In conversation with Hasit Seth on current issues in Arbitration, IPR and Oral Advocacy Skill-set

Hasit Seth is a counsel at the Bombay High Court. He has appeared as counsel in a number of commercial matters across sectors and forums including arbitration. His expertise lies in arbitration, negotiation and intellectual property.

He has been interviewed by EBC/SCC Online Student Ambassador, Shruti Dhonde who is currently pursuing law from MNLU, Mumbai.

 

  1. To start with, I would like to ask what considerations guided you towards carving out a niche for yourself in arbitration, negotiation and IPR?

A mix of factors led me to where I am. After my LLB from Mumbai University in 1998, I joined a senior advocate’s chamber to be a junior counsel. The work there was mostly commercial litigation including trade mark litigation. That got me interested in intellectual property (IP). I started my LLM at Franklin Pierce Law Center (FPLC) (now part of University of New Hampshire) in year 2000. At FPLC, my graduate advisor told me as I had a computer science degree, I should be doing patents, which was a much bigger field in US than trade marks. So I focussed my LLM work on patents. I did stints with two US law firms in patent litigation and prosecution.

On returning to India in 2005, I found patent litigation was a tiny field then, so I did other things in the corporate world around IP licensing and portfolios. Upon return to Mumbai, much later, I found commercial litigation to be mostly happening in the arbitration format. So I adapted to that during my stint as a partner at a law firm. Now, since three years of returning to counsel practice my work is mostly arbitrations, IP litigation and opinions. In 2008, I did a short course in negotiations at Harvard Law School out of curiosity as I was then involved in a lot of deal negotiations.

In short, I am basically a disputes lawyer who has adapted to different formats of law practice based on location and needs of my clients.

 

  1. Could you also shed light on your choice of acting in the capacity of counsel in the dispute resolution arena in terms of the factors that weighed in?

Counsel practice was always my first choice of format to practise law. When I started in 1998, there were not too many factors to consider. Law firms were few in number and they paid low retainers. Economy had been recently liberalised. I liked oral advocacy having seen my father late Mr B.T. Seth argue in courts sometimes. He had strict instructions that I should not even enter his office and figure out my own career without any help from him. But landing in US, I saw that even courtroom advocacy there (except jury trials) was mostly by written briefs and motions. So again, I had to adapt. I see an increase in written advocacy in India now compared to when I started. But the only constant over time has been that I like to study law in depth to discover its deeply interconnected structure of ideas that interface with society. Rest of the pieces like money, opportunities, etc. usually fall in place when the ecosystem around you benefits from such deep study of law.

 

3. In your experience as counsel, do you think the oral advocacy skill set varies with the sector and the forum in front of which you present oral arguments? If yes, what in your opinion are the differences that one needs to bear in mind when arguing?

We must understand that we all argue since we learn to speak as kids. Argument is a way of negotiating with the society around us. Oral arguments are more commonly known as most of us speak more than we write. Hence, it is silly to think arguments are learned in law schools. We all argue everyday in every walk of life. Hence, I have always found it amusing to hear that moot courts teach you to “argue”. They are more like drama competitions where you learn to do acting of “arguing”.

 

Advocacy, whether oral or written, has deep roots in language, rhetoric, psychology and logic. One needs a continuing study of these fields to have sharp tools of trade as an advocate. Legal arguments are merely a specific application of principles in these fields to law. If building blocks of advocacy are in place, then applying them for specific topics and forums is a matter of simply preparation.

 

Other thing to note is that what do you argue about using legal principles? Facts. There is no law school course about facts. The skills of observing, extrapolating, interpolating, narrating, interlinking and analysing facts come from an individual awareness of the world around us and how it works. Big barriers to mastering facts are our cognitive biases. This is also why many street-smart folks do as well in law as class toppers; they are simply good at understanding facts and human beings. One can never forget Justice Oliver Wendell Holmes Jr.’s quote, “The life of the law has not been logic; it has been experience.”

 

  1. Hearty congratulations on being the sole inventor of two patents. Based on your practical experience do you think India needs to improve the efficacy of the patent application examination process? What would your suggestions in this regard be?

I have not done any patent prosecution for a while to comment in depth. But in general, I feel patent offices everywhere are struggling with the quality of patent examination. The pressure on examiners to search for prior art in a short time is heavy everywhere. Patent offices can improve quality and efficiency of examination by having optimised distribution of patent applications for examination, dedicated examination teams for specific technologies and more intelligent tools for patent database searching.

 

  1. Congratulations on starting India Commercial Disputes Report. Could you share with us your motivation behind starting this newsletter?

It is just a small, hobby project that started in Diwali of 2019. Every disputes lawyer keeps a diary of cases that he or she thinks will be useful to cite someday. I thought it would be fun to share such notes with the wider world as an email newsletter. I am surprised that a thousand people have signed up for it. That said, one always turns to authoritative law reports like Supreme Court Cases to read full cases with all the nuances.

 

  1. In the very last line of your expert opinion, titled “Lost Profit Damages: A Paradise (not yet) Lost” on the SCC Online Blog, you have said that “may each step in the development of law of damages for the loss of profits and remoteness lead us to ever more precise standards to determine the contemplation of parties.” What in your opinion is the next step?

Law of damages is spread over an unstructured mass of cases. Principles of quantifying damages are sometimes precise as in personal injury cases but at times not so. Loss of profit damages are in that zone where remoteness has been a difficult test to apply. Any developments that bring more certainty to the grant of loss of profit damages and then its quantification are very welcome. The method of English common law has been to give broad tests as guidance which are applied on a case-to-case basis to specific fact patterns. There is a continuous quest for tests that are general enough to cover many future cases and specific enough to be applied precisely in the common law judicial world.

 

  1. As a Vis mootee, I thank you for contribution to the arbitration community by participating in the capacity of an arbitrator at the prestigious Asian International Arbitration Centre (AIAC) Vis Pre-Moot 2021. This year’s Vis moot proposition had an interesting issue in relation to patent licensing something that could also come up with WHO’s potential technology transfer arrangement – what regime should govern contracts facilitating transfer of knowhow as well the supply of raw material for manufacturing. Given your expertise in the field of patents and licensing, what in your opinion is a suitable international regime, sale of goods or licensing contracts?

This year was my first experience as a Vis Moot Court Judge at AIAC rounds. Luckily, the problem related to my domain of patents and licensing structured around Covid-19 issues. Technology that is difficult to reverse engineer is happily sold as products, e.g. software, which has licensing that discourages reverse engineering. But technology that is not hard to reverse engineer needs licensing to provide IP protection. Despite Covid-19’s severity, we have seen heavy reluctance to grant compulsory licences which leaves only voluntary licensing on the table. Plus, unlike chemical drugs that are relatively easy to reverse engineer, vaccines are not easy to replicate through patents alone. Further, vaccines have seen independent developments using various approaches like mRNA, etc. Hence, a WHO-run FRAND (fair reasonable and non-discriminatory) patent pool licensing may be a better strategy. Though FRAND patent pools are not common in the pharma world, but they have been found useful in software and telecom fields.

 

  1. On a concluding note, what advice would you like to give to current law students?

I do not want to be preachy. We have a brilliant new generation of lawyers coming up who seem to know everything and are very sure of everything they want. All I can say is that an effort to study law deeply in college or later too, is a rewarding experience, both intellectually and financially. This is easily the golden age to study law in depth with centuries of case law being available online in a searchable format.

 

Also, note that in a developing country like India, shelf life of a particular law practice is short at times. For example, telecom law was a sunrise field ten years ago. Now, with only three telecom majors surviving in India, telecom law is arguably a sunset practice area. Of course, there will be telecom law work in future too, but it will not generate work for hundreds of lawyers as it did in the past. This again relates to studying law in depth. If you are sure of your fundamentals, you can make a switch to another growing field of law.

One comment

  • Very enlightening. Hasit Sir, has put things into perspective for the young lawyers on several issues, especially his emphasis on adapting to change is a must take home point here.

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