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IN THE SUPREME COUII.T OF INDIA

CIVIL APPBLLATB JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.171s0-54 OF 2072

'1:...

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IN THE MATTER OF:Bar Council of India.

... Petitioner
Versus

A.K.Balaji & Ors.

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... Respondents

AT'IDAVIT IN REPLY OF'RESPONDENT NO.IO

I, RONALD COMPTON KING, son of ROBERT KiNG,

aged about 52

years having my place of business at Broadwalk House, 5 Appold Street, London,

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EC2A 2FIA, United Kingdorn, do hereby solemniy affirm and sincerely state as
fbllows:

1.

state that

am the authorized representative of Respondent No, 10.

fLrlly acquainted with the tacts of this present case and am

ara

fully competent

to swear and depose to the facts stated in this Affidavit. To the extent that
the information in this affidavit is within my own knowledge

it is true. and

to the extent that it is based on informaiion received from others it is true to

the best of my information and belief.

PRELIMINARY SUBMISSIONS

,.:

2.

At the outset, I

state that the Special Leave Petition ("S{,P',) is

misconceived, incorrect, unsustainable in lqw 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 alieged by the Petitioner in the SLP.

A@/
The answering Respondent is a limited liabiiity partnership incorporated
under the laws

of England

ancl Wales.

state that answering Respondent

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

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

Singapore, Hong Kong etc. either directly through brancir offices of

Ashurst LLP or through various local legal entities.

In

answering Respondent owns subsidiary service companies

addition, the

in a number of'

countries which provide administrative and support services for its law
offices, but which do not provide legal services'

4.

state that the division bench

of Hon'ble High Court of Judicature at

Madras in W.P.No.5614 of 2010 had disposed of the aforementioned writ

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petition by its order dated 21.0?.2012 after having come to a conclusion

that neither the Advocates Act, 1961 (the "1967 Act") nor the Bar council

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

in India, it

had also passed certain

directions vis-ir-vis the practice of 'non-Indian law' and/or 'foreign iaw' in

India by foreign law firms or foreign lawyers and allowing foreign lawyers

to conduct arbitration proceedings in respect of disputes arising out of

contract relating to international commercial arbitration'

5.

I funher

state that the Petitioner is attempting to confuse issues.

state 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

contentious

providing Indian legal advice on any matter, whether

or non-contentious. I

state that,

in

today's world with

globalization being extensive, there are a number of transactions where

Indian companies are investing or raising capital outside India or foreign

,)

companies are investing or raising capital in India giving rise to the need

in
for both Indian and foreign law advice. It is often convenient for clients
to
these circumstances to have their foreign legal advisers travel to India
advise them in person on aspects ofnon-Indian law so as to take advantage

of their international

It is in this

experience and foreign law expertise.

context that representatives of the answering Respondent would normally

advice'
enter India to provide 'non-Indian law' advice andlot'foreign law'
on
They may also enter India in connection with the provision of training

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matters within their expertise

or for the purpose of

developing or

argue
maintaining relations with businesses or lawyers in India, but not to

in any of the Indian courts or to provide Indian legal advice'

6.

state that the Petitioner has further attempted

to confuse matters

by

means
suggesting that any relationship between foreign and Indian lawyers

that foreign lawyers thereby have a physical presence in India. such

to
relationships are commonplace in international trade. They allow clients

be reassured that their legal needs abroad are being taken care

of by a

to
lawyer trusted by their local iawyer and they allow Indian law firms

obtain access to internationai clients with specialist needs in

relationships are also used by Indian law firms

to

India'

Such

serve their clients'

inbound and outbound needs.

7,

I state that by passing

21.02.2012

the directions in paragraph 63 of its Order dated

the Hon'ble High Court

of

Judicature

at

Madras in

W.P.No.5614 of 2010 has only clarified and confirmgd that the aforesaid
practice

of 'hand holding' of their clients by foreign law firms and/or

and inforeign lawyers is in no way against the provisions of the 1961 Act

fact it has been a long standing practice much before the aforesaid Madras

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L'l/
High Court judgment

and

even the BombaY High Court judgment in

and Ors
Lawyers Collective vs. Bar Council of India

2010 Vol.112 (1)

Bom. L.R.0032.

and the Affidavit

I state that I shall now respond to the contents of the sLP
paragraph wise,

against

I state at the outset

the answering

that since there are no direct allegations

Respondent,

the answering Respondent shall

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and the
endeavor to respond to the contents of the sLP

Affidavit inasmuch

asanyparagraphrelatestoit.Isubmitthatanyinadvertentomissionto
affidavit under reply ought
deny any contention or allegation raised in the
,i!,'

nottobeconstruedasanadmission.IstatethattheansweringRespondent

forthispurposespecificallyreservestlrerighttofileanyadditionalcounter
affidavits as and when they may be required'

WithreferencetoparagraphlofthesLP'ldenythatthejudgementand

9.

orderdated21.oz,Iol2passedbytheHon,bleHighCourtofJudicatureat

MadrasinWritPetitionNo.56l4of2010andM'P.No,s.l,3to5is
impugnedasallegedbythePetitioner..Irefertoandrelyuponthesaid
judgement for its true meaning and interpretation'

10.

that any questions of law

With reference to paragraph 2 of the SLP' I deny

have arisen for the purpose

tr'YY

of appreciation and consideration by this

Hon,bleCourtunderArticlel36oftheConstitutionoflndia.
i

1.

(A) of the SLP'

With reference to paragraph 2 Question Jf Lu*

submit

passed by the Hon,ble High

that the judgement and order dated2|,02.2012

a person of foreign origin'

Court of Judicature at Madras had not held thJt

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to
1961 Act would be permitted
the
under
advocate
an
not enrolled as
delivery system in India'
before any forum ofjustice
appear

with

1)

of Law (B)
2
reference to paragraph euestion

I deny that 'practice the

professionoflaw,wouldincludeadvicegiverrtoclientsonlegalissues
outsidetheCourtsasthelg6lActdoesnotcategoricallydefinethesame.

Additionally,beforethelg6iActwasenacted'thefieldwasoccupiedby
Bar councils Act'
1g26. Under the Indian
Act,
councils
Bar
the Indian
and
meant'practise before courts
the word "proc'ise" undoubtedly

lg26,

tribunals'Thelg6lActwasenactedasaconsolidatinglegislationandby
sitce it had been in use
hadattained nomen iuris
"practise"
word
the
then
law' a word that is a term of
years' In Indian
in iegislation for nearly forty

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artorhasotherwiseattainednomenjurisispresumedtohavebeenusedin
Court in State of
as held by this Hon'ble
legislation
in
sense
the same
Madras

with

vs,

1958 SC 560'
Gannon Dunkerley AIR

of Law
2
reference ro paragraph euestion

(c) of the SLP' I

submit

thatthejudgementandorderdated2l,ol,2olzpassedbytheHiglrCourtof
JudicatureatMadrashasnotheldthatapersonnotenrolledasadvocate

underthelg6lActcanbeallowedtocailyonlegalprofession(intermsof
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whether litigious or non-litigious'

giving advice on Indian law)

i;)

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14.

with

of Law (D) of the SLP'

2
reference to paragraph euestion

submit

tiY.

).:.

thattheHighCourtwasjustifiedinhoidingthatthereisnobareitherinthe
lawyers to visit
foreign law firm or foreign
the
for
Rules
the
or
1g61 Act
purpose of
in una fly out basis' for the
fly
a
on
period
lrrdia for a temporary

givinglegaladvicetotheirclientsinindiaregardingforeignlawasthe
HighCourthadrightlyheldthattheneitherthelg6lActnortheRules

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f)

'non-lndian law ' advice

define 'practice of iegal profession' to include
and/or'foreign law' advice'

15.

submit

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

in the

(E) of the SLP'

With reference to paragraph 2 Question of Law

judgmenttheHon,bleMadrasHighCourthadactuallyquotedthisHon,ble
International Holdings B'V'
court,s decision dated 20.01 .2012 in vodafone

vs,(Jnionoflndia&Anr,SLP(C)No'26529of2010'andithadnottermed
the legal profession as a business'

16.

(F) of the SLP'

With reference to paragraph 2 Question of Law

submit

High court. In the judgment the

that the petitioner has again misquoted the
J

HighCourthasin-factheldthatifforeignlawfirmsweredenied

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permissiontodealwitharbitrationinlndia,thenlndiawouldlosemany
to the declared poiicy of the
arbitrations to other countries which is contrary

Government

especially
of India and wili be against the National Interest,

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

1-

I t.

With reference to Ground 5 (i) of the SLP'

Court has committed

deny that the Hon'ble High

grave error as the term 'practice the legal

profession,hasnotbeendefinedbythelg6lActandtheRulesandthe
lg6lActdoesnotgovernthepracticeof.non-Indian'lawand/or.foreign
i':

,:,

:,

.rl)

law'.

18.WithreferencetoGround5(II)ofthe.SLP,IdenythattheHon,bleHigh
CourthadnotconsideredtheorderpassedbytheBombayHighCourtin

.LawyersCollectivevs;'BarCounciloflndiaandOrs'TheHon'bleHigh
Courthasdiscussedtheratiointheaforesaidjudgmentatlength.The

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,l--

Petitionerisattemptingtoconfuseissues,asbeforetheHon'bleMadras
HighCourttheissuewasrelatingtoapplicabilityofthelg6lActandRules

topractice'non-lndian'lawand/or'foreignlaw'inlndiabyforeignlaw
firmsand/orforeignlawyers,thesebeingissueswhichwerenotresolvedby
the BombaY High Court'

19,

with

reference to Ground 5

(iII) of the sl.p, I

deny that the High court

failedtoappreciatethatthePetitionerandthestateBarCouncilshavethe
',',

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:lt

profession
statutory duty to regulate the legal

l"

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ii

inlndia. In fact,

the Hon',ble

HighCourthasheldthatforeignlawfirmsorforeignlawyerscannot
they fulfil
law in India (that is, Indian law) unless

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.;
rl i
,; I

1'

practice the profession of

therequirementofthelg6lActandtheRules.Additionally,theBombay
trilr

HighCourthasdirectedthatvis-d.visforeignlawfirmspracticingthe
professionoflawinlndia(thatis,Indianlaw),sincetheissueispending

beforetheCentralGovemmentformorethan15years'theCentral

GovernmentshouldtakeanappropriatedecisioninthematteraS
expeditiouslY as Possible'

20.

with

reference ro Ground 5

Court failed

to

(rv)

and

(v) of the sLP, I

appreciate the provision

deny that the High

of the l96t Act'

fughtly

interpretingsections24and4Tofthelg6lActtheHon,bleHighCourthas

,.

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rightlyheldthatexceptionsareprovidedundertheprovisotoSection
of the
2a(l)(c)(iv) and Section 47(2) and in the light
24(l)(a), Section

schemeofthelg6lActwhichcouldenableaforeignlawyertopractice
Indian law in India. However,

if

a lawyer from a foreign law firm visits

to the law which is applicable

India to advise his client on matters relating

totheircountry,forwhichpurposehefliesinandfliesoutoflndia,there

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couldnotbeabarforsuchservicesrenderedbysuchforeignlaw
firm/foreign lawYer'

WithreferencetoGround5(VI)oftheSLP'IsubmitthatthePetitioneris

21,

of the Arbitration
suggesting that the provisions
by
issues
confuse
to
trying

andConciliationAct,lgg6wouldneedtooverridethelg6lActtoenable
foreignlawyerstoparticipateinarbitrationsinlndia.Thatisnotthecase

f
l

f
I

astheHon,bleHighCourthasnotheldthatthe196lActpreventsforeign

lawyersfromgivingforeignlawadvicetotheir,clientsinthecontextof
that if foreign law
High Court has in fact held
Hon'ble
The
arbitrations.

I.

I
I

firmsweredeniedpermissiontoconductarbitrationinlndia,thenlndia

t:

I
I

wouldlosemanyarbitrationstoothercountrieswhichiscontrarytothe

trl

declaredpolicyoftheGovernmentoflndiaandwillbeagainsttheNational
Interest,especiallywhentheGovernmentoflndiawantslndiatobeahub
of International Arbitrations'

')')

WithreferencetoGround5(VII)oftheSLP'IdenythattheHon'bleHigh
Courtfailedtoappreciatethelawofthelandandtheprovisionsofthel96l

Act,asonlyafterhavingcometoaconclusionthatneitherthelg6lActnor
theRulesapplytothepracticeof.non-Indianlaw,and/or.foreignlaw'in
India,hadtheHon,bleHighCourtpassedcertaindirectionsvis.ir-visthe

practiceof'non-Indianlaw'and/or'foreignlaw'inlndiabyforeignlaw
.".|:

firms or foreign lawYers'

23,

has failed to
(I) and (II) I say that the Petitioner
6
Ground
to
with ref.erence
that the balance of
good case on th" *"'it' and
a
have
they
that
prove

convenienceliesintheirfavour.ThePetitionerhastoprovehowitisthey
a regulatory
would be jeopardized as
functioning
their
that
anticipate

authorityofthe.legalprofessionoflndia,iftheorderdaled2|,02.2012

-8-

passed by the

not stayed'
Hon'ble High Court is

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above
say that from the

factsandcircumstances,itisclearthatthebalanceofconvenienceisinthe
No'10
is not just that the Respondent
It
No.10.
Respondent
favour of the

willsufferconsiderablelossiftheaforesaidorderisstayed,itwouldalso
currency on
and inflow 'of foreign
investment
foreign
affect the impact of
,i

t'

thelndianeconomy,andalsootherissuesinvolvingfiscalimplicationson
the country vis-'a-vis international
of
development
economic
the

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t.

commercialtransactions'furtheritwouldaffectstrategicforeigndirect
when international commercial
especially
India
to
investment coming

D:dr
'i,,:t

transactionsandforeigndirectinvestmentsareindispensableforagrowing
econorny like India'
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7 (a) of the SLP

With reference to paragraph

leave to
say that the special

appealshouldnotbegrantedtcthePetitionerandshouldbedismissedwith
Respondent No'10'
exemplary costs to the

25,

26.

say that no
7 (b) of the SLP' I
With reference to paragraph
from the aforesaid circumstances'
granted to the Petitioner

8(a) of the SLP'

With reference to paragraph

other orders be

has
say that the Petitioner

failedtoprovethattheyhaveagoodcaseonthemeritsan<ithatthebalance

ofconvenienceliesintheirfavour'ThePetitionerhastoprovehowitis

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theyanticipatethattheirfunctioningwouldbejeopardizedasaregulatory
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If

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authorityofthe.legalprofessionoflndia,iftheordercaled2l.a2.20l2

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passedbytheHon,bleHighCourtisnotstayed.Isaythatfromtheabove

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factsandcircumstances,itisclearthatthebalanceofconvenienceisinthe
No'10
It is not just that the Respondent
No'10'
the'Respondent
favour of

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.willsuft.erconsiderablelossiftheaforesaidorderisstayed,itwouldalso

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affecttheimpactofforeigninvestmentandinflowofforeignculrencyon
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thelndianeconomy,andalsootherissuesinvolvingfiscalimplicationson

theeconomicdevelopmentofthecountryvis.i-visintemational
commercial transactions,

it would affect strategic foreign direct investment

comingtoindiaespeciallywheninternationalcommercialtransactionsand

foreigndirectinvestmentsareindispensableforagrowingeconomylike
India.

27.

SLP'
With reference to paragraph 8(a) of the

say that no other orders be

circumstances'
granted to the Petitioner from the aforesaid

zg.

Reply'
has not raispd any new fact in its

It is submitted that the Respondent

the present Special Leave Petition

In the aforesaid circumstances, I say that
Respondent No' 10'
dismissed with exemplary costs to the

Solemn

/. ,

atLotlco.O_, England )

,t*+.

WA

Before Me

England

(Iiward Gariiner)

E.C. AGRAWALA
Advocatc for ResPohdent No'1

CHEESWRIGHTS
Brotddc Hogr., lm Lordcohdl grocr.
L{Ddon BC3A 4AF

Tcfuc:tA?623UtTl
&nlmth. mo76n

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