The Supreme Court Of India (SCI) on Tuesday March 13,2018 held that foreign law firms
cannot practice in the country, but allowed foreign lawyers to visit
India on a “fly in and fly out” basis for rendering legal advice to
their clients in India.
In doing so, a bench comprising justices Adarsh Kumar Goel and Rohinton F. Nariman partially upheld the 2012 judgment of the Madras high court holding that foreign lawyers could visit India for a temporary period for the purpose of giving legal advice.
“Fly in and fly out would cover a casual visit and not amount to practise,” justice Goel said.
The court also said that foreign lawyers could not be barred from coming to India for conducting arbitration proceedings in disputes involving international commercial arbitration but they would be subject to the code of conduct applicable to the legal profession in India.
Rules of institutional arbitration will apply to them, the court said.
It also modified provisions of the Advocates Act, 1961 debarring foreign lawyers completely from conducting international commercial arbitration in the country.
The court’s ruling had come on an appeal by the Bar Council of India (BCI) against the judgment of the Madras high court.
The Madras high court ruling of 2012 had highlighted that there was no bar on them under the Indian law and regulations to visit India on a “fly in and fly out” basis for rendering legal advice to their clients in India.
It was added that foreign lawyers could not be barred from coming to India for conducting arbitration proceedings in disputes involving international commercial arbitration.
In January, the Centre told the apex court that the BCI should consider framing rules to open up the legal sector to foreign lawyers and law firms, failing which it would step in to assist in the process.
BCI, on its part, has shown reservations in opening up the legal field to foreign players. It has maintained that although, it is not averse to the idea of practice of law by foreign lawyers and firms, it should be based on reciprocity and regulated by the Advocates Act. The “fly in fly out” policy also should be subject to the Indian regulatory framework.
“The ‘fly-in-fly-out’ policy is in violation of the provisions of the Advocates Act, 1961 which provides that there shall be only one class of persons who can practice law in India, i.e., advocates admitted on the state bar council rolls,” senior advocate C.U. Singh, appearing for BCI, had said.
It was also BCI’s contention that arbitration must also be subject to BCI regulations, as it was the top regulating body for legal practices in India.
This was opposed by Dushyant Dave, counsel for London Council of Arbitration, who argued that this would result in being a dampener for commercial arbitration. He quoted examples of Indian lawyers participating in commercial arbitration proceedings in other countries like Singapore and the UK without the need to acquire any special permissions.
Arvind Datar, who represented six UK-based law firms, said that as of today, there was no regulatory mechanism under the Advocates Act, 1961 to allow or disallow foreign lawyers/firms as the trend of cross-border, international commercial law had not been anticipated under it.
In doing so, a bench comprising justices Adarsh Kumar Goel and Rohinton F. Nariman partially upheld the 2012 judgment of the Madras high court holding that foreign lawyers could visit India for a temporary period for the purpose of giving legal advice.
“Fly in and fly out would cover a casual visit and not amount to practise,” justice Goel said.
The court also said that foreign lawyers could not be barred from coming to India for conducting arbitration proceedings in disputes involving international commercial arbitration but they would be subject to the code of conduct applicable to the legal profession in India.
Rules of institutional arbitration will apply to them, the court said.
It also modified provisions of the Advocates Act, 1961 debarring foreign lawyers completely from conducting international commercial arbitration in the country.
The court’s ruling had come on an appeal by the Bar Council of India (BCI) against the judgment of the Madras high court.
The Madras high court ruling of 2012 had highlighted that there was no bar on them under the Indian law and regulations to visit India on a “fly in and fly out” basis for rendering legal advice to their clients in India.
It was added that foreign lawyers could not be barred from coming to India for conducting arbitration proceedings in disputes involving international commercial arbitration.
In January, the Centre told the apex court that the BCI should consider framing rules to open up the legal sector to foreign lawyers and law firms, failing which it would step in to assist in the process.
BCI, on its part, has shown reservations in opening up the legal field to foreign players. It has maintained that although, it is not averse to the idea of practice of law by foreign lawyers and firms, it should be based on reciprocity and regulated by the Advocates Act. The “fly in fly out” policy also should be subject to the Indian regulatory framework.
“The ‘fly-in-fly-out’ policy is in violation of the provisions of the Advocates Act, 1961 which provides that there shall be only one class of persons who can practice law in India, i.e., advocates admitted on the state bar council rolls,” senior advocate C.U. Singh, appearing for BCI, had said.
It was also BCI’s contention that arbitration must also be subject to BCI regulations, as it was the top regulating body for legal practices in India.
This was opposed by Dushyant Dave, counsel for London Council of Arbitration, who argued that this would result in being a dampener for commercial arbitration. He quoted examples of Indian lawyers participating in commercial arbitration proceedings in other countries like Singapore and the UK without the need to acquire any special permissions.
Arvind Datar, who represented six UK-based law firms, said that as of today, there was no regulatory mechanism under the Advocates Act, 1961 to allow or disallow foreign lawyers/firms as the trend of cross-border, international commercial law had not been anticipated under it.
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