norton rose

8/9/2019 Norton Rose

1/10

33b

IN

THE

SUPREME

COIJRT

OF

INDIA

ORDERXVIRULE

4(iXA)

CNIL

APPELLATE

JURISDICTION

SPECIAL

LEA\E

PETITION

(under

Article

136

of

the

Constitution

of

India)

I:r-

THE

MATTER

OF:

spECIAL

LEA\rE

PETITION

(CIVILT

NO'

17150-54

of

2012

(Arisingoutoftheimpugnedjudernen *9.f]ii,orderdated2l,o2,IolzpassedbytheHon.bleHigh

tc.u.t

Jt

lraicature

at

Mud'u'

in

WP

No'

561412012)

BET\ATEEN

The

Bar

Council

of

India'

2i,

Rouse

Avrll-r:le,

lnstitutional

Area,

New

Delhi

-

110

002'

VS

A.K.

Balaji

7/107,

Mel

Batcha

Pet'

Harur,

Tamil

Nadu

636

903

...

ApPellant/

ResPondent

No'

7

...

ResPondent

No'1/

Petitroner

i

1

And

40

others.

I,VALERIEELENMARYDAVIES,daughterofCledwynWilsonDavies,havinganofficeat3

MoreLondonRiverside,LondonSEl2AQ,do.herebysolemnlyaffirmandsincerelyStateaS

follows:

l,IamaSolicitoroftheseniorCourtsofEnglandandWales'IwasadmittedasaSolicitorin

EnglandandWalesinJanuarylg?gandbecameaPartnerinNortonRoseinlg36.Iamthe

GlobalGeneralCounselofNortonRoseLLPandamemberandpartner'Iamauthorisedtomake

thisAffidavitandhavetheconductoftheseproceedingsonbehalfofNortonRoseLLP

'{fi

P

u6,1c

Lo

nd

on,

En

s

I anc

(Luis

N.

HYde'Vaami:"-.,

Vk"*iwM

/)

(.


2/10

r

.-r'r\

The Answering

Respondent

is

the

29th

Respondent

to

::Tl[

iTJ::li

:;;*"il::I]

t$S;:5;X

;:]"ffi

;f:

fi

::

refer

to

my

counter

affidavit

filed

before

the

pu"tl

of

thi'

affidavit'

r

r.eave

petition

frled

against

the

impugped

l'':*"*

z.Attheourset,Istarethat'theabovespecialLeavePetitionfrled"::"':;"'uua'u'("theHigh

and

order

U**

"'0"i"

'"""U

O'*-"^1"'

le

High

Court

of

'":;tilt;X;,

on

the

rai

se

d

b

v

trre'rpp

Jrra:nt

nn'"

o"

*

*t'

"'1'"'*

l'u*t'l

:1'

ffi

:lffi

[]Iffi

:':

warrant

t"'""'*'"'""

O'

tO"

Hon'ble

Court

in

an

aPPeal

alat

e

Petition

so

far

as

theY

relate

to

,

::,

each

and

everv

allegation

mention;l;":"$,'iil

ffi;;"ein'

I

submit

that

the

3

*,:il*:',::H:l'x'1ffi;;;""0'n'"uu*:

*":i:x;:::

regulated

o'

*"'""'itors

Reguiati":i::::'l**i""

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Since

1

swore

mv

counter

Riverside,

,"ru",

sEl

2AQ'

to*llonon

Rose

LLp

"ru

".n*

Rose

Australia'

together

with

affidavit

r*.."u''*

paragraPh

''

frn.u

forces

with

""r"u*n

law

firm

ogilvy

Renault'

now

ffiT['J;:::;::;;JH;'ihes'u'ih^T::'$fi

;::T':'ffi

]:il;

i*'

:""1'r":

:*j**'',.::;;l::::lt]fi:'

:.*;..j

;T:::'"I

't

submit

that

the

Answering

n":Y

an

orrice

,,

;;;;-n,

u

riur.on

"*':Tilj[.:::

ffi:;

ru*

o,

usins

hotel

rooms

or

;Ifl

*:":;ff":ffi:::';";;'":"'"::r::;;:i"fi:'ffi

::-T::il*:::

i:::il::i:#ru;;;l::ffi:'

"'

*

;;uing

Resp'nden'l

4

I

sub

mit

that

the

Answer

in

s

*

-

:,i;;;:

::'-

t:::::

:H:ffi:#1:1"'l;ffi:jJ;

o,

n"n*r**,

shareholding

-lt

j

*.*.ruenr

does

,r".,

;;;

the

practice

of

iaw

in

I'dia

tn

Indian

raw

firm'

The

Answelnl

contravention

of

lndian

re**t"'

'nt

*'*o"

*t'n"'Ut"t

instructs

and

works

with

a

number"ir**lawrirms-q:ff

':::::;::'::l,TJ#:T:'f

X,::ff'T':I

does

not

represent

Parties

in

the

London,

England

d*Vaamonde)


3/10

%ff'9-'

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 connection

with

investrnent

outside

India

by

krdian

based

companies

or

business

organizations,

or

in connection

with

investment

into

India

by

companies

and

other

business

organizations

based

outside

India

or

Indian

based

companies

on

matters

of

law other

than

hdian iaw.

This

includes

representing

clients

who

wish

to buy

interests

in

business

organizations

and/or

companies

or setting

up

joint

ventures

or lendiug

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, Germany,

Italy,

The

Netherlands

and

Hong

Kong).

ln

short,

the

Answering

Respondent

acts

on

international

transactions

where

it

gives advice,

from

an

intemational

perspective,

to

clients

on

English

law or

one of

the

other

laws

mentioned

above,

Staff

from

the-Answering

Respondent's

various

offices

may

visit

lndia

to

promote the

tjrm

and

to visit

clients

and

business

contacts.

This

may include

giving

talks

and

attending

conferences

held

in India.

I

submit

that

these

instances

can

in

no

way

be

construed

as

legal practice

in

India,

In all

matters

of

the

kind

referred to

above

which involve

Indian

law,

we

work alongside

lndian

law

firms

who

provide Indian

law

advice.

Therefore

the

Answering

Respondent

is fully

entitled

to

engage

in

the activities

that

are

iiescribed

above.

I

submit

that none

of the

Answering

Respondent's

activities

amount

to

the

practice of

iaw

in

India

and

therefore

cannot be

subject

to

the

regulatory

control

ofthe Indian

authorities'

/

5.

The

submissions

of the

Appellant

before

the

High Court

at

Madras

are

recorded

in

para

26

of the

impugned

judgment.

I

further

submit

that none

of

the

questions

of

law

raised

before

this Hon'ble

Court

were

canvassed

by the

Appellant'before

the

High

Court

at

Madras'

I

submit

that

the

contentions

of

the

Appellant

before the

High

Court

at

Madras

as

found

liorn

its counter-affidavit

in WP

5614

of 2010

can

be

summarized

as:

t.

The

issue

in

the

Writ

Petition

has

been

settled

by

the

judgment

and order

of

the lligh

Court

of

Judicarure

at

Bombay

("the

High

Couri

at

Bombay")

in

WP No.

1526

of

1995 in

the

matter

of

Lawyers

Collective

vs

Bar Council

of India

where

it

was held

tirat

the

Advocates

Act,

1961

not

only

governed

practice in litigious

matters

but also

practice in

non-litigious

matters

within

India.

Only

persons

who

are

citizens

of

India

and thus

eligible to enroll

under

Section 24

of

the

Advocates

Act,

1961

are

allowed

to

practice. The Bar

Council

of

India

has the

power

to

provide

for a relaxation

ofsuch

conditions.

a_

.:.

I

.'.,:

11.

Public

London,

Englanr

N/.,wW


4/10

iii.Thepracticeofforeigrlawwithintheten.itoryoflndiawillalsobesubjecttoregulation

bytheBarCounciloflndia.Suchpracticecouldevenbebypractitionersregisteredor

recognized

within

their

domestic

jurisdictions'

6.

None

of

the

aforesaid

points

have

been

called

into

question

under

the

impugned

judgment'

ThereforethbAppellantcannotbeaggrievedbyanyofthefindingsorobservationsmadebythe

High

court

at Madras.

The

impugred

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

Madrasaffirmsthatforeignlawfirmsorforeignlawyerscannotpracticetheprofessionoflaw

either

on

the

litigious

side

or

the

non-litigious

side

unless

they

fulfill

the

requirement

of

the

AdvocatesAct,lg6lortheBarCounciloflndiaRules.Further,theimpugnedjudgmentdoesnot

state

that

non-citizens,

who

otherwise

have

not

obtained

relaxation

from

the

Bar

council

0f

lndia

are

aliowed

to

practice

law

within

India.

The

High

court

ai

Madras

specifically

states

in

para

44

of

the

impugned

judgment

that

it

does

not

differ

fronr

the

view

taken

'n

the

Lawyers

collective

case.

T.HowevertheHighCourtatMadrasrightlypointsoutthattheprimaryquestionthatarosebefore

theHighCourtatBombaywaswhetherforeignlawlrrmscouldopenliaisonofficesinlndiaand

render

legal

assistance

to

another

person

in

litigious

and

non-litigious

matters'

I

submit

tllat

at

paragraph45theHighCourtatMadrasinitsimpugnedjudgmentriglrtlypointsoutthatthe

question

in

this

case

is

whether

foreign

law

firms

or

foreign

lawyers,

without

establishing

any

liaison

office

in

lodia

and

who

visit

India

for

the

purfose

of

offering

iegal

advice

to

their

clients

inlndiaonforeignlaw,areprohibitedunderthe,provislonsoftheAdvocatesAct,ig6l'TheHigh

CourtatMadrasfu*herrightlypointsoutthatthisquestionwasneitherraisednoransweredinthe

LawYers

Collectiv

e

case'

g.ThethirdpointraisedbytheAppellantthateventhe'practice'offoreigniawwithinlndiarvouid

be

governed

by

the

Bar

council

of

India

was

not

argued

by

the

Appellant

before

the

l{igh

court

atMadras'lnanyevent,theterm.practice,envisagessomelevelofpermanencyofestablishment

oroperationsinlndia.onlythePetitionerbeforetheHighCourtatMadras(whoistheFirst

Respondent

in

the

present

appeal)

contended

that

even

a

temporary

visit

to

India

by

a

foreign

iaw

firmoraforeignlawyerforandonbehalfofhisclienttoadviseaclientonmattersofforeignlaw

isalsonotpermittedundertheAdvocatesAct,lg6l'SuchcontentionwasrejectedandtheHigh

court

at

Madras

decided

that

there

is

no

bar

either

in

the

Act

or

the

Rules

preventing foreign

1aw

firms

or

foreigrr

lawyers

from

visiting

lndia

for

a

temporary

period

on

a

'fly

in

and

fly

out'

basis'

for

the

purpose

of

giving

legal

advice

to

their

clients

in

India

regarding

foreign

law

or

their

own

r::l

.:,,,:,

'lil

i:'i.j

,':,.i

'.:

|

.:::|,

.

,.:',

t,:,1-

11,:i-1:

.::'.:t

,

1i

fai.

:li,-i,

i

,,'r::-',i

',:'l:,..:

::.::1.::),

a:i:;,t

:,|i:.;

1'.:tl; l

,/:i.i, '

,ii;?,;',,.

.::t;;.:)

'.:r:l).

:.;.)1,

,

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5/10

9.

Systemoflawand/orondiverseintemationailegalissues.TheFirstRespondenthasnotfiledan

appeal.TheAppellantwhowastheTtl,RespondentbeforetheHighCourtatMadrasneverraised

such

contention

before

the

High

Court'

TheHighCourtatMadrastookonrecordtlresubmissionsmadebytheRespondentlawfirmsin

para47.;.Isubmitthatsuchvisitsonatemporaryortransientbasisdonotamounttopracticeof

law within

India.

The

term

'practice'

not

only

connotes

perrnanency

of

establishment

but

also

connotes

practice

on

a

systematic

and

auy

ln

day

out

basis

which

is

absent

as

far

as

the

Answering

Respondent.is

concerned,

At

para

51,

the

High

court

at

Madras

found

as

follows'

,,suchactivitiescannotatallbeconsideredaspractisinglawinlndia,Ithasnotbeen

controverted

that

in

Engrand,

foreign

rawyers

are

free

to

advice

on

their

own

system

of

law

or

on

EnglishLaworanyotherSystemoflawtuithoutanynationalityrequirementorneedtobe

qualifiedinEngland.,,Fufther,theHighCourtatMadiasalsoinparaS|reasonedthatin

internatioiralcommercialarbitrationbetweenlndianandforeignpartiesarisingoutof

international

contracts

that

may

be

subject

to

foreign

law,

it

wourd

be

inappropriate

to

state

that

suchforeignpartiescannotberepresentedoradvisedbytheirownlawyersmerelybecausethe

venueofsucharbitrationisinlndia.Thereasonsarecogentlyexplainedinparagraphs52to5,Tot

theimpugnedjudgment.IsubmitthattheHighCourtatMadrasriglrtlyfoundinpara5Tas

follows,,,There/bre,toadyocateapropositia'nthatforeignlawyersorforeignlawfirmscannot

comeintolndiatoadvicetheirclienl,sonforeignlawwouldbeafarferchedanddangerous

proposifionandinouropinion,wouldbebtakeastepbacbward,whenlndiaisbecominga

preferredseatJbrarbitrationinlnternationalConmercialArbitratiol,is',,onthesaidbasis,the

High

court

at

Madras

in

the

impugned

judgment

accepted

the

contention

on

behalf

of

the

Respondentlawfirmsandaisopointedo,.u,nu,u60thatsuchanargumgntwouldbecounter-

productive

to

the

aim

of

the

Indian

Go,.**.nt

to

make

India

a

hub

of

international

arbitration

.andwouldalsoresulttna,,manifestlyabsurdsituafionwhereinonlylndiancitizenswithlndian

lawdegreewhoareenrolledasanadyocateun'dertheAdvocatesActcouldpracticeforeign

law""

'

l0.Irespectfullysubmitthatthefindingsinparagraph63(ii)and(iii)arewellfoundedinlawand

the

contention

.uken

by

the

Apperlant

is

not

only

inconsistent

with

its

own

eariier

position

but

is

alsounsupportedbytheprovisionsoftheAdvocatesAct,lg6lortheBarCounciloflndiaRules.

Accordingly,thereisnothinginconectinanyofthefindingsintheimpugnedjudgmentwhich

deserves

any

interference

by

this

Hon'ble

Court'

f,hE

lr,,t'"'

London,Eng]alo

[ilJ*Hil;taamonde]

W\*NA


6/10

:

v

11'Withoutprejudicetotheabovecontentions,sincetherearenodirectallegationsagainstthe

AnsweringRespondentinthespecialLeavePetition,Irespondparawiseonlytothequestionsof

law

raised

before

this

Hon'ble

Higir

Court'

12.withrespecttoparagraph2(A)oftheSpecialLeavePetition'IsubmitthattheAppeilant's

questioniiverydifferentfromthefindingmadebytheHighCourtatMadrasinparagraph63(i)

oftheimpugnedjudgment.Paragraph63(i)statesthatforeignlawfirmsorforeignlawyerscannot

practicetheprofessionoflawinlndiaeitheronthelitigationornon-lidgationside,unlessthey

fulfiltherequirementsoftheAdvocatesAct,lg6landtlreBarCouncilofindiaRules.However,

appearingbeforeanArbitralTribunalinrespectofadisputearisingunderforeignlawshouldnot

be

considered

as

.practicing,

the

profession

of

raw

in

lndia.

Therefore,

the

High

court

at

Madras

clarifiedwhatconstitutespracticrngtheprofessionoflaw.ItisinthisregardthattheHiglrCourt

at

Madras,

in

its

f,rnding

in

paragraph

63(iii)

stated:

"Joreign

lawyers

cannot

be

debaffed

to

come

tolndiaandconductarbitrationproceedingsinrespectofdisputesarisingoutoJ,aContract

relating

to

international

commercial arbitration"

'

13'Withrespecttoparagraph2(B)oftheSpecialLeavePetition,theissrteindisputeiswhetherit

would

breach

the

provisions

of

the

Advocates

Act'

1961

if

advice

is

given

on

a

mattel

of

foreign

lawonaflyinandflyoutbasisbyaforeignlawyerorforeignfirm'However,theHighCourtat

Madrasfoundinparagraph63(ii)thatprovidinglegaladvicetoclientsinlndiaregardingfbreign

lawonaflyinandflyoutbasiswouldnotbreachiY.":theprovisionsoftheAdvoca.tesAct,

lg6l.TheHighCourtatMadrasheidthatgivingsuclr"u^"'.:ontemporaryvisitsona..flyinand

flyoutbasis,,doesnotconstitute..practicing,'tireprofessionoflawwhichistheprohibition

imposed

by

Section

29

of

theAdvocates

Act'

1961'

,ll,Withrespecttoparagraph2(C)ofthespecialLeavePetition,thequestionraisediswhethera

personnotenroiledasanadvocateundertheAdvocatesAct,lg6lcanbeallowedto..carryon

legalprofession,,.Paragraph63(i)confirmsthatapersonnotenrolledasan..Advocate,'inlrrdia

cannot

practice

the

profession

of

law

in

India

whether

on

the

ritigation

or

non,itigation

side'

.Therefore,IamadvisedthatthiscannotformagroundforappealbeforethisHon,bleCourt.

15.

paragraph

2(D)

of

the

Speciar

Leave

petition,

involves

the.

interpretation

of

the

word

'practice''

.Pracdce, contemplates a continuous

and

systematic

activity

as

opposed

to

a

fleeting

visit

or

a

transitorypresenceforgivingadviceonmattersofforeignlaworconductofarbitrationgoverned

byforeignlaw.IsubmitthattheHighCourtatMadraswasjustifredinfindingthatthereisnobar

eitherintheActortheRulesforforeignlawfirmsorforeignlauyerstovisitlndiafora

't,;','

:.t::.:.

):,,:'.'

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London,

Englann

ffiti.

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i.1 ;r

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rrt{.

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temporary

period

on

a

fly

in

and

fly

out

basis,

for

the

purpose

of

giving

legal

advice

to

clients

in

IndiaregardingforeignlawortheirownSystemoflawandondiverseinternationalissues'Tlrere

is

nothing

inconsistent

between

the

findrngs

made

by

the

High

Court

at

Madras

in

paragraph

63(i)

and

63(ii)

of

the

impugned

judgment'

16.

With

respeci

to

paragraph

2(E)

of

the

Special

Leave

Petition,

I submit

that

there

is

nothing

enoneous

about

the

hndings

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

2(F)

of

the

Special

leave

Petition,

I

submit

that

the

finding

made

in

paragraph

63(iii)

of

the

impugned

judgment

is

consistent

with

the

High

court

at

Madras

interpretation

that

the

practice

oflaw

is ditferent

from

the

conduct

ofspecific

arbitral

proceedings

relating

to

International

Commercial

Arbitration'

Therefore'

the

contention

ihat

even

a

temporary

ortransientpresenceofforeignlawyersorforeignlawfirmsinlndiawouldamountto

,practicing,

Iaw

in

India

is

unfounded

and

without

basis'

consequently

there

is

no

enor

which

warrants

the

interference

by

this

Hon'ble

Courr

oir any

of

the

findings

made

by the

High

court

at

Madras

in

the

imPugned

judgment'

1g.

Therefore,

I submit

that

there

is

no

regulatory

jurisdiction of

the

Appellant

that

could

be

extended

toforeignlawyerswhovisitlndiatemporarilyoronaflyinflyoutbasistoadviseclientson

foreign

iaw

or

to

conduct

lntemational

commercial

Arbitration'

I

believe

that

eacir

of

these

Respondent

law

firms

are

subject

to

regulatory

supervision

in

their

own

home

country'

Nothing

contained

in

any

hnding

of

the

impugned

judgment gives

rise

to

a

view

that

the

foreign

law

firms

are

allowed

to

practice

in

India

even

if

they

do

not

satisfy

the

eligibility

of

Section

24

of

the

Advocates

Acq

1961'

19.

I submit

that

no'ne

of

the

grounds

raised

in

paragraph

5

of

this

appeal

are

valid

and

there

is

no

error

in

ariy

of

the

findings

of

the

High

court

at

Madras

in

paragraph

63

or

elsewhere

in

the

impugnedjudgment.IfurthersubmitthattheStandtakenbytheAppellarrtresultsinanabsurd

situation

where

lndian

lawyers

would

be

required

to

give

advice

on

matters

of

foreign

law

and

conductlnternationalCommercialArbitrationswithinlndiaeventhoughtheywouldnotbe

qualified

to

practice

foreign

law.

Such

an

interpretation

may

even

breach

the

regulations

of

otirer

foreign

jurisdictions

as

it

may

amount

to

practice

of

foreiga

lal

by

Indian

lawyers

without

meeting

the

eligibility

criteria

for

the

same'

N.

HYde-Vaamonde'

ffw


8/10

20.AstherearenospecificallegationsagainsttheAnsweringRespondentinthe

petition,

I

seek

the

liberty

to

file

an

additional

affidavit

at

a

later

stage,

if

Responcient

feels

the

need

to

respond

to

any

allegations

that

are made'

2l.TheAppellanthasnotmadeoutanycaseforthegraniorcontinuationofanyoftheintenmrelief.

The

allegations

contained

in

paragraph

6

ofthe

appeal

are

denied

as

unjustified

and

without

basis'

22.

Inview

of

the

above,

it

is

therefore

humbly

prayed

that

this

Hon'bie

Court

may

be

pleased

to

dismiss

the

special

Leave

Petition

with

exemplary

costs

and

thus

relder

justice'

Solemnly

affirmed

at:

-b+

Special

Lea

the

Answering

Bankside

House

107

Leadenhall

Street

London

EC3A

4A-F

on

this

the

O7 daY

of

FebruarY

2013

signed

her

name

in

mY

Presence

y

l,blaly

Pubk

Loll:f^:*:ld

(

,.

'tt'

8


9/10

itr:

':t.

l

TN

TI.IE

SUPREME

COURT

OF

INDIA

oRDER

XVr

RUr-E

4(lxA)

CIVIL

APPELLAl'E

JURIS

DICTION

SPECiAL

LEAVE

PETITION

(under

Article

136

of thc

Constitution

of india)

SPECIAL

LEAVE

PETITION

(CIWL)

NO.

17150

of

2012

a'.

t-

3vv

IWITH

PRAYER

FOR

INTERIM

RELIEFI

IN

THE

MATTER

OF:

(Arisingoutoftheirnpugnedjudgrnentandfinal

orderdated2l

.)L.2ll2passedbytheHon'bleLlighcourtofJudicaturearMadras

in

WP

No.

561412012)

BETWEBN

The

Bar

Council

of

India,

21,

Rouse

Avenue,

Institutional

Area,

New

Delhi

-

I l0

002.

vs

A.K.

Balaji

7

ll07

,

Mel

Batcha

Pet,

Harur,

TamilNadu

636

903

And

40

others.

...

Appellant/

Re.spondent

rr-o.

7

..

Respondent

No.li

Petitioner

COUNTER

AFFIDAVIT

FILED

ON

BEHALT

OF RESPONDENT

NO3.6

I,

Shane

Thomas

Kyriakou,

son

of

Thomas

Kyriakou,

aged

about

4l years

having

an

office

at l{crbert

Smith

Freehills.

101

CollinsStreet,Melbounte,Victoria,Australiadoherebysolemnlyaffirmandsincerelystateasl.oilows:

I am

a

member

and

paftner

in

the

36th

Respondent

Firm (hereinafter"Answering

Responderrt").

I am

authorizeri

to

frle

r6rs

affidavit

on behalf

of

the

Answering

Respondent.

At

the

outset,

I

state

that the

above

Special

Leave

Petition

filed

against

the

impugned

judgment

ancl

order

dated 2l

0l.l0ij

passed

by

the

High

Court

of

Judicature

at Madras

("the

High

Court

at

Madras")

in Wp

No.56l

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

ol'

law

raised

by the

Appellant

arise

out

of

the

impugned

order

or

are

of such

nature

that warrant

anv

interference

bv th is

Court

in

an

appeal

against

the

impugned

order.

I

deny

each

and

every

allegation

mentioned

in

the

Special

Leave

Petition

so

far as

they

relate

to

the

Answcring

Responcent

save

those

that

are

expressly

admitted

herein,

I

subnrit

that

the

Answering

Respondent

is a

parlnership

in

Austraiia

and

is

regulated

in Australia by,

amongst others,

the Law

Sociery-

of

New

South Wales,

the

Law

Institute

ol

Victoria,

the.L,aw

Society

of

Western

Australia

and

the

Queensland

Law

Sociery.

The

firm's principal

office

is

at

MLC

Centre,

I9

Martin

Place'

Sydney,

New'South

Wales,

Atrstralia.

On

1

October

2012

Freehills

mergecl

with

Herbert

Srnith

LI-p, the

22,,d

Respondent

Firm.

On the

sarne

day

Freehills'narne

was

changed

to

Herbert

Snrith

Freehills.

The

rnerged

firnr.

rrs

subsidiaries

and

the

22"d

Respondent

has

an

international

legal practice

with

over 2,800

lawyers

in

offlces

in.

arnong

other

places,

Asia,

Australia,

Europe,

the

Middle

East and

the

USA.

I

subrnit

that

the

Answer.ing

Respondent

has

grorip

olfices

1_


10/10

5.

3\v

N

law

to

its

clients

as

alleged

by the

Appellant.

'lhe

Answering

Respcndent

cloes

not

seek

to

operate

an office

in

india

by

using

liotel

rooms

or

private

premises

either,

Therelore

in

the

present

situation,

the

Answering

Respondent

being

dragged

to

the

Apex

court

to

answer

on

matters

never

raised

before

the

High

courl

at

Madras

is highly

misconceived

and

pre.iudicial

to

the

interests

of

the

Answering

Respondent'

I submit

that

the

Answering

Respondent

does

not

have

an

interest

in

any

Indian

law

firm,

whether

by

partnership'

shareholding

or

affiliation.

It

does

not

have

an

alliance-rype

relationship

with

any

Indian

law

firrn'

The

Ansrvering

Respondent

does

not

carry

on

the

practice

of

law

in

India

in

contravention

of

Indian

regulations

and

the

Answering

Respondent

only instructs

and

works

with

a

number

of

lndian

law

firms

to

provide

effective

assistance

to

clients'

The

Answering

Respondent

does

not

represent

parties

in the

Indian

courts,

nor

does

it

advise

on

lndian

law

The

Ansrvering

Respondent

acts

on

matters

for

clients

whose

business

spans

across

borilers

and

jurisdictions

and

which

depends

on

la"ryers

who

understand

the

nature

of

their

business.

With

regard

to business

in

India,

work

done

by

the

Answering

Respcndent

is

either

in

connection

with

investment

outside

India

by

Indian

based

companies

or

business

organizations,

or

in

connection

with

investrnent

into

India by

companies and other

business

organizations

based

outside

India

or

lndian

based

conlpanies

on

matters

ol

law

other

than

Indian

law.

This

includes

representing

clients

who

wish to

buy

interests

in

business

organizations

and/or

companies

or

setting

up

joint

ventures

or

lending

money

to

Indian

companies

where

the

governing

law

of

the

transaction

Australian

Iaw or

the

law

of

one

of

the

other

jurisdictions

in

which

we

practice

law.

[n

shoft

the

'{nsu'ering

Respondent

acts

on

international

transactions

where

it

gives advice,

lrom

an

international

perspective,

to

clients

on

A.ustralian

law

or

one

of

the

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

include

giving

talks

and

attending

conferences

held

in lndia.

I

submit

that

these

instances

can

in

no

way

be

construed

as legal

practice

in

India.

[n

all

matters

of

the

kind

referred

to

above

which

involve

tndian

law'

we

work

alongside

lndian law

firms

who provide Indian law

advice;

in

the

majority

of

matters

not involving Indian

larv' we

also

work

alongside

Indian

law

firms.

Therefore

the

Answering

Respondent

is fully

entitled

to

engagc

in the

activities

that

are

described

above.

I

submit

that

none

of

the

Answering

Respondent's

activities

amount

to

the

practice

of

law

in India

and

therefore

cannot

be

subject

to

the

regulatory

control

ofthe

Indian

authorities.

I

have

otherwise

read the

affidavitto

be

subrnitted

on

behatf

of

the22nd

Respondent

by

christopherJohn

Humphrey

Parsotls

before

this

Flon,ble

court

and

specificatty

paragraphs

5

to

22

(incrusive)

of

that

affidavit.

I agree

with

and

adopt

those

paragraphs

of

Mr

parson's

affidavit

on

behalf

of

the

36tl'

Respondent

Firm.

As

there

are

no

specific

allegations

against

the

Answering

Respondent

in

the

Special

Leave

Petition,

I

seek

the

liberly

to

file

an

additional

affidavit

at a

later stage

if

the Answering

Respondent

feels

the

need

to

respond

to

any allegations

that

are

made

during

a

later stage

in

the

appeal.

7i:1.

,|l

g.

[n view

of

the

above,

it

is therefore

humbly

prayed

that

this

Hon'ble

Court

may

be

pleased

to disrriiss

the

Special

Leave

Petition

withexemplarycostsandthusrenderjustice'

l:

il*

k*t^u*"

Ssbl

Plea4'4

a'rceyf

to

qra'uc)'

l-,+

b*t2,4;'r4itcd

in

l*'

4"'^l

tun'+-paFH

e't

'

Solemnly

affirmed

at Sydney,

Australia

on

this

tlie

eighth

day

of

February,

2013

and signed his name

in

mY Presence

BEFORE

ME

Gordurrffavid

CooPer

norton rose

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