Foreign Law Firms’ Entry To India:Arvind Datar Differentiates Between ‘Court Practice’ And ‘Other Legal Services’

On day two of the hearing in the 5-year-old foreign law firms case, senior counsel Arvind Datar, appearing on behalf of six UK-based law firms, submitted before the Supreme Court on Monday that the Madras High Court judgment in AK Balaji v BCI & Ors may not be disturbed to the extent it has been held therein- “there is no bar either in the Advocates’ Act of 1961 or the BCI rules 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”.Hearing this, the bench of Justice Adarsh Kumar Goel and Justice UU Lalit asked him: “You mean so long as foreign lawyers are not setting up an office in India?”“Yes”, replied Datar.“What is the regulatory mechanism in respect of these lawyers or firms,” inquired the bench.“There is no mechanism. The role of the BCI begins only in the post enrolment stage,” responded Datar.“The structure of the Advocates’ Act of 1961 and of the rules and regulations framed thereunder is focussed only on the practice in courts. Thirty-40 years ago nobody knew about the trends of chamber practice, cross border practice etc,” he continued.“So you are suggesting there is no regulatory mechanism for foreign lawyers engaging in international commercial arbitration,” the bench asked. “There is none,” replied the senior counsel.“Article 220 of the Constitution also does not require a retired high court judge to possess a license to be able to provide advisory and opinion services,” he continued.“Then there must be 2 regulatory mechanisms in respect of litigation and opinion work; if one does not apply, the other will,” remarked the bench.Thereafter, Datar drew the attention of the bench to the definitions of ‘court’ and ‘international commercial arbitration’ in sections 2(1)(e) and 2(1)(f) of the Arbitration and Conciliation Act of 1996 (as amended in 2015). In relation to ‘court’, he submitted, “Earlier, in respect of arbitration of any kind, parties were required to approach the district court. But now, in cases of international commercial arbitration, the high court has to be resorted to.”Foreign Law Firms’ Entry: Senior Advocate CU Singh Insists On Practice To Be Subject To India’s Regulatory Regime, Even As ASG Asks BCI To Frame RulesIn context of the definition of ‘international commercial arbitration’ and section 28 of the Act of 1996 on ‘Rules applicable to substance of dispute’, Datar said, “International commercial arbitration is that where atleast one party is not a resident of India and where parties are governed by such law as they have agreed upon.”“Like in the matter of ONGC v. Reliance,” asked the bench. “Yes,” responded Datar.“But even in cases of international commercial arbitration, the party may choose an Indian lawyer. Would the arbitrator be within his rights to not permit a foreign lawyer,” inquired the bench.“That would be shocking internationally,” replied Datar.“So the width of the provision of section 30 of the Advocates’ Act of 1961 shall not apply,” summed up the bench.“Are you confining your arguments to international commercial arbitration? And are you including cases where Indian law, procedural or substantive, is not applicable,” asked the bench. “Yes”, answered Datar.“So international commercial arbitrations which are to be governed by Indian law must fall within the four corners of the Advocate’s Act. Or are you saying that even in such cases an English barrister may appear,” the bench sought to inquire. Datar responded in the affirmative.Continuing with his submissions, the senior counsel requested the bench to decide two points: “One, to determine the ambit of the phrase ‘to practice the profession of law’, as used in Section 29 of the Advocates Act; and two, to interpret the phrase ‘entitled as of right to practice’ in Section 30 of the Act of 1961”.In respect of the latter, Datar advanced, “Does Section 30 confer a right, an immunity or a privilege? Like the right under Article 22 of the Constitution is in the nature of an immunity. I think Section 30 accords a privilege to ‘advocates’, which is not to be interpreted as a disability for persons not enrolled as ‘advocates’”.“The arbitral tribunal cannot say, ‘You, Mr. Smith, are not an enrolled ‘advocate’ and hence, cannot appear’,” he continued.“Section 29 says that there shall be only one class of persons entitled to practice the profession of law. No qualifications have been stipulated as to the nature of practice. In view of its generic language, even ‘fly-in and fly-out basis’ should be included”, remarked the bench.Thereafter, the discussion veered to the Supreme Court judgments on the meaning of ‘practice’.Datar commenced with the interpretation of ‘practice’ in Aswini Kumar Ghosh & Anr v Arabinda Bose & Anr (1952).“Under Article 124(7) of the Constitution, a retired Supreme Court judge may not...

Foreign Law Firms’ Entry To India:Arvind Datar Differentiates Between ‘Court Practice’ And ‘Other Legal Services’

Mehal Jain

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