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    INTHI

    Si-]PT{EME

    COURT

    GF

    IT.{DiA

    CXVIL

    A}}PELLATIi

    J

    UR

    ISDI

    CTIO]''I

    ECIAL

    LEAVE

    PET}TICITi

    IC]VI ,i

    I.IO.17tr50.54

    OF 2012

    IN THE

    MATTER

    OF:-

    Bar

    Council of

    India.

    ...

    Petitioner

    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

    as

    follows:

    l.

    I state

    that I

    am the

    authorized

    representative of R"espondent

    No,

    16. i anr

    fully

    acquainted with the facts

    of this

    present

    case

    and am

    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 a

    law office

    in india

    and it does

    not

    give,

    in

    India,

    Indian

    law

    advice

    to

    its

    .

    clients

    as alleged

    by

    the

    Petitioner

    in

    the SLP.

    3. The ansrvering

    Respondent

    is a limited liability'

    piirtnersirip

    incorporated

    under

    the

    laws

    of

    England anci

    Wales.

    i state

    thal

    answering

    Responcient

    No,

    of

    Pgs:

    No. of. Corrections:

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    4.

    2z?

    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.

    I 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

    that neither the Advocates

    Act,

    I96l

    (the

    "196l

    Act")

    nor the

    Bar

    Council

    of

    India Rules, 1975

    ("Rules")

    govern

    o,

    uppiy to the

    practice

    of

    'non-

    Indian

    law'

    and/or

    'foreign

    law'

    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 a

    contract relating to

    intemational

    commercial

    arbitration.

    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 the

    purpose

    of

    providing

    Indian legal advice

    on

    any

    matter,

    whether

    contentious

    or. non-contentious.

    I 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

    t'r'

    .:',

    5.

    No.

    ofPgs:

    No. of.

    Correctionsr

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    \y

    '/t

    \'

    these

    circumstances

    to

    have

    their

    foreign

    legal

    advisers

    travel

    to

    India

    to

    advise

    them

    in

    person

    on

    aspects

    ofnon'lndian

    law

    so

    as

    to

    take

    advantage

    oftheirinternationalexperieneeandforeignlawexpertise'Itisinthis

    contextthatrepresentativesoftheansweringRespondentwouldnonnally

    enter

    india

    to provide 'non-lndian

    law'

    advice and/or

    'foreign

    law'

    advice'

    They

    may

    also

    enter

    India

    in

    connection

    with

    the

    provision

    of

    training

    on

    matterswithintheirexpertiseorforthepurposeofdevelopingor

    maintaining

    relations

    with

    businesses

    or

    lawyers

    in

    lndia,

    but

    not

    to

    argue

    in

    any

    of the

    Indian

    courts

    or

    to

    provide

    Indian

    legal

    advice'

    i

    state

    that the

    Petitioner has further

    attempted

    to

    confuse

    matters

    by

    suggestingthatanyrelationshipbetweenforeignandlndianlawyersmeans

    thatforeignlawyerstherebyhaveaphysicalpresenceinlndia.Such

    relationships

    are

    commonpiace

    in

    international

    trade'

    They

    allow

    clients

    to

    be

    reassured

    that

    their

    legal

    needs

    abroad

    are

    being

    taken

    care

    of

    by

    a

    lawyertrustedbytheirlocallawyerandtheyallowlndianlawfirmsto

    obtain

    access

    to

    international

    clients

    with

    specialist

    needs

    in

    India'

    Such

    relationships

    are

    also

    used

    by

    Indian

    law

    firms

    ,

    to

    serve

    their

    clients'

    inbound

    and

    outbound

    needs'

    Istatethatbypassingthedirectionsinparagraph63ofitsorderdated

    ?L,oz,Io:lztheHon,bleHighCourtofJudicatureatMadrasin

    w.P.No.5614

    of

    2010

    has

    only clarified

    and

    confirmed that

    the

    aforesaid

    .

    practice

    of

    ,hand

    holding'

    of

    their

    clier:ts

    by

    foreign

    law

    firms

    and/or

    foreign

    Iawyers

    is

    in

    no

    ryay

    against

    the

    provisiogs

    of the

    I961

    Act

    and

    in

    fact

    it

    has

    been

    a

    long

    standing

    practice

    much

    before

    the

    aforesaid

    Madras

    High

    Court

    judgment and

    even

    the

    Bombay

    High

    Court

    judgment

    in

    6.

    B 'iA

    .*.

    ,l-

    ":r

    '7.

    No.

    of

    Pgs:

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    Corrections:

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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

    I

    state thatl

    shali

    now redpond

    to

    the contents

    of

    the SLP and

    the

    Affidavit

    paragraph wise.

    I

    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.

    i

    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.

    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 is

    impugned as alleged

    by the

    Petitioner,

    I refer

    to

    and rely

    upon

    the

    said

    judgement

    for

    its true meaning

    and

    interpretation.

    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

    Hon'ble

    Court

    under

    Article

    136

    of

    the

    Constitution

    of

    India.

    ll.

    With

    reference to

    paragraph

    2

    Question

    of

    Law

    (A)

    of

    the

    SLP,

    I 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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    \ry

    232-

    with

    reference

    to

    paragraph

    2

    Question

    of

    Law

    (B)

    I

    deny that

    'practise

    the

    profession

    of

    law'

    would

    include

    advice

    given

    to

    clients

    on

    legal

    issues

    outside

    the

    cou(s

    as

    the

    1g6l

    Act

    does

    not

    categorically

    define

    the

    same'

    Additionally,

    before

    the

    1961

    Aot

    was

    enacted,

    the

    field

    was occupied

    by

    the

    lndian

    Bar

    Councils

    Act,

    1926.

    Under

    the

    Indian

    Bar

    Councils

    Act'

    1926,

    lhe

    word

    "prQcllse"

    undoubtedly

    meant

    practise

    before

    courts

    and

    tribunals.

    The

    1961

    Act

    was

    enacted

    as

    a consolidating

    legislation

    and

    by

    then

    the

    word"practise"

    had

    attained

    nomenTarls

    since

    it

    had

    been

    in

    use

    in

    legislation

    for

    nearly

    forty

    years,

    ln

    Indian

    law,

    a

    word

    that

    is a

    term

    of

    art

    or

    has otherwise

    attained

    nomen

    iuris

    is

    presumed

    to

    have

    been

    used

    in

    the

    same

    sense

    in

    legislation

    as

    held

    by this

    Hon'ble

    Court

    in

    State

    of

    Madras

    vs.

    Gannon

    Dunkerley

    AIR

    1958

    SC 560'

    Withreferencetoparagraph2QuestionofLaw(C)oftheSLP,Isubmit

    that the

    judgement

    and

    order

    dated

    21.02.20i

    2

    passed by

    the

    High

    Court

    of

    Judicature

    at

    Madras

    has

    not heid

    that a

    person

    not

    enrolled as

    advocate

    under

    the

    l96l

    Act

    can

    be

    allowed

    to carry

    on

    legal

    profession

    (in

    terms

    of

    giving

    advice

    on Indian

    law)

    whether

    litigious

    or

    non-litigious'

    with

    reference

    to

    paragraph

    2

    Question

    of

    Law

    (D)

    of

    the

    sLP,

    I submit

    that

    the

    High

    court

    was

    justified

    in holding

    that

    there

    is no

    bar

    either

    in

    the

    1961

    Act

    or

    the Rules

    for

    the foreign

    law

    firm

    or foreign

    lawyers

    to

    visit

    India

    for

    a

    temporary

    period on

    a

    fly

    in

    and

    fly

    out

    basis,

    for

    the

    purpose

    of

    giving iegal

    advice

    to

    their

    clients

    in

    India

    reqarding

    foreign

    law

    as

    the

    High

    court

    had

    rightly

    held

    that

    the

    neither

    the

    1961

    Act

    nor

    the

    Rules

    define.practiceoflegalprofession'toinclude.non-lndianlaw'advice

    and/or'foreign

    law'

    advice

    12.

    .i.

    r3,

    14.

    :....:)

    i

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    U

    ;

    With

    reference

    to

    paragraph

    2

    Question

    of

    Law

    (E)

    of

    the

    SLP'

    I subnrit

    that

    the

    Petitioner

    has

    misquoted

    the

    Hon'ble

    High

    Court

    as

    in

    the

    judgmenttheHon,bleMadrasHighCourthadactualiyquotedthisHon'ble

    Court,sdecisiondated20'01'2012inVodafonelnlernationalHoldingsB,V,

    vs.

    (Jnion

    of

    India

    &

    AIr,SLP(C)

    No'26529

    of

    2010'

    and

    it

    had

    not

    termed

    the

    legal

    Profession

    as

    a

    business'

    With

    reference

    to

    paragraph

    2

    Question

    of

    Law

    (F)

    of

    the

    SLP'

    I

    subnrit

    that

    the

    petitioner

    has

    again

    misquoted

    the

    High

    courtl

    In

    the

    judgment

    the

    HighCourthasinfactheldthatifforeignlawfinnsweredeniedpermission

    todealwitharbitrationinlndia,thenlndiawouldlosemanyarbitrationsto

    othercountrieswhichiscontrarytothedeclaredpolicyoftheGovernmen[

    oflndiaandwillbeagainsttheNationallnterest,especiallywhenthe

    Government

    of

    India

    wants

    india

    to

    be

    a hub

    of

    lnternational

    Arbitration'

    with

    reference

    to

    Ground

    5

    (l)

    of

    rhe

    SLp,

    I

    deny

    that

    the

    Hon'ble

    High

    court

    has

    committed

    a

    gtave

    error as

    the

    term

    'practice

    the

    legal

    profession'hasnotbeendefinedbythelg6lActandtheRules'andthe

    1961

    Act

    does

    not

    govern

    the

    practice

    of

    .non-Indian,

    law

    andior.foreign

    law'.

    withreferencetoGround5(ll)oftheslp,ldenythattheHon'bleHigh

    CourthadnotconsideredtheorderpassedbytheBornbayHighCourtin

    LawyersCollectiveys,BarCounciloflndiaandors,TheHon'bleHigh

    Courthasdiscussedtheratiointheaforesaidjudgmentatlength.The

    Petitionerisattemptingtoconfuseissues,asbeforetheHon'bleMadras

    HighCourttheissuewasrelatingtoapplicabilityofthelg6lActandRules

    to

    practice.non-Indian,

    law

    and/or.foreign

    law'in

    lndia

    by

    foreign

    larv

    15.

    16.

    17,

    18.

    .l',r

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    19.

    o114

    firms

    and/or

    foreign

    lawyers,

    these

    being

    issues

    which

    were

    not

    resolved

    by

    the

    BombaY

    High

    Court'

    withreferencetoGround5(lll)oftheslp,ldenythattheHighcourt

    failedtoappreciatethatthePetitionerandthestateBarCouncilshavethe

    statutorydutytoregulatethelegalprofessioninlndia.lnfact,theHon'ble

    HighCourthasheldthatforeignlawfirmsorforeignlawyerscannot

    practise

    the

    profession

    of

    law

    in

    India

    (that

    is,

    tndian

    law)

    unless

    they

    fulfil

    therequirementofthelg6IActandtheRules'Additionally,theBornbay

    High

    court

    has

    directed

    that

    vis-ir-vis

    foreign

    law

    firms

    practicing

    the

    profession

    of

    law

    in

    lndia

    (that

    is'

    Indian

    law)'

    since

    lhe

    issue

    is

    pending

    beforetheCentralGovernmsntformorethan15years'theCentral

    Governmentshou]dtakeanappropriatedecisioninthematteraS

    expeditiouslY

    as

    Possible'

    with

    reference

    to

    Ground

    5

    (rv) and

    (V)

    of

    the

    slp,

    I

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    1'

    27s

    and

    conciliation

    Act,

    1996

    would

    need

    to

    override

    the

    1961

    Act

    to

    enable

    foreign

    lawyers

    to

    participate

    in

    arbitrations

    in

    India.

    That

    is

    not

    the

    case

    as

    the

    Hon,ble

    High

    court

    has

    not

    held

    that

    rhe

    1,961

    Act

    prevents

    foreign

    lawyers

    from

    giving

    foreign

    law

    advice

    to

    their

    clients

    in

    the

    context

    of

    arbitrations,

    The

    Hon'ble

    High

    Court

    has

    in

    fact

    held

    that

    if

    foreign

    law

    firms

    were

    denied

    permission

    to

    conduct

    arbitration

    in

    lndia,

    then

    India

    would

    lose

    many

    arbitrations

    to

    other

    countries

    which

    is

    contrary

    lo

    the

    declared

    policy

    of

    the

    Government

    of

    India

    and

    will

    be

    against

    the

    National

    Interest,

    especially

    when

    the

    Government

    of

    lndia

    wants India

    to

    be

    a

    hub

    of

    International

    Arbitration.

    with

    reference

    to

    Ground

    5

    (vll)

    of

    the

    sLP,

    I deny

    that

    the

    Hon'ble

    High

    Court

    failed

    to

    appreciate

    the

    law

    of

    the

    land

    and

    the

    provisions

    of

    the

    I

    96

    I

    Act,

    as

    only

    after

    having

    come

    to

    a conclusion

    that

    neither

    the

    1961

    Act

    nor

    the

    Rules

    apply

    to

    the

    practice

    of 'non-lndian

    law'

    and/or'foreign

    law'

    in

    India,

    had

    the

    Hon'ble

    High

    court

    passed

    certain

    directions

    vis-d-vis

    the

    practice of

    ,non-lndian

    law'

    and/or'foreign

    law'

    in

    India by

    foreign

    law

    firms or

    foreign

    lawYers.

    With

    reference

    to

    Ground

    6

    (I)

    and

    (ll)

    I

    say

    that

    the

    Petitioner

    has

    failed

    to

    prove that

    they

    have

    a

    good

    case

    on

    the

    merits

    and

    that

    the

    balance

    of

    convenience

    lies

    in their

    favour.

    The

    Petitioner

    has

    to

    prove

    how

    it

    is

    they

    anticipate

    that

    their

    functioning

    would

    be

    jeopardized

    as

    a

    regulatory

    authority

    of

    the 'legal

    profession

    of

    India'

    if the

    order

    daled

    2l'02'201?

    passed by

    the

    Hon'ble

    High

    Court

    is

    not

    stayed.1

    say

    that

    from

    the

    above

    facts

    and

    circumstances,

    it

    is

    clear

    that

    the

    balance

    of

    convenience

    is

    in

    the

    favour

    of

    the

    Respondent

    No.l6,

    lt

    is

    not

    just

    that

    the

    Respondent

    No'i6

    will

    suffer

    considerable

    loss

    if

    the

    aforesaid

    order

    is staypd,

    it

    would

    also

    ,tfr-"

    23'.

    t.'

    No.

    ofPgs:

    No.

    of.

    Corrections:

    T\r\.r-\3

    -

    ( rA-

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    r\- -

    8

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    -er

      \

    -t---\

    z-)-\J

    affecttheimpactofforeigninvestmentandinflowofforeigncurTencyon

    thelndianeconomy,andalsootherissuesinvolvingfiscalimplicationson

    the

    economic

    development

    of

    the

    country

    vis-ir-vis

    international

    commercial transactions,

    further

    it

    would affect

    strategic

    foreign

    direct

    investmentcomingtolndiaespeciallywheninternationalcommercial

    transactions

    and

    foreign

    direct

    investments

    are

    indispensable

    for

    a

    growing

    economy

    like

    lndia.

    WithreferencetoparagraphT(a)ofthesLPlsaythatthespecialleaveto

    appealshouldnotbegrantedtothePetitionerandshouldbedismissedrvith

    exemplary

    costs

    to

    the

    Respondent

    No'16'

    With

    reference

    to

    paragraph

    7

    (b)

    of

    the

    SLP'

    I say

    that

    no

    other

    orders

    be

    granted

    to

    the

    Petition,'

    f'o*

    the

    aforesaid

    circumstances'

    WithreferencetoparagraphS(a)oftheSLP'lsaythatthePetitionerhas

    failedtoprovethattheyhaveagoodcaseonthemeritsandthatthebalance

    of

    convenience

    lies

    in

    their

    favour.

    The

    Petitioner

    has

    to

    prove

    how

    it

    is

    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

    also

    affect

    the

    impact

    of foreign

    investment

    and

    'inflow

    of

    foreign

    currency

    on

    the

    Indian

    economy,

    and

    also

    other

    issues

    involving

    fiscal

    implications

    on

    theeconomicdevelopmentofthecountryvis-ir.visinternational

    commercial

    transactions,

    it

    would

    affect

    strategic

    forgign

    direct

    investment

    coming

    to

    India

    especially

    *t''n

    int'

    .,11,

    24.

    ,<

    26.

    '',.

    :..':.'

    No.

    of

    Pgs:

    No.

    of.'Corrections:

    \t-_e,

    u+__

    +v\

    \-r-

    9

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