March 13, 2018
In a major development today, the speculations surrounding entry of foreign law firms and lawyers in India has been put to rest today by Two-Judge Bench of the Supreme Court.
The Supreme Court made two categorical rulings in the case today:
- Foreign Law firms cannot set up Offices in India or practice in Indian Courts
- Foreign lawyers can give advice to Indian clients in ‘fly in and fly out’ basis
The Supreme Court in February had reserved its judgment on entry of foreign law firms and foreign lawyers in India (read here).
In the case before the Supreme court, the Petitioners Global Indian Lawyers had challenged the Bombay High Court’s verdict in the case of Lawyers Collective v. BCI passed in 2009 wherein the Bombay High Court had stated that the expression ‘ to practise the profession of law’ in Section 29 of Advocates Act, 1961 is wide enough to cover the persons practising in litigious matters as well as non- litigious matters and, therefore, to practise in non-litigious matters in India, the respondents (foreign law firms) were bound to follow the provisions contained in the 1961 Act.
In the case, the High Court was of the view that as the foreign law firms were not enrolled under the Advocate Act, 1961 they could not open liaison offices in India.
Other verdict which is elementary in the aforesaid context is Madras High Court’s ruling in 2012, wherein the Court had restrained foreign law firms and lawyers from practicing as an Advocate in India. However, it stated that foreign lawyers could visit India for a temporary period to render legal advice. The BCI in the case had appealed against the said judgment of Madras High Court and prayed that foreign lawyers and law firms shall not be allowed to render legal advice in seminars or conferences or even participate in arbitration proceedings.
In the case now taken up by the Supreme Court, the Petitioners had argued on the following points:
- That the Advocate Act, 1961 applies to individual lawyers and not law firms.
- That the Advocate Act, 1961does not prevent an Indian lawyer from becoming dual qualified.
- That the expression practice the profession of lawunder the Advocate Act, 1961 implies only Indian Law.
In view of the contentions forwarded by the petitioner, the Bench had raised an intriguing concern while remarking- “If we bar the foreign law firms and lawyers would that not stop India from becoming the hub of activities? Even the Madras High Court has taken exception to the Bombay High Court judgment in respect of international commercial arbitration services on a fly-in and fly-out basis?”
Here it would be pertinent to mention that in July last year, the Ministry of Law and Justice had filed a plea with the Supreme Court for urgent hearing on the issue of entry of foreign lawyers and law firms in India.