In 2012, the Bar Council of India filed an appeal in the Supreme Court against the judgment given by the Madras High Court barring foreign law firms and foreign lawyers from practicing in India. Similar judgment was passed by the Bombay High Court in 2009.
The Bar Council of India requested the Supreme court to completely bar the foreign firms and lawyers from practicing in India without the exception of The ‘fly-in-fly-out’ policy as it 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
Last Tuesday (13/03/2018), the Supreme Court bench comprising of Justice Adarsh Goel and Justice Uday Lalit upheld the earlier judgments of Bombay High Court and Madras High Court with regards to foreign law firms and foreign law officers practicing their profession in India. The Supreme Court barred foreign law firms and lawyers from practicing in India for both litigation and non-litigation side or activity they are likely to be engaged in.
The Supreme Court gave permission to foreign law firm and lawyers to ‘fly in and fly out’ of the country only on casual basis to advice on foreign law.
“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 (over) whether a foreign lawyer was limiting himself to ‘fly in and fly out’ on (a) casual basis for the purpose of giving legal advice to 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 (BCI),” the bench ruled.
Although the foreign law firms and lawyers were completely barred from engaging in arbitration activity in India but The International Commercial Arbitration was made an exception where foreign law firms and lawyers can exercise their profession but would be subjected to the conditions of appropriate conduct performed in the legal profession in India and the rules of the Institution as well. The Supreme Court has ordered the Bar Council of India to draft rules regarding the same at the earliest.
The decision was made by the Supreme Court on the basis that the foreign law firms and lawyers cannot practice in India unless they fulfill all the conditions mentioned in the Advocates Act, 1961 and Bar Council of India Rules. Bar Council of India held that person having full understanding of Indian law can only be allowed to practice law in India.
Other countries are reluctant to allow foreign law officers and firms to practice in their country as well, most of the countries allow them but only after they fulfill certain conditions.
The ruling is controversial as WTO (World Trade Organization insist all its member nation to open their service sector including field of law). The ruling does not impair globalization of legal sector but shifts the burden to the government to do so.
Bar Council of India has shown its reservation in opening legal sector for the foreign players and holds the view that the idea of practice of law by foreign firms and lawyers should be exercised in reciprocity and in accordance with the Advocates Act, 1961.
The ruling of the Supreme Court considerably reduces the level of competition in field of law but many fear that they would not be able to keep pace with their international counterparts.
The Bar Council of India is still to lay down any rules regarding the subject.
By: Neha Bargotra, Student Reporter, INBA