June 2005
Index
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3
4
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Messages: Managing Partner’s message
Comment: Appetite for contractual preservation
(What sensible commercial contracts should be doing)
Comment: Polygamous Corporate Marriages
(Preserving joint ventures despite changing partners)
Comment: Sting and the law
(The thin line between privacy and a free press)
Lifestyle: A tryst with Shiva – Part I
(Off Roading through Tibet to Kailash Mansarovar)
Initiative: Our workshop schedule
(Workshops for the business community)
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2
4
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Managing Partner’s Message
It is our pleasure to announce the impending opening of our new office in
Bombay. Interior work is well underway and we should achieve inauguration in
the next several weeks. With this step, we hope to provide to our existing
Bombay clientele better, more proximate service, as also to locally offer full legal
service to the western Indian community for the first time.
Meanwhile, we bring to you this time, a varied mix of material for your
consideration:
1. On a philosophical level, we have on occasion been skeptical of the way
commercial contracts are written. In the last issue of Ensouth, we argued
that contracts should be commercially ‘enabling’. This time, we deeper
into what contracts should be doing.
2. On a topical level, after fifteen years of joint venture experience in India,
we feel it is time for us as a nation to think outside the box and question a
fundamental assumption about the structure of joint ventures. We explore
1
the means by which joint venture agreements may be written such that
they survive their founder partners.
3. On current affairs, we delve into the Shakti Kapoor incident where the
actor was videographed propositioning a lady journalist which making
revelations about Bombay’s casting couch and explore the legal issues
attending the thin line between privacy and a free press.
4. Ensouth seeks a more complete life experience and takes pride in
exploring remote off-road destinations. After visiting Kinnaur and Spiti in
the western Indian Himalayas, we cross the border into Tibet this time
and travel by Land Cruisers to the holy lake of Mansarovar.
6. Finally, in continuance of the successful interactions we have had with the
business community in the last year, we share with you our workshop
schedule for the next calendar quarter.
2. Comment-1
(This column was printed in the May 2nd, 2005 issue of Business World)
Appetite for contractual preservation
What sensible commercial contracts should be doing…
Ranjeev C Dubey
At the outset, my gratitude to Mr. Aditya Prakash from Bangalore who
wrote in and expressed the view that “Appetite for contractual destruction” in the
BW of Mar 21st, 2005 was more than eloquent on the ‘mindset’ with which
contracts should be written but did not explain how this new recommended
mindset translated into a different kind of contract. Lets try to close the loop on
what commercial contracts should be doing. Off the top of my head, I would say
that apart from setting out rights and liabilities of parties – and that is not the
subject of this column - I would like to see every contract perform fundamentally
five functions.
First and foremost, since we live in a country that is hugely over
legislated, every contract big and small should navigate through the legal terrain.
This does not seem to be on every contract writer’s agenda. What do I mean?
Many manufacturing outsourcing agreements are seriously flawed because they
simply do not deal with income tax and excise duty issues raised by leased
tooling. ‘Manage as crises appear’ couldn’t be the best way to write a contract!
Take a somewhat more complex example. Many infrastructure licenses seem to
require one Indian shareholder to maintain control of the licensee company. The
truth is that many Indian companies are family group entitles, not single
companies, and control the licensee company between themselves. Because of
tax structuring, many of these group companies are not affiliates as the
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Companies Act defines them. The moment the Indian shareholder sheds a
minority of the licensee company’s equity to a foreigner, he loses ‘control’ on
paper because many of his group shareholder companies are uncontrolled. So
what is the problem? Nothing if no one notices but the licensor who checks the
record will be able to terminate for breach. An incoming foreign shareholder
would want the Indian shareholder to consolidate the Indian shareholding to
secure the stability of the license but the Indian shareholder doesn’t comply
because he doesn’t want his tax assessment reopened. The solution is simple
really: all the Indian shareholder’s group entities need simply sign a shareholders
agreement yielding control to the parent but this is not going to happen if the
share subscription agreement doesn’t provide for it. Trust me, I am dealing with
it right now!
Second, every contract should tell parties what they are to do, when,
where and how. Establishing rights and obligations is not the same thing as
establishing performance rules and orders: who does what first and who does
what when and what happens if things go wrong. Contract writers have this
huge resistance to making real world scenario analysis and providing for it. Too
often, we are told, “oh well, we can’t legislate for contracting parties”. And pray
why not? What are contract writers here to do but write contracts that help
parties perform well and reap the anticipated commercial benefit? How many
contracts go wrong simply because no one provided for the order in which
parties perform what we lawyers call ‘reciprocal promises’? Every participating
party to a contract takes a financial exposure. If no order of performance is
provided, every party wants the other party to take the greater risk. It becomes
a game of ‘you show me yours first and then I’ll show you mine’. This generally
means either dispute or abandonment of one or more contractual activities.
We’ve actually dealt with a joint venture in Thailand between an American and
an Indian company where both were to contribute their existing customers and
neither did, waiting for the other to move first. It ended in arbitration!
Third, contracts should actively address issues arising out of the unequal
impact of changing laws. Contracting parties may sign a deal assuming a legal
regime that may change. Lets face it, in many jurisdictions, it is possible to lobby
and change the law to suit one’s purpose. What happens to the victim of this
lobbying? In this situation, the contract won’t let him leave and it’s not worth his
while to stay. Contract writers should write long-term Change-in-Law provisions
into their contracts. This is how it works. The moment there is a Change-in-Law,
the party adversely impacted issues notice on the other and parties then sit and
write an amendment to the contract that neutralizes the change. If the
amendment is not do-able, the contract provides for a commercially sensible exit.
This has twin benefits. One, it keeps the relative benefit and obligations matrix of
the contract intact over a longer period of time and two, it discourages parties
from changing the playing field!
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Fourth, contracts should address risk sharing issues with great precision.
Every contract suffers the risk of failure because of the default of one party but
the majority of contracts do not fall for this reason. I believe that profit is not a
reward for deploying capital: it is a reward for managing risk! Many contracts fall
because of unmanageable no-fault risk. In all fairness, many contracts do deal
with no fault risk to a point. Thus, there are force Majeure clauses that allow
parties to stand still while the disaster is dealt with. Infrastructure contracts even
have a walk away clause if the Force Majeure is extraordinarily prolonged.
However, I do not see a systematic attempt to identify and apportion no fault
risk in most contracts. When disaster strikes, what we get are parties running
like scared nuns in a Mexican monastery overrun by banditos in a Sergio Leoni
film!
Finally, and this is key, contracts should radically alter their attitude to
default. Defaults occur as often as a result of parties’ compulsion as they do as a
matter of choice: I don’t sympathize with contracts that seek to impose justice as
a primary goal. Justice is a secondary goal – if there is such a thing as justice – it
is protection of ‘value’ that must be a primary goal. This is simple to illustrate.
When a party defaults, the aggrieved party moves to demand retribution and the
defaulter moves to cover its hind. Parties posture and play and the business
opportunity in the contract bites the dust. If you are franchising me your
yearlong computer course and I can’t run the course because I haven’t the
volumes to pay my faculty, suing me is not a solution because I have no money
to pay you. In any case, even if I had the money, suing me means abandoning
the few students that did want your course. What would that do for your brand?
Doesn’t it make sense for you to sit with me and find ways to find students?
Wouldn’t you give me advertising and direct selling support? And if the numbers
still won’t come, wouldn’t transferring the students to another faculty make more
sense? If you believe Himmurabi’s “eye for eye” is more meaningful than
protecting your commercial value, should you be in business at all?
3. Comment-2
(This column was printed in the April 18th, 2005 issue of Business World)
Polygamous Corporate Marriages
Preserving Shareholders Agreements despite changing partners
Ranjeev C Dubey
Just as partnership firms have no identity independent of the partners,
marriages between man and women have no identity independent of the couple.
But companies do have an identity apart from its shareholders – we lawyers call
it the corporate veil - and I see no reason why we should structure joint venture
agreements around shareholders rather than around the company. Let me
illustrate.
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Look at your average JV agreement. It provides special rights to the
shareholders and then goes on to state that the JV agreement – and the special
rights it confers – will subsist for so long as the two partners, or at least two if
there are more than two partners, continue as shareholders. This means that
when only one signatory to a JV agreement survives as a shareholder, the
agreement, and the special rights, end. I don’t understand this universally
employed concept at all.
Shareholders “invest” in a company: it’s not the same thing as subscribing
to an annual membership at a health club. A JV agreement material enhances
shareholder control. It’s a value driver: an asset. If it is an asset, what is the
value of this asset which self-destructs when the joint venture partners exit the
company? If an exiting shareholder cannot sell his special rights in a company,
he cannot fully liquidate his value in it. So I ask myself this question: Is there a
problem if a Joint Venture Agreement does not terminate on Partner exit? Why
don’t we make this asset permanent and heritable? How to achieve this
transferability was an interesting topic of conversation at my Understanding Joint
Ventures workshop last February.
In truth, it is not that no attempt has ever been made to preserve the
‘asset value’ of JV agreements. Some JV agreement do provide that where one
shareholders sells his shares to a third party, the incoming shareholders shall
have the same rights as the exiting shareholder provided the incoming
shareholder signs a ‘deed of adherence’. This is at best a rudimentary
formulation. It assumes that there will always be two shareholders with inflexible
holdings. In the emerging world, this will not be true for any meaningful period
of time. Companies grow, chop, change and mutate quickly; shareholdings and
shareholders change; shareholders dilute to get in portfolio investment, lenders
convert debt to equity… what use is a formulation based on a narrow two owner
mind box?
Forget the shareholder, think of the company. Where in the world do
rights exist without corresponding obligations? A company that acquires a
shareholder with special rights also acquires a shareholder with special
obligations to that company. It can be a powerful upside…
Naturally, climbing out of the box raises some vexing questions. First, if
we are to provide special rights, can shareholders progressively dilute to nothing
and still have special rights? Or is there a threshold shareholding to qualify for
special rights. Obviously, we need to set up a practical standard. My own view is
that in a closely held private company, three is a crowd and four is as
cantankerous as a multiparty democracy. I would not structure a JV agreement
where special rights are given to more than three shareholders – push comes to
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shove, may be three. By this token, to be a qualified shareholder, one must hold
at least 33.34% and no more than 50% of shares if you want a two qualified
shareholder company, or at least 25.01% and no more than 33.33% if you want
a three qualified shareholder company.
What happens if a qualified shareholder wants to exit? I certainly would
not tamper with our current corporate practice of providing for a “right of first
refusal”. This is how it works. If a signatory to a shareholders agreement wants
to sell, he make a deal with a third party purchaser and puts the proposal on the
table, offering to sell his shares to the existing shareholders at the same price
and on the same terms. If no existing shareholder wants the shares, the exiting
shareholder is free to sell to this third party, but to no one else, and not on any
other terms. After the sale, the incoming shareholder pretty much acquires all
the rights, and obligations, of the exiting shareholder.
Now, the foregoing assumes that qualified shareholder status is acquired
by sale and purchase of shares. This need not be the case. It is possible that
over the years, thought dilution, one or more qualified shareholders have been
de-qualified, perhaps even exited, being replaced by other ‘ordinary
shareholders’. It is perfectly possible that over time, an ordinary shareholder
picks up additional shares and achieves qualified shareholder status. Since he
has not inherited the status from a previous qualified shareholder, a mechanism
must be put in place for his formal recognition. Perhaps it should be a request
for recognition followed by requisite corporate action, or perhaps corporate
action should follow automatically. We are fortunate that statutory records
include a register of shareholders. Given that a company is always aware of who
is qualified and who is not, it may not be necessary for a court to give directions
on body counts on the floor of a legislative assembly, as seems to be the flavor
of the month! It could be hassle free. Of course, since the incoming shareholder
is going to acquire some new rights, he would have to formally assume the
associated obligations. Though we are not all, as Jack Welch famously said, too
old to be surprised, I have yet to see an incoming shareholder resist signing a
deed of adherence.
4. Comment-3
(This column was printed in the May 16th, 2005 issue of Business World)
Sting and the Law
The thin line between privacy and a free press
Ranjeev C Dubey
The proliferating media debate of the merits of entrapping Mr. Shakti
Kapoor into “revealing” the details of Bollywood’s casting couch hovered
mesmerizingly around questions of morals, propriety, decency and entrapment
but failed to definitively specify a law that either party – journalist, TV channel or
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actor- may have breached. To understand the legal issue, let us start with the
facts.
A young female journalist persuades a senior character actor from the
Indian film industry to meet her at a hotel and advise her how to break into
movies. She plays the bimbette to perfection and does not discourage him when
he reveals a ‘sleeping to the top strategy’ starting naturally with him as the first
recipient of her professional attention. In getting the journalist to buy into his
strategy, the actor reveals the names of several established actresses who have
allegedly implemented the same strategy. All this is faithfully captured on camera
and then broadcast on national TV by a new and unknown channel. This media
story has whipped up a great deal of acrimonious debate but the sizzling heat
has failed to throw definitive light on its legal issues. There are three players in
this charade – Journalist, TV channel and Actor - and each is capable of being
touted about as victim or villain by some one or the other. What laws have any
of them broken? And who is the victim?
Although the actor has received the worst of the flak, is he truly a villain?
If he had succeeded in his seductive quest, since he is a married man, he
certainly would have committed adultery but that is a crime both non-cognizable
and bailable, in other words, a matter between man and wife till the wife visits
the police station. In naming names of other actresses who he accuses of
adopting his recommended strategy to succeed in the movie industry, he is
undoubtedly guilty of defamation but defamation again is non-cognizable and
bailable, in other words, a matter between him and several actresses till one of
them visits the police station. In the absence of a complaint, our senior seducer
is not accused of anything!
Of course, it is common knowledge in India that suing for
defamation is not a good idea. Justification is a defense and a good
lawyer is capable of doing worse damage to a complainant’s reputation
during the adjudication process than the original defamation could
have possibly inflicted! That criminal processes are onerous to the
complainant does not help.
What about crimes against women as specified in the Indian Penal Code?
Although the actor was extraordinarily foul mouthed, his conduct could not be
construed as obscene under Section 294 because he did not proposition the
journalist in a public place. He could conceivably be guilty of ‘Outraging the
Modesty of a Women’ under Section 509 but given that the journalist both
invited the propositioning and pursued it for her commercial purposes, a
conviction would be hard to get or sustain in appeal.
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Is the actor aggrieved as the fall guy? Mr. Kapoor protests his entrapment
and seems to assume that entrapment is somehow illegal. I fear not. Entrapment
is an established part of India’s criminal administration of justice: The
Suppression of Immoral Traffic Act, The Prevention of Corruption Act and the
Drugs and Psychotropic Substances Act all rely extensively on entrapment to
institute prosecution and the actor would struggle to create a case on this basis.
Given that the journalist conspired with the TV channel to set up the
actor, we can fairly presume that neither of them will claim victim status.
Considering that their interests are completely aligned, what you accuse one of
also applies to the other. But what can you accuse them of? Entrapment is not a
crime in India. The actor has not been defamed, merely video graphed making
scurrilous allegations against third parties. The worst you can say is that his right
to privacy has been invaded but is it sustainable to claim a right to privacy when
the press exposes a middle aged man’s description of standard operating
procedure in the film industry?
It comes down to this: given the well recognized fundamental right to
freedom of speech and expression that the press has jealously guarded through
out the life of the Constitution of India, a subject on which we need not dwell
too long, does publishing material on an actor’s morals and seduction technique
constitute a violation of any of his right? We can break up the issue into two
associated questions: do Indian citizens have a right to privacy? And where are
we going to draw the line between the right of free speech and the right to
privacy?
Although a right to privacy is not codified anywhere in Indian law, the
Supreme Court first recognized it in the Kharak Singh case way back in 1963 in a
case arising out of stringent surveillance on a suspect authorized under the UP
Police Regulations. Although the court implicitly recognized the right as an
extension of Article 21 of the Constitution (the right to life), it held that this right
could be “curtailed through procedures established by law”. The Supreme Court
reiterated this view again in 1975 in the Gobind case but in a sense, neither case
is truly material because they both arise out of public invasion of citizen’s
privacy.
A citizen’s right to invade the privacy of another citizen came up for
decision in 1995 as a result of the serial killer Auto Shankar’s decision to publish
his biography where he claimed police complicity in his crimes. The police turned
the heat on the publisher to kill the book and the publisher took the matter to
court. The Supreme Court held in the Rajagopala case that the right to privacy is
implicit in the right to life and has two aspects: (a) a general right of privacy, a
civil action in which damages can be awarded, and (b) a constitutionally
guaranteed right to privacy against government invasion. Without seeking to
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definitively rule on all the law on the point, it held that this right to privacy is
subject to two exceptions (a) where private information becomes a matter of
public record, and (b) to the extent that private citizens perform public duties.
Two years later, in 1997, the Supreme Court took up this question again
in the public interest People’s Union for Civil Liberties case that challenged the
constitutional validity of the Indian Telegraphs case, which authorizes telephone
tapping. Although this case searched for the golden mean between public
security and citizen’s privacy, a question not relevant here, the court did observe
that privacy as a “concept it may be too broad and moralistic to define it
judicially… but the right to hold a telephone conversation in the privacy of one’s
home or office without interference can be certainly claimed as right to privacy”.
Consistent with the Rajagopala case, Mr. Kapoor’s remedy then is to pay
court fees and file a civil suit seeking damages for breach of privacy. The court
will then determine whether Mr. Kapoor has the right to have his seduction
technique kept private? In the ordinary course, I would think the court would
uphold his claim but this is unlikely when the defendant is the lady who has
suffered his seduction technique and told the world about it.
At the end of the day, what you have then is a story without victim and
accused. Since all three players in the game come out diminished, a court would
be hard pressed to find a victim to compensate or an accused to submit to
retribution. It’s a story that lives in a legal vacuum, just another sting story. Now
isn’t that completely consistent with contemporary culture and value systems?
5. Lifestyle
(This first part of an off road journey from Katmandu to
Mansarovar Lake is held for publication by a British adventure magazine)
Great Road Journeys
In search of Shiva
Our mandatory ‘English Speaking Chinese Guide’ was Tibetan with almost
poetically perfect lean hungry looks, and he had a Teflon smile that screamed,
“I’m working this face to a larger plan”. He was the classic middleman in a
command economy, sucking up to petty officialdom and preying on his real
customer. As we huddled under incessant rain at the Kodari Friendship Bridge on
the Tibet-Nepal border, he yelled and screamed, pushed people into line and
generally had everyone’s nerves on edge. But he had done his job on logistic
support - when we got over to the Tibetan side, six Land Cruisers, two trucks
and ten Sherpas were ready and waiting to service us for the next fortnight of
our planned sojourn to Kailash and Mansarovar.
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There were twenty-four of us – twenty two Indians, one Russian and one
Mexican – most middle aged and westernized but with a significant sized
contingent of senior female citizens on a pilgrimage to Shiva’s abode who
everyone naturally called ‘Matajee’. Curiously, not everyone was in it for the
spiritual ride: for some, like me, it was a quest to experience for ourselves that
fascinating legend of a lofty mountain in the frozen Tibetan plateau at the roof of
the world from which, four great rivers arose.
Our border crossing formalities didn’t end at Kodari Bridge though. A
second installment of passport control Chinese style occurred six km up in
Zhangmou. Zhangmou is a charming hill town providing a bewildering pot puree
of the mongoloid races - Tibetans, Hans, Bhutias, Manchus, Khasas, Sherpas,
Nepalese – and all the color, shopping and street eating anyone would want. It
has those lovely young money
changing ladies running their dubious
business on the kerb, calling out to
travelers in their high pitched sing song
voices and scurrying about animatedly.
It also had matronly sanitary workers
with barrel sized chests and bulldog
cheeks sweeping the roads in knock off
Bally shoes and navy blue pant suits,
making us pilgrims look like village
idiots.
With a dramatic watershed to
Zhangmou
cross and the rain continuing to carpetbomb the hem of the communist paradise, we could not risk a landslide-induced
delay. Clearing emigration procedures quickly, we mounted our newfound steeds
and immediately started our dramatic ascent of the Tibetan plateau.
The 24 Kilometers between Zhangmou (1872m) and Nyalam (3750m)
takes travelers from the tropical forests of Nepal up 1.5 kilometers of altitude to
the desert highlands of the Tibetan plateau within the hour. It’s a vicious assault
on the human body, leaving most people looking like they had hit a brick wall by
the time they got to Nyalam!
Nyalam is a pleasant one street town where every one plays pool in the
open all summer and no one seems to have any visible occupation. Our tour
group collapsed on arrival at Nyalam. It got worse as strange things went thud in
the gloom of the Tibetan night. The tall thin Russian Girl, here to figure out why
her mother was obsessed with India, had her youthful digestive tract in violent
revolt and her characteristically incoherent style of speech did not help diagnosis.
Alpha Mata, the dominant female senior citizen, wailed uninterruptedly, invoking
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a vibgyor of heathen gods in her thick guttural Haryana accent, interspersing her
laments with the choicest expletives from the imaginative verbal repertoire of a
perverse truck driver. No doubt, most people wondered if the spiritual merit
earned though this holiest of Hindu pilgrimages was worth the agony.
Not such tribulations for the Holistic Doctor though. He was tall, sported a
very long aquiline nose, stuttered intermittently and had an awkward gangling
walk. His patronizing conversation never failed to unnerve. He downed several
bottles of local hooch, grazed through several plates of Buffalo Momos and then
rounded off a prime illustration of substance abuse by slurping through a bowl of
noodle soup. We had found the cosmic interface between holistic transcendence
and gastronomic blitzkrieg!
Dawn did not bring good cheer. The aromatic potties in the guesthouse
froze the innards of all but the most insensitive. Worse, the Baby Mata – obese,
self indulgent, only middle aged and yet as fraudulently sanctimonious as the
rest of the Mata Gang – used up all the potty water to bathe in the iconically
dirty Tibetan loo, condemning the rest to paper alone. When our convoy
assembled on Nyalam Main Street next morning, most people looked like
beached walruses.
Our itinerary for the day scheduled a 300 km drive from Nyalam to Saga.
Out of Nyalam, the road commenced a slow climb along the valley for some
twenty kilometers till abruptly, turning west, it ran up a narrow gorge and
attacked the grueling ascent to the 5120m Tong La. It was here that Tibet, as
we expected to find it, was first revealed to us: undulating barren mountains,
sparse low bush type vegetation, high wind speeds, gritty, sandy top soil, high
UV and glare…
Tong La is not a dramatic pass, if pass it is: the ground slopes up and at
some point levels off into a table top, on one side of which sits Tong La and 20
km away, on the other, sits an even higher pass: Lalung La, all of 4 meters
higher! We didn’t run as far as Lalung La though: midway across the plateau, we
turned off the road and pointing due west, trundled across practically unbroken
virgin land, making our own road…the ultimate off road experience at the roof of
the world, five kilometers up in the air!
In time, we bumped, ground and meandered our way to the western edge
of the plateau and dropped steeply off it, spanning several small mountain
streams, splashing through up to two feet of water. Driving on, we curved gently
around Tibet’s highest mountain Shisha Pangma (8012 meters), highest because
peaks like Everest are shared with Nepal! We then passed through the Shisha
Pangma Nature Reserve, undoubtedly the ultimate exotic animal habitat: wild
ass, blue sheep, Tibetan gazelle, Lynx, Himalayan brown bear, Tibetan snow
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cock, black necked crane and Himalayan Griffon. By midday, we made Phaigu
Tso, a breathtaking 300 sq kilometer fresh water lake. Lunch by the water was
an experience
beyond
the
mere esthetic:
we
found
ourselves
mesmerized by
the
dazzling
colors
that
teased us in
that
rarified
Tibetan
air,
spell bound by
the vast sweep
of the water.
Phaigu Tso
Our post lunch journey was equally dramatic: a stiff climb up another
5000-meter pass, a wild windy place along a knife ridge where we stopped for
but a minute and then plunged like a stone into the Brahmaputra valley,
reaching the river in under 30 km. We camped by the Brahmaputra that night,
contemplating placid waters, watching the lazy ripples of the unhurried river
meet the dark looming pitch black of the mountain as mother earth reached for
the inky purple of the sky and the day ebbed away.
Not all was serene and sensitive in paradise though: The Guide did not
want to camp by the river, he wanted his night in Saga. He argued with
everyone, inflicting on us a long tantrum. Meanwhile, the Shoe Salesman
wedded to his 1400 vinyl long playing records had collapsed completely. He was
a placid, typically urbane south Indian type, very well spoken but his lungs were
in deep trouble. The Russian Girl was still unwell. The Guide made his move,
insisting that neither were going to survive if they were not rushed to Saga
hospital. The Russian Girl refused to go but the Shoe Salesman succumbed. In a
snap, The Guide commandeered a Land Cruiser, flung the Shoe Salesman in and
rushed off in a cloud of dust. Not till next morning did we hear of what followed.
Once in Saga, The Guide took his charge straight to a spanking new hotel
and chucked him out of the Land Cruiser. “Where is the hospital?” said the Shoe
Salesman. “What hospital”, The Guide retorted, “that is no hospital in Saga”! As
a result, the Shoe Salesman got to spend the night in a great 300 Yuan hotel
with no running water, hot or cold, boasting a very pretty Han Chinese
receptionist in a white striped low cut dress attached to an oxygen cylinder, with
a Sherpa for company. Presumably, The Guide got laid, or at least piss drunk,
because nothing else quite explains the scam. Meanwhile, the Holistic Doctor
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moved the sick Russian Girl into his tent to nurse her better with a gleam in his
eye.
We were early to strike camp next morning, ready to be the first to cross
the river. Some day, they will no doubt get round to building a bridge across the
Brahmaputra but for now, what you have is the famed Saga ferry: two pontoons
lashed together with some wooden planking on top. The ferry hangs off a single
wire strung across the river and is manually hauled across using the current.
Saga Ferry
Saga is the last town of any size in western Tibet on the road to
Mansarovar. China Telecom runs a large facility here and the beauty parlor in the
market seems to have a great many Han girls getting their hair bleached: very
urban for the middle of nowhere! We found 30 or more well stocked shops
selling the whole range from shoes and ships and sealing wax to liquid nirvana!
The Shoe Salesman emerged radiant from his tryst with the oxygen cylinder,
poorer but rested. Meanwhile, the fastidious up-market Condo Babe with her
sculpted aerobic body, her disapproval of anything that did not come sanitized
and packaged and her quest for materialist nirvana, purchased three cases of
mineral water to drink on her way to Mansarovar.
The road west of Saga was better than anything we had seen since Tong
La: for a while anyway. We crossed a succession of large valleys separated by
sub 5000-meter passes, a pattern that became familiar as our trip progressed.
The valleys west of Saga support huge numbers of livestock: vast plains dotted
with black rawhide tents where large groups of yaks and sheep graze along the
open grasslands and gently sloping hillsides. By lunch, we were in New Zhongba.
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The old town of Zhongba reportedly slipped under a sand dune back in
the 1970’s. New Zhongba is a typical Tibetan town offering some shops, several
dozen locked winter homes of nomads and mountains of rubbish under a
dazzling, irresistible blue sky held up by columns of snowy peaks along the
horizon. The Russian Girl was obviously feeling better because the Holistic Doctor
fed her some Momos while the Condo Bade looked down her nose at them with
gastronomic disdain. I remember New Zhongba mainly because for some
inexplicable reason, three of the Mata Gang ambled across to a large rubbish
heap and made a long pit stop in full view of New Zhongbians: a real bum deal!
The road deteriorated pretty dramatically after New Zhongba as the
terrain turned increasingly sandy. By the time The Guide identified a sweet water
spring to camp by two hours west of New Zhongba, the road had all but
disappeared. I have very pleasant memories of walking up a ridge that evening,
shooting lots of pictures, seeking to capture that elusive quality of Tibet’s light as
it polarized and disbursed across the land in the thin, dust free high altitude air.
We had a nightmare of a night. Alpha Mata fell apart at the seams and did
everything to accelerate her deterioration. She refused to eat or drink and joined
the arthritic Mata Two in keeping up an energetic program of synchronized
wailing. The shoe stringing Mexican turned Buddhist with his limited English,
bearded Robinson Crusoe looks and affected generosity panicked and went
scurrying from tent to tent, looking for the Holistic Doctor. Oxygen cylinders flew
about and the Holistic Doctor who had finally scored with the Russian Girl raced
from Mata tent to Mata tent, back and forth, his diuretic pills in one hand and his
depleted libido in the other!
We awoke to the sound of chattering teeth on a very clear very cold
morning of our last day’s drive to Mansarovar. Out of our New Zhongba camp,
we hit full blown sand dunes and negotiated between them slowly, admiring the
Nicholas Roerich like landscape, taking in the glorious sweep of the Nepal
Himalayas to the south and its dramatic peaks: Manaslu (8162m), Annapurna
(8090m), Dhaulagiri (8167m) and Kanjiroba (6883m).
In two hours we were in Paryang (4750m), a small settlement smack in
the middle of a very large valley offering stupendous views of the Nepal
Himalayas and another great rubbish heap marking city center. Not fifty feet
away, pious Tibetans continuously performed parikramas of the local fifteen feet
square monastery mumbling prayers as they moved slowly, zombie like in the
sparkling frugal air. Our driver found an automotive repair shop being run from
the back of a truck complete with welding equipment and a generator and
immediately had a broken leaf reattached to our vehicle.
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Manaslu, Annapurna, Dhaulagiri and Kanjiroba
By lunch, we reached a small-tented village offering a ‘Yak Restaurant’
adorned with the severed head of a yak at the entrance and several lovely ladies
in flashy traditional drag serving customers. After several days of seeing nothing
but Indians and yaks, this was a sight to inspire. The Shoe Salesman was most
encouraging, insisting that they were there to attract customers for themselves,
not their restaurant! But we had miles to go before we slept.
As is true of so many Tibetan passes, the 5216-meter Mayum La dividing
Mansarovar from the Brahmaputra valley is higher than it is impressive. On the
other side, the road drops to a very isolated, very pretty plateau where large
herds of Tibetan Gazelles are seen grazing fastidiously while wild Asses keep
their distance and a million rats scurry from burrow to burrow. We made this run
quickly, soon coming by the Samui Chu stream till cresting a small rise; we
stopped dead to view for the very first time, the holy lake Mansarovar (4560m),
the female ‘Shakti’ counterpart to Shiva, and Kailash. What a dazzling panorama
it was: the vast expanse of that sapphire water, sheltered amidst the mountains,
the clouds hanging like benedictions in that silent azure sky.
We were by lakeside within the hour, camping by the Samui Chu right
next to a large gaggle of nesting migratory ducks. Later, I remember walking
down to the water, confused in my response to the raw spiritual power of this
mesmerizing place. In the evening light, as the water turned from a deep blue to
a beckoning blackish brown under a cloudy orange-purple sky, I saw myself as I
know the man slowly ebb away, replaced by someone else, someone in hesitant
harmony with the rhythm of the universe. In those moments, before the night
claimed the land, all too briefly, Lord Kailash revealed his abode in the snows. In
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Mansarovar
that flashing moment, before the clouds closed in again, I knew that this was a
homecoming because and in some magic real unseen fashion, HE had been
waiting for me. Later, I got together with the Holistic Doctor and the Russian Girl
at dusk and walked to the water’s edge where holding hands, we chanted to
Brahma till the waves washing at our feet swept into our awareness, taking away
our physical boundaries, sweeping us into the undifferentiated universe.
To be continued in the August 2005 Ensouth…
5. Initiative
Our Workshop schedule July 2005 to October 2005 is set out below.
Details at http://www.iallm.org/
1.
Understanding
Commercial
Contracts:
Structuring, Drafting, Negotiating and Closing WinWin Contracts
2. How to Acquire a Company:
Structuring, Risk Assessing, Drafting, Negotiating
and Closing Win-Win Acquisitions of Company
Shares
16
July 30, 2005
August 26, 2005
3. Understanding Joint Ventures:
Structuring, Drafting, Negotiating and closing WinWin Joint Ventures and shareholders agreements.
-x-
17
October 1, 2005