Herbert Smith

8/9/2019 Herbert Smith

1/15

tN

THE

'uPREME

couRT

oF

INDIA

3

oRDER

XVI

RULE

4(1XA)

CIVI

L

APPELLATE

J

U

RlSDICTIOhI

SPECI.AL

LE,AVE

PETITICN

(under

Article

136

of

the Constiiution of

lndia)

rwlrH

PRAYER

FOR

INTERIM

RELiEFI

LN

THE

MATTEF

OF:

spEclAL

LEAVE

PETITIQ-II

{cJVlL\

NO.

Ul10-54

Cr

?s1?

(Arising

out

of the

impugned

judgment

and

final

order

dated

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

-

1

10

002'

ffiryN

Appe,anU

Respondent

No.

7

l'r.r,yl1;t,}'=

..Eeg'Jdo"

J;{n'itav

)

*]

O.*.

Balaji

N'

-,,f''

{fr

rr;ffi.1

7t107,

Mel

Batcha

Pet,

'.:'

Harur,

Tamil

Nadu

636

903

ResPondent

No'1/

Petitioner

'

And

40

others.

All

wordeyWY;r;-

l/i

-l

itk"

rr

l/

10140074329-1


2/15

'I

couNTER

AFFIDAVIT

FILED

oN

BEHALF

o ')

RESPONDENT

NO.22

l,

Christopher

John

Humphrey

Parsons'

son

of

John

Douglas

Parsons,

aged

about

50

years

having

an

office

at

HerbertSmithFreehillsLLP,ExchangeHouse'Primrose

Street,

London

.EC2A

zEG,

now

having

come

down

to

Jodhpur,

Rajasthan,

do

hereby

solemnly

affirm

and

sincerelY

state

as

follows:

I

am

a

member

and

partner

in

the

22nd

Respondent

Firm

(hereinafter

"Answering

Respondent")'

I

am

authorized io

filethisaffidavitonbehalfoftheAnsweringRespondent.l

amwellacquaintedwiththefactsandcircumstancesof

the

case.l

crave

leave

to

refer

to

my

counter

affidavit

filed

beforetheHighCourtatMadrasdatedls.0s.20l0aspart

and

parcel of

this

affidavit'

At

the

outset,

I

state

that

the

above

special

Leave

petition

fited

against

the

impugned

judgment and

order

dated

21.02.2012

passed

by

the

Hon'ble

High

Court

of

Judicature

at

Madras ("the High

Court

at

Madras")

in

WP

No'561

4

of

2010

is

misconceived,

not

maintainable

in

law

or

on

the

facts

and

should

be

dismissed

with

exemplary

costs.

I

submit

that

none

of

the

questions

of

law

raised

by

the

Appellant

arise

out

of

the

impugned

judgment

and

order

or are of

such nature that

warrant

any

interference

1.

fr;

,

Z


3/15

by

this

Hon'ble

Court

in

judgment

and

order.

an

appeal

against

the

imPugned

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.

I submit

that

the

Answering

Respondent

is

a

limited

liability

partnership

registered

in

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

with

Freehills,

the

3othRespondent

Firm.

On

the

same

day

Herbert

Smith

LLP's

registered

narne

was

changed

to

Herbert

Smith

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

a

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

situation,

the

Answering

Respondent

being

dragged

to

J.


4/15

the

Apex

Court

to

answer

on

matt""

n"u6'

raised

before

the

High

court

at

Madras

is

highly

misconceived

and

prejudiciat

to

the

interests

of

the

Answering

Respondent'

I

submit

that

the

Answering

Respondent

does

not

have

an

interestinanylndianlawfirm,whetherbypartnership,

shareholding

or

affiliation'

lt

does

not

have

alliance-type

relationship

with

any

lndian

law

firm'

The

Answering

Respondent

does

not

carry

on

the

practice

of

law

in

lndia

in

contravention

of

lndian

regulations'

The

Answering

Respondent

instructs

and

works

with

a

number

of

lndian

lawfirmstoprovideeffectiveassistancetoclients'The

Answering

Respondent

does

not

represent

parties

in

the

lndian

courts,

nor

does

it

advise

on

lndian

law'

The

Answering

Respondent

acts

on

matters

for

clients

whose

business

spans

across

borders

and

jurisdictions

and

which

depends

on

lawyers

who

understand

the

nature

of

their

business'

With

regard

to

business

in

lndia'

work

done

by

the

Answering

Respondent

is

either

in

connectionwithinvestmentoutsidelndiabylndianbased

companiesorbusinessorganizations'orinconnection

with

investment

into

lndia

by

companies

and

other

business

organizations

babed

outside

lndia

or

lndian

based

companies

on

matters

of

law

other

than

lndian

law'

This

includes

representing

clients

who

wish

to

buy

interests

in

business

organizations

and/or companies

or

4.

wi,rAfl#,yyffo

i,isYYri

J

0140074329


5/15

setting

up

joint

ventures

or

lending

money

to

lndian

companies

where

the

governing

law

of

the

transaction

is

English

law

or

the

law

of

one

of

the

other

jurisdictions

in

which

we

practice

law

(by

way

of

example

France'

Spain'

Hong Kong

and

Singapore)'

ln

short'

the

Answering

Respondent

acts

on

international

transactions

where

it

gives

advice,

from

an

international

perspective'

to

clients

on

English

law

or

one

of

thg

other

laws

mentioned

above.Staff

from

the

Answering

Respondent's

various

offices may

visit

lndia

to

promote

the

firm

and

to

visit

clients

and

business

contacts'

This

may

inctude

giving

talks

and

attending

conferences

held

in

lndia'

I

submit

that

these

instances

can

in

no

way

be

construed

as

legal

practiceirrlrrdia.lrrallmattersoftlrekindi.eferredto

above

which involve lndian law'

we

work

alongside

lndian

law

firms

who

provide

lndian

law

advice;

in

the

majority

of

:'a-t

rr:'r'*

matters

not

involving

lndian

law'

we

also

work

alongside

.r,

,'il''):

lndian

law

firms'

Therefore

the

Answering

Respondent

ts

lui

-L

'r

the

activities

that

are

described

,,

,'".,i

futly

entitled

to

engage

ll

above.

I submit

that none of the Answering Respondent's

activities

amount

to

the

practice

of

law

in

lndia

and

therefore

cannot

be

subject

to

the

regulatory

control

of

the

lndian

authorities'

ThesubmissionsoftheAppel|antbeforetheHighCourtat

Madras

are

recorded

in

para

26

of

the

impugned

J

5.

Nfu*o1uw

Fr#?'

d

t'55:

Sr:;

i

:iJrn

r

ooo,

orr,

_,


6/15

judgment.l

further

submit

that

none

of

the

questions

of

law

raised

before

this

Hon'ble

Court

were

canvassed

by

the

Appellant

before

theHigh

Court

at

Madras'

I

submit

that

the

contentions

of

the

Appellant

before

the

High

CourtatMadrasasfoundfromitscounter.affidavitinWP

5614

of

2010

can

be

summarized

as:

i.

The

issue

in

the

Writ

Petition

has

been

settted

by

the

judgment

and

order

of

the

High

Court

of

Judicature

at

Bombay

("the

High

Court

at

Bombay")

inWPNo'l526oflgg5inthematterofLawyers

CollectivevsBarCounciloflndiawhereitwasheld

that

the

Advocates

Act'

1961

not

only

governed

practice

in

titigious

matters

but

also

practice

in

non-

titigious

matters

within

lndia'

Only

persons

who

are

citizens

of

lndia

and

thus

eligible

to

enroll

under

Section

24

of

the

Advocates

Act,

1g61

are

a[owed

to

practice.

The

Bar

council

of

lndia

has

the

power

to

provide

for

a

relaxation

of

such

conditions'

The

practice

of

foreign

law

within

the

territory

of

lndia

will

also

be

suQject

to

regulation

by

the

Bar

Council

of

lndia'

Such

practice

could

even

be

by

practitioners

registered

or

recognized

within

their

domestic

j

urisdictions'

. ,rr*,.#i:frfl

q

t0140074329-1'


7/15

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

non-

citizens

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

in

para44

of

the

impugned

judgment

that 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

Jor,e:,g{,Kri '::

q

7

1014007432s-t

u_,wtrrtn

*l/

6.


8/15

iiiil

,p

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,

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

u**;

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l r

:ia,

i

.

,t,,

t::::

e

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

'

I

submit

that

such

visits

on

a

temporary

or

transient

basis

do

not

amount

to

practice

of

law

within

lndia.

The

term

.practice,

notonlyconnotespermanencyofestablishmentbutalso

connotes

practice on

a

systematic

and

day

in

day

out

basis

which

is

absent

as

far

as

the

Answering

Respondent

is

concerned'

Atpara

51'

the

High

Court

at

Madras

found

as

fotlows,

"such

activities

cannot

at

atl

be

consideredaspractisinglawintndia.lthasnotbeen

controvertedthatinEngland,foreignlawyersarefreeto

adviceontheirownsystemoflaworonEnglishLawor

any

other

sysfem

of

law

without

any

nationality

requirement

or

need

to be

quatified

in

England'"Fudher'

theHighCourtatMadrasalsoinparaS2reasonedthatin

international

commercial

arbitration

between

lndian

and

foreignpartiesarisingoutofinternationalcontractsthat

may

be

subject

to

foreign

law,

it

would

be

inappropriate

to

state

that

such

foreign

parlies

cannot

be

represented

or

advised

by

their

own

lawyers

merely

because

the

venue

of

such

arbitration

is

in

lndia.

th"

reasons

are

cogently

l

A

lt

explained

in

paragraphs

52

to

57

of

the

impugned

fila .

S'mr'"i

O'6-.loJ.)3

9U"

e

I

/-

70140074329_t


10/15

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

cannot

come

into

tndia

to

advice

their

clienfs

on

foreign

law

would be a

far

fetched

and dangerous proposition

and

in

our

opinion,

would

be

to

take

a

step

backward'

when

tndiaisbecomingapreferredseafforarbitrationin

lnternational

commercial

Arbitratibns."on

the

said

basis,

the

High

Court

at

Madras

in

the

impugned

judgment

acceptedthecontentiononbehalfoftheRespondentlaw

firms

and

also

pointed

out

at

para

60

that

such

an

argument

would

be

counter-productive

to

the

aim

of

the

lndianGovernmenttomakelndiaahubofinternational

arbitration

and

would

also

result

in

a

"manifestly

absurd

situatianwhereinonlylndiancitizenswithlndianlaw

degree

who

are

enrolled

as

an

advocate

under

the

Advocates

Acf

could

practice

foreign

law""'

I

respectfully

submit

that

the

findings

in

paragraph

63(ii)

and

(iii) are

well

founded

in

law

and

the

contention

taken

by

the

Appellant

is

not

only

inconsistent

with

its

own

earlier

position

but

is

also

unsuppcrted

by

the

provisions

of

the

Advocates

Act,

1961

or

the

Bar

Council

of

lndia

Rules.Accordingly,thereisnothingincorrectinanyof

the

findings

in

the

impugned

judgment

which

deserves

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

bv

this

Hon'b"

"**

)\ry :

/

lr/


11/15

12.

11.

Without

prejudice

to

the

above

contentio'i

''t"ff"'"

are

no

direct

allegations

against

the

Answering

Respondent

in

the

Special

Leave

Petition'

I

respond

parawise

only

to

the

questions

of

law

raised

before

this

Hon'ble

High Court'

With

respect

to

paragraph2(A)

of

the

Special

Leave

Petition,

I

submit

that

the

Appellant's

question

is

very

different

from

the

finding

made

by

the

itigh

Court

at

Madras

in

paragraph

63(i)

of

the

impugned

judgment'

Paragraph

63(i)

states

that

foreign

law

firms

or

foreign

lawyers

cannot

practice

the

profession

of

lawin

lndia

eitheronthetitigationornon-litigationside'unlessthey

fulfil

the

requirements

of

the

Advocates

Act'

1961

and

the

Bar

Council

of

lndia

Rules'However'

aopearing

before

an

Arbitrat

Tribunal

in

respect

of

a

dispute

arising

under

foreignlawshouldnotbeconsideredas,practicing,the

profession

of

law

in

lndia'

Therefore'

the

High

Court

at

Madrasclarifiedwhatconstitutespracticingtheprofession

of

law.

lt

is

in

this

regard

that

the

High

Court

at

Madras'

in

its

finding

in

paragraph

63(iii)

stated:

"foreign

lawyers

cannot

be

debarred

to

come

to

lndia

and

conduct

arbitration

proceedings

in

respect

of

disputes

arising

out

of

a

contract

retating

to

international

commercial

A

arbitration"

'

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12/15

n

t{5>

7

13.

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

a

person

not

enrolled

as an

advocate

under

the

Advocates

Act,

'

196'1can

be

allowed

to

"carry

on

legal

profession".

I

Paragraph

63(i)

confirms

that

a

person

not

enrolled

as

an

"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.

paragraph

2(D) of

the Special

Leavb

Petition,

involves the

word

'practice'.

nl interoretation

of

the

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

't1


13/15

'Practice'contemplates

a

continuous

,

systematic

activity

as

opposed

to

a

fleeting

visit

or

a

transitory

presence

for

giving

advice

on

matters

of

foreign

law

or

conduct

of

arbitration

governed

by

foreign

law'

I

submit

'

,n",

the

High

court

at

Madras

was iustified in finding

that

there

is

no

bar

either

in

the

Act

or

the

Rules

for

foreign

law

firms

or

foreign

lawyersto

visit

lndia

for

a

temporary

periodonaflyinandflyout'basis'forthepurposeof

giving

tega'l

advice

to

clients

in

lndia

regarding

foreign

law or

their own

system

of

law and

on

diverse

international

issues'

There

is

nothing

inconsistent

between

the

findings

made

by

the

High

Court

at

Madras

in

paragraph

63(i)

and

63(ii)

of

the

impugned

judgment'

16.

With

respect

to

paragraph

2(E)

of

the

Special

Leave

Petition,

t

submit

that

there

is

nothing

erroneous

about

the

findings

of

the

High

Court

at

Madras

that

law

must

be

interpreted

keeping

in

mind

the

international

nature

of

business

that

is

conducted'

17.

With

respect

to

paragraph

2F)

of

the

Special

leave

Petition,lsubmitthatthefindingmadeinparaEraph63(iii)

with

the

High

of

the

impugned

judgment

is

consistent

'

CourtatMadras,interpretationthatthepracticeoflawis

differentfromtheconductofspecificarbitralproceedings,

relating

to

lnternationat Commerciat

Arbitration'

^^Therefore,thecontentionthatevenatemporaryor

4lh,tir"

ii

u

13

N6ri'+rrrfi':ri:f

Lot4ool43zs-t

)W

and

.-:,

-

'

,::',.

.


14/15

,a1il

transient

presence

of

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.

I

believe

that

each

of

these

Respondentlawfirmsaresubjecttoregulatory

supervisionintheirownhomecountry'Nothingcontained

inanyfindingoftheimpugnedjudgmentgivesrisetoa

view

that

the

foreign

law

firms

are

allowed

to

practice

in

lnclia

even

if they

do

not

satisfy

the

eligibility

of

section

24

of the

Advocates

Act,

1961

'

1g.

I submit

that

none

of

the

grounds

raised

in

paragraph

5

of

thisappealarevalidandthereisnoerrorinanyofthe

findingsoftheHighCourtatMadrasinparagraph63or

elsewhere

in

the

impugned

judgment.

I

further

submit

that

thestandtakenbytheAppellantresultsinanabsurd

situation

where

lndian

lawyers

would

be

required

to

give

advice

on

matters of

foreign

law

ind

conduct

lnternational

.,ilfr,,,,ir.,.

commerciar

Arbitrations

within

rndia

even

though

they

)\,ry'\4

,rl'r'd

o[$

|i52,I

?

ro,4oo7432s_t


15/15

r:;

"\

24.

21.

22.

would

not

bequalifiecl

to

practice foreign

law.

such

an

interpretation

may

even

breach

the

regulations

of

other

foreign

jurisdictions

as

it

nnay

amount

to

practice

of

foreign

law

by

lndian

lawyers

without

meeting

the

eligibility

criteria for the same.

,

As

there

are

no

specific

allegations

against

the

Answering

Respondent

in

the

special

Leave

Petition,

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

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

this

Hon',ble

court

may

be

pleased

to dismiss

the

special

Leave

Petition

with

exemplary

costs

and

thus

render

justice.

i

J+r-*u

Solemnly

affirmed

at

Jodhpur,

lndia

I

t'^..

*-Yrui#p

u^

.- b?-

,]''{

tn''

the

B

dav

of

February

2013

DEPoNENT

'

<

:

;,qS"t-l

I o1-

and

signed

his

name

in

my

presence

)"

x\5'{b

"

NorARy::

puBllc

[ffiS3JI#JhlI

rui&trsmnm

{e-WrI&,tuil

roTARY,

xlDHPur

""

'

"

i5

Herbert Smith

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