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Allen & Overy
Allen & Overy
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APPEI-LATE JU Rrsorcrro{v
(CIVIL)
PETITION (Lrvr'L.
:AVE PETrrl(JN
SPECIAL LEAVE
I{o' L7L50-
L7Ls4/ 2OL2
Petitioner
Respondents
\,
Bolding
Jonathan Lugard Forrest BraYne' son of Richard
I
1.
andlamdulyauthorisedbyA&oLLPtofilethisaffidavit
'aPpears, tr make this
on its behalf. Save where otherwise
where
affidavit from matters within my own knowledge'
derived
the matters to which I depose are based on facts
:
I
,C
_4_
2.
counter
me bY this ResPondent.
PRELIMINARY
3.
SU
BMISSIONS
Rbspondent No. 1B
offices
in 27
(twentY-seven )
in India
countries; however, neither does it have an office
out
nor does it Practice Indian law' The same is borne
' that
Respondent
thut
it is submitted by this
and
'<:;,..
is
not qualified to, and does not, Qrdctice Indian law or have
working together on
in India. When
'
't_':,,
and
has been able to help its clients obtain law service whilst
5.
laW.
Respondent's work
for
clients
In
the clients
:n
t-<
transaction etc.
Respondent's
in
with
other-
whether Indian or
so
those
7.
herein, i.e.
A.
"L
ffi
vaflous
7,
Firms,
havin
th
eir
Ro
utes outside
LCt
vY
th e
as
Moreover,
This
is
complete violation
of our country's
are
numerous foreign
are
ffi
e
7-
B.
it is h um bty prayed
ft.,,'
,;..,,,
l'}
r-_
a?
,,1.,.
Commercial transactions
9.
High Court
laws
10,
th
(L.i
The expression "law" nas not Deen oerlneq ltl LIle ALL.
E
has
India
of
Constitution
the
However, Article 13 of
provided an inclusive definition to include any ordinance/
are
ruleS,
laws'
\\
Therefore, any reference to the expression praitice or
profession
laws
14.
Lr
rqL
It is submitted tfrlt
foreign lawyers
detrimental
as advocates.Any such requirement would be
of Indian clients who would be precluded
to the interests
:L
to enrol
lawyers travelling to India for a day or few days
themselves as advocates in India. such
requirement
since
Someoftheseforeignlawyersmaynotbequalifiedin
Indian Iaw to be recognized as advocates in India
In fact, if
L2.
':i
'
then
tt'1e Petitioner's arguments are accepted'
to advise
the only set of advocates who would be eligible
enrolled
on foreign law would be India qualified lawyers
intheprinciplesoflndianlaw,wouldbepermittedto.
practice foreign Iaw, whereas their foreign counterparts
foreig n law
who are actua{ly qualified to practice such
It is submitted
interpretation would result in the
ffits
1{JI
Ergr-r
rc' vv v
vr J
lo
in order to
tra.ining in their home countri es/iurisdictions
becomeeligibletopracticethelawofthat
rendering
countryfiurisdiction would be barred from
but their Indian
advice with respect to such law in India;
be allowed to render advice with
counterparts would
respect
It is respectfully submitted
would
that the above scenario, if allowed to prevail,
of Indian clients.
cause immense harm to the interests
of their dealings
seeking advice on foreign law component
andtransactionsinlndia.Further,anunhealthy
categorizationyvilltakeplacebetweenthoselndian
n j u risdictions io
clients who are able to fly to foreig
on foreign la\'1 and those Indian
advice
legal
obtain
uulidly
/, ,,
,-', clients who are unable/unwilling to oo so and seek to rely
i,-
to deprive the
the Petitioner ought,not to be permitted
practice law in a field that
lawyers of this Respondent to
theyareotherwi5equalifiedandcompetenttocarryon.
,,5B.TheSupremeCourtinarecentdecision
}I
in
B'V'
vs'
The
ta'
growingeconomYtikelndia'Therefore'we
shoutdnotlosesiteofthefactthatinthe
overall economic growth
of the
country,
adefinitestandthattheciientswhomthey
represent do not have offices in India' they do
ffi
\&#
---
l?/
practice.
a client would
59.Asnoticedabove,Section2(a)ofthe
Advocates Act defines 'Advocate' to mea n a n
provisionsoftheAct,IntermsofSection
17(1) of the Act, everY State Bar Council shall
prepare and maintain a rolt of Advocates' in
wh
ich
sha
tt be entered the
na
mes
a nd
&i
\6;,r
--G\
if he
that subject to
to
the
duty
in that
other country. In.terms of Section 47 (1) of
qualified is permitted to practice law
by .
notification prevents
of tndia shatt
be
1iFh
{;'
tl
re
roviso to Section
24(1)(a), fection 2a(1)(c) (iv) and-section
47(2). r
advice his client on matters relating tQ the law
India there
60.
We are persuaded
there maY
-be
tk
@
-a
taw,
.;.
the
a foreign lawyer or a
foreign law firm to practice Indian Law, It is
express prohibition for
::-
!ii'
a,,a
rad
r.n
..-+G
at
'n"
r,
in. India:
foreign investments,
it
to arise in
arbitratiol,-
in
ffi\
t?
.-l}r
the sa id contract, a nd
foreign,
It
cannot be denied that we have
the1996Act,providesformaximumjudicial
support of
arbitration and
minimal
.-@.
Commercial Arbitration
lg
tomakelndiaasapreferredseatfor
International commercial Arbitration would
th
Co
Lt
ntry,,,
(emphasis suPPlied).
L4.
,,48,(i)
ii)
However,thereisnobareitherintheActorthe
lawyers to"
Rules for the foreign law firms or foreign
visit India, for a temporary period o, a fty in and fty
outbasis/forthepurposeofgivinglegaladviseto
their cl,ients in India regarding foreign law or their
ffi
-'=^-
issues.
(iii)
h
J
,q
to the aim and object of
to
of the Act,
the
15.
qft6,
16.
70
law
L7,
the
as
na
mely
of India to
(ii)
-@
(iii)
19.
in relation to
the
to
&u
Section
21.
in
foreign
foreign
power to
th
e3
rolment of such
q ua
22.
foreig
nationa
ls with
foreig
lifications.
n citizens
havi
ng
foreig
q ua
ifications.
The
of Universities as well as in
prescribing qualifications and eligibility conditions for
be
ffi
.<--\-_
permanent basis.
!l
cou nterpa
rties, in
iscussion a nd negotiatio n of
in
23.
rules
by
It
to regulate the
h-
I/
r'
of the List I of
the
"
It
?,{
dh
'4+'"t
wou ld,
by the
reg
rurorY*'
I
t
to
autho
on
be
Indian lawyers enrolled under the Act fly in and fly out
of.
t
n
_ffi
i
i
I
tf
F
,
??
t
I
,,.
BBB), held
to
which
practice before.the
to
the
relation thereto. It is
respectfu
Ily
su bm
itted
that
inasmuch as the Hon'ble Court has held that the Act has
to apply to
persons practising
in
l,
it
non-
is
Schedule to
provisions
ffi
cit .:t
j
i
The ruling
i.n
urT*
t(1g73)
of India v. Board of
SC 1342J and
BssJ.
Su
prerne
Cou
rt
before
Thus,
Respondent
Court or the
I i'*
f,
r,
Oo
&1
not come within the purview of the Act and are not
required to get enrolled under the Act.
of law
and
is
extracted below:
Rule 66 go
fra med
is
not
anY'
&
ri.nj/
3o
This
of
clause
of the Act.
a,
'r:'''
.^
must
suggested by the appettant witt lead to anomaly and
one
be avoided. After passing of the Advocates Act, only
profession of
class of persans is entitled to practice the
law,namely,advocates(section29).Ifthephrase
,,practice the, profession of law" is equated to appearance.
to appeer
emptoyee of an assessee witt not be entitled
before
saleS
t
r
;ffi,
t9t"'j'?
'
,
a
t!
28.
,,48.
(i)
:i\
F
T
Jffi
i-\..-
diverse
3v
w
rlq
that
in
Further,
de
legal services on
33
ry
iscussion a nd negotiation of
tra
nsactions a nd
in
in India on a
temporary, short and fleeting basis cannot be said
constitute practising the profession of law in India. Fcr
Seminars, conferences and arbitration
this purpose,
SUch
is
29.
Cou
rt.
{-
&
i'
the
to the
Hon'ble
3ef,
permission
activities
of
the nature
of
commercial
were
.....,engagedin.SincetheseforeignfirmsWereengagedin
;ious activities, the Hon'ble court examined
whether the Act covered both litigious and non litigious
activities. The Hon'ble court held that the Act covered
of
both litigious and non-litigious -activities. This aspect
,j.,theActwasenactedunderEntryTTandTBofListiof
A; Schedule VII to the Constitution and was intended to
govern persons entitled to practice of law in the supreme
and Fligh courts. Having concluded as above' the
court
have
Hon'ble Bonlbay High Court held that RBI could not
n law
lidly giverl permission to liaison offices of foreig
nonfirms in India.to carry out activities perLaining to
the
litigious practice of law unless the conditions under
Actweresatisfied'Itisrespectfullysubmittedthatitwas
&
ry
Respondent
in the writ
was
not
issues
such
H ig
h Cou rt.
.,
30.
oT
the
aspect
herein above.
the
lt is
it
is
It is submitted
co
rrectly
exa m in ed
the
natu
re
nd
cha
racter
of
-*@
to
come to
in respect of the
i*r
It
up
be counter
jq
lose many
is contrary to
the
32.
i-
to prohibit citizenS of
;
{
fo
f,
their clients.
It
temporary basis;
is
lt
@itioner in
su
PPort
of its
PraYer
for
relief are
interim
ho
It
above,
dismissed.
be
18 has not averred any new facts in the present affidavit and
all facts stated herein are part of records of the courts below.
l
London
3,1.1,2013
Touat-- 9*=
DEPON ET{T
VERIFICATION
the
contents of this Affidavit are true and correct and the contents
paras 1 to 6 are based on my personal knowledge, the
of
cl^.ntents
therefrom.
Verified at London on this 31 day of Janua'ry/ 2OL3'
GJ.$- K.-*1^-'-
DEPONENT
4e
Affirmed at One Bishops Square)
London, Er on{ this 31st day of )
Janu ary 2013
fF!..
,frl
'lr,:
Before me: -
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London,England
(l . B. Bu rg ess)