238

J
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDI CTIO N

NO'17150's4 OF
SPECIAL LEAVE PETITION (CIVIL)

2012

IN THE MATTER OF:,

Bar Councilof India'

,. Petitioner

Versus

... ResPondents

A.K,Balaji & Ors.

NO',
AFIIDAVIT IN REPLY.OF'RESPONDENT

I,DAVIDROBERTCHILDS,sonofROBERTFIENRYCHILDS,aged

r
[

,*'

about6lyearshavingmyplaceofbusinessatl0UPPERBANKSTREET,
LoNDoN,El45JJ,doherebysolernnlyaffirrnandsincerelystateasfollou.s:

il

1.

state that

Respondent
am the authorized representative of

No' 19' I

arn

fullyacquaintedwiththefactsofthispresentcaseandarnfullycotlpetenI
in this Affidavit' To the extent that
to swear and depose to the facts stated
r'vithin l]ly owlr knorvledge
the infonnation in this afficiavit is

it is true'

received frotn others

to the extent that it is based on infonnation

and

it is true to

the best of my information and belief'

PRELIMINARY SUBMISSIONS
;,:.:,::t

2.

At the outset, I

("sLP")
state that the Special Leave Petition

misconceived,incorrect,unsustainableinlawaltdoughttobedisrnissed
does not have
limine,with exemplary costs. The answeringTtespondent

lawofficeinlndiaanditdoesnotgive,inlndia,Indianlawadviceto

IS

itt
u

its

the SLP'
clients as alleged by the Petitioner in

f,*Mv---"G'
ANDBEW NICHOI-AS ROBINSON
'Sc,iJenut
Notary of London, England

1-

277
The answering Respondent is a lirnited liability partnership incorporated
under the laws

of England and Wales. I state that answering

Respondent

provides iegal services through law offices in a nurnber of countries of the

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

Singapore, Hong Kong etc. either direclly through branch offices of
f

Clifford Chance LLP or through various local legal entities, In addition, the

...;

answering Respondent orvns subsidiary service companies in a number

of

countries which provide adrninistrative and support services for its law
ofllces, but which do not provide legal services'
4,

state that the division bench

of Hon'ble High Court of iudicature

at

Madras in W.P.N0.5614 of 2010 had disposed of the aforementioned writ

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

that neither the Advocates Act, 1961 (the "196\

Act") nor the Bar Council

of India Rules, 1975 ("Rules") govern or apply to the practice of 'nonIndian law' and/or' 'fbreign law'

in India, it had also passed certain

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

India by foreign law finns or foreign lawyers and ailowing foreign lawyers

to conduct arbitration proceedings in respect of disputes arising out of

contract relating to international commerciai arbitration.

,.:

::i

5.

I further state that the Petitioner is attempting to confuse issues' I state that
th'e answering Respondent is not atternpting to have its representatives enter

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

of

contentious

providing Indian legal advice

or non-contentious.

on

state that,

any matter, whether

in today's world with

globalization being extensive, there are a number of transactions where

Indian companies are investing or raising capital ou,riO. India or foreign
companies are investing or raising capital in India giving rise to the need

MM

C,*'Wl,-^,,^"-or
ANDREW NICHOI-AS ROBINSON
Scrivener Notary of London, England

/40
forbothlndianandforeignlarvadvice.itisoftenconvenientforclientsin
thesecircumstancestohavetheirforeignlegaladviserstraveltolndiato
advisetheminpersononaspectsofnon.Indianlawsoastotakeadvantage

oftheirinternationalexperienceandforeignlarvexpertise.Itisinthis
would normally
of the answering Respondent
context that representatives
i

enterlndiatoprovide.non.Indianlaw,adviceandior.foreignlaw,advice.

1L

Theyrnayalsoenterlndiainconnectionwiththeprovisionoftrainingon

or for the purpose

matters within their expertise

of developing

or

maintainingrelationswithbusinessesorlawyersinlndia,butnottoargue
to provide Indian legal advice'
in any of the Indian courts or
:'n*)

6,IStatethatihePetitionerhasfurtherattemptedtoconfusemattersby
means
between foreign and Indian lawyers
suggesting that any relationship
presence in lndia' Such

have a physical
that foreign lawyers thereby

clients to
in international trade' They allow
relationships are commonplace

care of by a
needs abroad are being taken
be reassured that their 1egal
law finns to
lawyer and they allow Indian
lawyer trusted by their local

obtainaccesstointernationalclientswithspecialistneedsinindia.Such

reiationshipsarealsousedbylrrdianlawfinnstoservetheirclients,
inbound and outbound needs'
?:"n:,

't.

Istatethatbypassingthedirectionsinparagraph63ofitsorderdared
in
Court of Judicature at Madras
21.02,2012 the Hon'ble High
W.P.No.56l4of20i0hasonlyclarifiedandconfirmedthattheaforesaid
law firms and/or
holding' of their ciients by foreign
practice

of 'hand

foreignlawyersisinnowayagainsttheprovisionsofthelg6l,ActandinfactithasbeenalongstandingpracticerruchbeforetheaforesaidMadras
in
Bombay High Court iudgment
the
even
and
Hish Court iudgment

"n"i''I

ruu'*rv'

c *{"mv\\^,,^0E3$*o
ty1*:y Lw $ :.TS3l)
N

24 I
India attd Ors
Lawyers Colleclive vs. Bar Council of

- 2010 Vol'112 (1)

Born. L.R, 0032'

PARAW

lffiwrnmc
8,

nrsPotqoPNr

state that

I shail now respond to the contents of the SLP

paragraph wise.

tfe!

and the

Affidavit

are no direct ailegations

state at the outset that since there

againsttheansweringRespondent,theansweiingRespondentshall
endeavortorespondtothecontentsofthesLPandtheAffidavitinasmuch

asanyparagraphrelatestoit.Isubmitthatanyinadvertentomissionto
denyanycontentionorallegationraisedintheaffidavitunderreplyought
nottobeconstruedasanadrnission.IstatethattheansweringRespondent

forthispurposespecificallyreservestheri,ghttofileanyadditionalcounter
affidavits as and when they may be required'

with

reterence ro paragraph 1 of the

sl.p, I deny that the judgement

and

orderdated2l,o2,2ol2passedbytheHon'bleHighCourtofJudicatureat

MadrasinWritPetitionNo'5614of2010anclM'P'No's'l'3to5is
impugned as alleged py the Petitioner'

I refer to and rely upon the said

judgement for its true meaning and interpretation'

t. ''lat

10.

Withrei.erencetoparagraph2ofthesLP,Idenythatanyquestionsoflaw
have arisen for the purpose

of appreciation

and consideration by this

Hon,bleCourtunderArticlel36oftheConstitutionoflndia,

11.

Law (A) of the SLP'

With reference to paragraph 2 Question of
that the judgement and order dated

21

submit

,02,20|2passed by the Hon'ble High

that a person of foreign origin'

court of Judicature at Madras had not held

Act would be permitted to

not enrolled as an advocate under the 1961,

7hL
12.

Withreferencetoparagraph2QuestionofLaw(B)Idenythat.practicethe

professionoflaw,wouldincludeadvicegiventoclientsonlegalissues
outsidetheCourtsastheig6l,Actdoesnotcategoricallydefinethesame,
by
was enacted' the fieid was occupied
AdditionallY, before the 1961' Act

thelndianBarCouncilsAct,lg26.UnderthelndianBarCouncilsAct,

:i

1926,theword"praclrse"undoubtedlymeantpractisebeforecourtsand
by
as a consolid,ating legislation and
tribunals, The 1961, Act was enacted

nomeniuris since
then the vtord"pracltse" had attained

it had been in

use

Indian law' a word that is a term of

in legislation Tor nearly forty years' In
juris is presumed to have been used in
art or has otherwise attained nomen

thesamesenseinlegislationasheldbythisl{on'bleCourtinStateol'
1958 SC 560'
Madras vs, Gannon Dunkerley AIR

lJ,

of Law (C) of the SLP'

With reference to paragraph 2 Question

submit

thatthejudgementandorderdated2|,oz,zolzpassedbytheHighCourtof
that a person not enrolled as advocate
Judicature at Madras has not held

underthelg6l,Actcanbeallowecltocarryonlegalprofession(intermsof
litigious or non-litigious'
giving advice on Indian law) whether

,i.'"

1+.

Law (D) of the SLP'

With reference to paragraph 2 Question of

submit

.:

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

law firm or foreign lawyers to visit

196r, Act or the Rules for the foreign
in and fly out basis' for the purpose of
India for a temporary period on a fly

givinglegaladvicetotheirclientsinlndiaregardingforeignlarvasthe
HighCourthadrightlyheldthattheneitherthelg6l,ActnortheRules
define.practiceoflegalprofession'toinclude.non.Indianlaw,advice
and/or'foreign law' advice'

0*k1,^^ "^O'
ANDREW NICHOLAS ROBTNSON

il;r;;;r.ibtuny

of London, England

15.

with

u7
reference to paragraph 2 Question of Law (E)

of rhe sl-p, I submit

that the Petitioner has misquoted the Hon'ble High court as

in

the

judgment the Hon'ble Madras High court had actually quoted this Hon'bre
Court's decision dated 20.01 .2012 in vodafone International Hotdings B,v.
vs. Union of India & Anr, SLP(C) No.26529 of 201.0, and it had not termed

the legal profession as a business.

4:r .,

t6.

with

reference to paragraph 2 Question of Law (F)

of the slp, I subrnit

that the Petitioner has again misquoted the High court. In the judgrnent the

I-Iigh court has in-fact held that

if

foreign law firms were

denied

permission to deal with arbitration in india, then India would lose rnany
arbitrations to other countries which is contrary to the declared policy of the
Government

of India and will be against the National Interest, especially

when the Government of India wants India to be a hub of International

Arbitration.

t7.

with

reference to Ground 5

(l) of the SLP, i

deny that the Hon'bre High

court has committed a grave error as the tenn 'practice the

legal

profession'has not been defined by the 1961, Act and the Rules and the
1961,

Act does not govern the practice of 'non-lndian' law and/or 'foreign

law',

,ri*a

18.

with

reference to Ground 5

(ll) of the sLP, I deny that the Hon'ble High

court had not cortsidered the order

pass.ed

by the Bombay High court in

Lawyers Collective vs. Bar Counci! of India and Ors, The Hon'ble High

court has discussed the ratio in the aforesaid judgrnent at length. The
Petitioner is attempting to confuse issues, as before the Hon'ble Madras

High court the issue was relaring to applicability of the i961, Act

[htllL

and

RulT,to pfactice 'non-lndiano law andior 'foreign law' in India by foreigrr

r/it \ A^/
U \'/

CI*w\^^req
-

ANDREWNIcHoI-ASRoBINSoN
Scrivener Notary of London' England

7q4
law firms and/or foreign lawyers, these being issues which were

not

resoived by the Bornbay High Court.

19.

With reference to Ground 5

(llf) of the SLP, I

deny that the High Court

failed to appreciate that the Petitioner and the State Bar Councils have the
statutory duty to regulate the legai profession in India. In fact, the Hon'ble

Fligh Court has he,ld ihat foreign law finns. or foreign lawyers cannot
practice the profession of law in India (that is, Indian law) unless they

fulfil

the requirement of the 1961, Act and the Rul'es. Additionally, the Bornbay

High Court has directed that vis-d-vis foreign law firms practicing
profession

the

of law in India (that is, indian law), since the issue is pending

before the Central Government

Government should take

for more than 15 years, the Central

an appropriate decision in the matter

as

expeditiously as possible.
V

t
I

t
I

20.

With reference to Ground 5 (lV) and (V) of the SLP,

deny that the High

Court failed to appreciate the provision

of the 1961, Act,

Rightly

interpreting, sections 24 and 47 of the 1961, Act the Hon'ble High Court has

rightly held thatexceptions are provided under the proviso to Section

24(1)(a), Section 24(lXc)(iv) and Section 47(2) and in the light of the
i::"-, I

scheme

of the I961, Act which could enable a foreign lawyer to practice

Indian law in India. Holever,

if a lawyer

frorn a foreign law finn visits

India to advise his client on matters relating to the iaw which is applicable

to their country, for which purpose he fEes in and flies out of India, there

could not be

a bar for such

services rendered

by such foreign

law

finn/foreign lawyer.

21.

with reference to Ground 5 (VI) of the SLP, I subrnit that the Petitioner

is

issues by suggesting that the provisions of the Arbitration-

/] U k3"r^^^O
ANDREW NICHOIAS ROBINSON
;-.-,..^-^-

f,r^+anr al I anrlnn

trnalqnd

2+{
andConciliationAct,lgg6wouldneedtooverridethelg6l'Acttoenable
foreignlawyerstoparticipateinarbitrationsinlndia.Thatisnotthecase
astheHon,bleHighCourthasnotheldthatthelg6l,Actpreventsforeign

lawyerstiomgivingforeignlawadvicetotheirclientsinthecontextof
law
has in fact held that if foreign
arbitrations. The Hon'ble High court
fimsweredeniedpermissiontoconductarbitrationinlndia,thenlndia
wouldlosemanyarbitrationstoothercountries'whichiscontrarytothe
declaredpolicyoftheGovernmentoflndiaandwillbeagainsttheNational
Interest,especiallywhentheGovernmentoflndiawantslndiatobeahub
of International Arb itrations'

))

with

reference to Ground 5

(vII) of the slp, I deny that the Hon'ble High

Courtfailedtoappreciatethelawofthelandandtheprovisionsofthe
ig6l,Act,asonlyafterhavingcometoaconclusionthatneitherthel96l'
ActnortheRuiesapplytothepracticeof.non-Indianlaw'and/or.foreign
vis.dCourt passed certain directions
law, in India, had the Hon,ble High

visthepracticeof.non-Indianlaw,and/or.foreignlaw,inlndiabyforeign
law firms or foreign lawYers'

23.

WithreferencetoGround6(I)and(II)isaythatthePetitionephasfailedto

provethattheyhaveagoodcaseonthemeritsandthattlrebalanceof
it is they
The Petitioner has to prove how
convenience lies in their favour.

would be jeopardized as
anticipate that their functioning

regulatory

authorityofthe.legalprofessionoflndia'iftheorderdaled21,02,20ll2
passed

staye{' I say that from the above

by the Hon'ble High Court is not

factsandcirculnstances,itisclearthatthebalanceofconvenienceisinthe

favouroftheRespondentNo.lg.ItisnotjusttlrattheRespon.dentNo.lg

affect the irnpacr

of foreign invesrmenr
and inflow of
the Indian economy,
and aiso other
issues

the economic develbpment

commerciar transactjons,
invesrrnenr corning
transactjons

of the country
,, *^,,,, ^r- .

vis-,a.
vts' E-V,S internationaJ

.r0..,;;';:Xr;:".r:::;,

and foreign direct

investr

economy iike

: ,.'

,r*,rrUlr;ffi;:J;

further

to rndia

z/'Lg

':ents are indispensable for a growing

India.

.1:: :..I

1t
aa,

:lfi::

Wjth reference
ro paragraplt
7 (a) of

:.

exemplary costs
to the Respondent
?s

with reference

ro paragr apn

granted to the petitioner

26'
I

i
I

t.

1,

[ir
'i

1/

rhe:

SLP

appeal shourd
not be granted
to rhe petitioner

I say that the special

and shourd

Ieave to

o. oirrirr.d with

No.I9.

r (u)of

rhe

slp' I say that no

orher

fiorn the aforesaid

circumstances.

orders be

with reference
ro paragraphg(a)

or the slp, I
say that the petitioner
faiied to prove
has
that they have
a good case
on the rnerits
and that the balance
of convenience
lies in their favour.
The Petitioner
has to prove
rhey anticipu,,
how it is
,n.,
hat ,r";,--:*:r'
their functioning
wouid be jeopardized
as a regu,latory
authority of the ,legal
profession
of India, if the
order dalred 21.02.2012
passed by
the Hon'b.re
High court is
not stayed. I
say that frorn
facts and cilcumstances,
the above
it,is clear that
ba'lance of convenience
favourof the
'nt
is in the
Respondent No.r9.
,r r, ot just that
the Respondent
wili suffer conside
No.r9
rabre ross if
the aforr:said
order is stayed,
it wouJd also
affect the impact
of fore.ign investrnenr
and inflow of
foreign currency
the Indian econorny,
on
and arso other
issues invorving
fiscar irnpiications
the economic
on
developrnent
of the country uir-.a-ui,
q-yrs
tnfernational
ituernatrona
"
conrmercial
contrnercial transact.ions,
rrqno.^*j^ it
wourd affect
;trategic foreign .."
strafer,^
"^_^, direct investment
coming
---...6 ,vVlutdrBspecially
b
)fldia,er,.,cni-rr.. -.
r
n
vYricl] Inrernationat
when
intenr
commercial rransacrions

I l^ ) / / fl

tfi

fM

t'vffi

and

qhY
foreigndirectinvesttnentsareindispensableforagrowingeconomylike
India.
8(a) of the SLP'
With reference to paragraph

.t1

orders be
say that no other

from the aforesaid circumstances'

granted to the Petitioner

28.

ttissubmittedthattheRespondenthasnotraisedanynewfactinitsReply.

29,

lntheaforesaidcircumstances,IsaythatthepresentspeciaiLeavePetition
No' 19'
costs to the Respondent
exempiary
with
be dismissed

\.,,:,:i

at London' England )
Solemnly affinned

rhis the

iE

aov

"r

[t+q

rt'^'bi v '2012)

in mY Presence
and signed his name

Before Me

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AGRAWALA
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