covington & burling

8/9/2019 Covington & Burling

1/15

IN

'iI{E

:;UPRE}v1E

CCURT

OF

INDIA

SPECIAL

LEAVts

PETITION

(under

Article

i3ii

of

the

Constitution

of

lndia)

Special

Leave

Petition

(Crvil)

No'17150-17154

of

2012

IN

THE

MA'ITER

OF:

The

Bar

Council

ot

lndia

21,

Rouse

Avenue

Institutional

Area

New

Delhi

-

I

l0

002

Pi:titioner

ResPondcnts

-Vs-

.f4),

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

A.K.

Balaji

7l

lO7

,

Mel

Batcira

Pet

l-larur,

Tamil

Nadu

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And

39

others

{'rr{-

COUNTER

AFFIDAVIT

FILED

ON

BEHALF

Oi'

RESPo$dvr

No'r:'

covrNcroN

&

BURI-Ii{G

LLP

l

I,

Ralph

C'

Voltmer'

Jr''

son

of

Ralph

C'

Voltmer'

Sr''

agcd

aboui

52

years,

with

office

at

Covington

&

Burling'

LLP''

l20l

Pennsylvania

Ave''

NW,Washington,DC,UnitedStatesofAmerica'dohercbysolemnly

athrm

and

sincerely

state

as

tbllows:

l.

I

am

one

of

the

partners

of

this

Respondent

and

therEtbre,

I

arn

acquaintedwiththefac$anddulyauthorizedtoalfrrmthiscountcr

atf]davit'IhavercadthespecialLeavePetitionfiiedbytlrePetitioncr

hereinandherebydenytireaverTncntscontainedtherein(exccpttoihd

extentexpresslyadrrritted)onthebasisofrnyknowleclge,ilrlbrnlationand

legal

advice'

V(cL*KIG"A

)

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PRELIMINARY

OBJ

ECTIOI{

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2/15

iBr"

v

2. The

Petition

is liable

to be

dismissed

in liminc

for

reasons

set

out

ln

this

counter

affidavit

and

to

be

urged

at

the

time

of making

written

and

oral

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

in

the

Petition'

Therefore,

there

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

Bombay

High

Court

in

Lawyers

Collective

Vs.

Bar

Council

of

India'

2010

(l12)

Bombay

Law

Report

32

(the

Lawyers'

collective

case).

This

averment

is factually

incorrect

and

is,

therefore'

misleading

and denied'

4.

In

the

Lawyers',

collective

case,

the

Bombay

High

court

was

required

to

adjudicate

on

the

validity

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

raised

before

the

Bombay High Court'

5.lndistinctconuast,A.K.Balaji,thePetitionerbeforetheMadras

HighCourt,contendedthattheAdvocates,Actgovernsthepracticeofall

laws,

whether

Indian

or

foreign,

within

the

tenitory

of

lndia.

ln

response'

thisRespondentsubminedthatitdoesnothaveofficesinlndiaandthatits

lawyers

do

not

practice

Indian

law'

Further'

it

was

contendcd

that

the

AdvocatesActdoesnotdealwithorreguiatethepracticeofforeignlaw

andthat,inparticular,theAdvocatesActdoesnotprohibitforeignlawyers

tiomprovidingservicesinlndiainrelationtonon.Indianlaw.Becausethis

issuewasneitherraisedbyanyofthepartiesnoradjudicatedbythe

BombayHighCourtintheLawyers,Collectivecase,thisissuewasres

integra

and

was

required

to

be

decided

by

the

Madras

High

Coutl'

6.

In

the

impugned

judgment'

the

Madras

High

Court

accepted

the

submissionofA.K'Balajithatthepracticeoflawcoversbothlitigation,and

non.litigation,practice.Inreachingthisconclusion,theMadrasHighCourt

ret.erredto,andreliedupon'thedecisionoftheBombayHighCouninthe

LawYers,Collectivecase.Inaddition,theMadrasHighCourtacceptedthe

contentionofthisRespondentandtheotherforeignlawfirmsthatthe

AdvocatesActdoesnotdealwith,regulatEorprohibitrhepracticcof.

foreign

law.

For

these

reasons,

it

is

incorrect

to

state

that

the

judgments

ol

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

incorrect

and

misleading.

In

adiiition,

in this

connection

this

Rcsportdcnt

is

advised

by

counsel

to

state

that

Section

47

ol

the

Atlvocatcs

Act

deals

rvith

the

practice

of

Indian larv

by

persons

who

are

not

citizcns

ot'

India'

Theretore,

the

Bar

Council

of

lndia

is

authorized

to

permit

non-citizcns

with

foreign

legal

qualitlcations

to

practice

Indian

law

if

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

disciplinary

control

of

specific

supervisory

bodies

in

the

relevant

horne

jurisdiction.

Moreover,

the

Bar

Council

of

lndia

is

not

entitled

to

exercisc

such

disciplinary

control

unless

the

law

so

provides'

At

this

juncture'

this

Respondent

is

advised

by

counsel

to

state

that

the

Advocates

Act

and

thc

Ilar

council

of

India

Rules

(the

BCI

Rules)

do

not

empower

the

exercisc

o1'

disciplinary

control

by

the

Bar

Council

of

India

ovcr

lbreign

larvycrs

practicing

tbreign

larv

in

lndia'

10.

The

narration

of

t-acts

in

relation

to

the

contents

of the

af'tidavit

lllcd

by

A.K.Balaji

and

the counter

atfidavits filed'by

each

of

the

Respondepts

is

incomplete.

ln

particular,

the

Petitioner

herein

has

not

adverted

to

tlte

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ir:i: i

averrnents

in

the

counter

affidavit

of

this

Respondent

in

response

to

A.K.Balaji,saffidavit.ThisRespondentrequestsleavetotreatthecontents

of

its

counter

aflldavit

in

the

Madras

High

court

as

an

integral

part

of

this

counter

afflrdavit

so

as

to

avoid

repetition

of

the

contents

thereof'

A

copy

ot

thecounteraffrdavitfiIedbelbretheMadrasHighCourtisannexedhereto

as

"Annexure

R1".

ll.Inaddition,thisRespondentisadvisedtosubmitthatnoneofthe

provisions

of

the

Advocates

Act

or

the

BCI

Rules

ret-er

to'

or

deal

with'

the

practice

of

tbreign

law

or

international

law

within

the

territory

of

India'

on

aliteralinterpretation,theAtlvocatesActcannotbeinterpretedasaStatutg

that

deals

with

the

practice

of

foreign

law

or

international

law

in

lndia'

Furthermore,itissubmittedthatthisRespondentisnotliabletobe

restrainedfrompracticingtbreignlaworinternationailawwithinthe

territory

of

lndia.

Any

such

restriction

would

be

without

statutory

mandate'

12.

Moreover,

to

attempt

to

regulate

under

the

Advocates

Act

thc

provisionofadviceonmattersofforeignlawbyforeignlawyerswhilcin

India

would

be

unreasonable

for

a

number

of

reasons

including'

inter

aliu'

the

fbllowing:

a.

ln

the

event

that

there

are

cases

initiated

against

or

by

lndian

companies,Govemmentagencies,PublicsectorUndenakingsor

individuals

before

courts

in

the

United

states

of

America

(usA/

US)

or

US

regulatory

authorities,

it

would

become

necessary

to

engage

US

attorneys

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

concerned

needs

to

elicit

information

concerning

the

case

from

more

than

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

not

permitted

into

India

in

order

tcl

ably

represent

their

clients

on

matters

of

us

law,

whether

before

us

courts,

us

ariministrative

agencies

or

otherwise,

their

Indian

clients

andlor

their

employees

would

have

to

schedule

meetings

out of

India

and ship

or

carry

all

documents

pertaining

to

the

case,

whether

relevant

or

irrelevant.

This

would

substantially

increase

the

costs

of

all

those

availing

themselves

of

the

services

of

fbreign

lawyers

-- whether

the

Indian

Government,

public

sector

undertakings,

other

lndian

companies

or individuals.

b.

According

to

Census

data,

lndia

exported $36

billion

in

goods

to

the

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

gn-

201I

S

in

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

The

makers

of

those

products

need

to

understand

U.S.

law

on

labeling

and

regulation

of the

products,

as

well

as

obtain

advice

on

the

law

governing

contracts

with

U'S'

buyers

and

distributors.

Similarly,

Indian

makers

of

export

goods

need

to

understand

the laws

of

tho many countries other than the

United

States

into

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

a

governing

law

clause.

It

is

both

legally

permissible

and

plausiblethatinacontractbetweenanlndiancompanyandaforeign

company,thegoverninglawisforeignlawwhereastheseatofarbitrationis

lndia(anlndianclientmaynegotiatesuchaclauseinordertoreducecosts).

In

such

a

situation,

it

will

be

necessary

to

engage

the

services

of

lawyers

qualifiedinthegoverning aw'However,suchservicesarerequiredtobe

renderedinlndia'Inalllikelihood,theservicesoftbreignlawyers(non.

citizens)

who

are

not

enrolled

as

advocates

under

the

Advocates

Act

will

bc

required.

If

the

interpretation

canvassed

by

the

Petitioner

herein

is

to

be

accepted,

it

would

be

illegal

for

clients

to

engage

the

services of

tbreign

lawyers

for

such

arbitration

proceedings

held

in

lndia,

which

would

tbrce

the

clients

to

choose

a

location

outside

India

as

the

seat

of

arbitration'

As

a

result,

the

burden

and

costs

on

lndian

clients

of

participating

in

such

arbitrationproceedingswouldincreasesigniticantly.Moreover,sucha

position

would be

contrary

to

the

poiicy

of

the

Indian

Government

tu

actively

promoting

India

as

a

destination

for

international

commercial

arbitration.

Indeed,

it

would

be

contrary

to

the

legislative

mandate

of

the

Arbitration

and

conciliation

Act,

1996,

and

the

interpretation

thercof

by

this

Hon'ble

Court

and

the

High

Courts'

d.

Foreign

lawyers

I

law

firms

have

been

engaged

by

public

scctor

undertakings

to

provide

advice

in

relation

to

disinvestments

and

public

issue

of

shares.

By

way

of

illustration,

ref.erence

may

be

made

to

the

disinvestmentprocessinitiatedbytheDepartmentofDisinvestment,

Ministry

of

Finance,

Government

of

Inclia'

The

Department

of

Disinvestment

in

its

'Hand

Book

on

Disinvestment

*rough

Public

i'$ffi

tty

Coamjssim

Epircs tusruary

28,

201

I


8/15

.

Ol-terings',

mandated

the

appointment

of

international

legal

advisors

in

respect

of

the

scope

of

work

set

out

in

Annexure

ll

thereto.

Likewise,

the

prospectuses

issued

by

NTPC

Ltd.

antl

Coal

India

Ltd.,

in

connection

with

their

follow-on

public issue

and

initial

public issue

respectively,

contain

the

names

of

their

international

legal

counsel.

In

connection

with

such

engagements,

foreign

lawyers

have

been

invited

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

firms

have

been

appointed

to advise

Ildian

comPanies

on

such

otferings'

on

such

occasions,

it becomes

necessary

for

us

lawyers

to

fly

into

India

to

appropriately

advise

their

clients

on

US

laws

and

fly

back

to

the

US'

13.

Likewise,

this

Respondent

t'iled

a

rejoinder

in

response

to

the

counter

aftrdavit

of

the

Bar

Council

of

India

and

the

contents

thereof

rnay

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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before

the

Madras

High

court

and

the

observations

and

findings

in

the

impugnedjudgmentsoasassistthisHon'bleCourtinframingappropriate

questions

of

law

lor

consideration:

i)

ln

reply

to

paragraph

2

(A):

this was not an

issue

betbre

the

Madras

High

court

because

all

the

Respondent

tbreign

law

firms,

including

this

Respondent,categoricallyStatedthattheydonotPracticelnditrnlaw.ln

fact,theimpugnedjudgmentrecordsthat"theprivaterespondentsherein'

namelytheforeignlawtirms,haveacceptedthatthereisexpress

prohibition

for

a

foreign

lawyer

or

a foreign

law

firm

to

practice

lndian

law."

Therefore,

the

relevant

question

of

law

is:

whether

the

practice

of

foreignlaw,onfly.infly-outbasis,isprohibitedbytheAdvocatesActand

the

BCI

Rules?

ii)Inreplytoparagraph2(B):thiswasalsonotanissuebetbrethc

Madras

High

Court

because

none

of

the

Respondent

law firms,

including

thisRespondent,submittedthatthepracticeoflawdoesnotincludc

transactional

or

advisory

work.

rndeed,

the

impugned

judgment records

that

,.the

foreign

law

firms,

who

are

the

private

respondents

in

this

writ

petition'

have

accepted

the

legal

position

that

the

term

practice

would

include

both

litigation

as

well

as

non-litigation

work, which

is

better

known

as

charnbcr

practice."

iii)lnreplytoparagraph2(C):therelevantquestionoflawis:whether

tbreign

lawyers

are

required

to

enroll

under

the

Advocates

Act

as

a

prc-

requisite

for

the

fly-in

f)y-out

practice

of

foreign

law

in

lndia.

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iv)

In

reply

to

paragraph

2

(D):

there

is

no

contradiction

in

thc

impugnedjudgmentoftheMadrasHighCourtwhereinthejudgmcntofthe

BombayHighCourtwasreferredtoandrelieduPontoconcludethat

foreignlawyerscannotpracticelndianlawincourtoroutsidecourtwithout

complying

with

the requirements

of

the Advocates

Act

and

the

BCI

Rulcs'

on

the

other

hand,

in

relation

to

the

practice

of

tbreign

law,

the

Madras

HighCourtheldthatthereisnobareitherintheAdvocatesActortheBCl

Rules

which

prohibits

the

t1y-in

fly-out

practice

of

foreign

[aw'

Thcrcfore'

thisquestionoflawhasbeenpreparedonthebasisofamisunderstanding

of

the

impugned

judgment'

v)Inreplytoparagraph2(E):thestatementthateveryStrateBlc

investment

coming

to

India,

as an

investment

decision,

should

be

viewed

in

a

holistic

manner

is

contained

in

paragraph

58

of

the

impugned

judgmcnt

whichreferstotheobservationsofthisHon'bleCourtinVodalbne

lnternationalB'V.Vs.Unionoflndia'(2012\6SCC6l3'Aquestionoflaw

does

not

arise

fbr

consideration

on

the

basis

of

this

observation'

vi)lnreplytoparagraph2F:.thisquestionshouldbeconsideredinthe

context

of

the

fact

that

international

commercial

arbitrations

often

involve

tbreign

law.

REPLY

TO

THE

GROUNDS:

15.

on

advice

fiom

counsel,

this

Respondent

sets

out

below

its

response

to

the

grounds

of

aPPeal:

l0

ir;1.1

3:,;s-:s::r

ir2ra

Fex

;:t1'-1,'413


11/15

17'

'.:

lr

,r"

i)lnreplytoparagraph5(l)ofthePetition:asstatedearlier'thereisno

contradictionintheimpugnedjudgmentoftheMadrasHighCourtwherein

thejudgmentoftheBombayHighCourtwasreferTedtoandreliedupon

withregardtothepracticeoflndianlawtoconcludethatforeignlawycrs

cannotpracticelndianlawincourtoroutsidecourtwithoutcomplyingwith

therequirementsoftheAdvocatesActandtheBClRules.ontheot}er

hand,inrelationtothepracticeoffbreignlaw,theMarlrasHighCourthcld

thatthereisnobareitherintheAdvocatesActortheBClRuleswhich

prohibitsthefly.infly-outpracticeofforeignlaw.Therefore'thisgroundof

challenge

of

the

impugned

judgment

is

liable

to

be

rejected'

ii)

ln

reply

to

paragraph

5(II)

of

the

Petition:

the

Madras

High

Cou(

has

referred

to

and

relied

upon

the

judgment

of

the

Division

Bench

of

the

Hon'ble

Bombay

High

Cou(

in

the

Lawyers'

Collective

case'

The

impugnedjudgmentalsotakesintoconsiderationthepleadingsandoral

submissionsonthisissueandrecords,inparagraph53oftheimpugned

judgment,

that

"the

foreign

law

tirms'

who

are

the

private

respondents

in

thiswritpetition,haveacceptedthelegalposirionthatthetermpractice

wouldincludebothlitigationaswellasnon-litigationwork,whichisbetter

knownaschamberpractice.Therefore,renderingadvicetoaclientwould

also

be

encompassed

in

the term practice'"

ln

addition'

the

impugned

judgment

records,

in

paragraph

60'

that

"the

private

responden$

herein'

namely

the

tbreign

law

tirms'

have

accepted

that

there

is

express

prohibitionloratbreignlawyeroraforeignlawfirmtopracticelndian

law."Besides,theLawyers'Collectivejudgmentdoesnotdealwithor'

record

findings

on

the

issue

arising

in

the

present

Petition:

whether

forcign

lawyerscanrenderlegaladvice'inlndia'onforeignlawonaflyin-fly

ll


12/15

out

basis'

Further,

and

witho

ut'

p"luaiZ

tn"

CollectivewasnotbindingontheMadrasHigh

ground

of

aPPeal

is

untenable'

judgment

in

LawYers

Court.

Therefore,

this

iii)lnreplytoparagraPhs(ltl)ofthePetition:thestatutorydutyofthe

PetitionerflowsfromtheAdvocatesActandis,consequently,confincdlo

regulatingthepracticeoflndianlaw'Theimpugnedjudgmentaffrrmsthe

Petitioner's

powers

in

this

regard'

including

the

position

practice

Indian

law

without

enrolling

with

the

Petitioner'

ground

ofaPPeal

is

untenable'

iv)

ln

reply

to

paragraphs

5(lV)

and

(V)

of

the

Petition:

the

impugned

that

one

cannot

Therefore,

this

ci

r'

.

iar;r

judgmentcorectlyappreciatesthefactthattherequirementsinScction24

oftheAdvocatesActsupporttheinterpretationthatitisastatutethatdcals

withlndianlawanditrightlyacceptsthataninterpretationprohibitingthe

practiceofforeignlawbyaforeignlawfirminlndiaresultsinamanit.estly

absurdsituationwhereinonlylndiancitizenswithlndianlawdcgree,who

areenrolledasadvocatesundertheAdvocatesAct,couldpractigetbreign

law,

when

the

fact

remains

that

foreign

laws

are

not

taught

at

the

graduate

level

in

lndian

law

schools,

except

comparative

law

courses

at

the

Master's

level.

v)lnreplytoparagraph5(VI)ofthePetition:Asinthecaseofthe

practiceofforeignlawingeneral,intheparticularcontextofinternational

commercialarbitration,theHon,bleMadrasHighCourthaspermittedthe

participationofforeignlawyersonthebasisthatinternationalcommercial

arbitration

often

involves

foreign law'

r ,rl /-'-

%rUK,oJ*ulD

/Ahzvxkwersox

t :i#t

PuBilc

Dlsracr

oF

colxllg

lA

12

u,

Z:n:xsn'zicira,F*l-u1'-L-{ii


13/15

VTkffi-

vi)Inreplytoparagraphs(Vll)ofthePetition:theprovisionof

reciprocityundertheAdvocatesActpertainstothepracticeofthelndian

lawandnotwithrespecttothepracticeofforeignlawbyatbreignlawyer

onaflyin_t.lyoutbasis.TheHon,bleHighCou(afterconsideringand

appreciating

the

relevant

provisions

of

the

Advocates

Act'

especially

Sections

2

(a),

17

(l),24

(

I

),

and

47

(l)' rightly

held

that

"if

a

lawyer

from

aforeignlawfrrmvisitslndiatoadvisehisclientsonmattersrelatingtothe

lawwhichisapplicabletotheircountr},forwhichpurposehefliesinand

tlies

out

of

lndia,

there

could

not

be

a

bar

for

such

services

rendered

by

such

foreign

law

frrm/

foreign

lawyer"'

16.

In

view

of

the

foregoing,

the

order

sought

to

be

impugned,

including

theoperativeportion,is,inanyovent'justandfair'ltiswellsettledthat

the

Hon,ble

supreme

court

will

not

interfere

with

a

judgment

of

a

High

court

if

it

is

just

and

fair.

Therefore,

the

impugned

judgment

of

the

Llon'ble

Madras

High

Court

calls

for

no

intert-erence'

REPLY

TO

THE

GROUNDS

FOR

INTENM

RELIEF:

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

reiterates

that

it

does

not

practice

Indian law

and does

not

have

otlices

in

IndiaasrecordedbytheHighCourtintheimpugnedjudgment.Theretbre,

the

Petitioner

has

not

made

out

a

prima

tacie

case

for

interim

orders'

Thcre

has

been

no

statutory

or

judicial

prohibition

of

the

practice

of

foreign

iaw'

in

India,

till

date,

including

during

the

pendency

of

the

Petition

beibre

the

Madras

High

Court

13

Yu,fttfrfi

UilzvxKwArsoN

x3a;y

RJzuc

DjSTRiCT

o;

99,r-lrEt;.

r;'.1',.r....-.^

=.-....

=-r..-^,.t

,t.

?

r/il- t

*.;:

4,

_r tJ


14/15

-.:

"

18.

An

interim

stay

of

the

inrpugned

judgment

is

likclY

to

bc

misinterpretedbythePetitioneraSanorderrestrainingthepracticeol

tbreignlawinlndia'AnysuchprohibitionrestrainingthisRespondenttiom

renderinglegaladviceonlbreignlawtoitsclientswouldcauseineparablc

hardshiptothisRespondentanclitsclients,bothlndiananritbreignAs

alreadystated,itwouldincreasetransactioncostssubstantiallytbrlndian

clientswhowillbeconstrainedtotraveloutsidelndiatoobtainadviceon

non-lndianlawand,inanyevent,islikelytoimpairmatcriallythe

provisionofadviceto,andrcPresentationof,lndiabasetJclientsonmatters

of

U.S. Iaw'

19.

This

Respondent

sutes'

on

inlbrmation

and

beliel

that

thc

Governmentoflndia,variousStateGovernmentsandotherStateauthoritics

alsorelyupontheServicesoftoreignlawtjrmsancllawyerslbrlegaladvice

inrelationtolawsotherthanlnclianlaw.ThisincludesatJviceinthearcaof

projectfinance,foreigninvestments,accessinginternationalmarkcts,in

intemationaldisputeresolution,internationaltradeetc.Theirrtcrimordcrs,

iigranted,wouldprejutiiciallyattecttheseactivitiesandthcrcby

compromiselndia,sStrategicinterestsandbeagainstpublicinterestin

gencral'

20.

Hence,

tbr

all

of

the

above

reasons'

the

balance

of

conveniencc

is

in

tavour

ot.this

Respondent,

and

it

is

prayed

that

this

llon'ble

courr

may

bc

pleased

to

reject

the

interim

relief

sought

by

the

Petitioncr'

sf*

i1

K()fe'/^)


15/15

21.

I

saY

that

no

before

the

Courts

Afhdavit.

)

new

facts

or

grounds

which

have

not

been

pleaded

below

have

besn

pleaded

in

the

present

CountEr

PRAYER

ItisthereforeprayedthatthisHon,bleCourtmaybepleasedtodismissthe

specialleavepetitionfiledbythePetitionerhereinandtopasssuchfurther

orders

as

deemed

fit

in

the

interest

ofjustice'

VENFICATION:

I,

the

deponent

above

named

do

hereby

veriff

that

the

contents

of

the

above

affidavit

are

true

to

my

knowledge;

the

submissions

made

arE

based

on

advicereceivedandbelievedtobecorrect;nopartofitisfaisearrdnothing

material

has

been

concealed

therefrom'

VerifiedbymeatWashington,DC,UnitedStatesofAmerioa'onthis2lst

day

of

February,20l3'

F,rtfrl)

covington & burling

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