and this has been a great one for me. So thank you and I know that our listeners are going to enjoy it too. So once again, thank you Sudhir and I look forward to seeing you in person very soon.

Sudhir: Thank you, Gautam. It's a pleasure.

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