Managing Partner & Author – Sarosh Zaiwalla – S3E23

Rob Hanna (00:00):

Welcome to the Legally Speaking Podcast. I’m your host, Rob Hanna. This week. I’m delighted to be joined by Sarosh Zaiwalla. Sarosh is the founder and senior partner of Zaiwalla & Co, an international arbitration and litigation firm founded in 1982, having advised the Dalai Lama and the former UN secretary general Ban Ki-moon and instructed a young Tony Blair, Sarosh’s career spans over 45 years. And, more than 1200 arbitrations that include working with the Saddam Hussein’s regime and the high profile Supreme Court against the UK government. Wow. A very big welcome, Sarosh. It’s an absolute pleasure having you on the podcast. And before we dive into your prestigious career, we do have a customary icebreaker question on the Legally Speaking Podcast, which is on the scale of one to 10, 10 being very real. How real would you rate the hit series suits in terms of its reality on the scale of one to 10,

Sarosh Zaiwalla (01:15):

Thinking about six.

Rob Hanna (01:17):

That’s quite high, Sarosh, I thought you’d give it a lower score.

Sarosh Zaiwalla (01:20):

Quite honestly, I have vague recollection.

Rob Hanna (01:24):

Good stuff. Well, let’s move swiftly on and talk all about you. You grew up in Mumbai. Tell us a bit about your family background and your upbringing.

Sarosh Zaiwalla (01:35):

Well, I have in fact set, set out my family background, the book, my memoir, which I did on earlier this year called Honour Bound, which was published by Harper Collins. My father was an English solicitor, and he may well have been the one of the first, if not the first Indian to qualify as a solicitor in England, because in those days there were barristers Indian barristers, Indians who came to be qualified as banisters, but not solicitors. So he had a small firm and I grew up in a family of six. I was number five, five big brothers. I was the youngest and I have like amongst the brothers and I have a younger sister who is a consultant in Oxford. Right.

Rob Hanna (02:11):

Wow. And so tell us a little bit more about that journey then with the move to the UK and starting your firm, Zaiwalla & Co. Cause I believe you were the first Indian to start an English firm of solicitors in the city of London, which must be an achievement you’re very proud of.

Sarosh Zaiwalla (02:28):

That is correct. I was the first one to start in the one square mile commercial and financial district, in the city of London. Solicitors firm started by someone born outside Europe.

Rob Hanna (02:39):

Wow. Um, what, what sparked that passion in wanting to do that?

Sarosh Zaiwalla (02:45):

I came here to qualify because my father was an English qualified solicitor to keep the tradition. And then I was, I was training in a firm called Stocken and company, which is a maritime law firm. And I met, I got friendly with a very eminent Arbitrator Cedric Barclay, the delightful man, unfortunately normal. And he invited me for a tea. And he said, he said he was quite impressed. And he said, you must not join a big large firm, but you must start on your own. And I said, how can I do that? I don’t know anybody without easily joining in a big city firm. He said, you are good. They’ll take you on. But because you are not a local person, the senior partner will take you for lunch once a year and say good job old boy and you did good, but after 10 years you will still be there. So he says, start on your own. And he did support me and he did accept it. Barclay did support me, encourage me to start.

Rob Hanna (03:36):

Well, that’s fun. Fascinating. And I mean, you must have had a number of challenges early on in your career. So tell us a bit about some of those challenges you faced and how you overcame them, because it’s truly inspiring.

Sarosh Zaiwalla (03:50):

But I, I’m always practical with my feet on the ground. And I realized very soon that the British English community, they were not racist, but they have a classist. And so long as you are honest and straight and we’re good, everything is fine. There was no racism as such, but there was classism because I was not part of the group. I was not part of the old boys club. One of the first challenging case, which I handled was soon after I started. And I was lucky enough to be instructed by the Indian high commissioner Seyid Muhammad, Seyid Muhammad himself was a non-practicing barrister. And he had been minister for state of law in India during the emergency. And he appointed me as the Indian government solicitor. And when the first case, which I had was a case called La Pintada, whereabout, the use of about five million was a state for the Indian government.

Sarosh Zaiwalla (04:40):

It was a shipping case and it was concerning, uh, whether the compound interest can be paid for late payment of debt. I mean those years India was going through a famine and president Johnson and the U.S scheme was donating free. United States was donating free fleet to India, but India had to arrange for ships to pick up the fleet. So every year there were about 150 to 200 ships being jetted. And every ship had a had had a dispute concerning demurrage, freight, late payment, various things, and it entered a London arbitration clause. So the La Pintada, that was the arbitration arbitrators had made an award against the Indian government to pay compound interest for late payment of the dumurrage. And there was a judgment of, uh, I think Lord Denning. We said, if a debtor pays the debt late, there should be compound interest. And I took a different view that Lord Denning was wrong.

Sarosh Zaiwalla (05:32):

And then I challenged the court in those days, I used to handles the things on my own, fees to consult counsel, were very little because to consult counsel in Indian government cases, you required authority from Delhi because the foreign exchange crisis and I instructed counsel from the shipping chippers and they said, Oh, there’s no chance. Don’t be silly. You can challenge about Denning’s decision. Then I met Tony blair. He was very keen to do shipping work because he was in a Labour chamber, of Derry Irvine. He said, come and have a tea with me and my senior. So I had a one and a half hour meeting, Tony Blair and Derry Irvine. And I persuaded them and they said, you’re right. And on that basis, I got instructions from the government to instruct Tony Blair and Derry Irvine for the hearing now in the morning of the hearing of challenging the award of those of a special case under the arbitration act, Tony Blair phoned me up at about about 9:30.

Sarosh Zaiwalla (06:24):

And he says, Derry wants you to come at 10, 10, o’clock straight away like come with the High Commissioners representatives. I went to the High Commissioner, internal legal advisor and Tony and Derry told me that there’s absolutely no chance. it was hopeless and Indian government has spoiled his name by taking the points, which I have argued in my those days affidavit. I told miss the High Commissioners I presented to Mrs. Chera Walla that no ignore counsels advise, we are going to go ahead. We have a fair chance. It came up before Mr. Justice Stockton was very well-prepared. He asked Derry and Tony questions and they were totally unprepared. And that mattered more because the counselor on the other side, the judge heard Mark Marty Mobic, who is now the chairman of the, and then quietly, just not going on, but that’s something that planning and –

Sarosh Zaiwalla (07:10):

Mr. Justice Stockton limited the award back to the arbitrator for reconsideration. The arbitrator was Bruce Harris. And this is interesting event back before the arbitration. And I appeared myself again before the arbitrator and the arbitrator had confirmed the same, but he put in postscript that he’s doing more enthusiasm. It came back before Mr. Justice Stockton. I don’t recount in those days. I did not have permission to appear in the commercial. I did not have the ability to create commercial code. Solicitors were not allowed. So again, I tried to instruct barristers and they all said sorry, Sarosh, we can’t take this case on? This is hopeless. So I instructed in a lawyer of criminal law called Ellis Meyer who had practiced in Calcutta. He was a Jewish, a quite an old man. And he said, my boy I’d argue whatever you want to. They came back before Mr.

Sarosh Zaiwalla (07:55):

Justice Stockton. And he gave us a leave to go straight to the House of Lords who tested a lot whether Denning was right or wrong. We went to the House of Lords. I had Nicholas Phillips QC who became later, became the president, the Supreme court and the Court of Appeals judge. And we won five nil. And the case is called President of India vs La Pintada . So this was the first big win. And that gave me a tremendous courage. It was also the first commercial win for an Indian case in the House of Lords and then thereafter, once you are in the news, the book starts coming in, there are a lot of cases and we are very lucky to have Indian High Commission as a client. And we won a lot of arbitration at different points. Another interesting case, if I may say so.

Sarosh Zaiwalla (08:37):

And that is very interesting, involved, a shipping dispute concerning what is meant by entry at customs, in a charter party. Now in India, there are two entries file entry and final entry. Final entry was given after the customs reject. And the cargo could charge a lot of money was at stake of that because there was congestion at Indian ports, about 10 or $15 million altogether. And the clients have taken a view that in practical terms, until the final entry, the customs clearance, given the time to discharge the cargo should not commend. There were two judgments already against the Indian government of this case, that it was a private entry, right? Private entry means enter the customs. What did, what did enter it customs mean? Now there was an entry at customs given by the agent, even before the vessel arrives to the port to be discharged earlier for Stocken and company would act for the food corporation of India.

Sarosh Zaiwalla (09:30):

In those cases, they had adverse judgment against the food corporation of India and Mr. Justice Bingham. If I said at this point was so bad, which I applied to strive to argue that it should be twisted at birth. I took a different view. I, I told that this is completely the wrong approach to law because the contract was to be performed in India. And therefore it would be Indian law, which would apply and not the English law, which a lot of the other party contract in those days, I used to appear myself. So I appeared before the arbitrator three eminent maritime arbitrators community. I tried to argue this point, as soon as I could forward, the chairman said, Mr. Zaiwalla, there are two judgments against you. Look at what Mr. Justice Bingham has said this point, which you’re trying to argue, should that be twisted at birth? But I said, no, but I have a different approach to it.

Sarosh Zaiwalla (10:15):

And I want to put it forward. The chairman would remain confidential for, because he’s no longer, he got very upset. I think he said, you have no respect for the English judiciary. I am not going to hear it. Either, you stop now. Otherwise I’m going to he give me some sort of a threat. I can’t remember now exactly. I said, no, sir. I am going to put it forward to you for your consideration. You may decide against me, but I have a right then to go to the court. Now this upset the chaiman so much that he walked out with some abuses thrown against me. That was, I had no respect for judiciary. I stayed quiet. I was also concerned because I thought a game. They’re going to those days. Of course, quite used to people talking against me and sort of reminding me that that I was trying to stir things up and other things, which were not true at all.

Sarosh Zaiwalla (11:01):

And then after three or four weeks, Michael Dean QC was appointed. I appeared again before the same two arbitrators with a different chairman, Michael Dean QC. I have the same argument. He was aware of what had happened. He explained to me, he said, look, this is what I can see your point, but because there are two judgments against you. You do realize the chances of success are not much. I said, I do. Michael did very, fairly set out. I requested him to set out my, my submissions in his award and let the court considers them to do it because he did so in a very fair manner, it came up before me suggested the award was challenged. And Mr. Justice said that I was right and the earlier two judges were wrong. The PNI club, the insurance for the ship’s legal liability took another case before.

Sarosh Zaiwalla (11:52):

Is it called the nestor NESTOR . These are reported cases that appeared before the arbitrators. The arbitrators tend to suggest to speak, give them suggested decision is much more preferable and correct. When the team starts challenge, again, it came before Mr. Justice Leggatt who later on, became Lord Justice Leggatt and we won and. Lord Justice Leggatt said that I agree with what food corporation of India who is my client for putting the way that the issue of law was put forward, not by committee, but by inclinations, because the earlier judgment of Mr. Justice buxton was in our favor. Hoven Fenech will in a big, shipping firm appeal to the Court of Appeal. And the appeal came before Lord justice Bingham and my, my heart sank. And I said, Lord Justice Bingham said this was a submission we should’ve been twisted at birth , but it’s so bad.

Sarosh Zaiwalla (12:43):

But to my great surprise, it was an application for leave to appeal and Lord Justice Bingham, made it an Inter-party hearing. Instead of any ex-parte hearing, you heard both sides counsel. And he said in a judgment and in open court and having considered a different issue, different way of putting the same issue of law, he is bound to say that his earlier, decision was wrong. And so it was a decision of a. What have they meant to the Supreme court? Uh, House of Lords was wrong. Now this was a great surprise, but we were all very happy. But what happened later was even more interesting Lord Wilberforce was supposed to be the judge of the century, retired Judge of the House of Lords and very eminent judge phoned me up a week or two after his judgment, he introduced himself. And he said, Mr Zaiwalla is it true that in one of your cases, Lord Justice Bingham said that his earlier decision was wrong.

Sarosh Zaiwalla (13:35):

I said, yes, sir. That’s correct. Can you send me the transcript of that? So I will play the transcript and I sent it and he sent me a letter, handwritten letter paying great tribute, to Lord Justice Bingham. And to me for producing a novel argument. And that letter is in my book in that, and that was one of the greatest moment of satisfaction for me. And it showed how independent the English judiciary is and how fair the judges are, Lord Justice Bingham was prepared to say that his earlier decision was wrong. And that also on a submission from an ordinary solicitor who came from India.

Rob Hanna (14:12):

Brilliant

Sarosh Zaiwalla (14:12):

So many other cases, which we have handled, I believe that law is for justice and not justice for law. And one of the greatest mistakes with lots of lawyers make, and they have a very traditional approach. When they get a taste, they look up and look up all the people’s thinking and try and put legal submissions.

Sarosh Zaiwalla (14:30):

But at the end of the day, if one stays calm and to some extent, seeks divine help as to what, what does justice require the answer comes? And the answer is, but more often than not a very simple approach to law, and one has to have a clean heart, the most important thing for all the lawyers keep in mind that it is completely untrue. That lawyers can lie. I think the most important thing for a lawyer is to be honest and to be honest, I always say that, you have to have a pure and kind heart. Cause once you lie, the divine help is not there. And I do believe in that divine help comes from within, not from outside most important is to be honest, straight, and courteous, yes. Honest, not only with your client, but also with the opponent, don’t try and pull a fast one.

Sarosh Zaiwalla (15:16):

You might get away once, but in the end, it will not the succeed. Let’s give you one example of another high profile case . It’s a house of Lords case for lifts maritime. Another shipping case, again, the client had a very little prospect of success of a construction, but investors were not blindsided. It was about exchange rate. So calculated in dollars, but paid in Sterling and the bill of leading rate of exchange. And this Sterling had devalued. This is about 15, 20, 25 years ago. And I was still a very young solicitor. and I was fortunate because they did come and we did not have foreign exchange. I used to do cases myself without instructing barristers and barristers. That would be great help, but it’s also to put up our argument before the arbitrators we lost. And in the, in the commercial code, we managed to, I kind of thought we lost.

Sarosh Zaiwalla (16:07):

We lost it. And we went to the Court of Appeal and the Court of Appeals judge was so strongly against my submissions, but because especially I think Lord Bridge and in the House of Lords, the two counsels I was represented by Anthony Davin, QC the president of India and the ship owner was represented by Tony Grabiner QC was Lord Grabiner. Now this is a very interesting story. Tony Davin opened the appeal because we were the applicant at the end of the appeal, Lord Mackay, who was the chairman. He was a Lord chancellor. Lord Mackay of Clashfern asked Mr. Davin, uh, have you finished? He said, yes, but what about Mr. Zaiwalla’s submissions? And he turned back, looked at me and said, we say this out of respect to Mr. Zaiwalla but I am unable to put it forward because he did not believe it them, and he said that and I was quite upset and I was embarrassed, but there’s nothing I could do.

Sarosh Zaiwalla (16:58):

So i just sort of grievance and sat down. Then, came Tony Grabiner turn to argue it, the submission on behalf of his client. He finished Lord Bentham asked him, but what about Mr Zaiwalla’s submissions? And Tony Grabner QC said that Mr. Davin has had abandoned the submissions and I have no obligation to respond. And he sat down at this Lord Bentham and lost his cool. He had a book in front of him. He kept it on the table. He said, this is the highest scope in the land. And we are told what issues of law or submissions have got to consider and what not to consider. I thought we had lost the judgment game. We had won only on my submissions after the judgment to my great surprise in those days, I used to have a new supper party, a new Christmas party in my office. And I invited, I invite judges and the Lord chancellor accepted the invitation.

Sarosh Zaiwalla (17:52):

First thing he said, I’ve come to your office. This Christmas reception only to see what your office is like if you had a small, very small office. Now, when I I’ve mentioned this case in my book, and as that as I should do, I sent a copy of the chapter and concerning the event that the House of Lords to Lord Grabiner. And he replied back to me. He said, I remember that. And he said it was a very unpleasant experience. So this is how one has to develop the law, and be, honest and sincere, not for self greed, but believing in what you think always maintaining, courtesy and honesty to me, the most important is to have a pure kind and radiant heart. And if you do that, there’s no better code in English code to practice. Even if the judges are against you, they have a conscience and this is very, very good.

Rob Hanna (18:44):

Fantastic. And thanks so much once again, sorry. As I said, I am just loving, hearing all of the history and all of the tales. I know there’s so many and if only we have more time, I would love to talk a lot more about even the

Sarosh Zaiwalla (18:59):

I, a speech in lieu to the English bar. We’re also very independent, the English division tremendously independent and tremendously, to be honest. And

Rob Hanna (19:10):

Perfect. And I just want to ask a couple of final questions before we wrap up, because one of them, I think was where you had such an important role. You might’ve even halted the second Iraq war were you contacted, uh, by Saddam Hussein’s regime in 2001. What happened there

Sarosh Zaiwalla (19:28):

For me this firm Zaiwalla & Copmany for many years, it was a one man show. I had the full team, but I was the one doing most of the work. And most of the, that critical work, I often traveled abroad as a part of marketing and I wanted to visit, but I knew there was problems. And I met the local ambassador. Who was, by that time, not an ambassador, but the representative of the Saddam Hussein regime. And he was delighted. And he said, yes, of course I can arrange the trip for you and he arranged the trip for me. And I said, I would like to meet the minister. And everybody. I had got accepted to marketing for the firm was the honest answer. And he arranged a trip for me. But I couldn’t go because I was in the midst of an application for China. And you inject them with the rankings of the people’s Republic of China. CNPC China was publishing in a very big arbitration, so I couldn’t go.

Sarosh Zaiwalla (20:17):

But he rearranged and when I went there. I met the minister the first, first time I just met them fine. And I got instructions from the Rasheed bank which was the City’s bank, which is another case, which was heard after the Iraqi invasion to be lost. It’s a report that champions the Rashee d bank versus Citibank it was about LC, non payment, something like that. And then suddenly I was, I met, I was met with a representative of the high office as they called it. The Saddam Hussein representative. And he said, they wanted to consult me on taking Britain and the United States to the International Court of Justice for a no fly zone over Iraq, which they considered unlawful as it was considered to be beyond the security council resolution after the war was over. So they discussed with me and I said, yes, uh, I’ll have to consider it.

Sarosh Zaiwalla (21:07):

But they were not convinced that they will get justice. So they wanted to know what is whether the International Court of Justice judgment can be enforced. And I said, I don’t think the United States is a signatory and you will find it difficult to enforce it. Britain of course is different they are going to respect it. But, and then I said, why don’t you Sue in English court and they were quite surprised, how can you sue? I said, my, I don’t know. I said, I’d have to consider it further. But my first reaction is bring. The same proceedings of unlawfulness by way of a judicial review or some procedure you could go and then seek to join the United States. So they listened to me no response, and obviously they had other solicitors, large firms consulting, no response. So the second time I went back, nothing happened and third time suddenly about three months later, I got an urgent call from the same ambassador or a form of message and they said, they want to see you very urgently.

Sarosh Zaiwalla (22:00):

So I thought, let me go it might be that we get this work to start the proceedings in England for quality work they can hear. So this is fun. So I went out there and I found that, uh, was a completely different culture. Uh, they arranged to take me on a sightseeing trip. I went to the Mosque and various other activities I went to various sights and I had a meeting and what they really wanted me to do because they had, I might have mentioned that Tony Blair had worked for me in the La Pintada case years ago. And I knew him quite well, which is true. I still know him quite well. I was able to contact him even today. When I write to him he replies to me because we worked together. So then I realized that what they were trying to do is to pass a message to Tony Blair.

Sarosh Zaiwalla (22:46):

If I could pass that message to Tony Blair, that Iraq wants to avoid the war. I believe they were very genuine and sincere. They said, look, we know the war is coming. They accepted and said to me directly that they had no chance of success. And they said, they don’t have weapons of mass destruction, they said, please pass the message to Tony Blair. Please pass this message to Tony Blair, we are prepared to negotiate, uh, with Britain directly and with the United States through Britain and everything is on the table and can be challenged. But everything on the table that I had understood that he would also still have the same would be, would abdicate and disappear somewhere in an Island or something or the other. And I said, but how will Tony Blair recognize that I have your authority? And there was somebody from the Iraqi foreign office.

Sarosh Zaiwalla (23:31):

And they said, we will send a signal in the, you should be the far enough one for an office center in the countries for an office that you had your authority, but please pass specificly that we want to resolve this issue. We want to start negotiations. And when I came back, I had to find a way of contacting Tony with that. I can’t just write to him and say that I met this Saddam Hussein’s representative in Iraq. And they were very, very anxious. So I’ve managed to be invited to the labor party conference. When Tony Blair walked in, I immediately walked in first and he was very happy Sherry and Tony both. And I said, Tony, I want to talk to you. So we went in the corner. I told him exactly what I had been told. I said, they really want to sort of set it off and settle this matter.

Sarosh Zaiwalla (24:12):

And I’ve been asked to stress that everything is on the table and Iraq wants to negotiate with Britain directly and with the United States directly, and also to send a message that you remind you, that he is going to is Rasheed is going to meet to settle this or something like that. When he listened to me as all he does, he said, yes, fine. Yes. Send me a note. So I sent him a note and it was reply came back a week later, which I still have it, the prime minister. Thanks you. But he’s not interested. And you get a note from the defenseman and they named it. And three weeks later, I got from the secretary of state for defensive, a general note, of British policy of Iraq. And that was the end of the matter. And it is one of my regrets that I did not pursue it more vigorously. So then I just told Iraq that look. And today after that 1 million people have died on both sides of me and the war could well have been avoided, but it’s not for me to make any comments to that.

Rob Hanna (25:11):

No, of course, but thank you so much again for shedding light on that. And thank you so much, Sarosh, for joining us, it’s been a real privilege talking to you today and you have so many fantastic stories. Listeners can of course, head to your new book on a bound to, to read lots more. And, but

Sarosh Zaiwalla (25:28):

It was out of print but it is back and as a paperback with Amazon.

Rob Hanna (25:36):

Perfect And we will, we’ll send all the relevant links to that with this episode, but for, from us, I’d just like to say thank you so much. And I’m wishing you lots of continued success, but for now, thank you. Thank you for listening to this episode of the Legally Speaking Podcast. If you enjoyed the show and want to help support us, remember to leave us a rating and review on Apple iTunes, you can also support the show and gain exclusive benefits, bonus content, and much more by signing up to our Patreon page, which is www.patreon.com/legallyspeakingpodcast. Thanks for listening.