Breaking: Foreign Law Firms Can’t Set Up Office In India: Foreign Lawyers Can Advice Clients On ‘Fly in And Fly Out’ Basis: SC [Read Judgment]

Supreme Court of India on Tuesday held that foreign law firms cannot set up offices in India or practice in Indian Courts. But they can give advice to Indian clients on 'fly in and fly out' mode in temporary basis. The Bench also directed the Centre and BCI to frame rules.The Supreme Court bench of Justice Adarsh Kumar Goel and Justice UU Lalit was delivering the Judgment in the foreign law firms case.Summary Of the Judgment"We uphold the view of the Bombay High Court and Madras High Court in para 63 (i) of the judgment to the effect that foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in nonlitigation side. We, however, modify the direction of the Madras 50 High Court in Para 63(ii) that there was no bar for the foreign law firms or foreign lawyers to visit India for a temporary period on a “fly in and fly out” basis for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues. We hold that the expression “fly in and fly out” will only cover a casual visit not amounting to “practice”. In case of a dispute whether a foreign lawyer was limiting himself to “fly in and fly out” on casual basis for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues or whether in substance he was doing practice which is prohibited can be determined by the Bar Council of India. However, the Bar Council of India or Union of India will be at liberty to make appropriate Rules in this regard including extending Code of Ethics being applicable even to such cases"We also modify the direction in Para 63 (iii) that foreign lawyers cannot be debarred from coming to India to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration. We hold that there is no absolute right of the foreign lawyer to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration. If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration in view of Sections 32 and 33 of the Advocates Act. However, they will be governed by code of conduct applicable to the legal profession in India. Bar Council of India or the Union of India are at liberty to frame rules in this regard.We also modify the direction of the Madras High Court in Para 63(iv) that the B.P.O. Companies providing wide range of customized and integrated services and functions to its customers like word processing, secretarial support, transcription services, proof reading services, travel desk support services, etc. do not come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules. We hold that mere label of such services cannot be treated as conclusive. If in pith and substance the services amount to practice of law, the provisions of the Advocates Act will apply and foreign law firms or foreign lawyers will not be allowed to do so".The Supreme Court has upheld the the Madras High Court judgment dated February 21, 2012, in AK Balaji v Bar Council of India (BCI) & Ors with certain modifications, in which the High Court held that(i) that foreign lawyers may visit India for a temporary period on a fly in and fly out basis, for the purpose of giving legal advice to their clients in India regarding foreign law, and(ii) that foreign lawyers cannot be debarred to come to India and conduct international commercial arbitration proceedings.Appearing for the BCI, senior counsel CU Singh had cited Section 33 of the Advocates Act of 1961, allowing persons such as chartered accountants, income tax practitioners etc, not enrolled as ‘advocates’, to practice, if an express provision to that effect is made in any existing law, as an exception to its Section 29.Referring to Section 32 of the Act of 1961, which empowers any court or other authority to permit any person not enrolled as an ‘advocate’ to appear before it in any particular case, it was advanced, “In view of the contents of sections 29 and 32, there is no provision for even permission being granted otherwise than for the purpose of appearance”.The 2009 judgment of the Bombay High Court in Lawyers Collective v BCI & Ors was also relied on.Senior Counsel Rajiv Dutta, also representing the BCI, had cited the American case of NY Lawyers Country Assn , wherein even giving advice solely on obtaining divorce in Mexico in accordance with the Mexican law by a Mexican lawyer in New York was deemed to be unauthorised practice of law.Supporting the Madras High Court judgment in so far as it permitted ‘fly in and fly out’ basis, senior counsel Sajan Poovayya,...

Breaking: Foreign Law Firms Can’t Set Up Office In India: Foreign Lawyers Can Advice Clients On ‘Fly in And Fly Out’ Basis: SC [Read Judgment]

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