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couRT oF INDIA
'uPREME
3 Y'
of lndia)
(under Article 136 of the Constiiution
spEclAL LEAVE
Ul10-54 Cr ?s1?
21.O2.2Ol2passedbytheHon'bieHighCourtof;udicatureat
Madras in WP No. 561 4!2012)
BETWEEN
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O.*. Balaji
7t107, Mel Batcha Pet,
Harur, Tamil Nadu 636 903
ResPondent No'1/
Petitioner '
And 40 others.
All
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RESPONDENT NO.22
l,
of
John
an office at
Douglas Parsons, aged about 50 years having
HerbertSmithFreehillsLLP,ExchangeHouse'Primrose
down to
Street, London .EC2A zEG, now having come
and
Jodhpur, Rajasthan, do hereby solemnly affirm
sincerelY state as follows:
Firm
I am a member and partner in the 22nd Respondent
1.
io
(hereinafter "Answering Respondent")' I am authorized
filethisaffidavitonbehalfoftheAnsweringRespondent.l
amwellacquaintedwiththefactsandcircumstancesof
affidavit filed
the case.l crave leave to refer to my counter
beforetheHighCourtatMadrasdatedls.0s.20l0aspart
and parcel of this affidavit'
Z<,r${,X,ge
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Leave petition
At the outset, I state that the above special
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order dated
fited against the impugned judgment and
21.02.2012 passed
Madras") in WP
Judicature at Madras ("the High Court at
l:.:i
No'561 4
of
in law
2010 is misconceived, not maintainable
exemplary
or on the facts and should be dismissed with
of law raised by
costs. I submit that none of the questions
judgment and
the Appellant arise out of the impugned
any interference
order or are of such nature that warrant
4329_L
_)\,,w
I
/
J.
herein.
in
is
England and
lts
registered office
is
atExchange House,
WaSregisteredintheyear2005.onloctober2012
Herbert smith LLP merged
3othRespondent
with
Freehills, the
Smith
to Herbert
Smith
over2,sO0lawyersinofficesspanningAsia'Australia'
Europe, the Middle East and the
AnsweringRespondenthasgroupofficesworldwidebut
not in lndia. lt does not have an office in lndia nor
tooperateanofficeinlndiabyusinghotelroomsor
private premises either. Therefore,
in the present
to
situation, the Answering Respondent being dragged
on
the Apex Court to answer
is highly misconceived
Madras
at
court
High
the
and
interestinanylndianlawfirm,whetherbypartnership,
have alliance-type
or affiliation' lt does not
shareholding
Answering
lndian law firm' The
any
with
relationship
of law in lndia
carry on the practice
not
does
Respondent
regulations' The Answering
lndian
of
in contravention
of lndian
and works with a number
instructs
Respondent
lawfirmstoprovideeffectiveassistancetoclients'The
the
represent parties in
not
does
Answering Respondent
The
advise on lndian law'
it
does
nor
lndian courts,
clients whose
acts on matters for
Respondent
Answering
and jurisdictions and
borders
across
business spans
nature of
who understand the
lawyers
on
which depends
business in lndia' work
to
regard
With
their business'
done by the
Answering Respondent
is
either
in
connectionwithinvestmentoutsidelndiabylndianbased
companiesorbusinessorganizations'orinconnection
companies and other
by
lndia
into
with investment
or lndian
babed outside lndia
organizations
business
law'
of law other than lndian
matters
on
based companies
who wish to buy
clients
This includes representing
and/or companies or
organizations
business
interests in
wi,rAfl#,yyffo
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is
governing law of the transaction
the
where
companies
in
one of the other jurisdictions
English law or the law of
Spain'
(by way of example France'
law
practice
we
which
ln short' the Answering
transactions
Respondent acts on international
where it
perspective' to clients
international
an
from
advice,
gives
of thg other laws mentioned
Respondent's various
Answering
the
from
above.Staff
the firm and to visit
promote
to
lndia
visit
offices may
This may inctude giving
contacts'
business
and
clients
held in lndia' I submit
conferences
attending
and
talks
legal
no way be construed as
in
can
instances
that these
practiceirrlrrdia.lrrallmattersoftlrekindi.eferredto
rr:'r'*
:'a-t
.r,
,'il''):
,,
lui
,'".,i
are described
'r
ll the activities that
futly entitled to engage
of the Answering Respondent's
above. I submit that none
of law in lndia and
-L
activities amount
to the practice
of the
to the regulatory control
therefore cannot be subject
lndian authorities'
5.
ThesubmissionsoftheAppel|antbeforetheHighCourtat
para 26 of the
in
recorded
are
Madras
Nfu*o1uw
Fr#?' d t'55:Sr:;
impugned
of the questions of
judgment.l further submit that none
Court were canvassed by
law raised before this Hon'ble
Court at Madras' I submit
the Appellant before theHigh
CourtatMadrasasfoundfromitscounter.affidavitinWP
as:
5614 of 2010 can be summarized
i.
inWPNo'l526oflgg5inthematterofLawyers
CollectivevsBarCounciloflndiawhereitwasheld
not only governed
that the Advocates Act' 1961
also practice in nonpractice in titigious matters but
titigious matters within lndia'
,rr*,.#i:frfl
t0140074329-1'
6.
't"w
in
A/)
Jor,e:,g{,Kri!'::
1014007432s-t
*l/
|
u_,wtrrtn
,pt
the
of
permanency of
i,
iiiil
in lndia regarding
nh
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Wdr. i'O - o;-t3 ,otooororrr_,
(,\
8
)tq,
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lY/).
I
/e
7th
RespondentbeforetheHighCourtatMadrasnever
raised such contention before the High Court'
g,TheHighCourtatMadrastookonrecordthesubmissions
made by the Respondent law firms in para 47
'
not
that such visits on a temporary or transient basis do
l!r
I submit
.practice,
notonlyconnotespermanencyofestablishmentbutalso
day out
connotes practice on a systematic and day in
t::::
basis which
is
absent
Court at
Respondent is concerned' Atpara 51' the High
Madras found as fotlows,
atl be
consideredaspractisinglawintndia.lthasnotbeen
controvertedthatinEngland,foreignlawyersarefreeto
adviceontheirownsystemoflaworonEnglishLawor
nationality
theHighCourtatMadrasalsoinparaS2reasonedthatin
and
international commercial arbitration between lndian
foreignpartiesarisingoutofinternationalcontractsthat
to
may be subject to foreign law, it would be inappropriate
or
state that such foreign parlies cannot be represented
the venue
advised by their own lawyers merely because
S'mr'"i
lt
explained
fila
O'6-.loJ.)3
A
70140074329_t
in paragraphs
9U"
e
I
/-
'tr'? '8)
or foreign law
firms
foreign
cannot come into tndia to advice their clienfs on
proposition and
law would be a far fetched and dangerous
tndiaisbecomingapreferredseafforarbitrationin
said basis,
lnternational commercial Arbitratibns."on the
judgment
the High Court at Madras in the impugned
acceptedthecontentiononbehalfoftheRespondentlaw
an
aim of the
argument would be counter-productive to the
lndianGovernmenttomakelndiaahubofinternational
arbitration and would also result in
"manifestly absurd
situatianwhereinonlylndiancitizenswithlndianlaw
under the
degree who are enrolled as an advocate
Advocates Acf could practice foreign law""'
63(ii)
I respectfully submit that the findings in paragraph
taken
and (iii) are well founded in law and the contention
is also unsuppcrted
by the provisions
of lndia
of the Advocates Act, 1961 or the Bar Council
Rules.Accordingly,thereisnothingincorrectinanyof
deserves
the findings in the impugned judgment which
bv this
*r^r,fuu;ffii-;*n"*'ce
Hon'b"
"**
)\ry
-/ \ lr/:
above contentio'i
11. Without prejudice to the
''t"ff"'"
the
are no direct allegations against
Respondent
Answering
I
in the Special Leave Petition'
respond
question is very
at
made by the itigh Court
finding
the
from
different
eitheronthetitigationornon-litigationside'unlessthey
and the
the Advocates Act' 1961
fulfil the requirements of
aopearing before an
Rules'However'
lndia
of
Bar Council
of a dispute arising under
Arbitrat Tribunal in respect
foreignlawshouldnotbeconsideredas,practicing,the
at
Therefore' the High Court
lndia'
in
law
of
profession
Madrasclarifiedwhatconstitutespracticingtheprofession
in
High Court at Madras'
the
that
regard
this
of law. lt is in
stated: "foreign lawyers
63(iii)
paragraph
in
its finding
come to lndia and conduct
cannot be debarred to
out
respect of disputes arising
in
proceedings
arbitration
commercial
of a contract retating to international
arbitration"
'
13.
n1
7
t'
t{5>
is
High Court
at
Madras found
in paragraph 63(ii)
that
law'on a fly in and fly out basis would not breach any of
High
14. With
respect
to
person not
enrolled
'
196'1can
Advocates Act,
profession".
side.
1S.
nl
interoretation of
xo",rffit5l,ilo,o,,,-,
the
word
'practice'.
't1
,7
'Practice'contemplates
continuous
and
systematic
'
of foreign law or
matters
on
advice
giving
presence for
I submit
governed by foreign law'
arbitration
of
conduct
that
was iustified in finding
,n", the High court at Madras
or the Rules for foreign
Act
the
in
either
bar
no
there is
visit lndia for a temporary
lawyersto
foreign
or
firms
law
periodonaflyinandflyout'basis'forthepurposeof
to
foreign
clients in lndia regarding
is
nothing inconsistent
Madras
by the High Court at
between the findings made
judgment'
of the impugned
63(ii)
and
63(i)
in paragraph
16.
With respect
to
Leave
paragraph 2(E) of the Special
about the
is nothing erroneous
there
that
submit
t
Petition,
be
at Madras that law must
Court
High
the
of
findings
nature of
international
the
mind
in
keeping
interpreted
to
paragraph 2F)
of the Special
leave
Petition,lsubmitthatthefindingmadeinparaEraph63(iii)
High
consistent 'with the
is
judgment
impugned
of the
CourtatMadras,interpretationthatthepracticeoflawis
differentfromtheconductofspecificarbitralproceedings,
relating to
.-:,
,::',.
-'
.
Arbitration'
lnternationat Commerciat
^^Therefore,thecontentionthatevenatemporaryor13
4lh,tir" ii
u
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Lot4ool43zs-t
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I
transient presence of
t grf
)')
foreign lawyers or foreign law firms
'practicing' law
in lndia
is
Hon',ble
18.
commercial Arbitration.
,a1il
of
these
Respondentlawfirmsaresubjecttoregulatory
supervisionintheirownhomecountry'Nothingcontained
inanyfindingoftheimpugnedjudgmentgivesrisetoa
view that the foreign law firms are allowed to practice in
24
lnclia even if they do not satisfy the eligibility of section
of the Advocates Act, 1961 '
1g.
paragraph 5 of
I submit that none of the grounds raised in
thisappealarevalidandthereisnoerrorinanyofthe
findingsoftheHighCourtatMadrasinparagraph63or
elsewhere in the impugned judgment. I further submit that
thestandtakenbytheAppellantresultsinanabsurd
give
situation where lndian lawyers would be required to
advice on matters of foreign law
.,ilfr,,,,ir.,.
n,rl'r'd
o[$
|i52,I ?
they
commerciar Arbitrations within rndia even though
ro,4oo7432s_t
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foreign jurisdictions
foreign law
as it
nnay amount
to
practice of
24.
I seek the
The Appellant has not made out any case for the grant or
21.
contained in paragraph
22.
justice.
lndia
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