Post pandemic vis-a-vis Paradigm shift in global

scenario:

The key role of corporate lawyers in the contingency

and overcome-roadmap of recovery .
 

A Perspective
by
Dr.G.V.RAO – Senior Advocate, Supreme Court of India.

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What is Corporate Law

• The objective of corporate law generally involves overseeing all legal

and external affairs matters including litigation, investigations,
compliance, mergers and acquisitions, contract matters and
international trade issues. Corporate lawyers are tasked with
safeguarding the legality of commercial transactions, representing
companies and advising corporate employees of their legal rights and
duties. It generally focuses on how corporate and companies interact
externally through commercial transactions and internally through
corporate governance.

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Role of Corporate Lawyers.
• Drafting and negotiation of agreements:
• Leave and License agreement, Confidentiality Agreement, Assignment agreement, etc
• Advisory services – Corporate Law
• Research and advice on various issues in corporate law
• Compliance
• Looking after the various compliances of the group/company depending on the type of firm
• Handling litigations
• Engaging with external counsels and resolving litigations
• Appearing before the court and resolving the matter
• Drafting notices, affidavits, written statements, plaints, petitions
• Company secretarial
• Drafting of Agenda, Minutes, Notices of Board
• Dealing with various regulatory and compliance issues and with Registrar of Companies
• Handling Secretarial Audit, etc.

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Litigation areas for Corporate Lawyers.

The functions of a lawyer in corporate litigation include:

• Ensuring compliance with wage and anti-discrimination laws

• Defending companies against wrongful termination suits
• Securing compliance with new accounting and corporate governance regulations
• Litigating or mediating shareholder-derivative lawsuits
• Managing corporate tax compliance.
• Settling labor disputes with unionized workforces as well as with at-will employees and professionals
• Breach of contract issues, usually with other businesses, whether defending or prosecuting
• Tort issues, if a customer or client suffers injury from one of your products or services
• Corporate real estate issues, from premises liability to disputes with landlords or regulators

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The Impact of Pandemic on the Corporates.

•The COVID-19 pandemic, which has led to actions being taken under the Epidemic Diseases Act, 1897, and the
Disaster Management Act, 2005, in India, 
Impact on Data dissemination and privacy.

•The dichotomy between public health preservation and protection of the citizens’ fundamental right to privacy, albeit
viewed simplistically at present, is a serious concern and cannot be ignored. Tracking and surveillance in the present
situation does serve a compelling state interest, however, for the purposes of constitutional sanctity, it is imperative
to enforce safeguards as well. Justice KS Puttawamy (Retd.) and Another v. Union of India and Others, (2017) 10
SCC 1.

•Public health interest may be a legitimate reason to increase monitoring of individuals, but monitoring by
government authorities must be approached with utmost caution. If caution is not exercised in times of urgency, we
may be successful in containing the spread of the virus, but may irreparably damage the constitutional fabric.

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Patent Licensing in times of Covid-19 Pandemic

• In India, patent rights may be revoked in exceptional circumstances, with the objective of
maintaining a fine balance between the monopoly rights enjoyed by a patentee and the
responsibility of the Government to provide accessible and affordable public health Hence, the
Indian Patents Act enshrines within it, provisions in the form of restrictive obligations that are cast
on patentees to cater to times when public health needs to take precedence over commercial rights
and profits arising therefrom, especially when a situation such as the current Covid-19 pandemic
presents itself. 

• There will be issues that the manufacturers of the relevant drugs for cure and the Vaccines as well
and there be issues of patenting rights which may be claimed by some patentee who as discovered
same parts of those medication and that may have to be dealt with.

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Financial Instability and Debt Capital Markets.
Dealing with Financial Institutions and Business creditors.
• The novel coronavirus pandemic (“Covid-19”) has brought about a new set of challenges for the
Indian economy. While our economy successfully weathered the 2008 financial crisis, the current
scenario has halted economic activity for most of the sectors. While the reasons for the previous
and current crises are different, some trends are similar. One of these is the inability of borrowers
to service debt. There is lot of compliances requirement and adherence to Govt. directives to
loosen up the regulatory mechanism which would require legal process.
• Parallels can be drawn to the Covid-19 and the 2008 financial crisis in terms of measures taken by
regulators and issuers. The RBI has taken fiscal and regulatory measures to increase spending,
revive the economy and avoid a collapse of the financial system. SEBI has supported the RBI’s
objectives by providing regulatory reliefs and relaxations to various issuers. Similar to 2008,
issuers have become more judicious in terms of spending and are looking at various options to
refinance their maturing debt securities. This trend also appears to be the case globally with
refinancing primarily being the order of the day. Given the current macro-economic factors, an
uptick in debt capital markets is expected.

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FORCE MAJEURE IN THE TIMES OF PANDEMIC.
• The present lockdown has caused the Indian economy to grind to a halt. Some enterprises have already been
forced to shut down and there is a sense of increasing panic amongst many businesses. The images of
millions of migrants rushing home, some on foot, remind us that a large part of India depends on daily and
weekly income to survive. In fact, of the 400 million-strong working population of India, 25% are employed
in small, micro and medium sized enterprises. Various pundits portend the worst recession in living memory.
• Force majeure or an ‘act of God’ is a contractual clause that refers to an unnatural event such as an
earthquake, fire, war, or other such situation which prevents parties from continuing or performing their
contractual provisions. This clause exonerates parties from contractual penalties or liabilities during the
occurrence of force majeure. Such contractual duties could mean and include the occupation of premises, the
delivery of goods, the payment for services and other such acts for which the contract has been entered. The
force majeure event must make the contract impossible to perform and not just impose a financial burden on
the performance of the contract.
• Delhi High Court Judgement in Halliburton Offshore Services Vs Vedanta Ltd. Lockdown prima facie in
the nature of force majeure: Delhi HC restrains Vedanta from invoking bank guarantees against Halliburton,
for non-completion of the Contract before 31st March’2020
• However, Courts in the United States of America and the United Kingdom have specifically held that the
expression ‘Act of God’ includes a pandemic/ epidemic.

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 Frustration of Contract U/s -56 of the Contract Act.
•The doctrine of frustration of contract allows parties to cease performing contractual obligations where it becomes impossible to
do so in circumstances beyond the control of the parties. Section 56 of the Indian Contract Act, 1872 (“Contract Act”) provides
that a contract to do an act, which becomes impossible after the contract is made, becomes void when the act becomes
impossible. Naturally, the threshold to prove that a contract stands frustrated is very high, and parties will have to
prove that the contract is impossible to perform i.e., not literal impossibility, but that it is impracticable and useless
from the point of view of the object and purpose of the parties.
•A contract can be said to be frustrated if its performance is impracticable and useless from the point of view of the
object and purpose of the parties, though the performance of the contract itself is not necessary literally impossible.
•If an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered
into their agreement, it can be said that the promisor finds it impossible to do the act which he promised to do.
•Where there is no time agreed between the parties for performance of the contract, delay in performance of the
contract cannot be said to seriously affect the object and purpose of the contract, or the fundamental basis upon
which the parties entered into the agreement.
•The doctrine of frustration is usually applied by the court where it finds that the whole purpose or basis of a contract
was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond
what was contemplated by the parties at the time when they entered into the contract. When such an event or change
of circumstance occurs, which is so fundamental as to be regarded by law as striking at the root of the contract as a
whole, it is the court which can pronounce the contract to be frustrated and at an end.

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Real Estate Sector and others.
• The question being raised is whether the COVID-19 pandemic calls for a force
majeure consideration in the existing contracts. Force majeure clause acts as a protection to parties
wherein due to any unforeseen circumstances, either of the parties are unable to fulfil their
commitment as per the agreed terms and conditions of the contract. To put it simply, due to any
acts of god such as fire, flood, war, etc., parties are unable to perform their part as it is not
reasonably within the control.

• What can be observed is that the provision of force majeure does not defer the requisite of
performance by the parties. Parties are obligated to perform their part to the extent possible,
without getting interrupted by the event of force majeure. At a time when parties have exhausted
all measures to take control of any such event and are further obstructed to carry on their
performance under the contract for a certain amount of time as decided by the parties, the parties
under the contract may have the right to terminate such agreement if covered under the mechanism
of mitigation of force majeure event and/or also clear them by penalty provisions.

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The Legal System have to develop use of Technology for
access to Justice & Corporate Compliances.
.

•The Supreme Court has introduced Video-Conferencing facility to hear cases which are of utmost urgency. It has also introduced
E-filing Mechanisms so that Cases can be filed straight from Lawyers offices to the Court Registry to be followed by the High
Courts and district Courts.
•However, there are still various hiccups being faced such as functionality/uniformity of software and more importantly, equal
access to the software by lawyers and litigants.
•As a potential test, it may be beneficial to implement technology in a staggered manner, i.e. start with a certain category of cases -
employment matters and certain commercial matters - where urgent injunctions are necessary. Essentially, we may need to tide
through a brief period of trial-and-error by the courts to ensure that the wheels of justice continue to move forward on the
shoulders of technology.
•The post-pandemic period, when normalcy returns to the legal system. It is expected that in the aftermath of the COVID-19
pandemic, we will see a rise in cases including force majeure claims, adding to the overburdened legal system. There is general
consensus that the use of video conferencing should not be forgotten once normalcy returns, as utilizing technology can help
expedite disposal of cases and potentially rid our legal system of one of its oldest and most stubborn problems.
•It is believed that the use of technology will not only reduce the need of physical space such as court rooms or circuit benches, but
also solve the issue of overcrowding of courts which has also been an age old menace. Without the need for extensive physical
courts, technology will allow the justice delivery system to permeate the most remote parts of the country.
•The Supreme Court has already taken firm steps forward, which are expected to continue in the long term as well, such as e-filing
and mentioning via electronic means. Technology has the capacity to revolutionize our legal system; it is time our courts fully
embraced it.

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Career Opportunities for Corporate Lawyers.
• 1. Law Firms
Corporate lawyers work in drafting agreements for mergers, acquisitions, joint ventures, and the
likes or giving legal advice on labor or corporate law-related matters. In a survey of 2014, out of 75
students graduating from the national law school, Bangalore only five to ten students were going for
litigation and the rest were interested in joining a corporate law firm.
• 2. Corporate Litigation :
There is scope in corporate litigation which involves a whole host of tort and contract issues and
legal problems a corporation may face over the course of its life. Corporate litigation disputes can be
broadly divided into: Deceptive or Fraud Practices (Serious Fraud) Employer and Employee Dispute
Violation of Contract
• 3. In house Counsel :
After, a few of practice, essentially 3-5 yrs. Lawyers can get an opportunity to work in Private or
Public Limited Companies as their in house Counsel.

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Scope in Regulatory Bodies.
• 4. Corporate lawyers can work in regulatory bodies such as securities and exchange board of India (SEBI), Reserve
Bank of India (RBI), Insurance Regulatory and Development Authority of India (IRDAI), Competition Commission
of India (CCI) and Pension Fund Regulatory and Development Authority (PFRDA).  It includes work with various
departments, including surveillance, legal affairs, commodities, and litigation. The lawyers can be part of the team
that investigates matters related to the IPO irregularities and other scams.
• Nature of Work : -
• Adhere to the provisions given in section 230 to section 240 of the Companies Act, 2013 which deal with
arrangements, amalgamations, mergers and the procedure to be followed for getting the arrangement, compromise or
the scheme of amalgamation approved. To assist their clients with their appropriate financing for mergers and
acquisitions and provide advice concerning the drafting, negotiation, and performance of contracts for the sale of
portions of the business.
• In acquisitions, the lawyers participate in due diligence checks about the company which has to be acquired.
• It may involve the attorney reviewing the company finances, employee agreements, intellectual property, real estate
leases, environmental liabilities or any pending litigation involving the company and advice the buyer or seller about
these risks.
• Drafting a non-compete agreement stipulating that the seller cannot compete immediately with the buyer’s newly
acquired business.
• Assisting in matters of transfer of technology and intellectual property from one entity to another.

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 Legal Work pertaining to Taxation and Govt./Statutory
Compliances.
•    All legal services in the fields of Taxation laws
•    Income Tax Advisers
•    Tax Appeals Advisers
•    Tax Law Compliance And Returns
•    Tax Law Documentation
•    Legal advice forum for all matters related to Tax
•    Goods and services tax compliance, registration services
•    Filing of ITR, returns of taxes, litigation services in the fields of income tax
•    GST advise, planning, appeals, tax compliance
•    Advice and filing of Income Tax Returns (ITR), Dual Taxation advice, foreign tax advice, Foreign
Exchange Management Act (FEMA) compliance, Compliance of the RBI Guidelines for investors,
foreign investments

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Other Important areas of Corporate Legal work.
• Intellectual property rights
Intellectual property lawyers are professionals trained in the legislation and regulations that protect
individuals’ creations from intellectual theft. Basically, the role of lawyers is to deal with everything
legal in intellectual property. For industrial property, for filing an application for a patent or trademark,
protecting of patent or trademark, represent your case before a patent examiner or board, or write a
licensing agreement.
IP lawyers have to also litigate in matters of intellectual property and represent clients in courts. Some IP
lawyers also specialize in particular fields’ intellectual property laws: biotechnology, pharmaceuticals,
computer engineering, nanotechnology, the internet, and e-commerce.

• Banking and finance

A major practice area includes banking and finance which plays a pivotal role in the Indian economy.
The areas where a corporate lawyer can practice in banking and finance includes Project and Leveraged
Finance, Debt Restructuring, Acquisition Finance, Syndicated Lending, and Structured Products among
others. The type of institutions includes public & private sector banks, financial institutions,
multinationals, and non-banking financial companies.

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Other areas of Corporate Work.
• International capital markets.
The scope for corporate lawyers in international capital markets is very high. They work closely with
Underwriters, FIIs, Banks, Venture Capitalists, and Asset Management Companies. They routinely advise
clients on the aspects of Initial Public Offerings, Private Placements, Qualified Institutional Placements, Foreign
Currency Convertible Bonds, Global Depository Receipts and other high-value transactions.
• Private equity and venture capital transactions.
Corporate lawyers working in this niche are required to work on a range of services to private equity funds –
from funds formation and structuring to advising on primary and secondary investments. The work generally
revolves around assisting clients in exits and provide advice on enforcing contractual rights in contentious
settlements. Here the corporate lawyers need to have an in-depth understanding of India’s unique regulatory
landscape and an understanding of Indian promoters and counterparties will behave in different industry sectors.

• Real estate
A large percentage of corporate lawyers are engaged in the real estate sector. Real Estate lawyers advise some of
India’s largest real estate focused funds and real estate companies in investments, joint ventures, property
acquisitions/ sales, and leases. The lawyers have to be well versed with a range of real estate structures and have
a wide range of experience with handling complex issues in this sector.

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Tribunals, Statutory and Regulatory Bodies
• National Company Law Tribunal
• National Company Law Appellate Tribunal
• Competition Commission of India
• Forward Markets Commission
• Insurance Regulatory and Development Authority
• Securities and Exchange Board of India
• Securities Appellate Tribunal, Mumbai
• Telecom Disputes Settlement and Appellate Tribunal
• Telecom Regulatory Authority of India
• Financial Stability and Development Council
• Pension fund regulatory and development authority
• Prevention of Money Laundering Act Special Tribunal
• Enforcement Directorate Special Court

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Contd.
• Income Tax Appellate Tribunal
• Appellate Tribunal for Foreign Exchange
• Appellate Tribunal for Forfeited Property
• Intellectual Property Appellate Tribunal
• Central Excise and Service Tax Appellate Tribunal
• State Sales tax Appellate Tribunal
• National Consumer Disputes Redressal Commission
• State Consumer Disputes Redressal Commission
• District Consumer Disputes Redressal Forum
• Central Information Commission
• State Information Commission

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Contd.
• Advertising Standards Council of India
• Directorate General of Civil Aviation
• Motor Vehicles Claims Tribunal
• State Electricity Regulatory Commission
• Appellate Tribunal for Electricity
• Railway Claims Tribunal
• The Food Safety and Standards Authority of India (FSSAI)
• Central pollution control board
• State Pollution control Board
• Banking Ombudsman
• Insurance Ombudsman
• Income tax Ombudsman
• Electricity Ombudsman

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DEGREES THAT CAN ENHANCE CORPORATE LAWYERS SKILL SET AND PRACTICE BASE

• Diploma in Business Law

• Diploma in Corporate Laws & Management
• Diploma in Co-operative Law
• Diploma in Information Technology Laws
• Diploma in International Laws
• Diploma in Indirect Taxation Laws
• Diploma in Direct Taxation Laws

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UNDERGRADUATE DEGREES
• L.L.B.- Bachelor of Law
• L.L.B. (Hons.) - Bachelor of Legislative of Law (Honours)
• L.L.B (Intellectual Property Rights) - Bachelor of Law in Intellectual
Property Rights
• B.B.A.+ L.L.B.- Bachelor of Business Administration & Bachelor of
Legislative of Law
• B.B.A. + L.L.B (Hons.) - Bachelor of Business Administration & Bachelor
of Legislative of Law (Honours)
• B.Com + L.L.B.- Bachelor of Commerce & Bachelor of Legislative of Law
• B.Com + L.L.B.(Hons.) - Bachelor of Commerce & Bachelor of
Legislative of Law (Honours)

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POSTGRADUATE DEGREES

• L.L.M. (Business Law) - Master of Legislative Law in Business Law

• L.L.M. (Corporate and Securities Law) - Master of Law in Corporate and Securities Law
• L.L.M. (Corporate and Financial Law) - Master of Law in Corporate and Financial Law
• L.L.M. (Intellectual Property Rights) - Master of Law in Intellectual Property Rights
• L.L.M. (International Trade Law) - Master of Law in International Trade Law
• L.L.M. (Mercantile Law) - Master of Law in Mercantile Law

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 Top International Institutes for a degree in Law
Rank Name of Institution Location Web Site

1
Harvard University United States  www.harvard.edu
2
University of Cambridge United Kingdom www.cam.ac.uk
3
University of Oxford United Kingdom  www.ox.ac.uk
4
Yale University United States http://www.yale.edu/
5
New York University (NYU) United States  http://www.nyu.edu/
6
Stanford University United States https://www.stanford.edu/

 7
London School of Economics and Political Science (LSE) United Kingdom http://www.lse.ac.uk/home.aspx

8
The University of Melbourne Australia  http://www.unimelb.edu.au/

9
University of California, Berkeley United States http://www.berkeley.edu/

10
Columbia University United States  http://www.columbia.edu/

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Keep improving your Profile..!
• Try to keep acquiring as many qualifications
• Learn tools of Technology, whatever required.
• Try to get as many online Qualifications.
• Attend as many seminars and Webinars. (Keep track of them and list them Out.)
• Reading regularly is very important to remain UpToDate.
• Subscribe to Law journals or online portals like Bar & Bench and Live Law etc.
• Contribute by writing articles.
• Regularly read Newspapers and magazines related to Economy and Business, Like Economic
Times, Financial Express, Business Standard, BW Business world etc.
• Read material Corporate Leaders like Ratan Tata, Azim Premji, Narayanmurthy, Mukesh Ambani,
Bill Gates, Jeff Bozos, and Legal luminaries like Nani Palkiwala, Arvind Datar, Harish N.Salve.
Fali S.Nariman, Soli J Sorabjee.

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The Transition to Video-Confrencing during Pandemic,
will change world forever.

25
Technology is King..! Follow best Technology products.

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Learn from Lockdown Experience..!

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 Conclusion
• Work at least for 5 Years with Experts in the Field.
• Keep Learning all the Time, All life revolves around it. Everything we do is between
learning.
• Look for and create opportunities for yourself.
• Self Learning is the highest form of all learning.
• Keep taking guidance from those who are more accomplished then you, show respect
for that.
• Make difference to the Lives of people around you, be positive, cheerful, kind fair and
just, and you will be a success..!
• God helps those who help themselves. Good Luck & Best Wishes.

• THANK YOU !
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