t

OF INDIA
IN 'iI{E :;UPRE}v1E CCURT

SPECIAL LEAVts PETITION

of lndia)
(under Article i3ii of the Constitution
(Crvil) No'17150-17154 of 2012
Special Leave Petition
IN THE MA'ITER OF:
The Bar Council ot lndia
21, Rouse Avenue
Institutional Area
New Delhi - I l0 002

Pi:titioner
-Vs-

.f4),

,,1...'.;,::

A.K. Balaji
7l lO7 , Mel Batcira Pet
l-larur, Tamil Nadu - $6 9A3
And 39 others

ResPondcnts

ON BEHALF Oi'
COUNTER AFFIDAVIT FILED
& BURI-Ii{G LLP

RESPo$dvr No'r:' covrNcroN

aboui 52
Ralph C' Voltmer' Sr'' agcd
I, Ralph C' Voltmer' Jr'' son of
Ave''
& Burling' LLP'' l20l Pennsylvania
years, with office at Covington

NW,Washington,DC,UnitedStatesofAmerica'dohercbysolemnly
athrm and sincerely state as tbllows:

l.
{'rr{-

partners of this Respondent and therEtbre,

am one of the

arn

acquaintedwiththefac$anddulyauthorizedtoalfrrmthiscountcr
atf]davit'IhavercadthespecialLeavePetitionfiiedbytlrePetitioncr
hereinandherebydenytireaverTncntscontainedtherein(exccpttoihd
extentexpresslyadrrritted)onthebasisofrnyknowleclge,ilrlbrnlationand
legal advice'

PRELIMINARY

OBJ

ECTIOI{

S:

V(cL*KIG"A
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2.

ln
The Petition is liable to be dismissed in liminc for reasons set out

oral
this counter affidavit and to be urged at the time of making written and

submissions. The Petition does not present any substantial question of law
or fact. This Respondent does not have a law office in lndia and it does not

give Indian law advice to its clients as alleged by the Petitioner in the
Petition. The Petitioner does not have locus standi to file this Special Leave
Petition. There is no contradiction in the ruiings of the Bombay High Court

and the Madras High Court as incorrectly alleged

Therefore, there

in the Petition'

is no germane issue for considEration by the Hon'ble

Supreme Court.

REPLY TO THE SYNOPSIS:

3.

The statements in the synopsis are incorrect and rnisleading' ln

particular, the Petitioner has averred that the issues that arose in the case

before the Madras High Court were the same as the issues before the
2010
Bombay High Court in Lawyers Collective Vs. Bar Council of India'

(l12) Bombay Law Report 32 (the Lawyers' collective case). This

averment is factually incorrect and is, therefore' misleading and denied'

4.

iBr"

In the Lawyers', collective

case, the Bombay High

required to adjudicate on the validity

court

was

of licenses issued by the Rcserve

Bank of India to a few tbreign law tirms under Section 29 of the Foreign
Exchange Regulation Act, 1973.lt was contended that the Advocates Act'

l96l

(Advocates Act) only deals with the practice of Indian law in court

and that it does not deal with or regulate the practice of Indian law outside

court. On this basis,

it

was further contendEd that foreign lawyers

are

entitled to provide transactional and advisory services in relation to mattsrs

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SovemedbyIndianlaw'ThiscontentionwasrgjectedbytheBombay}ligh
Courtwhichheldthatthepracticeoflaw,undertheAdvocatesAct,covers

bothlitigationandtransactional/advisorypractice'Theissueofwhether
adviceconcerningforeignlawisregulatedbytheAdvocatesActwasnot
Court'
raised before the Bombay High

5.lndistinctconuast,A.K.Balaji,thePetitionerbeforetheMadras
,, .:,.i

HighCourt,contendedthattheAdvocates,Actgovernsthepracticeofall

t:

within the tenitory of lndia. ln response'

laws, whether Indian or foreign,

i'

thisRespondentsubminedthatitdoesnothaveofficesinlndiaandthatits
the
law' Further' it was contendcd that
lawyers do not practice Indian

AdvocatesActdoesnotdealwithorreguiatethepracticeofforeignlaw
andthat,inparticular,theAdvocatesActdoesnotprohibitforeignlawyers
tiomprovidingservicesinlndiainrelationtonon.Indianlaw.Becausethis

issuewasneitherraisedbyanyofthepartiesnoradjudicatedbythe
BombayHighCourtintheLawyers,Collectivecase,thisissuewasres
by the Madras High Coutl'
integra and was required to be decided

6.

High Court accepted the

In the impugned judgment' the Madras

submissionofA.K'Balajithatthepracticeoflawcoversbothlitigation,and
.:

non.litigation,practice.Inreachingthisconclusion,theMadrasHighCourt

ret.erredto,andreliedupon'thedecisionoftheBombayHighCouninthe
LawYers,Collectivecase.Inaddition,theMadrasHighCourtacceptedthe

contentionofthisRespondentandtheotherforeignlawfirmsthatthe

AdvocatesActdoesnotdealwith,regulatEorprohibitrhepracticcof.
to state that the judgments ol
foreign law. For these reasons, it is incorrect

theMadrasHighCourtandtheBombayHigtrCourtarecontradictory'

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T.Withoutprejuclice,thisRespondentisalsoadvisedbycounsclto
state that the Madras High

court is not bound to tbllow

the judgment ol'the

Bombay High Court.

REPLYToTHENARRAI.IONoFDATESANDEVEN.|S:

8.Forthesamereasons,thenarrationofdatesandeventsisalso
this Rcsportdcnt
incorrect and misleading. In adiiition, in this connection

is

ol the Atlvocatcs Act deals rvith

advised by counsel to state that Section 47
the practice

of

ot' India'
Indian larv by persons who are not citizcns

Theretore, the Bar Council

of lndia is authorized to permit non-citizcns

if
with foreign legal qualitlcations to practice Indian law

reciprocity

requirements are lulfi lled.

g.

As

regards the exercise

of

disciplinary authority over lbreign

larvyers, this Respondent submits that

all its lawyers are subject to

thc

in the relevant horne

disciplinary control of specific supervisory bodies
to exercisc
jurisdiction. Moreover, the Bar Council of lndia is not entitled
provides'
such disciplinary control unless the law so

At this juncture'

this

Advocates Act and thc

Respondent is advised by counsel to state that the
qY[l

exercisc
Ilar council of India Rules (the BCI Rules) do not empower the

disciplinary control by the Bar Council

o1'

of India ovcr lbreign larvycrs

practicing tbreign larv in lndia'

10.

lllcd
The narration of t-acts in relation to the contents of the af'tidavit

Respondepts is
by A.K.Balaji and the counter atfidavits filed'by each of the

incomplete.

ln particular, the Petitioner herein has not

adverted

to

tlte

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averrnents

in
in the counter affidavit of this Respondent

response to

A.K.Balaji,saffidavit.ThisRespondentrequestsleavetotreatthecontents

court
of its counter aflldavit in the Madras High

as an integral part

of this

of the contents thereof' A copy ot

counter afflrdavit so as to avoid repetition

thecounteraffrdavitfiIedbelbretheMadrasHighCourtisannexedhereto
as

ir:i: i

"Annexure R1".

ll.Inaddition,thisRespondentisadvisedtosubmitthatnoneofthe
BCI Rules ret-er to' or deal with' the
provisions of the Advocates Act or the
law within the territory of India' on
practice of tbreign law or international

aliteralinterpretation,theAtlvocatesActcannotbeinterpretedasaStatutg
law or international law in lndia'
that deals with the practice of foreign

Furthermore,itissubmittedthatthisRespondentisnotliabletobe
restrainedfrompracticingtbreignlaworinternationailawwithinthe
would be without statutory mandate'
territory of lndia. Any such restriction

12.

Moreover,

to

attempt

to regulate under the Advocates Act

thc

provisionofadviceonmattersofforeignlawbyforeignlawyerswhilcin
of reasons including' inter aliu'
India would be unreasonable for a number
the fbllowing:
,,: l

a.

ln the event that there are cases initiated

against

or by lndian

companies,Govemmentagencies,PublicsectorUndenakingsor
of America (usA/ US) or US
individuals before courts in the United states

to engage US attorneys
regulatory authorities, it would become necessary
and seek the advice of such attorneys.

At such instances, it may bccome

necessaryforsuchattorneystot)yinandilyoutoflndiatomeetclicnts'

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discuss the case, peruse documents and

clarity their doubts if trny tbr ablc

representation. Such visits may also be necessary when the attorncy

than
concerned needs to elicit information concerning the case from more
one

of the employees of a client and peruse all documents pertaining to the

case So as

to identiff relevant documents. In the event

Such attomeys are

on matters of
not permitted into India in order tcl ably represent their clients

us law, whether before us

otherwise,

their

courts,

us

ariministrative agencies or

Indian clients andlor their employees would have to

pertaining to
schedule meetings out of India and ship or carry all documents
increase
the case, whether relevant or irrelevant. This would substantially

lawyers
the costs of all those availing themselves of the services of fbreign

lndian
-- whether the Indian Government, public sector undertakings, other
companies or individuals.

b.
US

to the
According to Census data, lndia exported $36 billion in goods
in

201I

(hnps ://www,census.Bov/forei gn-

trade/statistics/product/enduse/imports/c533O.html).

The makers of

products need to understand U.S. law on labeling and regulation

those

of

the

U'S'
products, as well as obtain advice on the law governing contracts with
to
buyers and distributors. Similarly, Indian makers of export goods need
States into
understand the laws of tho many countries other than the United

which Indian goods are sold. Such an entity, e.g., an Indiiur pharmaceutical

tirm, might wish to have lawyers from numerous countries travel to India to
discuss regulatory and labeling issues that bear on the products they

export. It would be ineftlcient to forse ttte management of the company to

visit lawyers in each country in wh.ich the Indign source products are sold'

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c.Manyinternationalcommercialcontractscontainanarbitration
clause and

permissible
a governing law clause. It is both legally

and

plausiblethatinacontractbetweenanlndiancompanyandaforeign
company,thegoverninglawisforeignlawwhereastheseatofarbitrationis
lndia(anlndianclientmaynegotiatesuchaclauseinordertoreducecosts).
to engage the services of lawyers
In such a situation, it will be necessary

qualifiedinthegoverning!aw'However,suchservicesarerequiredtobe
renderedinlndia'Inalllikelihood,theservicesoftbreignlawyers(non.
Act will
advocates under the Advocates
citizens) who are not enrolled as

herein is to
the interpretation canvassed by the Petitioner

required.

If

accepted,

of
it would be illegal for clients to engage the services

bc
be

tbreign

held in lndia, which would tbrce

lawyers for such arbitration proceedings
India as the seat of arbitration' As
the clients to choose a location outside

clients
result, the burden and costs on lndian

of participating in

such

arbitrationproceedingswouldincreasesigniticantly.Moreover,sucha
position would be contrary to the poiicy

tu

of the Indian Government

for international commercial

actively promoting India as a destination
to the legislative mandate of the
arbitration. Indeed, it would be contrary
the interpretation thercof by
Arbitration and conciliation Act, 1996, and
this Hon'ble Court and the High Courts'
..,.;.

d.

Foreign lawyers

scctor
law firms have been engaged by public

undertakings to provide advice

issue

of

shares.

in relation to disinvestments and public

By way of illustration,

ref.erence may be made

to

the

disinvestmentprocessinitiatedbytheDepartmentofDisinvestment,
of
Ministry of Finance, Government of Inclia' The Department
Disinvestment

i'$ffi

in its 'Hand Book on Disinvestment *rough

Public

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/// fuLwKuJATsoN

UCERv n q.lc rxsrrucr oF oougrr

tty Coamjssim Epircs tusruary 28, 201

.ss+
Ol-terings', mandated the appointment

of international legal advisors in

respect of the scope of work set out in Annexure

ll thereto.

prospectuses issued by NTPC Ltd. antl Coal India Ltd.,

Likewise, the

in connection with

contain the
their follow-on public issue and initial public issue respectively,

names

of their

international legal counsel.

In

engagements, foreign lawyers have been invited

connection

with

such

by the Governmcnt or

public sector undertakings, as the case may be, to attend meetings in lndia
to provide advice on tbreign or international law. No relaxation has been
granted by the Petitioner herein in this regard by exercising powers under
Section 47(2) of the Advocates Act.

e.

Several leading Indian companies such as Dr. Reddy's Laboratories

Ltd., HDFC Bank Ltd.,

lclcl Bank Ltd., Infosys

Technology Ltd'' Tata

Motors Ltd. and Wipro Ltd. have issued American Depository Receipts
(ADRS) or other securities in the USA. In connection therewith, foreign law

otferings'
firms have been appointed to advise Ildian comPanies on such

on

such occasions,

it becomes necessary for us lawyers to fly into India to

the US'
appropriately advise their clients on US laws and fly back to

13.

Likewise, this Respondent t'iled a rejoinder

in

response

to

the

thereof rnay
counter aftrdavit of the Bar Council of India and the contents

be treated as an integral part of this counter affidavit so as to avoid

repetition. A copy of the Rejoinder is annexed hereto as "Atrnexure

tt2"'

REPLY WITH REGARD TO THE QUESTIONS OF LAW:

14.

On advice fiom counsel, this Respondent sets out below factual

clarifications, relating to the questions of law, based both on the pleadings

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observations and findings in the

before the Madras High court and the

impugnedjudgmentsoasassistthisHon'bleCourtinframingappropriate
questions of law lor consideration:

i)

issue betbre the Madras

ln reply to paragraph 2 (A): this was not an

law firms, including this

High court because all the Respondent tbreign
Respondent,categoricallyStatedthattheydonotPracticelnditrnlaw.ln
fact,theimpugnedjudgmentrecordsthat"theprivaterespondentsherein'

namelytheforeignlawtirms,haveacceptedthatthereisexpress
firm to practice lndian
prohibition for a foreign lawyer or a foreign law
whether the practice of
law." Therefore, the relevant question of law is:

foreignlaw,onfly.infly-outbasis,isprohibitedbytheAdvocatesActand
the BCI Rules?

ii)Inreplytoparagraph2(B):thiswasalsonotanissuebetbrethc
law firms, including
Madras High Court because none of the Respondent

thisRespondent,submittedthatthepracticeoflawdoesnotincludc
judgment records that
transactional or advisory work. rndeed, the impugned
,.the foreign law firms, who are the private respondents in this

writ petition'

practice would include both

have accepted the legal position that the term
better known as charnbcr
litigation as well as non-litigation work, which is

practice."

iii)lnreplytoparagraph2(C):therelevantquestionoflawis:whether
Act as a prctbreign lawyers are required to enroll under the Advocates
in lndia.
requisite for the fly-in f)y-out practice of foreign law

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iv)

In reply to

paragraph

'

a\1

2 (D): there is no contradiction in thc

impugnedjudgmentoftheMadrasHighCourtwhereinthejudgmcntofthe

BombayHighCourtwasreferredtoandrelieduPontoconcludethat
foreignlawyerscannotpracticelndianlawincourtoroutsidecourtwithout
Act and the BCI Rulcs'
complying with the requirements of the Advocates
law, the Madras
on the other hand, in relation to the practice of tbreign

HighCourtheldthatthereisnobareitherintheAdvocatesActortheBCl
practice of foreign [aw' Thcrcfore'
Rules which prohibits the t1y-in fly-out

thisquestionoflawhasbeenpreparedonthebasisofamisunderstanding
of the impugned judgment'

v)Inreplytoparagraph2(E):thestatementthateveryStrateBlc
decision, should be viewed in
investment coming to India, as an investment

58 of the impugned judgmcnt

a holistic manner is contained in paragraph

whichreferstotheobservationsofthisHon'bleCourtinVodalbne
lnternationalB'V.Vs.Unionoflndia'(2012\6SCC6l3'Aquestionoflaw
of this observation'
does not arise fbr consideration on the basis

vi)lnreplytoparagraph2F:.thisquestionshouldbeconsideredinthe
arbitrations often involve
context of the fact that international commercial
tbreign law.

REPLY TO THE GROUNDS:

15.

below its response

on advice fiom counsel, this Respondent sets out

to the grounds of aPPeal:

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i)lnreplytoparagraph5(l)ofthePetition:asstatedearlier'thereisno
contradictionintheimpugnedjudgmentoftheMadrasHighCourtwherein

thejudgmentoftheBombayHighCourtwasreferTedtoandreliedupon
withregardtothepracticeoflndianlawtoconcludethatforeignlawycrs
cannotpracticelndianlawincourtoroutsidecourtwithoutcomplyingwith

therequirementsoftheAdvocatesActandtheBClRules.ontheot}er
hand,inrelationtothepracticeoffbreignlaw,theMarlrasHighCourthcld

thatthereisnobareitherintheAdvocatesActortheBClRuleswhich
prohibitsthefly.infly-outpracticeofforeignlaw.Therefore'thisgroundof
judgment is liable to be rejected'
challenge of the impugned

ii)

Cou(
Petition: the Madras High
ln reply to paragraph 5(II) of the

the judgment
has referred to and relied upon

Hon'ble Bombay High Cou(

of the Division Bench of the

The
in the Lawyers' Collective case'

impugnedjudgmentalsotakesintoconsiderationthepleadingsandoral

submissionsonthisissueandrecords,inparagraph53oftheimpugned
in
who are the private respondents
judgment, that "the foreign law tirms'

thiswritpetition,haveacceptedthelegalposirionthatthetermpractice
wouldincludebothlitigationaswellasnon-litigationwork,whichisbetter
17'
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knownaschamberpractice.Therefore,renderingadvicetoaclientwould
practice'" ln addition' the impugned
also be encompassed in the term
"the private responden$ herein'
judgment records, in paragraph 60' that

have accepted that there

namely the tbreign law tirms'

is express

prohibitionloratbreignlawyeroraforeignlawfirmtopracticelndian
law."Besides,theLawyers'Collectivejudgmentdoesnotdealwithor'
forcign
in the present Petition: whether
record findings on the issue arising

lawyerscanrenderlegaladvice'inlndia'onforeignlawonaflyin-fly

ll

out basis' Further, and witho

ut'

p"luaiZ

tn" judgment

in

LawYers

Court. Therefore, this

CollectivewasnotbindingontheMadrasHigh
ground of aPPeal is untenable'

iii)lnreplytoparagraPhs(ltl)ofthePetition:thestatutorydutyofthe
PetitionerflowsfromtheAdvocatesActandis,consequently,confincdlo
regulatingthepracticeoflndianlaw'Theimpugnedjudgmentaffrrmsthe
position that one cannot
in this regard' including the
Petitioner's powers

Therefore, this
enrolling with the Petitioner'
practice Indian law without
ground ofaPPeal is untenable'

iv)

(V) of the Petition: the impugned

ln reply to paragraphs 5(lV) and

judgmentcorectlyappreciatesthefactthattherequirementsinScction24
oftheAdvocatesActsupporttheinterpretationthatitisastatutethatdcals

withlndianlawanditrightlyacceptsthataninterpretationprohibitingthe
practiceofforeignlawbyaforeignlawfirminlndiaresultsinamanit.estly
absurdsituationwhereinonlylndiancitizenswithlndianlawdcgree,who
areenrolledasadvocatesundertheAdvocatesAct,couldpractigetbreign
the graduate
laws are not taught at
foreign
that
remains
law, when the fact
courses at the Master's
except comparative law
level in lndian law schools,
ci r'
.

iar;r

level.

v)lnreplytoparagraph5(VI)ofthePetition:Asinthecaseofthe
practiceofforeignlawingeneral,intheparticularcontextofinternational
commercialarbitration,theHon,bleMadrasHighCourthaspermittedthe
participationofforeignlawyersonthebasisthatinternationalcommercial
law'
arbitration often involves foreign

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VTkffivi)Inreplytoparagraphs(Vll)ofthePetition:theprovisionof
reciprocityundertheAdvocatesActpertainstothepracticeofthelndian
lawandnotwithrespecttothepracticeofforeignlawbyatbreignlawyer

onaflyin_t.lyoutbasis.TheHon,bleHighCou(afterconsideringand
appreciating the relevant provisions
Sections 2 (a), 17

(l),24

(I

), and 47

of the Advocates Act' especially

(l)'

rightly held that "if a lawyer from

aforeignlawfrrmvisitslndiatoadvisehisclientsonmattersrelatingtothe
lawwhichisapplicabletotheircountr},forwhichpurposehefliesinand
for such services rendered by
tlies out of lndia, there could not be a bar
such foreign law frrm/ foreign lawyer"'

16.

to be impugned, including
In view of the foregoing, the order sought

theoperativeportion,is,inanyovent'justandfair'ltiswellsettledthat
interfere with a judgment of a High
the Hon,ble supreme court will not
court if it

is

judgment of the Llon'ble

just and fair. Therefore, the impugned

Madras High Court calls for no intert-erence'

RELIEF:
REPLY TO THE GROUNDS FOR INTENM

lT.Inreplytoparagraphs6(I)and(II)ofthePetition,thisRcspondent
reiterates that

it

does not have otlices in

does not practice Indian law and

IndiaasrecordedbytheHighCourtintheimpugnedjudgment.Theretbre,
tacie case for interim orders' Thcre
the Petitioner has not made out a prima
has been no statutory or

judicial prohibition of the practice of foreign iaw'

the Petition beibre the

in India, till date, including during the pendency of
Madras High Court

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18.

An interim stay

is
of the inrpugned judgment

likclY to

bc

misinterpretedbythePetitioneraSanorderrestrainingthepracticeol
tbreignlawinlndia'AnysuchprohibitionrestrainingthisRespondenttiom
renderinglegaladviceonlbreignlawtoitsclientswouldcauseineparablc

hardshiptothisRespondentanclitsclients,bothlndiananritbreignAs
alreadystated,itwouldincreasetransactioncostssubstantiallytbrlndian

clientswhowillbeconstrainedtotraveloutsidelndiatoobtainadviceon

non-lndianlawand,inanyevent,islikelytoimpairmatcriallythe
provisionofadviceto,andrcPresentationof,lndiabasetJclientsonmatters
of U.S. Iaw'

19.

that
inlbrmation and beliel
on
sutes'
This Respondent

thc

Governmentoflndia,variousStateGovernmentsandotherStateauthoritics

alsorelyupontheServicesoftoreignlawtjrmsancllawyerslbrlegaladvice
inrelationtolawsotherthanlnclianlaw.ThisincludesatJviceinthearcaof
projectfinance,foreigninvestments,accessinginternationalmarkcts,in
intemationaldisputeresolution,internationaltradeetc.Theirrtcrimordcrs,

iigranted,wouldprejutiiciallyattecttheseactivitiesandthcrcby
compromiselndia,sStrategicinterestsandbeagainstpublicinterestin
gencral'
-.:

"

is in
the balance of conveniencc
reasons'
above
the
20. Hence, tbr all of
courr may bc
prayed that this llon'ble
is
it
and
tavour ot.this Respondent,
relief sought by the Petitioncr'
pleased to reject the interim

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21. I

saY that no

x<)

-l

have not been pleaded

new facts or grounds which

have besn pleaded

before the Courts below

in the present CountEr

Afhdavit.

PRAYER

ItisthereforeprayedthatthisHon,bleCourtmaybepleasedtodismissthe
specialleavepetitionfiledbythePetitionerhereinandtopasssuchfurther
orders as deemed

fit in the interest ofjustice'

VENFICATION:
do hereby
I, the deponent above named

above
veriff that the contents of the

made arE based on

submissions
the
knowledge;
affidavit are true to my

advicereceivedandbelievedtobecorrect;nopartofitisfaisearrdnothing
therefrom'
material has been concealed

VerifiedbymeatWashington,DC,UnitedStatesofAmerioa'onthis2lst
day of February,20l3'

F,rtfrl)

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