SC Reserves Judgment On Entry Of Foreign Law Firms To India: Read The Complete Court Room Exchange Of Final Day's Marathon Hearing

As the hearing in the Foreign Law Firms Case continued before the Supreme Court bench of Justice Adarsh Kumar Goel and Justice U. U. Lalit on Thursday, Advocate Nakul Dewan, appearing on behalf of the Global Indian Lawyers Association, resumed his submissions.“Can an Indian Advocate partner with a foreign lawyer? In partnership, there is an element of agency; the master servant relationship does not remain”, inquired the bench.The counsel drew the attention of the bench to Rule 2 in Chapter III of Part VI of the BCI Rules- “An advocate shall not enter into a partnership or any other arrangement for sharing remuneration with any person or legal practitioner who is not an advocate”.“I need to remit money to acquire a particular asset in the Carmen Island. For that 4-5 lawyers of different jurisdiction do need to come together. ‘Sharing of remuneration’ in the Rule means sharing of profits. That is what is not permissible under Advocates Act”, advanced Mr. Dewan.“So you are saying that the restriction is on sharing of profits and not coming together of lawyers for providing opinions etc”, asked the bench.“It is like, say, I have a tax practice. And I hire a chartered accountant for advisory assistance”, said Mr. Dewan.“The question is are you hiring the CA or is the client hiring the CA”, remarked the bench.“I have a right to practice as an advocate. These restrictions thereon need to be construed very strictly”, submitted the counsel.“So there are 2 elements- foreign lawyers dealing in foreign law, and foreign lawyers dealing in Indian law. You are not disputing the second element, but saying that foreign lawyers are entitled to give opinion or otherwise practice in connection with foreign law”, summed up the bench.“Also, foreign lawyers may only deal in the law in which they are qualified. A UK qualified lawyer cannot touch upon US law”, added Mr. Dewan.“How would instances of professional misconduct be handled in respect of foreign lawyers? The jurisdiction of the bar councils is only over the individuals enrolled as ‘advocates’ under the Advocates Act”, asked the bench.“Section 36 of the Act of 1961 also empowers the BCI to discipline a lawyer whose name is not entered in any state rolls”, responded Mr. Dewan.He also referred the bench to the Code of Conduct of the UK Bar Standards Board- “In connection with any foreign work you must comply with any applicable rule of conduct prescribed by the law or by any national or local bar of: the place where the work is or is to be performed; and the place where any proceedings or matters to which the work relates are taking place or contemplated; unless such rule is inconsistent with any requirement of the Core Duties...If you solicit work in any jurisdiction outside England and Wales, you must not do so in a manner which would be prohibited if you were a member of the local bar”“For example, in an international commercial arbitration, the governing law is English law, the seat of arbitration is India, and the Indian firm/lawyer representing the party is not enrolled in Wales. Can such firm or advocate now deal in English law if, as per your submission, sections 29, 30 and 33 of the Advocates Act are only in respect of Indian law? Is there any convention or accepted practice on this?”, inquired the bench.“An Indian Lawyer in India cannot advice on English law. In N.Y. Lawyers Country Assn. (Roel), it was observed that any advice the Mexican lawyer may give in New York may have an impact on the US statutory law. That is why the bar exists”, answered Mr. Dewan.“No but sections 29, 30 and 33 do not envisage any restrictions so long as the territory is India”, said the bench.At this point, Senior Counsel Dushyant Dave, representing the London Court of International Arbitration (LCIA), said that he shall cite content from text books in respect of the point of discussion.Finally, Mr. Dewan said that by virtue of sections 24 and 47 of the Advocates Act a foreign lawyer cannot be forbidden from enrolling in India, on the principle of reciprocity, if a duly qualified Indian advocate is practising in the concerned country.Thereafter, Senior Counsel Sajan Poovayya, representing respondent law firms, submitted, “‘practice’ includes contentious or litigious as well as non contentious or non litigious matters. Also, there is no incongruity between the Bombay and Madras High Court judgments”.Supporting the Madras High Court judgment in so far as it permitted ‘fly in and fly out’ basis, he advanced, “foreign lawyers coming to India to advice on foreign law are not barred”.Further, he gave illustrations to elaborate his argument- “one, a New York lawyer, enrolled in the New York bar, comes to Bombay House to advice Tata on the purchase of Jaguar; two, American lawyers come to India to advice Infosys/HDFC on issuance of American Depositary Receipts (ADR); and third, foreign lawyers arrive in India to advice on Alternative Investment Market (AIM) listing to domestic...

SC Reserves Judgment On Entry Of Foreign Law Firms To India: Read The Complete Court Room Exchange Of Final Day's Marathon Hearing

Mehal Jain

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