India Business Law Journal – September 2021

Climate challenges ahead

Time to walk the talk

In what was a first for South Asia, the Uttarakhand High Court in 2017 ruled that the Ganga and Yamuna rivers, and their catchment areas and tributaries, had rights as legal persons. Later, in 2020, the Punjab and Haryana High Court said a lake in Chandigarh had similar rights.

While the Supreme Court has stayed the 2017 order, that such orders are being passed at all is an indication that courts are willing to “walk the talk” on protecting the environment. Yet the all important question is: Are investors and other decision makers paying attention to how courts view environmental matters?

Increasing instances of weather-related disasters also leave no doubt that inaction is no longer an option. For governments, the upcoming UN climate change conference in November in Glasgow, COP26, will be another opportunity to act to counter rising global temperatures and deliver on the promise of previous climate talks. But with existing divisions between countries likely to linger, and if almost three decades of governments coming together to secure the future of the planet is anything to go by, chances are there is still some way to go. People with clout will need to take on board the fact that business as usual cannot continue, and people at the grassroots level will need to push for change.

As our Cover story details, lawyers may well have an increased responsibility in this respect. Speaking to the American Bar Association, US Special Presidential Envoy for Climate John Kerry, recently stressed that lawyers have a role in averting further climate destruction. “You are all climate lawyers now, whether you want to be or not,” said Kerry.

The bottom line for lawyers is to act in the best interest of their clients, and for many this will mean ensuring companies see environmental compliance as meaningful, rather than simply a tick-box exercise. “If you don’t carry out these duties, you are being negligent and putting your company in danger,” says Philippe Joubert, the founder and CEO of Earth on Board.

Be that as it may, there are also opportunities for lawyers on both contentious matters and general advisory. As Annette Magnusson, a co-founder of environmental consultancy Climate Change Counsel, says, learning to proactively introduce a green perspective in contract drafting and agreements is a great way that lawyers can make a difference. So, are lawyers up to this challenge?

In CSRming the fightback we turn the spotlight onto how swift changes to corporate social responsibility (CSR) regulations have played a crucial role in helping companies fight the pandemic. As we detail, the companies were anxious to help when the pandemic struck, but there were concerns about the legality of using CSR funds for pandemic relief.

While notifications and circulars issued by the Ministry of Corporate Affairs eased concerns, in-house legal teams and legal practitioners played important roles in attempting to understand the maze of rules, notifications and circulars, and updating colleagues as and when changes were made. As a result, many companies have changed their CSR strategies, and companies that typically donated funds now use their business expertise and technologies to support initiatives, which produced noticeable results during covid’s second wave.

In this month’s Vantage point, Amol Apte, vice president of legal at Dream11, an online fantasy sports platform, writes that, thanks to a spate of high-stakes legal victories, the fantasy sports industry is poised to be the chosen tool for sports engagement and entertainment for sports fans in the years ahead.

Yet with much to be done to stabilise the industry, Apte says it is critical for the industry to focus more on matters of good governance and start looking at the softer elements of its offerings, such as: Providing more controls in the hands of users to avoid addiction; creating better processes for user verification and identification; creating transparent processes to develop user trust and avoid perception issues; and other such issues that are common to tech platforms.

The briefing analyses the lessons as India’s contentious tax dispute with Cairn Energy draws to a close. The jury is still out on whether this was a win-win for both sides, or one love favouring the Indian government. In any case, Cairn’s acceptance of a tax refund of USD1.06 billion from the Indian government lays to rest doubts on whether entities that have won sizeable arbitral awards need to settle for less.

Our Intelligence report delves into the recent phenomenon of senior foreign lawyers with India expertise jumping ship. Our analysis suggests that the covid pandemic created the perfect storm that prompted much reflection and re-evaluation. Some of the nation’s most senior foreign talent, it seems, are looking at where they want to be in terms of practice focus, culture and trajectory, and pondering new opportunities. It also helps that deal activity has gone through the roof in the past 12 to 18 months.