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7fi
CXVIL A}}PELLATIi
J UR
ISDI CTIO]''I
,.. Respondents
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
l.
state that
as
follows:
case and am
anr
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
ERELINIINARY SUBMISSIONS
2.
At the outset, I
is
irz
limine, with exemplary costs. The answering Respondent does not have
law office in india and it does not give, in India, Indian law advice to its
3.
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provides legal services through law offices in a number of oountries of the
France,
ln addition, the
in a number of
for its
larv
4.
at
.:',
of India Rules,
I96l
(the
law' in
India by foreign law firms or foreign larvyers and allowing foreign lawyers
to conduct arbitration
proceedings
5.
I fu*her
I sute that
India for the purpose of arguing in any of the Indian courts, or for
purpose
of
the
state that,
in
for both Indian and foreign law arjvice, lt is often convenient for clients in
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,V\-(..
l}-V'r.,-J-t-)
\'
'/t
\y
to India
to
oftheirinternationalexperieneeandforeignlawexpertise'Itisinthis
contextthatrepresentativesoftheansweringRespondentwouldnonnally
and/or 'foreign
enter india to provide 'non-lndian law' advice
law' advice'
matterswithintheirexpertiseorforthepurposeofdevelopingor
in lndia, but not to argue
maintaining relations with businesses or lawyers
legal advice'
in any of the Indian courts or to provide Indian
6.
to confuse matters by
suggestingthatanyrelationshipbetweenforeignandlndianlawyersmeans
thatforeignlawyerstherebyhaveaphysicalpresenceinlndia.Such
trade' They allow clients to
relationships are commonpiace in international
being taken care of by
be reassured that their legal needs abroad are
lawyertrustedbytheirlocallawyerandtheyallowlndianlawfirmsto
needs in
obtain access to international clients with specialist
India'
to serve their
Such
clients'
'7.
B!'iA
.*.
,l- ":r
Istatethatbypassingthedirectionsinparagraph63ofitsorderdated
?L,oz,Io:lztheHon,bleHighCourtofJudicatureatMadrasin
that the aforesaid
w.P.No.5614 of 2010 has only clarified and confirmed
judgment
High Court judgment and even the Bombay High Court
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in
rv,+
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231
Lawyers Collective vs. Bar Council of lndia and Ors
WISE RESPONSE
ALLEGATI
AGAINST
ANSWERING RESPONDENT
8.
state
paragraph wise.
deny any contention or allegation raised in the affidavit under reply ought
9.
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
is
10,
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
lan
ll.
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,
F(_
4t\
4
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232-
\ry
12.
the
on legal issues
profession of law' would include advice given to clients
outside the
cou(s
as the
was occupied by
Additionally, before the 1961 Aot was enacted, the field
Councils Act'
the lndian Bar Councils Act, 1926. Under the Indian Bar
practise before courts and
1926, lhe word "prQcllse" undoubtedly meant
and by
tribunals. The 1961 Act was enacted as a consolidating legislation
then the word"practise" had attained nomenTarls since
it had been in
use
that is a term of
in legislation for nearly forty years, ln Indian law, a word
art or has otherwise attained nomen
in State of
the same sense in legislation as held by this Hon'ble Court
.i.
r3,
Withreferencetoparagraph2QuestionofLaw(C)oftheSLP,Isubmit
High Court
that the judgement and order dated 21.02.20i 2 passed by the
of
as advocate
Judicature at Madras has not heid that a person not enrolled
under the
l96l Act
(in terms
can be allowed to carry on legal profession
of
14.
:....:)
i,:::
with
sLP,
reference to paragraph 2 Question of Law (D) of the
submit
either in the
that the High court was justified in holding that there is no bar
to visit
1961 Act or the Rules for the foreign law firm or foreign lawyers
purpose of
India for a temporary period on a fly in and fly out basis, for the
giving iegal advice to their clients in India reqarding foreign law as the
Rules
High court had rightly held that the neither the 1961 Act nor the
define.practiceoflegalprofession'toinclude.non-lndianlaw'advice
and/or'foreign law' advice
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subnrit
in the
15.
judgmenttheHon,bleMadrasHighCourthadactualiyquotedthisHon'ble
Court,sdecisiondated20'01'2012inVodafonelnlernationalHoldingsB,V,
termed
No'26529 of 2010' and it had not
vs. (Jnion of India & AIr,SLP(C)
the legal Profession as a business'
16.
subnrit
the
the High courtl In the judgment
that the petitioner has again misquoted
HighCourthasinfactheldthatifforeignlawfinnsweredeniedpermission
todealwitharbitrationinlndia,thenlndiawouldlosemanyarbitrationsto
othercountrieswhichiscontrarytothedeclaredpolicyoftheGovernmen[
oflndiaandwillbeagainsttheNationallnterest,especiallywhenthe
a hub of lnternational Arbitration'
Government of India wants india to be
17,
with
reference to Ground 5
(l) of
rhe SLp,
the
legal
profession'hasnotbeendefinedbythelg6lActandtheRules'andthe
1961
law'.
18.
.l',r
withreferencetoGround5(ll)oftheslp,ldenythattheHon'bleHigh
CourthadnotconsideredtheorderpassedbytheBornbayHighCourtin
LawyersCollectiveys,BarCounciloflndiaandors,TheHon'bleHigh
Courthasdiscussedtheratiointheaforesaidjudgmentatlength.The
Petitionerisattemptingtoconfuseissues,asbeforetheHon'bleMadras
HighCourttheissuewasrelatingtoapplicabilityofthelg6lActandRules
law'in lndia by foreign larv
to practice.non-Indian, law and/or.foreign
iaz-s\_
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{-v \ }*\6
o114
by
issues which were not resolved
firms and/or foreign lawyers, these being
the BombaY High Court'
withreferencetoGround5(lll)oftheslp,ldenythattheHighcourt
19.
failedtoappreciatethatthePetitionerandthestateBarCouncilshavethe
statutorydutytoregulatethelegalprofessioninlndia.lnfact,theHon'ble
i:,
HighCourthasheldthatforeignlawfirmsorforeignlawyerscannot
fulfil
in India (that is, tndian law) unless they
'''
therequirementofthelg6IActandtheRules'Additionally,theBornbay
law firms practicing the
High court has directed that vis-ir-vis foreign
since lhe issue is pending
profession of law in lndia (that is' Indian law)'
beforetheCentralGovernmsntformorethan15years'theCentral
Governmentshou]dtakeanappropriatedecisioninthematteraS
expeditiouslY as Possible'
with
reference to Ground 5
(rv)
Rightly
interpretingsections24and4Tofthelg6lActtheHon'bleHighCourthas
rightlyheldthatexceptionsareprovidedundertheprovisotoSection
the
Section 41(?) and in the light of
24(1Xa), Section za(l)(c)(iv) and
scheme
t*it
lawyer to practise
of the t96l Act which could enable a foreign
Indianlawinindia'However,ifalarvyerfromaforeignlawfirmvisits
to'the law which is applicable
India to advise his client on matters relating
totheircountry,forwhichpurposehefliesinandfliesoutoflndia'there
couldnotbeabarforsuchservices,,nde,*dbysuchforeignlaw
firm/foreign lawYer'
11
WithreferencetoGround5(VI)oftheSLP,IsubmitthatthePetitioneris
trying to confuse issues Uy
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'uggttting
t)-vV']-g
7
27s
Act to enable
and conciliation Act, 1996 would need to override the 1961
not the case
foreign lawyers to participate in arbitrations in India. That is
as
foreign
the Hon,ble High court has not held that rhe 1,961 Act prevents
the context of
lawyers from giving foreign law advice to their clients in
arbitrations, The Hon'ble High Court has in fact held that
if
foreign law
India
firms were denied permission to conduct arbitration in lndia, then
lo
would lose many arbitrations to other countries which is contrary
declared policy of the Government of India and
will
the
,tfr-"
1'
with reference to Ground 5 (vll) of the sLP, I deny that the Hon'ble High
of the I 96
Court failed to appreciate the law of the land and the provisions
Act nor
Act, as only after having come to a conclusion that neither the 1961
the Rules apply to the practice
the
India, had the Hon'ble High court passed certain directions vis-d-vis
practice of
23'.
to
With reference to Ground 6 (I) and (ll) I say that the Petitioner has failed
of
prove that they have a good case on the merits and that the balance
convenience lies in their favour. The Petitioner has to prove how
t.'
if
it is they
regulatory
passed by the Hon'ble High Court is not stayed.1 say that from the above
is in the
facts and circumstances, it is clear that the balance of convenience
favour of the Respondent No.l6,
will suffer
considerable loss
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lt
also
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affecttheimpactofforeigninvestmentandinflowofforeigncurTencyon
thelndianeconomy,andalsootherissuesinvolvingfiscalimplicationson
the
economic development
international
foreign direct
investmentcomingtolndiaespeciallywheninternationalcommercial
are indispensable for a growing
transactions and foreign direct investments
economy like lndia.
24.
WithreferencetoparagraphT(a)ofthesLPlsaythatthespecialleaveto
appealshouldnotbegrantedtothePetitionerandshouldbedismissedrvith
exemplary costs to the Respondent No'16'
.,11,
,<
26.
Petition,'
f'o*
be
WithreferencetoparagraphS(a)oftheSLP'lsaythatthePetitionerhas
failedtoprovethattheyhaveagoodcaseonthemeritsandthatthebalance
has to prove how it is
of convenience lies in their favour. The Petitioner
theyanticipatethattheirfunctioningwouldbejeopardizedasaregulatory
authorityofthe.legalprofessionoflndia,if,theorderdated2]l'02,2a12
passedbytheHon,bleHighCourtisnotstayed.Isaythatfromtheabove
'',. :..':.'
factsandcircumstances,itiscloarthatthebalanceofconvenienceisinthe
favouroftheRespondentNo.l6'ItisnotjustthattheRespondentNo'16
loss
also
theeconomicdevelopmentofthecountryvis-ir.visinternational
strategic forgign direct investment
commercial transactions, it would affect
*t''n int'
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u+__
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2-17
foreign direct investments are indispensable for
lndia.
)1
With reference to paragraph 8(a) of the SL,P, I say that no other orders be
granted to the Petitioner from the aforesaid circumstances.
28.
in its Reply.
::\.
-?o
In the aforesaid circumstances, I say that the present Special Leave Petition
be dismissed with exemplary costs to the Respondent No.
I6'
f.r-t-r\.r-
Before Me
,Lw\, r-
P.-
E.C. AGRAWALA
Advocate for Respondent No.16
l-r)
-:,.,
,:1
hlobry Putllc London, Enghnd (Andrsw J. MacNab)
My @mmission expires at Death
'.
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