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Si-]PT{EME COURT GF IT.{DiA

CXVIL A}}PELLATIi

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ISDI CTIO]''I

ECIAL LEAVE PET}TICITi IC]VI!,i I.IO.17tr50.54 OF 2012


IN THE MATTER OF:... Petitioner

Bar Council of India.


Versus

A.K.Balaji & Ors,

,.. Respondents

A.FFIPAVIITJ REpt,y OF RESPONpENINO:

16

I, Mr Raymond Martin Cohen, son of ivlaurice Cohen. aged about 5i years having
my place of business at One Silk Street, l.ondbn, EC}Y SFIQ, do hereby,solemniy

affirm and sincerely state

l.

state that

as

follows:

am the authorized representative of R"espondent No, 16.

fully acquainted with the facts of this present

case and am

anr

ttrily colxpetenr

to swear and depose to the facts stated in this Affidavit, To tire extent ihai
the information in this atlldavit is within my own knorvledge

it is truo.

anci

to the extent that it is basecj on information received from others it is true to


the best

cf my informatiori and belief.

ERELINIINARY SUBMISSIONS

2.

At the outset, I

state that the Special Leave Petition ("SLP")

is

misconceived, incorrect, unsustainable in law and ought to be dismissed

irz

limine, with exemplary costs. The answering Respondent does not have

law office in india and it does not give, in India, Indian law advice to its

3.

clients as alleged by the Petitioner in the SLP.

The ansrvering Respondent is a limited liability' piirtnersirip incorporated


under the laws of England anci Wales.

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state thal answering Responcient


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provides legal services through law offices in a number of oountries of the

' world including the United States of America, Spain, Germany,

France,

Singapore, Hong Kong etc. either directly through branch offices of

Linklaters LLP or through various Iocal Iegal entities.

ln addition, the

answering Respondent owns subsidiary serv'ice companies

in a number of

countries which provide administrative and support services

for its

larv

offices, but which do not provide legal services.

4.

state that the division bench

of Hon'ble High Court of .ludicature

at

Madras in W.P,No.5614 of 2010 had disposed of the aforementioncd writ

petition by its order dated 21.02.2012 after having come to a conclusion


t'r'

that neither the Advocates Act,

.:',

of India Rules,

I96l

(the

1975 ("Rules") govern

Indian law' and/or 'foreign law'

"196l Act") nor the Bar Council

o, uppiy to the practice of 'non-

in intjia, it had also passeci ceftain

directions vis-d-vis the practice of 'non-lndian law' and/or 'foreign

law' in

India by foreign law firms or foreign larvyers and allowing foreign lawyers

to conduct arbitration

proceedings

in respect of disputes arising out of

contract relating to intemational commercial arbitration.

5.

I fu*her

state that the Petitioner'is attempting to confuse issues.

I sute that

the answering Respondent is not attempting to have its representatives enter

India for the purpose of arguing in any of the Indian courts, or for
purpose

of

the

providing Indian legal advice on any matter, whether

contentious or. non-contentious.

state that,

in

today's world with

globalization being extensive, there are a numb'er of transactions where


Indian companies are investing or raising capital outside India or foreign
companies are investing or raising capitai in India giving rise to rhe need

for both Indian and foreign law arjvice, lt is often convenient for clients in

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legal advisers travel


these circumstances to have their foreign

to India

to

law so as to take advantage


advise them in person on aspects ofnon'lndian

oftheirinternationalexperieneeandforeignlawexpertise'Itisinthis
contextthatrepresentativesoftheansweringRespondentwouldnonnally
and/or 'foreign
enter india to provide 'non-lndian law' advice

law' advice'

with the provision of training on


They may also enter India in connection

matterswithintheirexpertiseorforthepurposeofdevelopingor
in lndia, but not to argue
maintaining relations with businesses or lawyers
legal advice'
in any of the Indian courts or to provide Indian

6.

state that the Petitioner has further attempted

to confuse matters by

suggestingthatanyrelationshipbetweenforeignandlndianlawyersmeans

thatforeignlawyerstherebyhaveaphysicalpresenceinlndia.Such
trade' They allow clients to
relationships are commonpiace in international
being taken care of by
be reassured that their legal needs abroad are

lawyertrustedbytheirlocallawyerandtheyallowlndianlawfirmsto
needs in
obtain access to international clients with specialist

relationships are also used by Indian law firms

India'

to serve their

Such

clients'

inbound and outbound needs'

'7.

B!'iA

.*.
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Istatethatbypassingthedirectionsinparagraph63ofitsorderdated

?L,oz,Io:lztheHon,bleHighCourtofJudicatureatMadrasin
that the aforesaid
w.P.No.5614 of 2010 has only clarified and confirmed

. practice of ,hand holding' of their clier:ts by foreign law firms and/or


of the I961 Act and in
foreign Iawyers is in no ryay against the provisiogs
the aforesaid Madras
fact it has been a long standing practice much before

judgment
High Court judgment and even the Bombay High Court

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in

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231
Lawyers Collective vs. Bar Council of lndia and Ors

- 2010 Vol.l12 (l)

Bom, L.R. 0032.

WISE RESPONSE

ALLEGATI

AGAINST

ANSWERING RESPONDENT
8.

state

thatl shali now redpond

paragraph wise.

to the contents of the SLP and the Affidavit

state at the outset that since there are no direct allegations

against the answering Respondent, the answering Respondent shall


endeavor to respond to'the contents of the SLP and the Affidavit inasmuch

as any paragraph relates to it.

submit that any inadvertent omission to

deny any contention or allegation raised in the affidavit under reply ought

not to be construed as an admission, I state that the answering Respondent


for this purpose specifically reserves the right to file any additional counter
affidavits as and when they may be required.

9.

With reference to paragraph 1 of the SLP, I deny that the .iudgement and
order dated 21.02,2012 passed by the Hon'ble High Court of Judicature at

Madras

in Writ Petiiion No.5614 of 2010 and M'P'No's'I, 3 to 5

impugned as alleged by the Petitioner,

is

I refer to and rely upon the said

judgement for its true meaning and interpretation.

10,

With reference to paragraph 2 of the SLP, I deny that any questions of law
have arisen for the purpose of'appreciation and consideration by this

lan

Hon'ble Court under Article 136 of the Constitution of India.

ll.

With reference to paragraph 2 Question of Law (A) of the SLP,

subrnit

thatthe judgement and order dated 21.02.2012 passed by the Hon'ble High
Court of Judicature at Madras had not held that a person of foreign origin,

not enrolled as an advocate under the 1961 Act would be permitted to


appear before any forum ofjustice delivery system in India.
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F(_

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232-

\ry
12.

with reference to paragraph 2 Question of Law (B) I deny that 'practise

the

on legal issues
profession of law' would include advice given to clients
outside the

cou(s

as the

1g6l Act does not categorically define the same'

was occupied by
Additionally, before the 1961 Aot was enacted, the field

Councils Act'
the lndian Bar Councils Act, 1926. Under the Indian Bar
practise before courts and
1926, lhe word "prQcllse" undoubtedly meant
and by
tribunals. The 1961 Act was enacted as a consolidating legislation
then the word"practise" had attained nomenTarls since

it had been in

use

that is a term of
in legislation for nearly forty years, ln Indian law, a word
art or has otherwise attained nomen

iuris is presumed to have been used in

in State of
the same sense in legislation as held by this Hon'ble Court

.i.

Madras vs. Gannon Dunkerley AIR 1958 SC 560'

r3,

Withreferencetoparagraph2QuestionofLaw(C)oftheSLP,Isubmit
High Court
that the judgement and order dated 21.02.20i 2 passed by the

of

as advocate
Judicature at Madras has not heid that a person not enrolled
under the

l96l Act

(in terms
can be allowed to carry on legal profession

of

giving advice on Indian law) whether litigious or non-litigious'

14.
:....:)

i,:::

with

sLP,
reference to paragraph 2 Question of Law (D) of the

submit

either in the
that the High court was justified in holding that there is no bar

to visit
1961 Act or the Rules for the foreign law firm or foreign lawyers
purpose of
India for a temporary period on a fly in and fly out basis, for the

giving iegal advice to their clients in India reqarding foreign law as the
Rules
High court had rightly held that the neither the 1961 Act nor the

define.practiceoflegalprofession'toinclude.non-lndianlaw'advice
and/or'foreign law' advice

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23';
U

subnrit

Hon'ble High Court as


that the Petitioner has misquoted the

in the

of Law (E) of the SLP'


With reference to paragraph 2 Question

15.

judgmenttheHon,bleMadrasHighCourthadactualiyquotedthisHon'ble
Court,sdecisiondated20'01'2012inVodafonelnlernationalHoldingsB,V,
termed
No'26529 of 2010' and it had not
vs. (Jnion of India & AIr,SLP(C)
the legal Profession as a business'

of Law (F) of the SLP'


With reference to paragraph 2 Question

16.

subnrit

the
the High courtl In the judgment
that the petitioner has again misquoted

HighCourthasinfactheldthatifforeignlawfinnsweredeniedpermission

todealwitharbitrationinlndia,thenlndiawouldlosemanyarbitrationsto
othercountrieswhichiscontrarytothedeclaredpolicyoftheGovernmen[

oflndiaandwillbeagainsttheNationallnterest,especiallywhenthe
a hub of lnternational Arbitration'
Government of India wants india to be

17,

with

reference to Ground 5

court has committed

(l) of

rhe SLp,

deny that the Hon'ble High

gtave error as the term 'practice

the

legal

profession'hasnotbeendefinedbythelg6lActandtheRules'andthe
1961

.non-Indian, law andior.foreign


Act does not govern the practice of

law'.

18.

.l',r

withreferencetoGround5(ll)oftheslp,ldenythattheHon'bleHigh
CourthadnotconsideredtheorderpassedbytheBornbayHighCourtin

LawyersCollectiveys,BarCounciloflndiaandors,TheHon'bleHigh
Courthasdiscussedtheratiointheaforesaidjudgmentatlength.The
Petitionerisattemptingtoconfuseissues,asbeforetheHon'bleMadras

HighCourttheissuewasrelatingtoapplicabilityofthelg6lActandRules
law'in lndia by foreign larv
to practice.non-Indian, law and/or.foreign

iaz-s\_
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{-v \ }*\6

o114
by
issues which were not resolved
firms and/or foreign lawyers, these being
the BombaY High Court'

withreferencetoGround5(lll)oftheslp,ldenythattheHighcourt

19.

failedtoappreciatethatthePetitionerandthestateBarCouncilshavethe

statutorydutytoregulatethelegalprofessioninlndia.lnfact,theHon'ble

i:,

HighCourthasheldthatforeignlawfirmsorforeignlawyerscannot
fulfil
in India (that is, tndian law) unless they

'''

practise the profession of law

therequirementofthelg6IActandtheRules'Additionally,theBornbay
law firms practicing the
High court has directed that vis-ir-vis foreign
since lhe issue is pending
profession of law in lndia (that is' Indian law)'

beforetheCentralGovernmsntformorethan15years'theCentral

Governmentshou]dtakeanappropriatedecisioninthematteraS
expeditiouslY as Possible'

with

reference to Ground 5

(rv)

and (V) of the

Court failed to appreciate the provision

slp, I <1eny that the High

of the 1961 Act'

Rightly

interpretingsections24and4Tofthelg6lActtheHon'bleHighCourthas

rightlyheldthatexceptionsareprovidedundertheprovisotoSection
the
Section 41(?) and in the light of
24(1Xa), Section za(l)(c)(iv) and
scheme
t*it

lawyer to practise
of the t96l Act which could enable a foreign

Indianlawinindia'However,ifalarvyerfromaforeignlawfirmvisits
to'the law which is applicable
India to advise his client on matters relating

totheircountry,forwhichpurposehefliesinandfliesoutoflndia'there

couldnotbeabarforsuchservices,,nde,*dbysuchforeignlaw
firm/foreign lawYer'

11

WithreferencetoGround5(VI)oftheSLP,IsubmitthatthePetitioneris
trying to confuse issues Uy

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'uggttting

tl*t tht pt'


Nrv=(:\

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7

27s
Act to enable
and conciliation Act, 1996 would need to override the 1961
not the case
foreign lawyers to participate in arbitrations in India. That is

as

foreign
the Hon,ble High court has not held that rhe 1,961 Act prevents

the context of
lawyers from giving foreign law advice to their clients in
arbitrations, The Hon'ble High Court has in fact held that

if

foreign law

India
firms were denied permission to conduct arbitration in lndia, then

lo
would lose many arbitrations to other countries which is contrary
declared policy of the Government of India and

will

the

be against the National

wants India to be a hub


Interest, especially when the Government of lndia
of International Arbitration.

,tfr-"

1'

with reference to Ground 5 (vll) of the sLP, I deny that the Hon'ble High
of the I 96
Court failed to appreciate the law of the land and the provisions

Act nor
Act, as only after having come to a conclusion that neither the 1961
the Rules apply to the practice

of 'non-lndian law' and/or'foreign law' in

the
India, had the Hon'ble High court passed certain directions vis-d-vis

practice of

,non-lndian law' and/or'foreign law' in India by foreign law

firms or foreign lawYers.

23'.

to
With reference to Ground 6 (I) and (ll) I say that the Petitioner has failed

of
prove that they have a good case on the merits and that the balance
convenience lies in their favour. The Petitioner has to prove how
t.'

anticipate that their functioning would be jeopardized as


authority of the 'legal profession of India'

if

it is they

regulatory

the order daled 2l'02'201?

passed by the Hon'ble High Court is not stayed.1 say that from the above

is in the
facts and circumstances, it is clear that the balance of convenience
favour of the Respondent No.l6,

will suffer

considerable loss

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lt

is not just that the Respondent No'i6

if the aforesaid order is staypd, it would

also

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affecttheimpactofforeigninvestmentandinflowofforeigncurTencyon
thelndianeconomy,andalsootherissuesinvolvingfiscalimplicationson

the

economic development

of the country vis-ir-vis

commercial transactions, further

it would affect strategic

international

foreign direct

investmentcomingtolndiaespeciallywheninternationalcommercial
are indispensable for a growing
transactions and foreign direct investments
economy like lndia.

24.

WithreferencetoparagraphT(a)ofthesLPlsaythatthespecialleaveto
appealshouldnotbegrantedtothePetitionerandshouldbedismissedrvith
exemplary costs to the Respondent No'16'

.,11,

,<

SLP' I say that no other orders


With reference to paragraph 7 (b) of the
granted to the

26.

Petition,'

f'o*

be

the aforesaid circumstances'

WithreferencetoparagraphS(a)oftheSLP'lsaythatthePetitionerhas
failedtoprovethattheyhaveagoodcaseonthemeritsandthatthebalance
has to prove how it is
of convenience lies in their favour. The Petitioner
theyanticipatethattheirfunctioningwouldbejeopardizedasaregulatory

authorityofthe.legalprofessionoflndia,if,theorderdated2]l'02,2a12
passedbytheHon,bleHighCourtisnotstayed.Isaythatfromtheabove
'',. :..':.'

factsandcircumstances,itiscloarthatthebalanceofconvenienceisinthe

favouroftheRespondentNo.l6'ItisnotjustthattheRespondentNo'16

will suffer considerable

loss

if the aibresaid order is stayed, it would

affect the impact of foreign investment and

also

'inflow of foreign currency on

involving fiscal implications on


the Indian economy, and also other issues

theeconomicdevelopmentofthecountryvis-ir.visinternational
strategic forgign direct investment
commercial transactions, it would affect

coming to India especially


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*t''n int'
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2-17
foreign direct investments are indispensable for

growing economy Iike

lndia.

)1

With reference to paragraph 8(a) of the SL,P, I say that no other orders be
granted to the Petitioner from the aforesaid circumstances.

28.

has not raised any new fact

It is submitted that the Respondent

in its Reply.

::\.

-?o

In the aforesaid circumstances, I say that the present Special Leave Petition
be dismissed with exemplary costs to the Respondent No.

I6'

Solemnly affirmed at London, England

f.r-t-r\.r-

this the /,gSday of September,2012

Before Me

and signed his name in my presence.

,Lw\, r-

P.-

E.C. AGRAWALA
Advocate for Respondent No.16

l-r)

-:,.,

,:1
hlobry Putllc London, Enghnd (Andrsw J. MacNab)
My @mmission expires at Death

'.

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