With the traditional legal practice areas fast reaching a plateau, the scope for emerging practice areas is bright. But the new niche practice areas call for a different mindset and a unique set of skills. We bring you a series on the exciting new areas…
The traditional practice areas of law appear to be reaching a saturation level. Consequently, individual practitioners as well as law firms are looking at the “emerging practice areas”. The idea is to establish an advantageous position before competition increases. The term “Emerging” refers to areas of legal practice that represent new avenues or markets. Emerging practices can be whole new areas of legal practice or traditional legal practices as applied to an entirely new purpose. It should, however, be borne in mind that the new niche areas require the members of the legal fraternity to develop a different mindset along with a unique set of skills.
In the first part of this on-going series we take a look at two emerging areas which have today undoubtedly matured into established practices.
It is now universally acknowledged that “energy” is critical in the attainment of economic growth. The energy sector is vast and comprises not just primary sources, including petroleum; coal; natural gas; but also nuclear gas and the myriad renewable forms of energy, including, but not limited to hydro-electric power. Electricity is a secondary form of energy, being produced from the primary sources. Until the 1980s, India’s energy policy was primarily based on the availability of indigenous resources. With the passage of time, however, India’s primary energy sources have changed. The search for energy resources has led India to also look at markets of the emerging energy-trading countries and forge partnerships to produce sufficient energy for meeting the growing domestic demands. Given the importance of energy and petroleum in our everyday lives and the increasing demand-supply gap, there exists a huge demand for professionals in these sectors.
The regulatory regime for the energy sector in India is complex. We take a quick look at the regulatory environment of the core areas of petroleum and power. In the petroleum sector, the upstream chain (exploration and production activities) is governed by the New Exploration Licensing Policy of the Ministry of Petroleum and Natural Gas. These activities have now been de-regulated and thus private sector companies, including foreign companies, are allowed to bid for exploration and exploitation of oil and gas fields. In case of the downstream activities (comprising refining, transportation and distribution), all private-sector refining projects have automatic foreign investment approval and may be 100% foreign-owned, but in case of PublicSector Undertakings, foreign equity has to be approved by the Government and cannot exceed 49% of total ownership. In the power sector, in 1991, a new power policy was introduced as part of an overall reform programme aimed at promoting private sector and foreign participation. One of the most relevant reforms was the introduction of the Electricity Act 2003 which transformed the entire legal framework governing the electricity sector. It has been designed to remedy the problems plaguing India’s power sector as well as to attract capital to large-scale power projects.
Post-independence several oil companies were nationalized since oil is one of the main tools of development and governance. However, later it was realized that petroleum is a risky business, capital intensive, and requires new technology for exploitation, and that private capital, skill and technology must be allowed. Hence, the second phase was triggered by the 1991 economic reforms, which opened the gates for the private sector participation. Even after the reforms the petroleum sector did retain some of the old characteristics like licenses are required for exploration and exploitation in addition to production sharing contracts. The concept of a regulatory authority, separate from the Government, and with a distinct corporate existence has now taken shape and has already been introduced in the “downstream petroleum sector”. In the “upstream petroleum sector” as well, it is a matter of time before such an arrangement is brought in. The Oil Field (Regulation and Development) Act 1948 and Petroleum and Natural Gas Rules of 1959 (PNG Rules) regulate the petroleum sector. Since bulk of oil exploration and production is done from offshore fields like Bombay High, the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 was brought in to force under which Central Government issues Letter of Authority for carrying on petroleum operations in offshore areas. As mentioned above, a new legislation, viz., Petroleum and Natural Gas Regulatory Board Act, 2006 (PNGRB Act) was introduced dealing with downstream activities. Pursuant to this Act, a regulator has been constituted in the form of Petroleum and Natural Gas Regulatory Board. As per policy statement of the Government, a similar legislation creating a Board for upstream chain is also intended to be introduced, but it has not been introduced as yet. With regard to the upstream chain, various rounds of bidding for oil and gas exploration and exploitation took place culminating into declaration of New Exploration and Licensing Policy (NELP) in 1999. With the introduction of NELP, the process of bidding was made transparent and a level playing field was provided to private parties vis-a-vis the nationalised oil companies. Theregulatory functions are performed either by Directorate General of Hydrocarbon or by the Ministry of Petroleum and Natural Gas itself.
There is, however, a need for an impartial and independent regulator which can decide issues amongst various stake holders and the Government, in the upstream chain. Further, legislation is also required clearly laying down procedure and process of dealing with environmental aspects, particularly in deep- sea; crude oil and natural gas prices; insurance issues; technical aspects of exploration and development; and other aspects of modern-day petroleum activities.
Petroleum being non-replenishable natural resource has vital importance in energy needs of the world. The global economy is not just affected by it, but sometimes even controlled by it. No viable alternative to petroleum has been developed so far as the transport sector is concerned. In this backdrop, oil is not merely business, but an integral part of world politics. It is, therefore, not surprising that this sector has tremendous opportunities for lawyers and other professionals. There is large scope for negotiation, drafting of contracts, and legislation, both in upstream and downstream chains of the petroleum sector. The trans-country pipelines, construction of refineries, oil platforms, drilling and other activities are creating lot of legal work which is bound to increase in future. There are various other areas related to petroleum which entail legal work, for instance, environmental problems and hazards, insurances relating to oil business, to mention a few. In addition, there is an increase in merger and acquisition activities relating to petroleum properties in India and abroad which require comprehensive due diligence, negotiation, drafting and execution in foreign countries. All this is invariably done by legal professionals and advisers drawn from different places. Unfortunately, there are very few legal professionals who can understand and deal with petroleum industry specific legal issues. A legal professional who wants to work in this sector must be able to understand the technical, financial, and commercial aspects and come up with practical legal solutions. Above all, dispute resolution through mediation/conciliation/arbitration as well as litigation remains the main area of activity for lawyers. Hence, petroleum sector provides plenty of opportunities and challenges for new lawyers!
The rapid globalization of the Indian energy and petroleum sector in the recent past has led to a steady rise in the fructification of joint ventures, mergers & acquisitions in these sectors. It is, thus, only natural that the demand for specialized legal professionals who understand the functional aspects of the energy and petroleum business is acutely felt by the companies engaged in these businesses. Moreover, since India is keen to be a player to reckon with in the international market, the regulatory aspects, legal regime, environmental safeguards, trading policies, etc., require specialised attention. As is the case with all the other sectors, the energy and petroleum sectors also call for certain specialized skills. Understanding of negotiation strategies and drafting techniques are some of the pre-requisites. These encompass knowledge of, inter alia, conducting negotiation, requisite documentation during negotiation, drafting techniques etc. Further, exposure to international commercial law, with specific reference to energy and petroleum related matters, is also critical. The contracting process too requires special care and attention, particularly how the contract is to be structured; what key clauses should be incorporated in the contract; and understanding the joint venture structure etc.
A specialisation in energy and petroleum laws enables one to explore employment opportunities with both the private and public sector. In the private sector, big oil companies offer lucrative avenues, the notable ones include Reliance Industries Ltd., Essar Oil India Ltd., Shell India Pvt. Ltd., amongst several others. Similarly, in the power sector there are a host of private players engaged in power generation and distribution, viz., Reliance Energy, Tata Power, Jindal Power Ltd., to name a few. In addition, several public sector undertakings (PSUs) in the energy and petroleum sector also offer tremendous scope for legal professionals, for instance Oil and Natural Gas Corporation Ltd (ONGC), GAIL (India) Ltd, Indian Oil Corporation, National Thermal Power Corporation (NTPC), Nuclear Power Corporation of India Ltd. (NPCIL), etc. As an in-house counsel or as a member of the legal team of these corporations, you will be handling all the legal matters related to their business activities. One may also consider joining a law firm which provides legal services to such corporations. As newer sources of energy are discovered and exploited, there will be plenty of challenges with regard to regulations, usage, and other legal aspects which call for competent and credible professional legal inputs.
Any program or course on energy and petroleum laws should involve study of the regulatory and legal framework as well as the contractual requirements of these sectors, in addition to the study of the traditional areas of law. The College of Legal Studies at the University of Petroleum and Energy Studies (UPES) located in Dehradun (Uttarakhand) offers a specialized five year IntegratedBA LLB Program with an emphasis on Energy Laws, including Petroleum Laws. The course which has been recognized by the Bar Council of India specifically covers modules like Oil & Gas Law and Policy; Regulatory Framework for Energy Sector; Environmental Challenges in Energy Sector etc. Quite obviously there are very limited options in the country as far as specialisation in Petroleum and Energy Laws is concerned. Since there is a shortage of law colleges/institutes offering specialisation in these areas, those interested in pursuing a career in energy and petroleum laws, will be well-advised to take up internships with companies in this sector or with law firms handling the legal work for oil and energy companies. This will enable them to gain firsthand knowledge about the sector and the future prospects.
The reason why Information Technology (IT) industry is popularly referred to as the “sun-shine” industry of India is not far to seek. It has after all helped India “shine” on the global map! Efficient utilization of the skilled labor force and domestic entrepreneurship are the two critical factors in the evolution and growth of the Indian IT industry. While 1990s witnessed the emergence of Software Technology Parks, the current decade saw the establishment of Ministry of Information Technology. These concerted efforts of the Government of India backed by private initiatives and public-private partnerships have ensured the consolidation of the industry. Today, IT is all-pervasive in India and is widely used in business, governance and above all communication.
The turning point was the enactment of the Information Technology Act in the year 2000 (IT Act), which for the first time conferred legal recognition to “Electronic Documents” and“Digital Signatures”. Thus, any document created out of a computer and in a digital format has a special legal significance. In addition, the Act specifies offenses, contraventions and the justice dispensation system for crimes related to the IT sector. The advent of Internet or the World Wide Web and e-commerce, also brought with it the menace of “cyber crimes”. The growth of “electronic commerce” further propelled the need for effective regulatory mechanisms which could strengthen the legal infrastructure. To address these issues, in December 2008 the IT Amendment Act 2008 was passed which brought about sweeping changes in the existing IT Act. The 2008 Act has provided additional focus on “Information Security” and added several new provisions on offences including “Cyber Terrorism” and “Data Protection”. Some experts have criticized the amendments on the ground of lack safeguards, legal and procedural, to prevent violation of civil liberties of citizens. Nevertheless, the amendments have also been praised for addressing the issue of cyber security. Apart from the IT Act, the Negotiable Instruments Amendment Act, with effect from 2003, incorporated the electronic version of cheques, thereby ushering in a revolutionary era for the Indian banking. Similarly, several aspects of the Intellectual Property Law (copyright, trademarks, patents) affect the functioning of transactions done through the Internet. Indirectly, these laws too fall under the purview of “cyber laws”. Needless to add, all these laws have been structured in a manner that they have universal jurisdiction.
I believe there is a tremendous potential for the IT law practice in India. This is so because IT is becoming extremely important in the day-to-day conduct of business affairs of various entities. Today, various entities widely use computers, computer systems, computer networks and communication devices for a variety of activities. Hence, the applicability of IT law principles to their businesses is a given fact. In my view it is only a matter of time before the IT law practice evolves into a distinct stream of practice in India.
Well there are various challenges that are currently being faced by the Indian IT law regime. These challenges relate to a widearray of factors. First and foremost, Indian IT law is in a stage of development. Since lots of areas have not been covered under the extant law, on a large number of subjects the law is relatively fluid. With the amendment of the Information Technology Act, 2000 by the Information Technology (Amendment) Act, 2008, cyber crimes and cyber criminals have been given a softer treatment and thus one of the biggest challenges being faced by the IT law regime is how to secure effective increase in number of convictions for cyber crimes. Further, the issues pertaining to data protection and privacy are complex and challenging. Similarly, issues pertaining to cyber war, spamming and cyber security are becoming increasingly important which have to be addressed in a comprehensive manner by the legal regime. Above all, the law is in a stage of constant development. Given the nature of the IT law, new and fresh challenges are continuing to emerge on the horizon. It is very important that India ushers in a futuristic IT law regime so as to meet all these challenges.
To young lawyers, current and future, who want topursue a career in IT law, I would like to say that this is indeed a fascinating field. It has endless opportunities, and more importantly as a practice area it is going to become increasingly important as time passes by. The critical factor to be borne in mind for this area of practice is that it will require lot of time, effort, energy and research due to the constantly evolving nature of legal jurisprudence on the subject. IT law is a law of the present as well as the future. Given the significance of the IT sector in the modern times, this area has a bright future for all new lawyers who want to enter this field.
IT law is a mutli-disciplinary subject; it requires an appreciation of both technology and law. Consequently, study of cyber law is also a multi-disciplinary task. The cyber law curriculum is structured in a way that it invariably includes study of basicconcepts of technology and law; law of digital contracts; intellectual property issues; e-governance; the IT Act; and above all, the global scenario. It should, however, be noted that cyber law is an area of specialization and has to be used to build upon the basic qualification of an LLB degree. Various law colleges now offer post-graduate diploma courses in cyber law, for instance, Symbiosis Law College (Pune), NALSAR University (Hyderabad), amongst others. As far as specialized institutes are concerned, the Asian School of Cyber Laws (Pune) offers diploma courses in cyber laws and cyber crime investigation at Pune and Mumbai and also through distance learning mode. Interestingly, www.cyberlawcollege.com (founded in the year 2000) is a pioneering virtual educational institution dedicated to the subject. It offers online and offline courses in various cities, including Bangalore and Chennai.
The rapid rise in cyber crimes and the wide scope of cyber laws has brought to the fore the need for legal compliance as a necessary business ingredient for IT companies. The application of IT law is undoubtedly universal. In addition to the transactions conducted online, which fall within the purview of this law, whenever documents are prepared using a computer, cyber law becomes applicable. For instance, these days majority of the banking and stock market transactions are done pursuant toelectronic documents, and thus attract provisions of cyber law. With the advent of a paper-less, computer based world, the demand for legal professionals in future will be for those who are well-versed with cyber law. A wide varied of career choices open up for those who are conversant with cyber laws. For lawyers and those engaged in corporate advisory services (Company Secretaries and Chartered Accountants) the knowledge of cyber laws provides an opportunity to enhance the value of their professional service. Some may be retained by companies and others may choose to become independent professional consultants.
It cannot be denied that there are some daunting challenges as well. Foremost being issues of jurisdiction. The Internet does not make jurisdictional boundaries clear, but the users of Internet are in physical jurisdictions and thus subject to laws. Hence, a single transaction may involve the laws of multiple jurisdictions, viz., laws of the nation where the user resides; laws of the nation where the server hosting the transaction is located; and laws of the nation where the person or business with which the transaction takes place, is located. Since there is no uniform jurisdictional code of “universal application”, legal practitioners are left to deal with conflict of law issues. Furthermore, the world of “computer crime” is vast embracing a wide-array of crimes such as phishing; credit card frauds; illegal downloading; child pornography; cyber terrorism; spamming; squatting; creation and distribution of viruses, and so on. Regulating these crimes is turning out to be an uphill task. With computer criminals devising sophisticated strategies to protect themselves, in reality the Internet criminals are rarely caught.
There are some distinct features that characterize emerging practice. These include (i) when the demand for an emerging practice is low but there are limited legal professionals who can provide the service in the area, as is the case with pioneering areas like bio-medical; (ii) when an emerging practice does not appear to be a legal practice as is the case with intellectual property rights which is intrinsically connected with new technologies; and (iii) when emerging practices do not fructify into a full-fledged practice which the practitioners can capitalize on, for instance the “Y2K practice” which was set up across the globe in the year 1999. In a nut-shell, emerging practices are exciting but, like any new business, they need to be worked on to make them successful. Or, to put it differently, “There exist limitless opportunities in every industry. Where there is an open mind, there will always be a frontier.”
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