tN THE

couRT oF INDIA

'uPREME

3 Y'

oRDER XVI RULE 4(1XA)

CIVI L APPELLATE J U RlSDICTIOhI

SPECI.AL LE,AVE PETITICN

of lndia)
(under Article 136 of the Constiiution

rwlrH PRAYER FOR INTERIM RELiEFI

LN

THE MATTEF OF:

spEclAL LEAVE

PETITIQ-II {cJVlL\ NO.

Ul10-54 Cr ?s1?

and final order dated

(Arising out of the impugned judgment

21.O2.2Ol2passedbytheHon'bieHighCourtof;udicatureat
Madras in WP No. 561 4!2012)
BETWEEN

The Bar Council of lndia,

21, Rouse Avenue,
lnstitutional Area, New Dethi Appe,anU Respondent No. 7

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O.*. Balaji
7t107, Mel Batcha Pet,
Harur, Tamil Nadu 636 903
ResPondent No'1/

Petitioner '

And 40 others.

All

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couNTER AFFIDAVIT FILED oN BEHALF

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oF ')

RESPONDENT NO.22

l,

Christopher John Humphrey Parsons' son

of

John

an office at
Douglas Parsons, aged about 50 years having

HerbertSmithFreehillsLLP,ExchangeHouse'Primrose
down to
Street, London .EC2A zEG, now having come
and
Jodhpur, Rajasthan, do hereby solemnly affirm
sincerelY state as follows:
Firm
I am a member and partner in the 22nd Respondent

1.

io
(hereinafter "Answering Respondent")' I am authorized

filethisaffidavitonbehalfoftheAnsweringRespondent.l

amwellacquaintedwiththefactsandcircumstancesof
affidavit filed
the case.l crave leave to refer to my counter

beforetheHighCourtatMadrasdatedls.0s.20l0aspart
and parcel of this affidavit'

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Leave petition
At the outset, I state that the above special

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order dated
fited against the impugned judgment and
21.02.2012 passed

by the Hon'ble High Court of

Madras") in WP
Judicature at Madras ("the High Court at
l:.:i

No'561 4

of

in law
2010 is misconceived, not maintainable

exemplary
or on the facts and should be dismissed with

of law raised by
costs. I submit that none of the questions

judgment and
the Appellant arise out of the impugned
any interference
order or are of such nature that warrant

4329_L

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I

by this Hon'ble Court in an appeal against the imPugned

judgment and order.

/
J.

I deny each and every allegation mentioned in the Special

Leave Petition so far as they relate to the Answering

Respondent save those that are expressly admitted

herein.

submit that the Answering Respondent

limited liability partnership registered

in

is

England and

wales and is regulated by the solicitors Regulation

Authority.

lts

registered office

is

atExchange House,

Primrose street, London EC2A zEG. Herbert smith LLP

WaSregisteredintheyear2005.onloctober2012
Herbert smith LLP merged
3othRespondent

with

Freehills, the

Firm. On the same day Herbert

Smith

to Herbert

Smith

LLP's registered narne was changed

Freehiils LLP,The merged firm, its subsidiaries and the

36thRespondent has

an international legal practice with

over2,sO0lawyersinofficesspanningAsia'Australia'
Europe, the Middle East and the

us. ! submit that the

AnsweringRespondenthasgroupofficesworldwidebut
not in lndia. lt does not have an office in lndia nor

liaison office and neither does it give advice on lndian law

to its clients. The Answering Respondent does not seek

tooperateanofficeinlndiabyusinghotelroomsor
private premises either. Therefore,

in the present

to
situation, the Answering Respondent being dragged

on
the Apex Court to answer

matt"" n"u6' raised before

is highly misconceived
Madras
at
court
High
the

and

of the Answering Respondent'

prejudiciat to the interests
4.

does not have an

Respondent
Answering
I submit that the

interestinanylndianlawfirm,whetherbypartnership,
have alliance-type
or affiliation' lt does not
shareholding

Answering
lndian law firm' The
any
with
relationship
of law in lndia
carry on the practice
not
does
Respondent
regulations' The Answering
lndian
of
in contravention
of lndian
and works with a number
instructs
Respondent

lawfirmstoprovideeffectiveassistancetoclients'The

the
represent parties in
not
does
Answering Respondent
The
advise on lndian law'
it
does
nor
lndian courts,
clients whose
acts on matters for
Respondent
Answering
and jurisdictions and
borders
across
business spans
nature of
who understand the
lawyers
on
which depends
business in lndia' work
to
regard
With
their business'

done by the

Answering Respondent

is

either

in

connectionwithinvestmentoutsidelndiabylndianbased

companiesorbusinessorganizations'orinconnection
companies and other
by
lndia
into
with investment
or lndian
babed outside lndia
organizations
business

law'
of law other than lndian
matters
on
based companies
who wish to buy

clients
This includes representing

and/or companies or
organizations
business
interests in

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lending money to lndian

or
ventures
joint
up
setting

is
governing law of the transaction
the
where
companies
in
one of the other jurisdictions
English law or the law of
Spain'
(by way of example France'
law
practice
we
which
ln short' the Answering

Hong Kong and Singapore)'

transactions
Respondent acts on international

where it

perspective' to clients
international
an
from
advice,
gives
of thg other laws mentioned

on English law or one

Respondent's various
Answering
the
from
above.Staff
the firm and to visit
promote
to
lndia
visit
offices may
This may inctude giving
contacts'
business
and
clients
held in lndia' I submit
conferences
attending
and
talks
legal
no way be construed as
in
can
instances
that these

practiceirrlrrdia.lrrallmattersoftlrekindi.eferredto

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,,

lui

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we work alongside lndian

law'
lndian
involve
above which
of
advice; in the majority
law
lndian
provide
law firms who
law' we also work alongside
lndian
involving
not
matters
Respondent ts
Answering
the
Therefore
lndian law firms'

are described
'r
ll the activities that
futly entitled to engage
of the Answering Respondent's
above. I submit that none
of law in lndia and

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activities amount

to the practice

of the
to the regulatory control
therefore cannot be subject

lndian authorities'
5.

ThesubmissionsoftheAppel|antbeforetheHighCourtat

para 26 of the
in
recorded
are
Madras

Nfu*o1uw

Fr#?' d t'55:Sr:;

i :iJrn r ooo, orr,_,

impugned

of the questions of
judgment.l further submit that none
Court were canvassed by
law raised before this Hon'ble
Court at Madras' I submit
the Appellant before theHigh

Appellant before the High

that the contentions of the

CourtatMadrasasfoundfromitscounter.affidavitinWP
as:
5614 of 2010 can be summarized

i.

has been settted by

Petition
Writ
the
in
issue
The
High Court of
the judgment and order of the
("the High Court at Bombay")
Judicature at Bombay

inWPNo'l526oflgg5inthematterofLawyers
CollectivevsBarCounciloflndiawhereitwasheld
not only governed
that the Advocates Act' 1961
also practice in nonpractice in titigious matters but
titigious matters within lndia'

of lndia and thus

Only persons who are citizens
24 of the Advocates
eligible to enroll under Section
practice. The Bar council
Act, 1g61 are a[owed to
provide for a relaxation of
to
power
the
has
of lndia
such conditions'

within the territory of

law
foreign
of
practice
The
to regulation by the Bar
lndia will also be suQject
practice could even be by
Such
lndia'
of
Council
recognized within their
practitioners registered or
domestic j urisdictions'

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6.

't"w

None of the aforesaid points have been called into

question under the impugned judgment. Therefore the

Appellant cannot be aggrieved by any of the findings or

observations made by the High Court at Madras. The

impugned judgment does not state that the practice of law

does not include practice on the non-litigious side' On the

other hand, in paragraph 63(i) the High Court at Madras

affirms that foreign law firms br foreign lawyers cannot
practice the profession of law either on the litigious side or

the non-l.itigious side unless they fulfill the requirement of

the Advocates Act,1961 or the Bar Council of lndia Rules.
Fufther, the impugned judgment does not state that noncitizens who othenryise have not obtained relaxation from

the Bar Councii of lndia are ailowed io practice law within

lndia. The High court at Madras specifically states

para44 of the impugned judgment that

in

it does not differ

from the view taken in the Lawyers Collective case.

However the High court at Madras rightly points out that

the primary question that arose before the High Coud at

Bombay was whether foreign law firms could open liaison

offices in lndia and render legal assistance to another

person in litigious and non-litigious matters. I submit that
at paragraph 45 the High court at Madras in its impugned
judgment rightly points out that the question in this case is

A/)

whether foreign law firms or foreign tawyers, without

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establishing any liaison office in lndia and who visit lndia

for the purpose of offering legal advice to their clients in

lndia on foreign law, are prohibited under the provisions

of the Advocates Act, 1961. The High Court at Madras

t,

further rightly points out that this question was neither

raised nor answered in lhe Lawyers Collecfive case'

8. _ The third point raised by the Appellant that even

the

,practice' of foreign law within lndia would be governed by

the. Bar Council

of lndia was not argued by the Appellant

before the High court at Madras. ln any event, the term

'practice' envisages some level

of

permanency of

establishment or operations in lndia. Only the Petitioner

before the High court

at Madras (who is the First

Respondent in the present appeal) contended that even a

temporary visit to lndia by a foreign law firm or a foreign

lawyer for and on behalf of his client to advise a client on

i,

iiiil

matters of foreign law is also not permitteci under the

Advocates Act, 1961. Such contention was rejected and

the High court at Madrasdecided that there is no bar

either in the Act or the Rules preventing foreign law firms

or foreign lawyers from visiting lndia for a temporary

period on a 'fly in and fly out' basiq, for the purpose of

giving legal advice to their clients

in lndia regarding

foreign law or their own system of law and/or on diverse

nh

international legal issues. The First Respondent has not

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filed an appeal' The Appellant who was the

7th

RespondentbeforetheHighCourtatMadrasnever
raised such contention before the High Court'

g,TheHighCourtatMadrastookonrecordthesubmissions
made by the Respondent law firms in para 47

'

not
that such visits on a temporary or transient basis do

l!r

amount to practice of law within lndia. The term

:ia,
. ,t,,

I submit

.practice,

notonlyconnotespermanencyofestablishmentbutalso
day out
connotes practice on a systematic and day in

t::::

basis which

is

absent

as far as the Answering

Court at
Respondent is concerned' Atpara 51' the High
Madras found as fotlows,

"such activities cannot at

atl be

consideredaspractisinglawintndia.lthasnotbeen
controvertedthatinEngland,foreignlawyersarefreeto

adviceontheirownsystemoflaworonEnglishLawor

any other sysfem of law without any

requirement

nationality

or need to be quatified in England'"Fudher'

theHighCourtatMadrasalsoinparaS2reasonedthatin
and
international commercial arbitration between lndian

foreignpartiesarisingoutofinternationalcontractsthat
to
may be subject to foreign law, it would be inappropriate

or
state that such foreign parlies cannot be represented

the venue
advised by their own lawyers merely because

th" reasons are cogently

52 to 57 of the impugned

of such arbitration is in lndia.

l

S'mr'"i

lt

explained

fila
O'6-.loJ.)3
A

70140074329_t

in paragraphs

9U"

e
I

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'tr'? '8)

judgment.l submit that the High Coutt 5t tvt.Oras rightly

found in para 57 as follows, "Therefore, to advocate a

proposition that foreign lawyers

or foreign law

firms

foreign
cannot come into tndia to advice their clienfs on
proposition and
law would be a far fetched and dangerous

in our opinion, would be to take

a step backward' when

tndiaisbecomingapreferredseafforarbitrationin
said basis,
lnternational commercial Arbitratibns."on the
judgment
the High Court at Madras in the impugned

acceptedthecontentiononbehalfoftheRespondentlaw

firms and also pointed out at para 60 that such

an

aim of the
argument would be counter-productive to the

lndianGovernmenttomakelndiaahubofinternational
arbitration and would also result in

"manifestly absurd

situatianwhereinonlylndiancitizenswithlndianlaw
under the
degree who are enrolled as an advocate
Advocates Acf could practice foreign law""'

63(ii)
I respectfully submit that the findings in paragraph
taken
and (iii) are well founded in law and the contention

with its own

by the Appellant is not only inconsistent
earlier position but

is also unsuppcrted

by the provisions

of lndia
of the Advocates Act, 1961 or the Bar Council
Rules.Accordingly,thereisnothingincorrectinanyof
deserves
the findings in the impugned judgment which
bv this

*r^r,fuu;ffii-;*n"*'ce

Hon'b"

"**

)\ry
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above contentio'i
11. Without prejudice to the

''t"ff"'"

the
are no direct allegations against

Respondent

Answering

I
in the Special Leave Petition'

respond

of law raised before this

parawise only to the questions
Hon'ble High Court'
12.

of the Special Leave

With respect to paragraph2(A)
Petition,

I submit that the Appellant's

question is very

at
made by the itigh Court
finding
the
from
different

of the impugned judgment'

63(i)
paragraph
in
Madras
foreign law firms or foreign
that
states
63(i)
Paragraph
profession of lawin lndia
the
practice
cannot
lawyers

eitheronthetitigationornon-litigationside'unlessthey
and the
the Advocates Act' 1961
fulfil the requirements of
aopearing before an
Rules'However'
lndia
of
Bar Council
of a dispute arising under
Arbitrat Tribunal in respect

foreignlawshouldnotbeconsideredas,practicing,the
at
Therefore' the High Court
lndia'
in
law
of
profession
Madrasclarifiedwhatconstitutespracticingtheprofession
in
High Court at Madras'
the
that
regard
this
of law. lt is in
stated: "foreign lawyers
63(iii)
paragraph
in
its finding
come to lndia and conduct
cannot be debarred to
out
respect of disputes arising
in
proceedings
arbitration
commercial
of a contract retating to international
arbitration"

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13.

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7

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With respect to paragraph 2(B) of the Special Leave

Petition, the issue in dispute is whether it would breach

the provisions of the Advocates Act, 1961 if advice

is

given on a matter of foreign law on a fly in and fly out

basis by a foreign lawyer or foreign firm. However, the

High Court

at

Madras found

in paragraph 63(ii)

that

providing legal advice to clients in lndia regarding foreign

law'on a fly in and fly out basis would not breach any of

the provisions of the Advocates Act, 1961. The

High

Court at Madras held that giving such advice on

temporary visits on a "fly in and fly out basis" does not
constitute "practicing" the profession of law which is the
prohibition imposed by section 29 of the Advocates Act,
1961.

14. With

respect

to

paragraph 2(C) of the Special Leave

Petition, the question raised is whether

person not

enrolled

as an advocate under the

'

196'1can

be allowed to "carry on legal

Paragraph 63(i) confirms that a person not enrolled as an

Advocates Act,
profession".

"Advocate" in lndia cannot practice the profession of law

in lndia whether on the litigation or non-litigation

side.

Thereforq, I am advised that this cannot form a ground for

appeal before this Hon'ble Court.

1S.

nl

paragraph 2(D) of the Special Leavb Petition, involves the

interoretation of

xo",rffit5l,ilo,o,,,-,

the

word

'practice'.
't1

,7
'Practice'contemplates

continuous

and

systematic

fleeting visit or a transitory

a
to
opposed
as
activity

'

of foreign law or
matters
on
advice
giving
presence for
I submit
governed by foreign law'
arbitration
of
conduct
that
was iustified in finding
,n", the High court at Madras
or the Rules for foreign
Act
the
in
either
bar
no
there is
visit lndia for a temporary
lawyersto
foreign
or
firms
law

periodonaflyinandflyout'basis'forthepurposeof

to

giving tega'l advice

foreign
clients in lndia regarding

law and on diverse

of
system
own
their
or
law
international issues' There

is

nothing inconsistent

Madras
by the High Court at
between the findings made
judgment'
of the impugned
63(ii)
and
63(i)
in paragraph

16.

With respect

to

Leave
paragraph 2(E) of the Special

about the
is nothing erroneous
there
that
submit
t
Petition,
be
at Madras that law must
Court
High
the
of
findings
nature of
international
the
mind
in
keeping

interpreted

business that is conducted'

17. With respect

to

paragraph 2F)

of the Special

leave

Petition,lsubmitthatthefindingmadeinparaEraph63(iii)
High
consistent 'with the
is
judgment
impugned
of the

CourtatMadras,interpretationthatthepracticeoflawis
differentfromtheconductofspecificarbitralproceedings,

relating to
.-:,

,::',.

-'
.

Arbitration'
lnternationat Commerciat

^^Therefore,thecontentionthatevenatemporaryor13
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transient presence of

t grf
)')
foreign lawyers or foreign law firms

in lndia would amount to

'practicing' law

in lndia

is

unfounded and without basis. consequently there is no

error which warrants the interference by this

Hon',ble

court on any of the findings made by the High court at

Madras in the imPugned judgment'

18.

Therefore, I submit that thereis no regulatory jurisdiction

of the Appellant that could be extended to foreign lawyers

who visit lndia temporarily or on a fly in fiy out basis to

advise clients on foreign law or to conduct lnternational

commercial Arbitration.

,a1il

believe that each

of

these

Respondentlawfirmsaresubjecttoregulatory
supervisionintheirownhomecountry'Nothingcontained

inanyfindingoftheimpugnedjudgmentgivesrisetoa
view that the foreign law firms are allowed to practice in
24
lnclia even if they do not satisfy the eligibility of section
of the Advocates Act, 1961 '

1g.

paragraph 5 of
I submit that none of the grounds raised in

thisappealarevalidandthereisnoerrorinanyofthe
findingsoftheHighCourtatMadrasinparagraph63or
elsewhere in the impugned judgment. I further submit that

thestandtakenbytheAppellantresultsinanabsurd
give
situation where lndian lawyers would be required to
advice on matters of foreign law

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n,rl'r'd

o[$

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ind conduct lnternational

they
commerciar Arbitrations within rndia even though

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would not bequalifiecl to practice foreign law. such an

interpretation may even breach the regulations of other

foreign jurisdictions

foreign law

as it

nnay amount

to

practice of

by lndian lawyers without meeting the

eligibility criteria for the same.

,

24.

As there are no specific allegations against the Answering

Respondent in the special Leave Petition,

r:; "\

I seek the

riberty to file an additional affidavii at a later stage, if the

Answeiing Respondent feels the need to respond to any

allegations that are made.

The Appellant has not made out any case for the grant or

21.

continuation of any of the interim relief. The allegations

contained in paragraph

6 of the appeal are denied as

unjustified and without basis.

ln view of the above, it is therefore humbly prayed that

22.

this Hon',ble court may be pleased to dismiss the special

Leave Petition with exemplary costs and thus render

justice.

lndia
dav of February 2013

Solemnly affirmed at Jodhpur,

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