allen & overy

8/9/2019 Allen & Overy

1/41

e

:a_i

rN

THE

suPREMe

CoURT

oF

rNDIA

crvrL

APPEI-LATE

JU

Rrsorcrro{v

SPECIAL

LEAVE

PETITION

(Under

Article

136

of

the

Constitution

;1

D

:AVE

PETITION

(CIVIL)

I{o'

PECIAL

LEAVE

PETrrl(JN

(Lrvr'L.

L7Ls4/

2OL2

of

India')

L7L50-

Petitioner

Richard

Bolding

BishoPs

Square,

solemnly

affirm

Bar

Council

of

India

VERSUS

Respondents

Counter

Affilavit

on

behalf

of

Respondent

No'

18

\,

Jonathan

Lugard

Forrest

BraYne'

,,.FraYne,

aged

57

YeaFS,

with

office

.

L";iOon

E1

6AD,

United

Kingdom

do

and

sincerelY

state

as

follows:

1.

I

am

a

,Paftner

at

Allen

&

overy

LLP

(A&o

LLP)

at

the

--.-.''"'

above

address,

I

am

familiar

with

the

facts

of

this

matter

andlamdulyauthorisedbyA&oLLPtofilethisaffidavit

on

its

behalf.

Save

where

otherwise

'aPpears,

tr

make this

affidavit

from

matters

within

my

own

knowledge'

where

the

matters

to

which

I

depose

are

based

on

facts

derived

son

of

I

at

One

herebY


2/41

,

_4_

from

other.sources,

believe

t em

o

e

rue.

matters

relate

to

legal

aspects,

the

Same

have

been

set

out

on

the

basis

of

legal

advice

by

counsel'

I

have

perused

the

contents

of

the

Affidavlt

filed

in

support

of

the

Special Leave

Petition and deny

the

claims'

averments

and

contents

of

the

same

save

and

except

to

the

extent

specifically

admitted

to

in

this

counter

affidavit.Any

omission

on

the

part

of

this

Respondent

to

deal

with

any

specific contention

or

averment

of

the

Petitioner

should

not

be

construed

as

an

admission

of

the

sa

me

bY

this

ResPondent.

?

c-A

2.

3.

PRELIMINARY

SU

BMISSIONS

Rbspondent

No.

1B

is

an

international

legai

practice

comprising

A&o

LLP

and

its

affiliated

undertakings'

Each

undertaking

is a

selparate

and

distinct

practice'

The

global

organization,

Allen

&

overy,

is

not

a

legal

entity

or

a

partnership

and

does

not

itself

provide

(directly

or

indirectly)

any

legal

or

other

client

services'

These

services

are

provided

solely

by

A&o

LLP

and/

or

one

or

more

of

its

affiliated

und.ertakings

-

which

together

comprise

the

global organization,

Allen

&

overy.

in

27

(twentY-seven

)

it

have

an

office

in

India

The

same

is

borne

out

This

ResPondent

has

offices

countries;

however,

neither

does

nor

does

it

Practice

Indian

law'

4.


3/41

from

t e

wbbsite

o t e

Respondent

which

states

3

unequivocally thus: "

Regulation

prohibits

us

from

practising

Indian

law ourselves or

from

having our

own

l

office in India". nt the

same time,

it

is

submitted

by this

'

thut

it

has

cl

'e

based

in

India

and

espondent

that

it

has

clients

who

ar i

atso clients

who do business

with

and

irl-lnOia.

To be able

to serve these

clients,

the

partners

and

associates

of

this

Respondent

frorn

across

its international offices

provide

the client

with

specialist

international

legal

knowledge

and

expertise. Since,

as

stated

above, this

Respondent

is

not

qualified

to, and

does

not,

Qrdctice

Indian

law or

have

an

office

in India,

in

matters

where some

aspects

of

Indian

law

are

involved,

this

Respondent

works

with

Indian

law

firms

which

comprise

of

lawyers qualified

to

practice

Indian

law and

have offices

in

India. When

D

lr

'


4/41

e

c ents

:n

var ous

occasions

requ re

s

espon ent s

partners

and staff to travel to

India to

meet the clienta

and/or its

counterparties

or

to discuss or

negotiate

a

transaction

etc.

In

this situation,

this

Respondent's

person

will

typically

fly to

India

for

a

day

or

a few

days,

staying

in

hotels and

working

out

of the

client's

or its

counterparties'or

Indi'an lawyers'offices

on

issues

in

such

transactions

related to foreign,

law.

Lawyers

from

this

Respondent

have

atso

visited

India

to

meet with

clients

who

are

involved

in international

commercial arbitration

proceedings

and

with

other-

involved

in

those

proceedings.

This will happen

if a client,

whether

Indian or

international,

required

this

Respondent's

lawyers

to visit

India

from

their

home

office

so that the

client could

consult

this

Respondent

in

relation

to the

proceedings

on

issues other

than

Indjan

law or

so

i

that the

lawyer

could

attend

and

participate

jn

those

proceedings

or in

meetings

relating

to

tf'1em.

L

The Respondent

No. t

herein,

i.e.

A.

K.

Bataji

fiied a

writ

petition,

W.P.(C) No. 56L4/2010,

under

Article

226

of

the

Constitution

of

India

before

the

Hon'ble

High

Court

o[

Judicature

at

Madras

(hereinafter

"Hon'ble

Madras

High

Court")

wherein

he contended

as

follows:

t

6.

7.


5/41

ffi

"

L

,

Firms,

havin

g

th

eir

Ro

utes

outside

th

e

Territory

of

India,

have

opened

up

their

offices

in

Indiq

or

in

neighbouring

countrie:s

and'are

operating

the

tegal

practice withirl

India,

such

I

as

Mergers,

Take-over,

Acquisitions,

Amalgamations

etc.,

and

are

tnto

various

commercial

transactions,

arbitration

so

on

and

so

forth.

Moreover,

the

advocates

from

various

foreign

law

firms

are

often

visiting

India

and

conducting

seminars

in

various

parts of

our

country.

They

are

entering

in

to

India

through

visitor's

visa

but

the

actual

intention

of

their

visit

is to

indirectty

market

and

earn

money

out

of

clients

from

India

by

waY

of

seminars.

Moreover,

they

are

also

conducting

arbitration

in

Indian

Hotels

and

ior

which

the

pay:ments

are

made

to

their

office

tocated

outside

India.

This

is

complete

violation

of

our

country's

income

Tax

laws,

Immigration

laws

and

loss

of

revenue

to

our

country,

simitar

to

this

there

are

numerous

foreign

law

fii'ms

that

are

draining

our

Indian

tegat

market


6/41

ffi

e

.

submit

that

some

o

e

n erna ona

6

law

firms

has theil

office

in

India

and

practices

Indian law

by

catting

themselves

as

LPO,

They

are

running

a

law

firm

in

India

obtaining

anY

a 7-

prior

permission

,

from Indian

government

and

the

authorities.

Here

they

are

taking

protection

under

the

guise

of

LPO.

This

is

complete

violation

of

our

Country's

Income

Tax

laws,

Immigration

laws,

RBI

rules

and

regulations,

Bar

C.ouncil"

(sic)

The

Petitioner

prayed

for

the

foltowing

relief

before

the

Hon'ble

Madras

High

Court:

For

the

reasons

stated

a bove,

it

is

h

um

bty

prayed

that

this

Hon'ble

Court

may

be

pleased

to

issue

a

Writ

of

Mandamus

or

anY

other

appropriate

writ

I

order

or

direction

in

the

nature

of

Writ

of

Mandamus

directing

the

Respondents

to

take

appropriate

action

against

the

Respondents

9

to

41

(Respondents

10

to

42

in the

present

petition)

or

any

other

Foreign

tawYers

who

are

iltegallY

law

firm

or

foreign

I

practicing the

profession

of-taw

in India

and

ptrohibit

them

from

having

any

tegat

practice either

on

the

B.

ft.,,'

.

,;..,,,


7/41


8/41

,

,

th

(L.i

e

express on

.

E

However,

Article

13

of

the

Constitution

of

India

has

provided

an

inclusive

definition

to

include any

ordinance/

order,

bye-lawS,

rutes,

regulations,

notification,

custom

or

usage

having

in

the

territory

of

India the

force

of

law,

and

including

laws

made

by

a

legislature

or

other

competent

authority

in the

territory

of

India

before

the

commencement

of

the

Constitution

of

India.

Further,

the

Hon'ble

Supreme

Qourt

while

construing

the

scope

of

the

expression

"law"

has

in a

catena

of judgments

held

that

the

expression

law

refers

to

State-made

iaws

that

are

validly

enacted

by

the

legislature

having

competence

to

enact

Such

laws

under

the

Constitution,

and

ruleS,

regulations, orders and bye-laws

passed

by

any

authority

thereunder.

Further,

Schedule

VII of

the

Constitution

enlists

the

various

subjects

on

which

the

Pariiament

or

l

State

Legislatures

are

empowered

to

enact

laws'

Therefore,

any

reference

to

the

expression

\\

praitice

or

profession

of

law"

in

the

Act

can

only

refer

to

laws

enacted

and

implemented

in

the

territory

of

India

by

the

competent

legislative

/

executive

or

judicial

body

authorized

to

enact

or

implement

such

law'

The

same"

cannot be

construed

to

cover

laws

/'statutes

enacted

or

implemented

in territories

outside

India,

This

clearly

does

not appear

to

be

the

intention

of

the

Act'

fi-


9/41

14. FUfther,

e e

prevents or

prohibits

lawyers

frorr

practising

or

advising

in

relation

to

non-Indian

law

on

a

temporary

basis

within

the

territory

of

India.

It

is

submitted

tfrlt

foreign

lawyers

1

who

do

not

practice

Indian

law

do

not

need

to

be

enrolled

as

advocates.Any

such

requirement

would

be

detrimental

to

the

interests

of

Indian

clients

who

would

be

precluded

from

seeking

and

receiving

competent

advice

fr:om

qualified

foreign

lawyers

in

respect

of

laws

of

other

jurisdictions since

it

would

not be

possible

for

foreign

lawyers

travelling

to

India

for

a

day

or

few

days

to

enrol

themselves

as

advocates

in

India.

such

a

requirement

will

also

be

contrary

to

the

intention

of

the

Act

since

Someoftheseforeignlawyersmaynotbequalifiedin

Indian

Iaw

to

be

recognized

as

advocates

in

India

'

In

fact,

if

tt'1e

Petitioner's

arguments

are

accepted'

then

the

only

set

of

advocates

who

would

be

eligible

to

advise

on foreign

law

would

be

India

qualified

lawyers

enrolled

under

the

Act.

This

would

result

in

an

anomalous

situation

whereby

Indian

lawyers,.

educated

and

trained

intheprinciplesoflndianlaw,wouldbepermittedto.

practice

foreign

Iaw,

whereas

their

foreign

counterparts

who are

actua{ly qualified

to

practice such

foreig

n

law

would

be

barred

from

doing

so

in

India'

It

is

submitted

that

the

Petitioner's

interpretation

would

result

in

the

L2.

':i


10/41

ffits

Undesifable

SCenafiO

e e y

1{JI

-

v

lo

who

have

undergone

the

rigor

of

legal

education

and

)

tra.ining

in

their

home

countri

es/iurisdictions

in

order

to

becomeeligibletopracticethelawofthat

countryfiurisdiction

would

be

barred

from

rendering

advice

with

respect

to

such

law

in

India;

but

their

Indian

counterparts

would

be

allowed

to

render

advice

with

respect

to

such

foreign

law

merely

on

account

of

being

enrolled

under

the

Act

on

the

basis

of

law

degrees

that

train

them

in

Indian

law

only'

It

is

respectfully

submitted

that

the

above

scenario,

if

allowed

to

prevail,

would

cause

immense

harm

to

the

interests

of

Indian

clients.

seeking

advice

on

foreign

law

component

of

their

dealings

andtransactionsinlndia.Further,anunhealthy

categorizationyvilltakeplacebetweenthoselndian

clients

who

are

able

to

fly

to

foreig

n

j

u

risdictions

io

,,

uulidly

obtain

legal

advice

on

foreign

la\'1

and

those

Indian

,-',

clients

who

are

unable/unwilling

to

oo

so

and

seek

to

rely

on

the

ability

of

foreign

lawyers

to

fiy

in

and

fly

out

to

render

advice

to

them

on

foreign

law'

It

is

submitted

that

the

Petitioner

ought,not

to

be

permitted

to

deprive

the

lawyers

of

this

Respondent

to

practice

law

in

a

field

that

theyareotherwi5equalifiedandcompetenttocarryon.

/,

i,-


11/41

1,},

In

the

aforementioned

wr

pe on,

e

on e

a

Ir

1"''

judicious

consideration

of

ail

the

facts

High'Court,

after

a

judicious

cor

and

averments

on

record,

held

as

follouis:

ta'

on

lhe

issue

of

foreign

lawyers

flying

in

and

flying

out of India

to

advise

clients on

foreign

law

i

,,5B.TheSupremeCourtinarecentdecision

in

Vodafone

International

Holdings

B'V'

vs'

Union

of

India

and

another,

SLP(C)

No,26529

of

2070,

dated

20.01.2072,

observed

that

every

strategic

foreign

direct

investment

coming

to

India,

as

an

investment

destination

should

be

seen

in

a

hotistic

manner'

The

Supreme

Court

observed

that

the

question

involved

in

the

said

case

was

of

considerable

public importance,

especiatty

on

Foreign

Direct

Investment,

which

is

indispensable

for

a

growingeconomYtikelndia'Therefore'we

shoutdnotlosesiteofthefactthatinthe

overall

economic

growth

of

the

country,

International'commercial

Arbitration

would

ptay

a

vitat

part'

The

learned

counsel

appearing.fgr

the

foreign

taw

firms

have

taken

adefinitestandthattheciientswhomthey

represent

do

not

have

offices

in

India'

they

do


12/41

ffi

\

---

not

advise

e r

ore gn c en s

ma ers

concerning

Indian

Law,

but

they

fty

in

and

fty

out

of

India,

only

to

advise

and

hand-hold

their

clients

on

foreign

laws.

The

foreign

law

firmits,

who

are

the

private

Respondents

in

this

writ

petition,

hdve

accepted

the

legal

position

that

the

term

.

practice

would

include

both

titigation

as

wett

as

non-titigation

work,

which

is

better

known

as

chamber

practice.

Therefore,

rendering

acvice

to

a

client

would

also

be

encompassed

in

the

term

practice'

59.Asnoticedabove,Section2(a)ofthe

Advocates

Act

defines

'Advocate'

to mea

n a

n

advocate

entered

in

anY

roll

under

the

provisionsoftheAct,IntermsofSection

17(1)

of

the

Act,

everY

State

Bar

Council

shall

prepare

and

maintain

a

rolt

of

Advocates'

in

wh

ich

sha

tt be

entered

the

na

mes

a

nd

addresses

of

(a)

atl

persons

who

were

entered

as

an

Advocate

on

the

roll

of

anY

High

Court

under

the

Indian

Bar

Council

Act,7926'

immediatety

before

the

appointed

date

and

(b)

all

other

persons

admitted

to

be Advocates

on

the

rolt

of

the

state

Bar

council

under

the

Act

on

or

after

the

appointed

date'

In

terms

of

l?/


13/41

&i

\6;,r

--G\

Section

24(1)

o

the Act,

subject

o

the

provisions

of the

Act

and the Rules

made

thereunder,

a

person

shall

be

qublified

to

be

admitted as

an

advocate

on a state

rolt

if he

fulfils the

conditions (a) a

citizen

of

India,

(b)

has

completed

21

years

of

age

and

(c)

obtained

a degree

in

Law. The

proviso

to

Section

24(

1)(a)

states

that

subject

to the

other

provisions

of

the

Act,

a

National of any

other

country

may be admitted as an

Advocate

on

a State

roll,

if

a

citizen

of

India,

duty

qualified

is

permitted

to

practice

law

in that

other country.

In.terms

of

Section

47

(1)

of

the

Act,

where

any

country

specified

by

the

Central

Government

by

.

notification

prevents

citizens

of India

practising

the

profession

of

Law or subjects

them

to

unfair

discrimination

in

that

country,

no subject

of any such

country

shall be

entitled

to

practice

the

profession

of

Law

in

India,

In

terms

of Sub-Section

(2)

of

Section

47,

subject

to the

provision

of Sub-

Section

(1),

the

Bar

Council

of

India

may

prescribe

.conditions,

if

a

ny,

subject

to

which

foreign

qualifications

in

law

obtained

by

persons

other than

citizens

of

tndia

shatt

be

t3

b


14/41

1iFh

{;' tl

recognized

for

the

purpase

of

admission

as an

tk

Advocate

under

the

Act.

Thus,

Section

47

deals

with reciprocity.

As

per

the statement

of

objects a

nd reasons of the Advocates

Act,

it

was

a

law

enacted to

provide

one

class

of

legal

practitioners,

specifying

the

academic

and

professional

qualifications

necessary

for

enrolling as

a

practitioner

of Indian

Law,

and

only

Indian citizens

with a Law Degree

from

a

recognized Indian University

could,

enrol

as

Advocates

under

the

Act, The exceptions

a

re

provided

u

nder

the

p

roviso to

Section

24(1)(a),

fection

2a(1)(c)

(iv)

and-section

47(2).

r

advice

his client

on

matters

relating

tQ the

law

purpose

he'flies

in and

flies

out

of

India

there

could

not be-a

bar

for such services

rendered

by

such

foreign

law

firm

'eign

lawyer.

(emphasis

supplied)

60.

We are

persuaded

to

obse.rve

so,

since

there

maY

-be

several

transactions

in

which

an

Indian

campany

or a

person

of

Indian

origin

may

enter

into

transaction

with

a

foreign

t


15/41

com

pa

ny,

a

nd

the

lqws

transaction

are

the

laws

of

the

said

foreign

country.

There

may

be a

necessit)t

to

seek

transaction,

for

which

purpose if a

lawver

from

a

fQreign

law

firm

is

permitted

to

fly

into

India

and

ft'r'

out

advising

their

ctient

on

the

foreign

taw,

it cannot

be

stated

to

be

prohibitee -'

The

corollary

would

be

that

such

foreign

law

firm

shatt

not

be

entitted

to

do

a

ny

form

of

practice

of

Indibn

Law

either

directly

or

indirectty.

The

private Respondents

herein,

namely

the

foreign law

firms,

have bccepted

that

there

is

express

prohibition

for

a

foreign

lawyer

or a

foreign

law

firm

to

practice Indian

Law,

It

is

pointed

out

that

if an

interpretation

is

given

to

prohibit

practice of

foreign

law

by

a

foreign

law

firms

within'

India,

it

would

result

in

a

manifestty

absurd

situation

wherein

only

Indian

citizens

with

Indian

Law

degree

'who

are

enrolled

as

an

advocate

under

the

Advocates

Act

could

. pra.ctice

foreign law, 'when

the

iact

remains

that

foreign

laws

are

not

taught

at

g

rad

uate

level

in

India

n

Law

schools,

except

a

ppticalbb

tu

such

@

-a

.;.

::-

,

ii'

.

a,,a

ls


16/41

r.n

..-+G

,.-:\

i

ComO3rative

Law

D99ree

Courses

a

'n"

r,

Master's

level.

"

(emphasis

supplied)

(ii)

on

the

issue

of

foreign

lawyers

participating

in

arbitration

in.

India:

"57.

Institutional'

Arbitration

has

been

defined

to

be

an

arbitration

conducted

by

an

arbitral

institution

in

accorda

nce

with

the

rules

of

the

institution.

The

Indian

Councit

of

Arbitration

is

one

such

body,

It

is

reported

that

in severa

I

cases

of

International

Commercial

Arbitration,

foreign

contracting

party

prefers to

arbitrate

in

India

a

nd

severa

I reasons

have

been

stated

to

choose

India

as the

seat

of

,

arbitration.

j

Therefore,

when

there

is

tiberalization

of

economic

policies,

throwing

the

doors

open

to

foreign

investments,

it

cannot

be

denied

that

disputes

and.differences

are

bound

to

arise

in

such

Internatio,nat

contracts'

When

one

of

the

contracting

party

is

a

foreign

entity

and

there

is a

binding

arbitration

agreement

between

the

parties

and

India

is

chosen

as

the

seat

of

arbitratiol,-

it

is

but

natural

that

the

foreign

contracting

partY woutd

seek

the

assistance

of

the:ir

own

soticitors

or

lawyers

to

advice

them


17/41

ffi\

.-l}r

on

the

imPact

of

the

laws

o

t e r

the

sa

id

contract,

a

nd

theY

m?Y

their

clients

to

visit

India

for

the

coun ry

on

accom

pa

ny

purpose of

t?

foreign,

law

in

India

in

the

course

of

a

It

cannot

be

denied

that

we

have

a

cornprehensive

and

progressive

tegal

frame

work

to

supp.ort

International Arbitration

and

the1996Act,providesformaximumjudicial

support

of

arbitration

and

minimal


18/41

.-@.

L4.

intervention.

That

apart,

it

is

not

in

all

caset,

u

lg

foreign

company

conducting

an

Internationat

Commercial

Arbitration

in

India

would

solicit

the

assistanc.e

of

their

foreign

lawyers.

The

legat

expertise'availabte

in

India

is

of

International

standard

and

such

foreign

companies

would

not

hesitate

to

avail

the

services

of

Indian

lawyers.

Therefore,

the

need

tomakelndiaasapreferredseatfor

International

commercial

Arbitration

would

benefit

the

economY

of

th

e

Co

Lt

ntry,,,

(emphasis

suPPlied).

High

Court

has

summed

words:

Finally,

the

Hon'ble

Madras

up

its

views

in the

following

,,48,(i)

Foreign

law

firms

or

foreign

lawyers

cannot

l

practice the

profession

of

law

in

India

either

on

the

litigation

or

non-titigation

side,

unless

they

fulfil

the

requirement

of

the

Advocates

Act,

1961 and the

Bar

Council

of

India

Rules'

However,thereisnobareitherintheActorthe

Rules

for

the

foreign

law

firms

or

foreign

lawyers

to"

visit

India,

for a

temporary

period

o,

a fty in

and

fty

outbasis/forthepurposeofgivinglegaladviseto

their

cl,ients

in

India

regarding

foreign

law

or

their

(

ii)


19/41

ffi

-'=^-

own system of

law and

on

diverse international

legal

issues.

,q

(iii)

Moreover, having

regard to the aim and

object

of

the Internationa

I

Commercia

I

Arbitratian

introduced

.

in

the

Arbitration and

Conciliation

Act,

7996,

foreign

lawyers

cannot

be debarred to

come

to

India

and

conduct

arbitration

proceedings

in

respect

of

disputes

arising

out

of

a contract

relating

to

internationa

I

com

mercial

a

rbitration.

(iv)

The B'r P.O. Companies

providing

wide

ra

nge of

custoflisea

and

integrated

services

and

functions

to

its customers

like

word-processing,

secretarial

support,

transcription

services,

proof-reading

services,

travel

desk

support

services,

etc. do

not

come

within the

purview

of

the

Advocates

Act,

1961

or

the

Bar

Council

of

India

Rules,

However,

in

the

event

of

any

complaint

made

against

these

B.P.O.

Companies

violating

the

provisions

of

the

Act,

the

Bar

Council

of

India

may take appropriate

action

h

J

against such

erring

comPanies."

15.

By

virtue of

the

present

Special

Leave

Petition

before

this

Hon'ble

Court,

-

the

Petitioner

herein has

challenged

the

judgment

and

prder

dated

2L

February,

2Ot2

of

the

Hon'ble

Madras

High

Court

(hereinafter

the

"Impugned


20/41

6

ft6,

Judgment")

on

the

ground,

intern alia,

a

oes

not

lay

down

the

corre.ct

position

in

law

70

It

is

respectfutly

submitted

that

the

present

petition

is

based

on an

erroneous,

misconceived

and

incomplete

understanding

of

the

law,

including

the

ruling

in

the

Impugned Judgment.

It

is

submitted

that

the

scope

of

the

Act

extends

to

governing

the

practice

of

Indian

law

in

the

territory

of

India by duly

qLlalified

lawyers. The

Act

does

not

extend

to

the

practice

of

non-Indian

or

foreign

law

in the

territory

of

India.

While

the

Act

as

suqh

does

not

make

any

distinction,

an

interpretation

to

the

contrary

would

militate

against

the

purpose

and

scheme

of

the

Act,

as

detailed

in the

subsequent

paragraphs.

A

reading

of

Section,2g

and

Section

33

of the

Act

shows

that

the

Act

recog

nizes

only

one

class

of

personS,

na

mely

advocates,

as

being

entitled

to'practice

the

profession

of

law'.

Further,

an 'advocate'

by

definition

is

one

whose

na

me

has been

entered

in a

ny State

roll

ma

inta

ined

under

the

Act.

As

per

Section

30

of the

Act,

this'right

to

practice'

extends

throughout

the

territories

of

India

to

which

the Act

extends:

16.

L7,

18.

\,

(i)

In

all cpurts

including

the

Supreme

Court

of

India;


21/41

-@

Before

any tribunal or

person

legally

authorized

to

F

take evidence;

and

(iii)

Before

any other authority or

person

such advocate

is

by or under any law

u

before whom

for

the time

being in force

entitled

to

practice.

19. Further,

a

reading

of Sections

3,4,6

and

7

of the

Act

indicates

that

the

Petitioner

herein is

the

overarching

authority

for

the supervision and

regulation

of the

legal

/

pr.ofession

in

India.

Additionalty,

there are

Bar Councils

in

each

State

(State

Bar Councils)

which,

dffiong

other

roles,

are required to

prepare

and

maintain

a

roll of

advocates for their

respective

States.

The

Petitioner

is a

standards-setting body

exercising

powers

in

relation

to

,

supervision and

control

over

standards

of

legal education

to be

observed by

U

niversities,

laying down

req u

isite

qualifications

for

law courses

etc.

Further,

the

Petitioner

,;,,

is empowered to

recog

nize

qualifications

in

law

issued

by

foreign

Universities

for

the

purpose

of

enrolment

as

an

advocate under the

Act.

20. It

is

submitted

that

Section

24 of

the

Act

lays down

the

requirements

for

persons

to

be admitted

as advocates

on

a

State

roll.

The

Act

generally

prohiOits

foreign

nationals

from

practising

law

in India.

However,

foreign

nqtionals

i

having

foreign

qualifications

may

be

admitted

as


22/41

@

'advocates'on

the State

rolf5

and

practice

law in India

if

&u

the conditions

prescribed

under

proviso

to

Section

24(L)(a),

Section

24(\)(c)(iv),

Section

47

and

Section

49(e)

are

satisfied

k

d

21.

Section

24(t)(a)

of the

Act

restricts

the

enrolment

as an

advocate

in

the

State

Roll

to

persons

who

are

citizens

of

India. The

proviso

to S.24(1)(a) allows a foreign national

from

another

country

admitted as an advocate on a State

:-:

roll,

if

citizens

of

India, duly

qualified

I

are permitted

to

practice

law

in

that other

country

Further,

Section 24(L)(c)(iv)

provides

-that

a degree

in

law from

a

University outsidq

India

can.be

recognized

by

the Petitioner

for

the

purposes

of

allowing

a

foreign

national

to be

enrolled

as an advocate in the State

Roll.

Section 47

provides

that

a subject of any

foreig

n

cou

ntry

which

discriminates

against

the citizen of

India

in the

matter

of legal

practice

shall

not be entitled to

practice

in

India.

The

Central

Government

may

make

a Gazette

notification

to this

effect.

Section

47

further

provides

that

Petitioner

may

prescribe

the conditions,

if

dtry.

subject.to

which

foreign

qualifications

iri iaw obtained

by

foreign

nationals

shalt

be

recognized

for the

purpose

of

admission

as an

advocate

in the State

Roll. Section

49(e)

provides

the

rule-making


23/41

s

_

@

power

to

th

s

effect. Nota

bly

,

t e

Petitioner has

not

e3

prescribed

any

conditions or further

qualifications

for

the

en rolment

of

such

foreig

n

nationa

ls with

foreig

n

q

ua lifications.

22.

Thus,

it

is

respectfutly

submitted

that

the

provisions

of

the Act,

as discussed above, reveal

that

the

Act

is

concerned

with

two

situations

.enrolment

of

Indian

citizens

having Indian

qualification

and

enrolment

of

foreig

n

citizens

havi

ng

foreig

n

q

ua

i

ifications.

The

provisions

of

the

Act have empowered

the

Petitioner

to

play

a supervisory and

regulatory

role in

the

field

of

legal

education

and

recognition

of

Universities

as

well as

in

prescribing qualifications

and eligibility

conditions

for

advocates

to

practice

Indian

law. This

cannot

be

extended in

any

*.unner to

regulate

the fly-in

and

fly-out

practice

of

foreign lawyers

in India on

a temporary

basis

for advising clients on

foreign

laws.

It

is

respectfully further

submitted

that the

lawyers

of

this

Respondent

do

not

practice

the

profession

of

law in India

as envisaged under

the

Act and

rules

framed thereunder.

Practising

a

profession

denotes

an etement

of

continuity'

or

permanency

and

involves

establishing

oneself

as

rendering

professional

services

on a

primary

and

regular

basis.

The

Act

applies

within the

terrifory

of

India

and

I

--t* -


24/41

ffi

. < - - _

thus the

practice

of

the

profession

of

law

governed

bv the

Act

refers

to those

professional

activities

of

advocar"=Bk

that

take

place

within such

territory

on a

continuous

or

permanent

basis.

It

is

submitted

that

participation

by

qualified

foreign

lawyers

in

meetings

with

clients

and/or

cou nterpa

rties, in d

iscussion

a

nd

negotiatio

n

of

transactions

and

in

seminarS,

conferences

and

arbitration

in India

on

a tem

porary,

short

and

fleeting

basis

cannot

be said

to

constitute

practising

the

profession

of

law

in

India as

it

lacks

the

element

of continuity

or

permanency.

I

The

Act

and

the

rules thereunder

prescribe

various

conditions

for the enrolment

of

qualified

foreign

citizens

for

the

practice

of

Indian

law

in India and

are

clearly

intended to

regulate

the

practice

of

Indian

law

by

them

in

India.

Thus,

it is

submitted

that the

Act

and

rules

thereunder

govern

the

practice

of

Indian

law by

qualified

Indian

citizens

as

well as

qualified

foreign

citizens

and

are

in

no

way

concerned

with

the

practice

of

foreign law

by

such

qualified

foreign

citizens

in the

territory

of

India.

It

is

submitted

that

the

discernible

rationale

for the

Act to

govern

the

practice

of

Indian

law

by

qualifie_d foreign'

citizens

is to

ensure

that

they

have

the

necessary

expertise

and

understanding

of

law

as

their

Indian

counterparts

in

practising

the

profession

of

lar'v

in India.

t

I

I

l

b

23.

t"


25/41

r

h-

I/

@

To

this

end,

the

Act

provides

for

prescribing

of conditions

inctuding

additional

qualifications

which

the

qualified

foreign lawyers

must

meet

in

order

to be

permitted

to

practice

Indian law in India. The

power

to

regulate the

practice

of

Indian

laws

cannot be

extended

to similarly

regulate

the

practice

of

foreign

law

by

qualified

foreign

Iawyers in India

on

a temporary

basis.

The

Respondent respectfully

submits that the

Act

being

enacted

under Entry

77

and

78

of

the

List

I of

the

Seventh

Schedule

to

the Constitution

is

intended

to

govern

the

practice

before

the

Supreme

Coutt

and

High

Court

and

matters

in

relation thereto.

Having

regard to

the fact

that

the

Indian courts

deal

with

the

Iaws

of

India,

the

scope of

the

Act.would

extend

to the

practice

of

Indian

law.

Even otherwise,

the

Petitioner

is

not

qualified

to

grant

recognition

to

foreign lawyers

in

relation

to

the

practice

of

foreign

law, and the

same

will be

outside

the

jurisdiction

of

Indian

l'aws.

It is

submitted that

the

Petitioner's

misgivings

regarding

lack

of supervisory

and

disciplinary

control

over

foreign

I

lawyers

who

fly

into India

on a temporary

basis

to

render

advice

with

respect

to

foreign

law and

participate

in

arbitrations,

is

unfounded

and

misconceived.

it

is

statecj

that

practice

of

foreign

law

by

qualified

foreiEn

lawyers

?,{

24.

r'

25.

,.

1,,-

"

;


26/41

dh

'4+'"t

I

I

t

I

p

wou

ld,

at

.

a

ll

times,

'

be

governed

by

the

reg

u

rurorY*'

authority

validly

constituted

in

the concerned

respective

jurisdiction

to

regulate

and

supervise

the

practice

of

such

law. The Petitioner

constituted under

the

Act, is neither

.

authorized

nor

h'as

the

expertise

to

determine"the

qualifications

required to

practice

foreign

law

or

to

regulate

the

practice

of

such

law. Any such

effort on

the

part

of the

Petitioner would

in

fact

have

the

effect

of

violating

the

right

of

a

foreign lawyer

to,Oractice

laws that

he

has

been

duly

autho

rized

to

lpractice

by the

appropriate authority

of

the country

where

such

laws

are

in force. The Petitioner

herein,

cannot,

and

it

is

submitted,

should

not be

permitted

to exercise

jurisdiction

over

qualified

foreign

lawyers advising

on

foreign law in India

on

a

tempo

rarY basis

as

it

would

result

in

a

dual

control

of

such

lawyers,

who

would

be

bound by different

sets

of

rules

regulations,

which

may

not

always be

in

consonance

with

each

other.

It is submitted that

the

Petitioner's contentions

are

unmindful of

the

prevalent

practice

whereby

qualified

Indian

lawyers

enrolled

under

the

Act fly

in and

fly

out

of.

foreign countries

to

render

advice

and

consult

on

Indian

law

issues without

any

requirement

of

meeting

additionai

qualifications

under

the

laws of

those

foreign

jurisdictions.

26.


27/41

J

t

n

l

i

F

i

I

f

t

E

E

t

I

I

,,.

2

?

27.

The

Respondent

respectfully

submits that

a

Constitutional

,

_ffi

??

Bench

of

this

Hon'ble

Court has,

in

the

judgment

in

O,M.-

Mohindroo

v.

Bar

Council of Dethi

& Ors.

(AIR

1968

SC

BBB), held

that the

Act is

a

piece

of

legislation

which

deals

only

with

persons

entltled

to

practice before.the

Supreme

Court and the

High

Courts.

According

to

the

Hon'ble

Supreme Court,

the Act,

being enacted

under

Entry

77

and

78 of the List

I

of the

Seventh

Schedule to

the Constitufion,

is intended

tq

govern

the

practice

before

the

Supreme

Court and

High

Court

and

matters

in

t,l'

:

relation

thereto.

It

is respectfu

Ily su bm

itted

that

inasmuch

as the

Hon'ble Court has held

that

the Act

has

been

enacted under Entry

77

anb

78

of the

LIst

l,

it

cannot

be

said

to

apply

to

persons

practising

in

non-

litigious

matters. Further,

in view

of

the Hon'ble

Supreme

Court rejecting

the

argument

that the

Act

was

a

composite

legislation

partly

falling under

Entries

77

and

78

of

List

I

and

partly

under

Entry 26

of

List III,

it is

further

submitted that

untess

a

legislation is

enacted

to

regulate

the

persons

practising

in non-litigious

matters

by

invoking

Entry 26

in List III to the

Seventh Schedule

to

the Constitution

which

deals

with

legal, medical

and

other'

profession,

it

cannot be

said

that

the

persons

practising

in non-litigious matters

are

governed

by

the

provisions

under

the

Act.


28/41

ffi

cit

.:t

The

ruling

i.n Mohindroo case

(supra)

of this

Ho 'ble

Court

has

followed in various subsequent

iudgments

such

urT*

The Bar

Council

of Uttar

Pradesh v.

State of U.P.

&

Anr.

t(1g73)

1 SCC

2611;

Bar Councit

of

India

v. Board

of

Management Dayanand

Cottege

of

La*

urA

Ors

[AIR

2007

SC 1342J and

In

Re Lily

Isabel

Thomas

IAIR

1964

SC

BssJ.

That

the

Act

governs

practice

before

the

Su

prerne

Cou

rt

and

various

High Courts

is

further

aPparent

from

the

i

provisions

of

Section

34

of

the

Act

which

empower

the

High Courts

to

make

rules

governing

the

practice

before

them as

well

as

the

courts

subordinate

ther

eto.

Further,

the

Act contains

s.pecific

penal

provisions

under

Section

45 for any

persons

found

illegally

practising

law

in

Courts

or before

any authority.

Even

the

generic

penal

provisions

for misconduct

under

Section

35

prescribe

suspension

of

the

guilty

advocate

from

practice

as

one

of

the

punishments.

To

this,

the

Act further

clarifies

in

sub-

clause

(a)

of Section

35

that

an

advocate

suspended

from

practice

would be

debarred

from

practising law

in

any

Court

or

before

any

authority

or

person

in

India.

Thus,

it

is

submitted

that

insofar

as'the

lawyers

of

this

Respondent

do

not

practice in

the

Supreme

Court

or

the

High

Courts

or

aS

a

matter

of

fact, before

any

other

court

j

i

,

i

p


29/41

i'*

,

r,

F

or authority

or

in

bny

matter

in

relation

thereto,

they

Oo

&1

not come

within

the

purview

of

the

Act

and

are

not

required

to

get

enrolled

under

the

Act.

In

fact,

the

Hon'ble

Supreme

Court

has

in

the

case

of

L.M.

Mahurkar

v.

Bar Councit

of

Maharashtra

[(1996)

9

SCC

1g2J

held

that

the

prohibition on

the

practice of

law

by

lawyers

not enrolled

under

the

Act, does

not

disentitle

other

persons

not

qualified

as

lawyers

to

appear

and

practice specific laws before

authorities

constituted

under

such

statutes.

The

relevant

portion

of

the

iudgment

is

extracted

below:

"77.

The

requirements

of

Rule

66

go

to

show

that

sales

tax

practitioner,

who

has

not

got

a

degree

in

law

or

is

not

a

quatified

charte,red

.or

cost

accounta

nt,

witt

have

to

acquire

Some

knowledge

of

accountancy.

Even

Section

2BB

of

the

Income

Tax

Act

and

the

Rules

fra

med

thereunder,

tays

down

that

an

authorised

representative

who

is

not

a

tegat

.practitioner entitted

to

ptractice

in

anY'

civit

court

in

India

or

a

Chartered

Accountant

or

a

person

quatified

to

be

an

auditor

of a

company

maY

be

allowed

to

appear

befo're

an

income

tax

authority,

if

he

has'

passed

any

of

the

accountancy

examin,ations

recognised

I

by

the

Centrat

Board

of

Revenue

oi

has

acquired

a

degree

in

commerce

from

a

recognised

l'Jniversity'

These

t.::1:..

;


30/41

&

ri.nj/

how

that

apart

from

lawyers

and

chartereo

o,

3o

cost

accoLt

nta

nts,

other

persans

a

re

a

ttowed

to

practice

in

the

sa/es

Tax

Department

as

sales

tax

practitioner

provided they

have

acquired

some

knowledge

of

aicountancy.'

They

wilt

have

to

pass

one

of

the

many

recognised

accountancy

courses

for

this

purpose'

This

goes

to

show

that

the

sa

les

tax

practiticner

does

not

carry

on

the

profession

of

taw

when

he

appears

before

a

Sales

Tax

Officer.

His

practice

is

more

in

the

nature

of

that

of

an

accountant.

Therefore,

*"

url

unable

to

uphotd

the

contention

that

merely

because

t?e

appellant

was

altowed

to

practice

as

a

sales

tax

practitioner,

he

is

entitted

to

be

enrolled

as

an

advocate

by

virtue

of

the

provisions

of

clause

(aa)

of

sub-section

(3)

af

Section

24

of

the

Act.

12.

It

may

also

be

pointed

out

that

the

construction

a,

suggested

by

the

appettant

witt

lead

to

anomaly

and

must

.^

'r:'''

be

avoided.

After

passing

of

the

Advocates

Act, only

one

class

of

persans

is

entitled

to

practice

the

profession

of

law,namely,advocates(section29).Ifthephrase

,,practice

the,

profession

of

law"

is

equated

to

appearance.

before the

sates

tax

authority,.

in

that

event,

a

chartered

accountant

Qr

a-

cost

accountant

or

even

a

relative

or

an

emptoyee

of

an

assessee

witt

not

be

entitled

to

appeer

a

saleS

tax

authorit

after

the

Advocates

Act

came

t.:


31/41

E

t

r

;ffi,

'

t9t"'j'?

into

force.

Uot

only

that,

if the

contention

of

the

aonellant

3t

is

accepted,

after

the

appointed

date

the

sales

tax

practitioner who

does

not

have a

degree

in

law

witt

not

be

entitled

to

be

enrolled

as

an

advocate,

will

not

be

able

to

practice

the

profession of

taw and

consequently

witt

not

be

abte

to

aPpear

before

any

sales

tax

authority

...."

PARAGRAPH

WISE

REPLY

TO

THE

PETTTION

The

questions

of

law

raised

by

the

Petitioner

are

devoid

of

any

rreFit

in

view

of the

submissions

made

herein

above.

28.

The contents

of

Ground

I

are

deniecj

and

disputed.

The

Petitioner

has

alleged

that

the

following

two

findings

of

)

the

Hon'ble

Madras

High

Court

in

the

impugned

judgment

are

contradictory

to

each

other:

I

I

,

a

r

t

f

f

,

$

i

t

I

:i\

,,48.

(i)

Foreign

law

firms

or

foreign

lawyers

cannot

practice

the

profession

of

law

in

India

either

on

the

titigation

or

non-titigation

side,

unless

they

futfit

the

. Lt-

-

A )..^^^L;-a A.

requirement

of

the

Advocates

Act,

1961

and

the

Bar'

Council

of

India

Rules.

(ii)

However,

there

is

no

bar

either

in

the

Act

or

the

Rutes

for

the

foreign

la.w

firms

or

foreign

lawyers

to

lrisit

India

for

a

temporary

period on

a

fly

I

in and

fly

out

basis,

far

the

purpose

of

giving

legal

ad'vise

to

their

clients

in

India

regarding

foreign

law


32/41

F

F

T

Jffi

i-\..-

or

th.eir

own

sYstem

o

international

legal

issLtes."

f law

and

on

diverse

w

lq

3v

It

is

respectfully

submitted

that

the

contention

of

the

i

Petitioner

is

erroneous

and

misconceived.

The

above

findings

are

not

contradictory

but

have

to

be

construed

harmoniously

to

appreciate

their

true

import'

It

is

submitted

that

while

coming

to

the

conclusion

that

"

Foreign

law

firms

or

foreign

tawyers

cprnot

practice the

I

profession of

taw

in

lndia......",

the

Hon'ble

Madras

High

Court

was

referring

to

the

practice of

Indian

law

in

India

and

was

not

alluding

to

the

practice

of

foreign

law

in

India

by

qualified foreign

lawyers

for

a

temporary

basis'

The

practice

of

foreign

lawyers

to

fly

in

and

fly

out

of

India

on

a

temporary

basis

to

render

legal

advice

to

clients

situated

within

India

on

aspects

pertaining

to

foreign

law

and/or

internationat

law

does

not

amount

to

"practising

the

profession

of

law"

under

section

24

of

the

Act.

The

Hon'ble

Madras

High

court

has

clarified

that

foreign

lawyers

are

not

precluded

under

the

Act

from

advising

on

foreign

law

in

India

on

a

fly

in

and

fly

out

basis.

Further,

it

is submitted

that

pru.tiring

the

profession

of

law

connotes

an

element

of

cont nuity

or

permanency

and

involves

establishing

oneself

as

rendering

professional


33/41

F

de

legal services

on

a

primary

and

regular

basis,

The

Act

33

applies

within

the

territory

of

India

and

thus

the

practice

of

the

profession

of

law

governed

by

the

Act

refers

to

those

professional

activities

of

advocates

that

take

place

within

such

territory

on a

continuous

or

permanent

baSis.

It is

submitted

that

participation by

qualified

foreign

lawyers

in meetings

with

clients

a

nC/or

counterpart es,

in

d

iscussion

a

nd

negotiation

of

tra

nsactions

a

nd

in

Seminars, conferences

and

arbitration

in

India

on

a

temporary,

short

and

fleeting

basis

cannot

be

said

constitute

practising

the

profession

of

law

in

India.

Fcr

this

purpose,

SUch

foreign

lawyers

are

not

required

to

be

enrolled

under

the.Act.

Thus,

it

is

submitted

that

there

is

no contradiction

in

the

findings

of

the

Hon'ble

Madras

H

ig

h

Cou

rt.

The contents

of

Ground

II and

III

are

denied

as

being

erroneous

and

misconceived.

The

Hon'ble

Madras

High'

Court

has,

in

the

Impugned judgment,

specifically

dealt

with

the

judgment

of

the

Hon'ble

High

Court

of

Judicaure

at

Bombay

(herdinafter referred

to

as

"Hon'ble

Bombay

High

Court")

in

Writ

Petition

(Civil)

L526/

1995,.

[reported

in

2010

(112)

BomLR

32] and

proceeded

to

distinguish

the.specific

questions of

law

that

arose

before

each

Court.

ry

29.

':l


34/41

{-

#

&

It

is submitted

that

the

core

dispute

before

the

Hon'ble

i'

rL

r., rur

.,

t"-

vv'v

3ef,

Bombay

High

court

\{/as

with

respect

to

the

permission

granted by

Reserve

Bank

to

cettaln

foreign

law

firms

to

open

liaison

offices

in

India

under

the

Foreign

Exchange

Regulation

Act,

Lg73.

After

examining

the

nature

of

activities

of

th,ese

liaison

offices,

the

Hon'ble

court

concluded

that

these

were

not

in

the

nature

of

industrial,

commercial

and

trading

activities

bL{t

related'to

the

i

profession

of

law

which

the

foreign

-

law firms

were

.....,engagedin.SincetheseforeignfirmsWereengagedin

;ious

activities,

the

Hon'ble

court

examined

whether

the

Act

covered

both

litigious

and

non

litigious

activities.

The

Hon'ble

court

held

that

the

Act

covered

both

litigious

and

non-litigious

-activities.

This

aspect

of

the

ruling

is,

it

is

humbly

submitted,

ih

contrary

to

the

view

taken

by

the

Mohindroo

case

(supra)

which

held

that

,j.,theActwasenactedunderEntryTTandTBofListiof

A;

Schedule

VII to

the

Constitution

and was

intended

to

govern

persons

entitled

to

practice

of

law

in

the

supreme

court

and

Fligh

courts.

Having

concluded

as

above'

the

Hon'ble

Bonlbay

High

Court

held

that

RBI

could

not

have

lidly

giverl

permission

to

liaison

offices

of

foreig

n

law

firms

in

India.to

carry

out

activities

perLaining

to

non-

litigious

practice

of

law

unless

the

conditions

under

the


35/41

f

ry

in this

limited

context

that the

Hon'ble

Bombav

Hiqh

"3

Court

examined

the

issue

of foreign

lawyers

falling

under

the

purview

of

the

Act.

The

Hon'ble

Coutt

was

not

concerned

with

whether

the

Act applied

to

foreign

law

or

whether

qualified

foreign

lawyers could

visit

India

o'n

a

temporary

basis

and

give

legal

advice

on

issues

of

foreign

law.

It

is

submitted

that

this

Respondent

was

not

party/respondent

in the writ

proceedings

before

the

Hon'ble

High Court

of

Bombay

and

therefore

was

not

in

a

position

to

make

representations

gn

these

issues

addressed

in

such

proceedings.

It

is

respectfully

submitted

that

the

lury

expounded

by this

Hon'ble

Court

in Mohindroo

case

(supra)

as

well other

cases

regarding

the

Scope

of

the

Act

has

to

be

examined

and

such

determination

cannot

be

circumscribed

by

the

views

of

the

Bom

bay

H

ig

h Cou

rt.

The

contents

of

Ground

IV

and

V

are

denied

and

disputed.

This

Respondent

states

that

the

interpretation

sought

to

be

given

to

Section

24

of

the

Act

by

the

Petitioner

is incorrect

and

contrary

to

\hu

clear

terms

oT

the

statute.

The

Act

does

not

conceHl

itself

with

the

practice

of

foreign

law

within

the

territory

of

India.

This

I

1)..

.,

30.


36/41

aspect been

dealt

with

herein above.

in detail by this

Respondent

The contents

of

Ground

VI

are

denied

and disputed,

In

reply

to

this

ground,

it is

respectfully submitted

that

the

Petitioner has

erroneously

averred

that

foreign

lawyers

cannot

partake

in

arbitrations

conducted

in

India.

Arbitration

is

an

alternate

dispute

mechanisnn

and

lt

is

not mandatory

for a

person

to be1un'advocate'to

participate

in

such

proceedings,

whether

as

an arbitrator

or as a

representative

of

any

of the

Iitigating

parties.

it is

pointed

out

that

in

arbitrations,

persons

other

than

advocates

can

plead

before

the

arbitrai

tribunals

and

even act as

arbitrators.

Therefore,

there

is

no

qualification

required

to

participate

in such

proceedings.

Though the

Arbitration

and Conciliation

Act,

Lgg6

does

not

explicitly

permit

participation

of

foreign

lawyers

in

arbitration

being

held

in

India,

it

cannot

be

deduced

that

the

same

is

altogether

prohibited

under

the

Act'

In

fact,

the

foreign

lawyers

may

be

required

to

participate

in

arbitrations

to

advise

on

issues

pertaining

to

fclreign

aw

or structure

of transactions,

and

not

necessarily

to

advise

on

India

law,

It

is

submitted

that

co

rrectly

exa

m

in ed

Hon'ble

Madras

High

Court

natu

re

a

nd

cha

racter

of

the

the


37/41

-*@

commercial

arbitration

of an

international

nature

in

India,

3

the

genesis,

legislative

intent

and

history

of

the

Arbitration

and

Conciliation

Act

1996

as

well

as

India's

international

obligations

and

policy

towards

promoting

arbitration

in

India

to

hold

that

there was nothing

in

law

which

prohibited

a

party

to

an

international

commercial

arbitration

from

engaging

a

foreign

lawyer

to

come

to

India

to

give

advice

on

foreign

Iaw.

This

is

especially

true

when the

contracting

party

is a

foreign

entity

and

seeks

advice

of

its

own

solicitors

or

lawyers

in

respect

of

the

impact

of

laws

of

their

country

on

the

contract

and

arbitration

having

its seat

in

India"

It

is

respectfully

brou.ght

to

the

notice

of

this

Hon'ble

court

that

even

the

Union

of

India

through

its

Law

Department

(Respondent

No.

2

herein)

subscribed

to

the

view,

by

virfue

of

its

counter

affidavit

dated

19

August,

2010

before

the

Hon'ble

Madras

High

Court

in

W'P'(C)

56L4/2010

that

foreign

law

firms

should

be

allowed

to

participate

in

arbitration

in

India.

In

para

9

of

the

above

mentioned

affiddvit,

it

has

been

stated

as

follows:

" It

is

submitted

that

the

Petitioner',s

contention

i

,l

that

foreign law

firms

shoutd

nbt

be

allowed

to

take

part

in

negotiations

settling

up

documents

and

arbitrations

will

be

counter

*,

ed

;l\

i*r


38/41

produgtive

because

international

arbitrations

are

not

confined

to

a single

country.

Many

arbitrati?ns

with

Indian

iudges

lawyers

as

arbitrators

ui"

hetd

outside

India

where

both

foreign

and

Indian

law firms

advise

their

clients,

If

foreign

law

firms

are

denied

entry

to

deal

with arbitrations

in

Indian

then

we

will

lose

many

of

the

arbitrations

to,

Singapore,

Paris

and

London.

This

is

contrary

to

the

declared

policy

of

the

Government

and

will

be

against

the

national

interest

especially

when

the

Government

wants

India

to

be

a

hub

of

I

nte

natio

na I Arb

itrati

o

n."

jq

$

32.

The contents

of Ground

VII

are

denied

and

disputed.

In

reply

to

Ground

VII,

it

is

respectfully

submitted

that

Section

47

deals

with

the

respective

powers

of

the

centrat

Government

and

the

Bar

council

of

India

to

i-

prohibit

or

permit

the

practice

of

Indian

law

by

non-

citizens

havi[g

foreign

qualifications

in

law.

Sectio

n

47

(t)

empowers

the

Central

Government

to

prohibit

citizenS

of

a

country

which

unfairly

discriminates

against

Indian'

lawyers

with

regard

to

practice

of the

laws

of

that

country

,

frorn

'practising

Indian

law

in

India.

similarly,

Section

47(2)

empowers

the

Bar

Council

of

India

to


39/41

fo

f,

with

foreign

qualifications in

law,

may enroll

as

advocates

under

the

Act.

However,

this

Respondent

states

thr?3

these

powers

pertain

to

the

practice

of

Indian

law

under

the

Act.

It is submitted

that

the

averments

in

this

ground

are

erroneous

inasmuch

as

the

issue before

this

Hon'ble

Court

is

perrnissibility

of

practice

of

foreign

Iaw

by

foreign

lawyers

who

are

in

India

on

a

temporary

basis

to

advise

their

clients.

It

is

further

submitted

that

as regards

the activities

under

issue

in the

present

petition, the

Petitioner's

contentions

are

unmindful

of

the

prevaient

practice

whereby

qualified

Indian

lawyers

enrolled

under

the

Act

fly

in and

fly out

of

foreign

countries

to

render

advice

and

consult

on

Indian

law

issues

without

any

requirement

of

meeting

additional

q

ua

I ifications

u

nder

the

laws

of

those

fo

reig

n

jurisdictions,

Thus,

it

is

submitted

that

the

notion

of

reciprocity

will

be

upheld

only

if

Indian

laws

permit

foreign

lawyers

to

advise

on foreign

law

in

Indian on

a

temporary

basis;

In

view

of

the

submissions

made

herein

above,

it

is

respectfully

submitted

that

the

Petitioner

doep

not

have

a

good'

case

on

merits,

and

-there

is

no

ground

for

grant

of

interim

relief

sought

by

the

Petitioner

since

the

ccntentions

of

the


40/41

I

I

i

@itioner

in

su

PPort

of

its

PraYer

for

interim

misconceived

and

baseless'

It

is

further

submittted

lhat

in

view

of

the

submissions

made'

above,

the

present special

leave

petition

is

liable

to

be

allen & overy

Documents