MAR APR 2024 The sheer numbers paint a picture of what a staggeringly large exercise the ongoing Indian election is. In total, 543 members of the Lok Sabha will be elected in voting that spans seven phases from Apr. 16 to June 1, with up to 970 million people expected to turn out. The incumbent prime minister, Narendra Modi of the Bharatiya Janata Party (BJP), is running for a third consecutive term; should he win, he will achieve a feat accomplished only once previously, by Jawaharlal Nehru, one of the founders of modern India. While much of the election campaign has been dominated so far by religious and cultural elements – including the BJP’s stated aim of remaking India going forward – from a legal industry standpoint, it would be useful to look at what sort of policy changes we can expect to see in Modi’s third term (which is looking increasingly likely at this point). The political stability is likely to lead to policy continuity, which could bode well for market sentiment. There should be further progress towards digitalisation and a continued policy push toward manufacturing and exports, given India’s increasing presence in global value chains. Lawyers also expect to see the acceleration of reforms, including clean energy transition, an increase in infrastructure spending, and a broader manufacturing push. To attract more foreign investment, however, more needs to be done. These include building momentum on long-pending structural reforms to free up the land and labour markets, reducing the amount of policy and regulatory uncertainty, and improving the ease of doing business on the ground, especially in the various states. How much of this can be accomplished remains to be seen. – RANAJIT DAM INDIA GOES TO VOTE Bingqing Wang Rankings Editor Rowena Muniz Copy & Web Editor John Agra Senior Designer Rozidah Jambari Traffic / Circulation Manager Krupa Dalal Sales Manager (91) 87 7967 7503 Ranajit Dam Managing Editor Amantha Chia Head of Legal Media Business, Asia & Emerging Markets Nimitt Dixit Asia Writer

2 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MARCH-APRIL 2024 Archeus Law Gravitas Legal Khurana & Khurana Legal Scriptures Nora Chambers Numen Law Offices Regius Legal RHP Partners Saakshya Law S&LL Law Chambers Sim and San Solaris Legal Sujata Chaudhri IP Attorneys Triumvir Law UBR Legal Advocates UKCA and Partners In the spotlight ALB INDIA TOP DISPUTES BOUTIQUE FIRMS 2024 In its inaugural list, Asian Legal Business shines a spotlight on India’s leading legal advocacy firms specialising in resolving complex legal challenges. These firms are redefining dispute resolution in India with their unparalleled expertise and proven track record. From navigating intricate commercial litigation to creating innovative solutions, these firms offer exceptional legal services. LIST BY ASIAN LEGAL BUSINESS, TEXT BY BINGQING WANG Image: Andrey_Popov/

3 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM UKCA and Partners UKCA and Partners, a leading dispute resolution boutique in New Delhi, offers strategic representation across various legal issues. Their team analyses each dispute comprehensively, considering legal and broader business and personal implications for clients. Under the helm of managing partner Manisha Chaudhary, they leverage a multi-disciplinary team with expertise in both traditional litigation and alternative dispute resolution (ADR) options. This flexibility allows them to tailor approaches to each case, utilising multiple strategies simultaneously. Open communication and transparency are core values, with regular client updates and clear explanations throughout the process. UKCA and Partners is known for its ever-evolving strategies, consolidation of multifarious cases and success. This expertise is displayed in a high-stakes battle between real estate titans MGF Developments and Emaar India (formerly Emaar MGF Land) before the National Company Law Tribunal (NCLT). UKCA advised MGF in seeking enforcement of a demerger order initially granted by the NCLT’s Principal Bench in New Delhi. However, Emaar India allegedly employed various tactics to stall the process, prompting MGF to file a new application under Section 231 for the implementation and execution of the demerger order. This application is still pending adjudication. Emaar India then countered with a petition under Sections 241-242 of the Companies Act, 2013. They accused MGF of oppression and mismanagement and sought a significant sum of $320 million in damages. UKCA was again approached by MGF Developments to defend them in this counter-petition. UKCA’s formidable defence successfully prevented Emaar India from securing any interim reliefs before the NCLT. The dispute extends beyond borders, with MGF also initiating arbitration proceedings under the Demerger Framework Agreement before the London Court of International Arbitration (LCIA). UKCA’s role in this complex case extends beyond domestic law. Their team has been instrumental in providing the London-based legal team with all the necessary assistance to understand the intricacies of Indian law and relevant judicial precedents. METHODOLOGY Several key factors are considered in the selection process for the listing: • Firms must be demonstrably established within the Indian legal landscape, primarily focusing on resolving complex legal disputes. • The selection process prioritises boutique firms with a smaller partnership structure, fostering agility and responsiveness. • Extensive experience and a proven track record in handling complex legal disputes across various sectors are essential. • Recognition and standing within the legal community for excellence in dispute resolution is a significant factor. • Emphasis is placed on firms with a reputation for prioritising client satisfaction and achieving successful outcomes in complex legal challenges. Manisha Chaudhary

4 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MARCH-APRIL 2024 The Insolvency and Bankruptcy Code, 2016, has a timeline of 270 days to complete the Corporate Insolvency Resolution Process (CIRP), including any extensions granted. This includes an initial 180 days, plus an additional 90 days in exceptional circumstances. As per the latest figures up to December 2023 released by the Insolvency and Bankruptcy Board of India, 68 percent of CIRPs have missed the 270-day deadline, and the average time for resolution has reached 677 days for financial creditors (FCs). Even with these timelines, FCs have managed to recover only 33.8 percent of their admitted claims. While FCs have realised 177.6 percent when compared with the debtor’s liquidation value (the lowest possible value estimate of a debtor’s existing assets), lawyers say this is a case of a few large CIRPs pulling the average up. This low and slow recovery is turning financial creditors and potential investors, who look to buy companies under CIRP at cheaper prices, away from the one-time settlement prior to the initiation of the CIRP, says Piyush Singh, a partner in PSP Legal’s debt resolution practice. The haircut on settlement value significantly increases for FCs post-CIRP versus pre-CIRP. Pre-CIRP settlement recoveries can go up to 40 percent, but settlements agreed to after CIRP commencement can bring down recovery to as low as 10 percent, Singh explains. This is truer for smaller FCs, who usually get bulldozed by the larger creditors in the statutorily mandated Committee of Creditors that are to approve a resolution plan, Singh adds. The data reflects this trend, as of the 7325 claims admitted till December 2023 by the NCLT, over 2150 have been settled or withdrawn before the initiation of the CIRP process. Only 891 have reached approved resolution plans. Creditors are preferring to walk away based on lower net present valuation today rather than wait two to three years to receive only a marginally higher payout after having dealt with frivolous creditor claims, institutional delays and unending litigation, says Abhirup Dasgupta, senior partner at HSA Advocates. Lawyers explain that there is a direct correlation between the delays at the NCLT and the recovery value for a creditor. WHAT AILS THE NCLT Institutional vacancies and technical incompetency at the NCLT are the two major reasons for such delays from the IBC timelines. Of a total sanctioned strength of 62, the actual strength of the NCLT across its boards in India had reached as low as 28 in September 2021, as per the government’s own documents presented before Parliament. While today, the strength has improved and was noted as above DEATH OF A TRIBUNAL Lack of judicial capacity, incompetency, and frivolous litigation in the National Company Law Tribunal (NCLT) have led to decreased values and increased timelines for debt recovery under India’s bankruptcy code, driving financial creditors and prospective debt buyers away from India’s foremost stressed asset resolution scheme. BY NIMITT DIXIT “The solution is to have younger, commercial-minded, industry-fit and regularly trained lawyers on specialised NCLT benches focused only on IBC cases, lawyers say. An increase in the number of benches and prioritising resolution of claims rather than admission, as is the government’s policy today, will also release pressure.” Image: REUTERS/Francis Mascarenhas process. While financial creditors continue to file claims, they do so mostly as a pressure tactic in order to obtain a

5 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM 90 percent for the first time since its inception in 2016, a special parliamentary committee noted that the appointment process reveals “a vicious cycle of appointment of new members alongside retirement/completion of term of old members thereby rendering a perpetual vacancy in the tribunal that is plagued with inordinate delays in cases regarding both IBC and Companies Act.” “Apart from the human resource gaps, the committee would like to highlight that the NCLT is functioning with poor infrastructural setup,” the report found. Admission of claims, which is to take place within 14 days under the IBC, does not conclude for at least three months in any contested case, says Dasgupta. And there is no guarantee that once a matter is listed on a cause list it will be heard. Over 25 percent of the time, the court will not convene, or the case will not reach due to the large number of matters listed above it on the day. And in 50 percent of cases, arguments do not conclude due to judicial incompetency or unnecessary delay tactics, Dasgupta explains. Due to huge backlogs, continuances are easily granted, with next hearing for the case scheduled at least 20-30 days later, Dasgupta adds. The NCLT is also responsible for approving mergers and amalgamations under the Companies Act, which takes up only one day week, further delaying the M&A process in the country as well. NEED FOR DISCIPLINE There is a need for judicial discipline and proper training, lawyers say, adding that their frustration with the system stems from a lack of judicial competency. An NCLT bench comprises a judicial member and a technical member. The judicial members come from lower courts and have little to no understanding of financial laws, debt recovery or the functioning of such specialised tribunals. Meanwhile, the technical members are career bureaucrats who generally do not function at a commercial pace. They do not understand modern commercial concepts needed for any debt recovery proceedings and are poorly and improperly trained. It is also tough to train careerists who have retired from government service. This lack of training and commercial understanding means more time is granted to hear frivolous objections. NCLT approval for resolution plans, which should be a ‘tick-in-the-box’ exercise once the committee of creditors approves the plan, becomes a longdrawn process taking up to five years in some cases. This has led to many successful resolution applicants backing out of resolution plans that have lost value post-CoC approval, pending NCLT approval. The value of a company in insolvency continues to fall, and a resolution plan that was valid at the time of approval if thrown out the window by years of delay at the NCLT, Dasgupta explains. This means fewer investors will look at IBC assets as valid investment options, further reducing the IBC’s effectiveness as a debt resolution mechanism. Lawyers, on conditions of anonymity, have shared instances where technical members are sleeping on the bench during hearings, while some have been known to grant untimely continuances for months on the basis of procedural and filing errors, which are not contested and would take minutes to resolve. The solution is to have younger, commercial-minded, industry-fit and regularly trained lawyers on specialised NCLT benches focused only on IBC cases, lawyers say. An increase in the number of benches and prioritising resolution of claims rather than admission, as is the government’s policy today, will also release pressure, Dasgupta adds. Mandatory institutionalised training is also necessary to improve the situation, another lawyer says. The National Judicial Academy in Bhopal must host training camps not just once, but continuously, to apprise judges of the latest developments, key phrases and financial state in the market, with experts from the industry leading such training. A top tier law firm partner even suggests that law firm practitioners like himself will be willing to serve as judges for some years as a public service, if the law can so allow for it. Deals $8.5 BLN Viacom18’s merger with Star India Deal Type: M&A Firms: AZB & Partners; Cleary Gottlieb Steen & Hamilton; Covington & Burling; J. Sagar Associates; Khaitan & Co; Shardul Amarchand Mangaldas; Skadden, Arps, Slate, Meagher & Flom Jurisdictions: India, U.S. $2.1 BLN British American Tobacco’s divestment in ITC Deal Type: M&A Firms: Herbert Smith Freehills; Shardul Amarchand Mangaldas & Co Jurisdictions: India, UK $1 BLN Sterlite Power and GIC’s power transmission joint venture Deal Type: JV Firms: AZB & Partners; Khaitan & Co; Shardul Amarchand Mangaldas & Co Jurisdictions: India, Singapore $718 MLN Edelweiss Alternatives’ acquisition of L&T Infrastructure Development Projects Deal Type: M&A Firms: AZB & Partners; Trilegal Jurisdictions: Canada, India, Singapore $300 MLN Bharat Highways InvIT’s IPO Deal Type: IPO Firms: J Sagar Associates; Shardul Amarchand Mangaldas & Co; Trilegal Jurisdiction: India $233 MLN Multiples and Advent International’s investment in Svatantra Microfin Deal Type: M&A Firms: Cyril Amarchand Mangaldas; Khaitan & Co Jurisdiction: India

6 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MARCH-APRIL 2024 It’s no secret that the Indian legal industry has generally been behind the curve when it comes to embracing technology. The legal community has typically alienated itself, often strategically, from the tech-explosion that has driven the country’s growth over the last two decades, dismissing available market tools as imprecise, lacking legal acumen and non-pragmatic. This tech-free (or at least low-tech) model continued to work through the years, reinforcing the view that legal market growth is not tied to tech adoption. The landscape, however, began to change in the latter half of the last decade, with the emergence of a legal-tech industry and a new crop of tech-adept law firm leaders who saw utility in creating tech infrastructure in not only increasing efficiency and reducing costs, but also as an effective brand-building tool. Additionally, with the emergence of boutique law firms offering high-quality services and a personalized approach at competitive prices, the legal market has become increasingly competitive. Consequently, top law firms can no longer ignore the need for adopting technology tools to remain relevant and competitive in a fragmenting and disruptive market environment. Failure to embrace technology could potentially lead to a loss of market share and diminished competitiveness. LINKING TECH TO GROWTH Cyril Amarchand Mangaldas led the way for law firms as far back as 2017, signing an agreement with Canadian AI software provider Kira to handle its contract lifecycle management on transactions. It was also among the first to hire a C-suite level technology executive, hiring Komal Gupta as its chief innovation officer to drive its tech-integration. Today, technology professionals are in high demand in the legal fraternity, with even smaller law firms making strong financial commitments to building tech capabilities. Gupta, a lawyer by training, says the increasing trend of law firms in India hiring technology executives is a response to the ongoing digital transformation within the legal industry. “Law firms are recognizing the need for adept professionals who can guide them through this dynamic digital landscape,” she says. Despite its high investment cost, the need to stay in the game has driven mid-size firms to invest in tech-growth. In March, criminal-law-focused MZM Legal became the latest to hire a chief technology officer in Suchorita Mookerjee, who was previously a senior vice-president for legal shared services at U.S. business solution provider Exela Technologies. “A technology strategy for Indian law firms especially for large and mid-size ones is no longer an option but is about to be the new normal,” says Mookerjee. TYPE C FOR TECH Indian law firms have been reluctant to invest in legal technology.However, with the advent of precise AI-based technologies and an increasingly competitive market, embracing legal technology is no longer an option but a necessity. Law firms are now increasingly hiring technology management professionals who can chart a roadmap for technology-driven financial growth, and develop innovative client solutions leveraging cutting-edge technologies. BY NIMITT DIXIT Image: PopTika/

7 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM “Clients are calling for law firms to innovate and provide more value for money services. Courts are evolving and digitizing actively forcing firms to comply with the same. Overheads are killing firms so any technology that can help increase the efficiency and productivity is being sought out. Market pressure is not being kind. In these challenging times, staying focused on the path ahead includes considering technology as an integral partner towards the success that law firms wish to achieve,” explains Mookerjee. Mookerjee points out that budgets for tech investment are increasing rapidly at law firms. “Post pandemic, there has been a boost in that direction. Ten years ago, legal tech wouldn’t have been on the priority list of a law firm. Today it probably figures in the top three.” Globally, 10-12 percent of annual budgets at law firms are towards technological advancements. However, Indian law firms are yet to meet that standard, Mookerjee says. Gupta at CAM explains that quantifying return on investment when it comes to technological infrastructure remains a challenge in law firm budgeting. “While quantifying the return on investment in the initial stages can be challenging, the impact on quality, time savings, and user experience can be measured during pilot stages,” Gupta explains. BUILDING A TECH ROADMAP What law firms do seem to agree on today is the right executive-level leadership is key is driving forward technological change into its process. A technology executive is responsible for building tech infrastructure broadly on two fronts: Internally to improve firm efficiencies, reduce overheads and better financial health; and externally to provide clients with tech-forward innovative solutions at competitive prices. As head of technology, an executive will examine existing infrastructure in the context of its alignment with the firm’s long-term growth and strategic objectives. “Creating a comprehensive technology roadmap always helps to define the movement from “as is” to the future stage,” Mookerjee says. Then the officer will about building the right capabilities suited to their firm, both immediate and in the long run. “When faced with a problem that requires a solution, I thoroughly evaluate both market-available solutions and the potential for developing a customized in-house solution,” explains Gupta. “If a solution is deemed impactful but requires changes to the existing setup, I advocate for these changes to be implemented first. During implementation, I invest significant time in providing regular training to end-users, managing expectations regarding the capabilities of the technology, monitoring impact and outcomes, and providing feedback for continuous improvement,” she says. Linking technology to the financial health of the law firm is a key task of technology officers. Harnessing generative AI to improve accounting, practice management, resource allocation, cybersecurity, business intelligence and ultimately profitability allows law firms to take control of their finances with unprecedented precision and ease. “For example, advanced analytics provides a panoramic view of a firm’s financial landscape, highlighting profitable areas and identifying where costs can be trimmed. Automation in billing has directly translated to improved cash flow and profitability. Automation in time tracking has reached a different level with geo tagging,” Mookerjee explains. With a vast array of vendors and software providers at their disposal, a technology officer must pick the right partner, or build capabilities internally, to implement the firm’s vision at the right cost and within the right timelines. PICKING THE RIGHT TOOLS Technology is an important partner rather than just a third-party vendor for a law firm, says Mookerjee. Currently the buzz word is ‘AI enabled’ tech. Experts say that most firms see that AI possibly gives workable solutions. “This wasn’t the case five-ten years back where solutioning only ensured 20-30 percent delivery. Manual intervention/quality checks were still required. With AI, the solutioning sought for the issue has reached about 80-85 percent and it can only get better as the AI learns. At an immediate level, firms are looking at investing in document management, practice management software and data security management solutions,” Mookerjee explains. Identifying, contracting and managing AI software providers for law firms is tough, says Mookerjee. “Getting them to understand why a lawyer wants what they want and why nothing less than a complete solution is expected is tough. Developers have their own style and their own logic. That logic often clashes with the way lawyers perceive things. Just basic levels of disconnect in nomenclature and taxonomy logic can lead to an entire algorithm going wrong and not picking the right variable.” “Cost factor cannot be ignored. In India, other than the top 20 law firms not many can afford the kind of tech that is out in the market. Also, with technology there is a need to constantly upgrade which is not only costly but time consuming as well,” she adds. Bigger law firms are looking to build more technology in-house, as Gupta points out. In 2019, CAM has set up Prarambh, India’s first legaltech incubator with the aim of nurturing young entrepreneurs and developing bespoke legal technology solutions for the Indian legal market. “Working with legaltech developers in our legaltech incubator, Prarambh, and with those which the firm has subscribed to, has been a rewarding experience. They have been open to understanding the specific requirements of legal professionals, which is crucial given the intricacies of the legal field. Their flexibility in customizing solutions to meet these needs has been particularly valuable. Equally important is their willingness to receive feedback positively and make necessary changes accordingly,” Gupta says. “In the legal world, precision is paramount; every word, punctuation mark, and formatting choice can significantly impact the meaning and legality of a document. Therefore, having founders and developers who understand and prioritize accuracy is invaluable,” Gupta adds.

8 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MARCH-APRIL 2024 Forum BUILDING A BRAND The year 2024 is poised to bring about significant transformation in the field of marketing operations. This trending development is set to drive law firms to hone and maximise their marketing tech stack as they seek to deliver increased efficiency and better client service. BY NIMITT DIXIT QUESTION As a law firm marketing professional, what strategies unique to the legal market do you use to enhance the firm’s marketing efforts, client engagement and drive innovation? Rahul Gossain, chief strategy and brand officer, J Sagar Associates A strategic approach to legal marketing involves defining a distinctive position aligned with overall business objectives and adopting an approach with the primacy of Below The Line (BTL) marketing. This requires establishing a clear marketing and communications architecture, which relies on carefully designed strategic programs and initiatives tailored to each firm’s unique strengths and priorities across various levels of the organisation – firm, leadership, practice areas, partners, sectors, practice groups, and management teams – in the short, medium, and long terms. To be meaningful in today’s cluttered era, legal marketing strategists need to focus on continuous innovation when driving thought leadership and other initiatives, for them to be able to effectively deliver client outreach and engagement. Given the legal constraints and restrictions, content, innovation, relationships, partnerships, and research become the central pillars of law firm marketing strategy. Effective approach involves careful planning and readiness to be able to deploy multiple marketing, communication, and outreach tools in a synchronised manner, time and again, while simultaneously incorporating external feedback and adapting to changes in market dynamics. Navigating the complexities of a matrix law firm environment, especially within full-service firms, thus demands highly agile and responsive marketing teams capable of adapting to dynamic internal, domestic and international external environments. Archana Venkat, chief marketing officer, Trilegal Law firm marketing is evolving beyond social selling, and India’s competitive market demands a more structured and data-driven approach. Clients seek transparency, collaboration, and business acumen from their legal advisors. Marketing teams can enable this by leveraging data and technology to personalise outreach, improve client service, and drive innovation. Firms are increasingly investing in building robust scalable marketing infrastructures, alongside processes, and centralised information systems, such as CRMs. These systems can provide a single view of the client’s touchpoints and experiences with the firm, and nudge collaboration among Partners. Advanced CRM systems can also make engagement pricing recommendations based on historical comparisons and market data. Future CRM systems can also integrate with content marketing systems and workflows to support the creation and dissemination of multi-channel content. In future, the role of the law firm CMO could evolve into more strategic areas, such as identifying key clients and developing special programs to improve profitability, structuring business collaborations with the legaltech and AI ecosystems to power client experience and co-create products with clients. Hitesh Kalwani, business strategist, Khaitan & Co The essence of adept business development lies in the cultivation of relationships, sustained engagement, promise of delivering value, and assertive pursuit of opportunities. Several guiding principles underscore this approach. First, consistently prioritise the cultivation of connections with clients and prospective clients. Business transactions thrive on the foundation of familiarity and trust, particularly when clients are confident in one’s comprehension of their industry intricacies and individual requisites. Second, remaining visible within one’s network is of paramount importance. Failure to periodically engage with clients and referral sources risks relegating one’s presence to the periphery of consciousness. It is essential to maintain a structured follow-up regimen and utilise social media platforms as conduits for sustained engagement. Finally, harness technological resources to streamline activities in alignment with targeted marketing objectives. Given the advent of generative AI and a myriad of legal tech tools tailored to specific requirements, it is crucial to remain abreast of technological advancements and leverage them to yield tangible results.

* The schedule is subject to change. For more information, please contact Bingqing Wang at or visit Rankings and Listings Publication Month Deadlines India Rising Stars JanuaryFebruary 15 December 2023 India Top Disputes Boutique Firms (NEW) March-April 19 February 2024 India Top PE/VC Boutique Firms (NEW) May-June 1 April 2024 India Super 50 Lawyers July-August 7 June 2024 India Top Corporate/M&A Boutique Firms (NEW) SeptemberOctober 5 August 2024 India Top Intellectual Property Boutique Firms (NEW) NovemberDecember 7 October 2024

10 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MARCH-APRIL 2024 In March, the Committee on Digital Competition Law in India released its report, which included the draft Digital Competition Bill, 2024 (DCB). However, the proposed regulatory approach envisioned in the DCB is raising more concerns than it aims to alleviate. Legal experts and policy groups say it increases compliance, stifles innovation, reduces market access for smaller companies and fails to address the key issue: Delays in the Competition Commission of India’s (CCI) investigation mechanism and adjudication process. WHY IS THE EXISTING COMPETITION ACT BEING OVERHAULED? Citing the inadequacy of the expost, or the post-violation investigation, mechanism under the current Competition Act (CA) in dealing with the increasing pace of digital markets, the committee’s report has suggested a new law, the DCB, to monitor anti-competitive conduct of certain “systematically significant digital enterprises” (SSDEs), in an ex-ante manner i.e. regulation of conduct to prevent any potential anti-competitive conduct. The committee found that the CA is not designed to facilitate speedy redressal of anti-competitive conduct given the extensive fact-finding and tiered adjudicatory process, leading to prolonged enforcement proceedings. It noted that because of the prolonged proceedings, there is a possibility of the markets tipping in favour of the dominant digital player. IS A NEW LAW NEEDED TO GOVERN DIGITAL MARKETS? But instead of creating a new law, these issues could easily be addressed within the scope of the CA legal experts say. “The existing competition law framework is sufficiently broad and malleable to address concerns arising in the digital economy, and the introduction of the exante legislation is likely to create legal uncertainty and operational challenges for digital players,” says Akshayy Nanda, a New Delhibased competition partner at Saraf and Partners. “It is the delay by the appellate bodies in final adjudication of competition cases and prolonged litigation that needs to be addressed, which may also become a similar challenge under the new ex ante legislation,” Nanda adds. Market tipping concerns can be effectively addressed by re-examining the power given to the CCI to pass interim orders during the course of an investigation. “The report does not discuss or deliberate on how the power to pass interim orders is inadequate to address the issue of the market tipping in favour of the large digital player during the course of an investigation,” Nanda explains. Image: TippaPatt/ u u WHY DCB’s EX-ANTE APPROACH MAY NOT BE RIGHT TO ADDRESS BIG TECH CONCERNS BY NIMITT DIXIT Explainer

11 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM Law Firm Hires ABHIRAJ ARORA LEAVING Economic Laws Practice JOINING Saraf and Partners PRACTICE Securities LOCATION New Delhi POSITION Partner JIVESH CHANDRAYAN LEAVING HSA Advocates JOINING Lakshmikumaran & Sridharan PRACTICE M&A LOCATION New Delhi POSITION Partner REVANTA MATHUR LEAVING Anand and Anand JOINING Cyril Amarchand Mangaldas PRACTICE Intellectual Property LOCATION New Delhi POSITION Partner SANJIT NAGARKATTI LEAVING Ola Electric JOINING Economic Laws Practice PRACTICE General Corporate LOCATION Bengaluru POSITION Partner SIDDHARTH VEDULA LEAVING N/A JOINING Cyril Amarchand Mangaldas PRACTICE Real Estate LOCATION Mumbai POSITION Partner The DCB’s focus is rightly on ensuring fair competition in the digital market by preventing abuse of dominance. However, its recommendations suffer from a lack of extensive stakeholder discussions and a failure to understand the need for regulatory freedom for innovation-led market growth, which is the lifeblood of the tech industry. “The introduction of the exante digital competition law could stifle innovation by imposing overly burdensome regulation on digital companies. Any regulatory intervention that hampers innovation could have far-reaching consequences, stifling creativity, and impeding breakthrough developments in technology and services,” Nanda says. Furthermore, the law may have unintended consequences that make market access a lot harder for smaller tech players, who rely on potential SSDEs like Google, for targeted advertising, identification services and discoverability. WHAT WILL BE ITS EFFECT ON THE LARGER TECH MARKET? A survey by New Delhi-based policy think tank Esya finds that 61 percent of surveyed MSMEs indicate that limitations placed on targeted advertising of large digital platforms under the DCB will have a negative impact on them. It also found that 6 out of 10 MSMEs would be negatively affected by restrictions on sign-in services of digital platforms. This ratio is twice as high as that of those in favour of such restrictions. Nanda also questions whether the suggested ex ante regulation could really lead to the changes intended in the tech space. “Many customers of the large digital platforms are satisfied with the services, ecosystems and possibilities that these platforms offer.” Google, which follows a nearidentical law, the Digital Markets Act (DMA), in the European Union, reported early responses to DMA compliance. While traffic to a small number of successful digital intermediary services increased, direct engagement with a wide range of businesses like airlines, hotels, local merchants and restaurants significantly decreased. The DCB also increases compliance burdens, and “digital enterprises will be required to make significant operational and strategic changes to their internal infrastructure and business models,” Nanda says. “This may involve enhancing internal governance structures, implementing monitoring, and reporting mechanisms, and engaging with regulatory authorities to address compliance concerns and inquiries. While the proposed law aims to promote innovation by fostering a more competitive digital ecosystem, compliance requirements may influence the direction and pace of innovation initiatives,” he adds. u

12 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MARCH-APRIL 2024 Q&A ALB: What was the motive behind setting up TrustBridge, and could you explain the need for an organisation like TrustBridge in India today? Renuka Sane: TrustBridge was set up by Akshay Jaitly and Karan Singh, both co-founders of Trilegal as well. TrustBridge was set up with the belief that an essential role of the state is to provide the best possible framework for markets and private enterprises to flourish with due processes for all stakeholders. This means that the laws governing the economy must be fair, clear, predictable, transparent and responsive. While the 1991 reforms opened up the economy to private enterprise, India will be able to realise its true potential only through a reform of the infrastructure of laws and regulations that shape economic behaviours. ALB: Could you explain some of the major gaps in India’s legal and regulatory framework and the projects and initiatives that TrustBridge is working on to address these? Sane: India’s legal and regulatory framework often lacks clarity, making its implementation challenging and inconsistent. Laws can be archaic and restrict new ideas and innovation. The framework tends to be sceptical of and needlessly harsh on businesses. At the same time, it sometimes imposes entry barriers, making it “business-friendly” as opposed to “marketfriendly,” thereby reducing competition, innovation and a sense of fair play. Regulators don’t provide reasoned orders or consider costs and benefits adequately before implementing regulations. Regulatory discretion may be inconsistently exercised, and this creates an environment of uncertainty, impeding investability. TrustBridge is working in three areas to improve India’s regulatory environment. These include regulation of financial markets, energy transition, and the alternative dispute resolution environment. Our hope is that our foundational work in these areas could potentially be used to improve the policy framework and regulatory state capacity. ALB: Can you discuss the role of lawyers in TrustBridge’s work and how they contribute to the organisation’s mission? Sane: TrustBridge is an inter-disciplinary organisation with a mix of lawyers and economists. Lawyers help us understand the legal instruments that govern the regulatory landscape and court judgments that have shaped our thinking in this space. Their analysis of the law and understanding of the legal landscape are critical in keeping our work grounded in reality. ALB: What specific challenges has TrustBridge identified in government contracting and litigation, and how does the organisation propose to improve these processes? Sane: TrustBridge has identified a few issues, such as inappropriate risk allocation between public and private parties, failure of government parties to honour the terms of contracts they enter into, particularly payment, change in law, force majeure, contract variation etc., government parties being subject to many adverse arbitral awards and then challenging the majority of adverse arbitral awards and ultimately losing several of those challenges. There are several theories about why this might be, but systematic evidence is missing. TrustBridge proposes conducting data and evidence-based research to identify and explain the issues and further identify implementable solutions. ALB: How does TrustBridge measure the success of its work, and what metrics does the organisation use to track progress towards its goals? Sane: There are three pillars of success for us. The first is that the datasets and open-source tools we build and release in the public domain become the basis for output by other stakeholders in the system. We would welcome other researchers and organisations to be able to build upon the foundational blocks that come out of our efforts. Second, our findings get cited in other literature, and our methodology and approach get adopted by different agencies. Finally, we would be happy to provide feedback and input on policy on requests made by the state. ‘LAWS MUST BE FAIR, CLEAR, PREDICTABLE, TRANSPARENT AND RESPONSIVE’ TrustBridge Rule of Law Foundation was established in 2022 by two Trilegal co-founders with the stated aim of improving the performance and behaviour of the state and its institutions, as well as private market participants, in a manner that aligns with the wider economic goals of the country. Renuka Sane, managing director of TrustBridge, discusses the gaps in India’s legal infrastructure, the role lawyers play at TrustBridge, and how the organisation measures success. BY NIMITT DIXIT RENUKA SANE

13 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM In-house Insight THE IN-HOUSE COUNSEL’S ROLE IN FUNDRAISING BY RINI MITRA In the dynamic landscape of the private equity and venture capital sector, the role of an in-house counsel extends far beyond mere advisory duties and handling negotiations during the investment stage. Contrary to common perception, the significance of in-house legal counsel begins at the inception of the fundraising process. This early involvement of in-house legal counsel in the fundraising process is pivotal, as it yields manifold benefits and significantly influences the trajectory of success at every juncture. Crafting of fund terms and structure As fund managers craft their investment strategy, in-house counsel assume a pivotal role in shaping the fund’s structure and terms. Leveraging their nuanced understanding of the organisation’s objectives and operational dynamics, in-house counsel collaborate with key stakeholders to finalise critical aspects such as the fund’s structure - whether a unified or a co-investment structure, and the jurisdiction of the fund or its feeder, depending on the targeted investors’ type and residence. Additionally, they assist in formalising key terms such as the tenure of the fund, investment concentration limits, and other essential parameters while ensuring strict adherence to regulatory requirements. Drawing from their experience and analysing any prior fund documents of the organisation, the inhouse counsel tailors the fund’s terms to resonate with both regulatory mandates and the commercial preferences of the fund manager and potential investors. This strategic alignment not only expedites the fundraising process but also optimises resource utilisation, sparing the need to embark on a fresh start. Liaising with external fund counsel for the drafting of fund documents Once the fund’s internal framework gains unanimous approval, the in-house counsel embarks on a collaborative endeavour with external legal advisors to draft essential fund documents.. Acting as a link between internal stakeholders and external counsel, the in-house counsel ensures a delicate balance is struck between the fund manager’s commercial objectives and the regulatory constraints imposed by relevant authorities. The inhouse counsel preemptively identifies issues commonly encountered during negotiations with targeted investors. Registering the fund with regulators Navigating the regulatory landscape is another key responsibility of in-house counsel. They serve as a central point of contact for internal stakeholders, streamlining the process of collating necessary documents for the registration of the fund, where required. This involves coordinating with various departments within the organisation to gather essential information and paperwork efficiently. Once the documentation is compiled, in-house counsel becomes the liaison with external legal counsel, facilitating seamless communication and ensuring compliance with registration requirements. Drafting of the pitch deck and marketing the fund In-house counsel also collaborate with the management team on crafting the fund’s pitch deck and oversees their marketing efforts. Leveraging their legal expertise, they ensure that the pitch deck complies with securities laws and regulations, meticulously reviewing its content for accuracy, completeness, and adherence to disclosure requirements. By minimising legal risks associated with marketing materials, in-house counsel facilitates effective communication of the fund’s value proposition to potential investors. Throughout the fundraising process, they also guide marketing activities and investor communications, ensuring that all materials and communications adhere to securities laws, anti-fraud regulations, and marketing guidelines. Conducting diligence on targeted investors Conducting diligence on targeted investors involves assessing the suitability of potential investors by thoroughly examining their source of funding, entity structure, beneficial ownership details, and more. In-house counsel meticulously review investor qualifications, subscription agreements, compliance documentation, and any potential conflicts of interest. By conducting comprehensive due diligence, in-house legal counsel helps ensure that the fund attracts investors who align with its investment strategy, risk tolerance, and long-term objectives. Finalising fund documents based on negotiations In the concluding phase of fundraising, in-house counsel leads the process of finalising fund documents based on negotiated terms. Throughout the negotiation process, they evaluate the fund’s capacity to adhere to investors’ terms, drawing attention to any requests from investors to internal decision-makers for thorough consideration. Additionally, they implement necessary safeguards to protect the fund manager’s interests, which may entail devising a comprehensive task plan to ensure ongoing compliance with the terms negotiated by investors for the duration of the fund’s lifecycle. About the author Rini Mitra serves as the general counsel at Evolvence India, an investment platform focused on private markets in India. ALB is soliciting articles from in-house counsel based in India for its bi-monthly e-magazine. For submission guidelines, email

6TH DECEMBER SHENZHEN Sponsorship Opportunities Now Available For more information about the events and submissions, contact Tracy Li at / +852 3462 7708