Friday, 14 December, 2018

Foreign lawyers, firms can not practice law in India: SC

SC rules No practising no setting up office foreign lawyers can come to India only in an advisory capacity Foreign lawyers, firms can not practice law in India: SC
Patty Aguilar | 14 March, 2018, 06:44

"We hold that the expression "fly in and fly out" will only cover a casual visit not amounting to "practice".

BCI had drawn the top court's attention to the 2009 judgment of the Bombay High Court, which held that RBI was not right in allowing foreign law firms to open liaison offices in India.

In his submission, senior counsel Rajiv Dutta, who represented the Bar Council along with senior lawyer CU Singh, had cited a judgment in an American case that ruled it was illegal for Mexican lawyers to even provide advice to a client in NY on obtaining divorce in Mexico in accordance with Mexican laws.

NEW DELHI:Earlier, the Madras High Court had in its 2012 verdict allowed the concept of "fly in and fly out" with regard to foreign lawyers and law firms. Conversely, the plea that a foreign lawyer is entitled to practice foreign law in India without subjecting himself to the regulatory mechanism of the Bar Council of India Rules can also be not accepted.

The only exception that is available is for foreign lawyers coming to India for providing advice on foreign law or when they are coming in to take part in an worldwide commercial arbitration.

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"The apex court also modified the Madras High Court direction that the BPOs, which provide customised and integrated services, do not come within the purview of the laws regulating the legal profession here".

The court also said that foreign lawyers can not be debarred completely from coming to India to conduct arbitration proceedings in disputes arising out of a contract relating to worldwide commercial arbitration, if rules of arbitration permit such appearance. It also ruled that Business Process Outsourcing companies working on legal services can operate in India because they are not required to operate under the ambit of the Advocates Act, The Times of India reported.

The court said: "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 worldwide commercial arbitration in view of Sections 32 and 33 of the Advocates Act". About arbitration, the Court said that there was no absolute right foreign firms had to participate in arbitration involving foreign laws and that it would only be permissible on the basis of the type of the agreement as well as the sanction under Sections 32 and 33 of the Act. Foreign law firms have primarily worked on best-friend relationships with Indian law firms and may continue to do so now that specific directives have been issued.

The court rejected the contention that the Advocates Act applies only if a person is practicing Indian law.

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