Announcement - New member of The Lawyer Network in India

Introduction Percival (Percy) Billimoria, Senior Advocate Percy is also a Chartered Accountant by qualification – a practising Chartered Accountant. Financial Crime Trials, criminal revision petitioner/quashing petitions/bail matters Mainly CBI, PMLA and EOW matters Commercial Disputes Commercial suits, arbitration & dispute resolution & competition law (Anti-trust) Contractual disputes, including joint ventures and cross-border disputes, telecom, IP and pharma Arbitration and Dispute Resolution Lead counsel in several domestic and foreign seated arbitrations. Appointed on the panel of arbitrators in arbitrations seated outside India. Empanelled as an arbitrator by the LCIA and the Nani Palkhivala Arbitration Centre and the Indian Council of Arbitration. Acted as an expert in an international arbitration on the interpretation of accounting standards pertaining to the computation of “cost oil” in an oil exploration (NELP regime) contract. Commissioned by LexisNexis to author a treatise on International Commercial Arbitration. Competition Law (Anti-trust) Authored the India Chapter in GDR Publication: Global Damages Law. Adversarial behavioural matters (cartels and abuse of dominance) and also gun-jumping. Lead counsel in several matters which have shaped the anti-trust jurisprudence in India. Non-Government Advisor (“NGA”) to the Competition Commission of India – till 2021. Financial Crime - Landmark Litigation… Bodo Herbert Garbe vs. Central Bureau of Investigation Successfully represented B H Garbe as lead counsel. The Delhi High Court quashed trial proceedings against Garbe, establishing the yardstick for circumstantial evidence to allege a conspiracy. Rheinmetall Air Defence vs. Central Bureau of Investigation Successfully represented Rheinmetall Air Defence as lead counsel. The Special CBI Court discharged the accused from charges of corruption and conspiracy, leading to closure of the trial. Sunil Bharti Mittal vs. Central Bureau of Investigation Part of the team which successfully argued before the Supreme Court that the doctrine of guiding mind and will has no reverse application. Universal Music vs The Enforcement Directorate Successfully represented Universal Music before the Appellate Authority which ruled that there was no prima facie case made out. The question of whether the appropriate provision was invoked by the Enforcement Directorate was considered in the ruling. Food Safety & Standards Authority of India vs. Barry Callebaut India Pvt Ltd. Successfully represented Barry Callebaut - the Supreme Court intervened to stop coercive steps by the authority in what is a relief seldom granted when the authority pleads the cause of public health and safety. Lead Counsel for one of the co-accused in the trial pertaining to allocation of coal blocks before the Special Court (CBI). Represented Caparo Industries in a matter pertaining to misfeasance by certain employees. Advising Rolls-Royce plc on the Deferred Prosecution Agreement under the UK Bribery Act. Lead Counsel for Sphere Invest, an offshore fund on the alleged fraud by the promoters of an investee company which impacted its directors and its shareholding. Counsel for Bain Capital and TPG, private equity investors on their allegations of fraud against the promoter of an investee company – Lilliput. Representing Partners of a major international accounting firm who are co-accused in the matter concerning Kingfisher Airlines. Advising an international consulting company pertaining to an investigation into the merger of Air India and Indian Airlines. Representing a senior member of the engineering services of the armed forces in an entrapment matter under the Prevention of Corruption Act before the High Court of Bombay. Advising Moody’s Inc., in the conduct of an independent investigation of its Indian subsidiary. Advising and representing Thermofisher Inc., a US pharmaceutical multi-national in an investigation by the police authorities and subsequently representing them successfully in the High Court of Delhi in a motion to quash proceedings. Landmark Arbitrations … Successfully acted for: A British oil and gas multinational in their dispute with a contractor, in respect of the Panna-Mukti-Tapti oil field; A multi-national manufacturer of industrial gas establishing a gas supply plant on BOO terms; An Indian infrastructure company, in relation to its participation in the bid process for the award of a port project in the State of Orissa; Challenge to bids and bid terms of the National Highways Authority of India pertaining to the Kishangarh Udaipur Ahmedabad stretch of National Highways; 2 contractors on the KBPL (“Kandla-Bhatinda Pipeline”) Project; 5 Contractors to the Spie-Capag/NKK/Toyo consortium; Contractors to the 765 kV S/C Mainpuri-Hapur & Mainpuri-Greater Noida Line with 765 kV/400 kV AIS at Hapur & Greater Noida and Associated Schemes/Work A state-owned insurance company in a dispute pertaining to the computation of a loss of profit claim; A multi-national company providing services to the Commonwealth Games Committee of 2010; Indian joint venture partner in a dispute between parties to a joint venture hospital project in India; Insurance claim pertaining to the loss of profit arising from damage to a pipeline in the Narmada basin; Insurance claim pertaining to material damage and loss of profit arising from the labour unrest in a factory manufacturing tiles; A German company in its dispute with a Indian public sector undertaking pertaining to the contract for Calcination Product Hydrate Filtration, Storage and Transport Package, on a “As Built” basis for an alumina refinery plant; A multinational technology company in a dispute arising from a distribution agreement involving legal questions on the subject of conflict of laws; An international steel conglomerate in respect of claims arising from construction of a blast furnace complex in India (award expected); An African company in their dispute with an Indian company pertaining to project import of a sugarcane plant (award expected); A leading family business group in India pertaining to a dispute among the family on ownership of the trademark (award expected); A Society managing a medical college and hospital pertaining to disputes regarding the membership and affairs of the society (presently ongoing); A broadcasting company in its claim against Doordarshan India’s state broadcaster (presently ongoing); A multinational rating agency defending a claim against its Indian subsidiary (award expected); A leading travel business group defending a claim by its former joint venture partner. Landmark Litigations – Arbitration and Dispute Resolution … Pricol Limited vs. Johnson Controls Enterprise Ltd. & Ors Lead counsel in the Supreme Court addressed a pathological arbitration clause and referred the parties to arbitration by virtually re-drafting the clause. This decision reflects a pro-arbitration approach of the Supreme Court of India since the 2012 decision in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. Swiss Timing vs Organising Committee, Commonwealth Games 2010, Delhi Lead counsel in the Supreme Court in a landmark decision settled the question of whether an allegation of fraud is “arbitrable”. The decision paved the way for the allegation to be settled in arbitration rather than in a trial. OPG vs GAIL Enforcement of a domestic Arbitration award again GAIL where the undertaking on record by opposing counsel is disputed. National India Insurance Company vs Regency Ceramics Ltd Challenging the arbitration award which is perverse to fundamentals principles of Insurance law and therefore fundamental policy of India. Seagate Technologies On whether an arbitration should proceed when there are US court rulings on the same issue between parties and there is no further cause of action. Social Organics Challenge to an award issued under the domain registry rules in respect of breach of a trademark and trade name on the grounds that the award was amended after the Tribunal became functus officio. Landmark Matters – Competition Law Jurisprudence in India … Schott Glass vs Competition Commission of India and Kapoor Glass Pvt Ltd. Percy successfully represented Schott Glass GmbH as lead counsel. The erstwhile Competition Appellate Tribunal, in its landmark judgment settled the law on margin squeeze, in line with international jurisprudence. This was the first major abuse of dominance matter on complex anti-trust concepts such as discriminatory pricing and margin squeeze. This matter was nominated for the best defence by Global Competition Review, 2015 and was the only nomination from India in that year. Now the lead counsel for Schott Glass in the Supreme Court of India in defending the decision of the erstwhile Competition Appellate Tribunal on appeal by the Competition Commission of India and the informant. Thomas Cook vs. Competition Commission of India Percy successfully represented Thomas Cook as lead counsel. The erstwhile Competition Appellate Tribunal in the first appeal against a finding of “gun jumping” by the CCI set out the jurisprudence on the question of when a merger filing is mandatory. Toyota Kirloskar Ltd vs. Competition Commission of India Percy represented Toyota Kirloskar Ltd in its appeal before the erstwhile Competition Appellate Tribunal as lead counsel against the finding of abuse of dominance by Toyota and other automobile companies in respect of the sales and distribution of spare parts. The erstwhile Competition Appellate Tribunal, while confirming the finding, substantially modified the directions of the Competition Commission of India in respect of the business model of the automobile companies and also reduced the quantum of the penalty. Solar Industries Ltd vs. Competition Commission of India Percy represented Solar Industries Ltd in its appeal before the erstwhile Competition Appellate Tribunal as lead counsel against the finding of collusive bidding (the ‘Explosives Cartel’ case). The erstwhile Competition Appellate Tribunal, while confirming the finding, reduced the quantum of the penalty. Jindal Steel Ltd vs. Competition Commission of India Percy represented Jindal Steel Ltd in its appeal before the erstwhile Competition Appellate Tribunal as lead counsel against a preliminary order of the Competition Commission of India. The issue centered around the right of an informant to appeal against a prima facie order finding no reason to investigate. The erstwhile Competition Appellate Tribunal, while denying the appeal, held that it was a question of law to be dealt with by the courts, which paved the way for further resolution of the issue. Other Landmark Litigations Union of India v Bharti Airtel, Bharti Hexacom & Ors Successfully represented Bharti Airtel and Bharti Hexacom as lead counsel. The Telecom Disputes Settlement and Appellate Tribunal ruled on decided the manner of computation of “Adjusted Gross Revenue” for the purpose of levy of license fees. This ruling settled disputed sums and also resulted in a recurring benefit of several million for telecom companies in India. Also appeared in the Supreme Court in the same matter. Rolls-Royce plc., v CIT Successfully represented Rolls-Royce plc., before the ITAT (Delhi) in respect of long-standing tax disputes arising from deeming tax provisions of a ‘permanent establishment’ in India. Represented Rolls-Royce plc., before the High Court of Delhi in the appeal by the Revenue Authorities against the order of the ITAT (Delhi). Master Riain R Kishnani & Anr vs. Union of India and Ors Lead counsel for a Article 32 petition for denial of fundamental to a progeny of mixed marriage, before the Supreme Court of India. Assistant Commissioner of Income Tax vs Metrochem Industries Limited Successfully represented Metrochem as lead counsel. The Supreme Court of India ruled on the question of whether an amalgamation of companies effective retrospectively is a device to evade tax. Significant Clients Clients who have regularly instructed on adversarial matters include, Rheinmetall Air Defence, Bharati Airtel, Universal Music, Thermofisher Inc., EF Developpement Environment SA and its subsidiary Citelum, Honeywell, Moody’s Inc., Rolls-Royce plc, Schott Glass GmbH, Barry Callebaut, Business Aircraft Operators Association, National Insurance Company Ltd., Formosa Plastics, USA, Kajima Properties, Metrochem Industries Limited, Toyota Kirloskar, POSCO E&C, Bain Capital, Caparo Group, Grant Thornton, KPMG, Accenture, Soma-Roadys. Noteworthy Citations … Who’s Who Legal (“WWL”) “Thought Leader” in India jurisdiction on Litigation - 2021. “Thought Leader” in India jurisdiction on Litigation – 2019. According to the WWL Percy is among the most highly regarded experts in our India research. Percy Billimoria stands out for his formidable work before the Competition Appellate Tribunal. Subsequently, the WWL noted that he “remains one of India’s leading lights on antitrust litigation and is regarded as a powerhouse in the space.” Consistently ranked in the Who’s Who Legal – Arbitration each year. Chambers & Partners Recognised in Chambers & Partners – Asia-Pacific Guide 2022 cites Percy as being highly respected for his advocacy skills stating that “he is a fantastic lawyer in terms of strategy”. Recognised Percy as being well known for his expertise in litigation in the areas of joint ventures, infrastructure projects and project finance and quotes a client as saying “He is meticulous and forthright in his approach to work, has a great analytical mind and advises correctly on the right course of action to resolve disputes favourably”, adding that “he is also frank in explaining the inherent weakness in a case and in identifying the best way forward.” In particular Chambers & Partners (2016 edition) states that clients report that he "inspires confidence when arguing a matter," owing to his extensive preparation and strategic insight. Percy has been previously commended to have received “high praise from clients, who describe him as a "very experienced litigation lawyer" and, as having an "impressive capability for quickly grasping the content of the matter"; that he “inspires confidence when arguing a matter owing to his extensive preparation and strategic insight”; for his “direct and pragmatic style which inspires confidence in clients”; as a “mature and respected lawyer”; as an articulate and excellent counsel with sound understanding of litigation strategies and commercial issues;” as a “very impressive litigation counsel with a good knowledge of the economics behind competition law.” Legal 500 Percy has been recognized by Asia Pacific Legal 500 as one of the leading individuals in India and as a “fine lawyer” and a leading individual who comes “highly recommended”. Noteworthy Awards Asia-Law Leading Lawyer, 2018 for Disputes and Litigation. Listed in “The A List – India’s Top 100 Lawyers” (2017) for Litigation, Competition Law and Direct Tax. Winner of the Legal League individual category award in “Excellence in Arbitration” (March 2018). Selected by the editorial team of India Inc. to be featured in the annual ‘100 Most Influential in UK-India Relations’ publication to be launched in June 2018. Listed in the “Who’s Who Legal” for Litigation. Listed in the “Who’s Who Legal” for Competition Law. The Asian-Mena Counsel has named Percy as the “External Counsel of the Year” (2013) for his “industry, knowledge and commercial approach”. Best Competition Law Litigator, 2014, Legal Era Awards, 2013-14. Best Tax Lawyer of the Year, 2012, Legal Era Awards, 2011-12. Previously listed in the Tax Director’s Handbook as “highly regarded”. Memberships and Affiliations Present Advisory Board, Symbiosis Law School, NOIDA. Honorary Overseas Member of the Commercial Bar Association (“COMBAR”). Non-Government Advisor to the Competition Commission of India. India Committee of the American Bar Association. Indian Council of Arbitration. Empanelled as arbitrator with LCIA. Empanelled as arbitrator with Nani Palkhivala Arbitration Center. Empanelled as arbitrator with Delos Dispute Resolution, Paris. Former Task Force on Dispute Resolution - Confederation of Indian Industry (“CII”). ICC India Executive Committee (2016). National Council for Competition Law of ASSOCHAM. Working Group on Unilateral Conduct Committee of the American Bar Association’s Section on Anti-trust law. Direct Tax Committee of the PHD Chamber of Commerce and Industry. Committee of Legal Affairs, Indo-American Chamber of Commerce. Honorary Faculty of National Institute of Construction Management and Research Committee for Review of Education and Training of the Institute of Chartered Accountants of India. PHDCCI Capital Markets Committee PHDCCI Corporate Affairs Committee Career Fellow, Institute of Chartered Accountants of India Bar Council of India Formerly National Chair of the firm’s “Disputes and Litigation” practice at Cyril Amarchand Mangaldas and Head – Delhi Office till July 2018. Prior to that Percy was a Senior Partner and Chair of the Litigation Practice at AZB & Partners. Percy started his career with Arthur Andersen in 1987.