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Writ petition v foreign firms unlikely to hit SC as raft of US, UK, Oz firms grab Dua, Kachwaha and counsel

dead-end-sign_by_Andrew-Mason
dead-end-sign_by_Andrew-Mason
The government appears to have scrapped plans to move the Chennai writ petition against 31 foreign law firms to the Supreme Court, as law firms Dua Associates and Kachwaha & Partners alongside a raft of senior counsel appeared for nine US firms, Slaughter and May, the LPO Integreon, and two Australian firms.

The petitioner's plea for an injunction against the foreign firms was stayed for two weeks until the government and foreign firms could formulate responses.

Government counsel and additional solicitor general of India Muthukrishnan Ravindran prayed for more time, citing pending discussions between the government and the BCI on regulating foreign firms. Government counsel did not mention Veerappa Moily's plans of 20 July that the case should be moved to the Supreme Court.

The court ordered the respondents to file their counter-affidavits by the next hearing on 19 August, when the question of permanent stay would be adjudicated based on the written and oral submissions of the parties.     

Advisory circles

National law firm Dua Associates was instructed by nine American law firms with Chennai partner R Senthil Kumar leading the team and instructing counsel Rahul Balaji and senior advocate A L Somayaji on behalf of US-based law firms.

Dua Associates is understood to have been jointly instructed for several months by US firms Wilmer Hale, Shearman & Sterling, Davis Polk & Wardwell, Akin Gump Strauss Hauer & Feld, Pillsbury Winthrop Shaw Pittman, Wilson Sonsini Goodrich & Rosati, Arnold & Porter, Covington & Burling and Mayer Brown.

Slaughter and May was the only UK firm that entered appearance today and was represented by dispute resolution specialist firm Kachwaha & Partners through Kachwaha & Partners local counsel Sundar Narayan and senior advocate Yashod Vardhan. 

Kachwaha partner Dharmendra Rautray said: "The matter was listed today and one of our partners has travelled to Chennai. We’re briefing Yashod Vardhan, who is an erstwhile partner of our firm and now is a senior advocate in Chennai [...], on behalf of Slaughter and May."

Rautray added that Kachwaha & Partners had a long-term association with Slaughter and May, having acted in a number of dispute resolution matters for the firm's clients.

The sole legal process outsourcing (LPO) company respondent Integreon instructed Chennai senior counsel Sriram Panchu.

Australian law firms Freehills and Clayton Utz meanwhile instructed the law offices of advocate K S Natarajan, with Natarajan and advocates T Saikrishnan and P Pavan Kumar jointly representing the firms.

The additional solicitor general Ravindran with advocate P Raman appeared for the government and BCI respondents respectively.

The day's events

Recounting the day's roughly half-hour-long proceedings, Dua's Kumar told Legally India: "First Mr Ravindran told the court that the government of India is going into discussions with the Bar Council with a view to frame guidelines. He said that a meeting is scheduled early next month and therefore he wanted eight weeks time to file a counter.

"Then ARL Sundaresan – the counsel for the petitioner – took the court through the Advocates Act and read out portions of the Bombay High Court case in Lawyers Collective and pointed out that practice of law in litigation or non-litigation is not permitted as far as foreign lawyers are concerned. He also read out a few print-outs from websites of foreign firms."

Kumar said that his retained senior counsel Somayaji then pointed out on behalf of US law firms that none of the US law firms had offices in India and that no interim injuncting order should be made, particularly as the prayer was framed very widely.

Kumar added that PS Raman, who appeared for the Bar Council of India (BCI) also endorsed the views of Ravindran although noting that the BCI currently opposed the entry of foreign law firms.

LPO Integreon's counsel Panchu is understood to have made a brief submission at the end of the half-hour hearing that the LPO's position was different from the law firms' as the LPO drew work from overseas into India.

Senior advocate ARL Sundaresan argued for the petitioners, including A K Balaji and the Association of Indian Lawyers. Sundaresan was supported by advocates Karthikeyan, R Ezhilarasan and A Sivasubramanium for the petitioners.

Sivasubramanium said that prima facie the judge was convinced by the submission that foreign lawyers were practising in India in both chamber and court practice, although the respondents' counsel opposed this.

He said that respondents' counsel argued that if the injunction were granted, "every business will come to a standstill" because some Indian lawyers were not experienced with dealing with international clients.

"[Respondents] had asked for a long time but the court was not convinced to give a long date and the matter has been posted for 19th August for filing counter," said Sivasubramanium, "and on that date the miscellaneous petition for injunction will be argued and the matter will come to a conclusion."

Respondents nine to fifteen including law firms Rouse, Ashurst, Kelley Drye & Warren, Kennedys, DeHeng Law Office and White & Case did not file replies through their legal representatives today.

All the respondents nine to 15 that did not appear today were alleged to have offices in India according to advocate and co-petitioner's A K Balaji's affidavit.

Apex court is out

The government did not mention Veerappa Moily's proposal to have the case shifted to the Supreme Court at this hearing. "My feeling is there isn't much of a case for transfer," commented one lawyer with knowledge of the case, adding the Moily may have made a mistake.

Society of Indian Law Firms (SILF) chairman Lalit Bhasin, who had also criticised Moily's decision on 23 July in a press release, explained: "They can not raise the issue of moving to the Supreme Court before the high court because that application can only be made to the Supreme Court for transfer of a case.

"At the moment there is only one case that is pending – that is this Chennai case. There has to be more than one case pending in different high courts if you seek a transfer of the cases to the Supreme Court itself," Bhasin told Legally India.

If the petition is successful it could mean that foreign lawyers would not be able to visit clients on business in India, although a number of corporate lawyers have noted that the petition would only have little impact.

Photo by Andrew Mason

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