Link Laters
Transcript of Link Laters
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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
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of
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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.
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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.
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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.
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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.'
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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.
'',.
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