Keeping India’s legal market exclusively for Indians, the Supreme Court on Tuesday ruled that foreign law firms or foreign lawyers cannot practise law in the country either on the litigation or non-litigation side. This means overseas lawyers or firms cannot open offices in the country, appear in courts or before any authority or render other legal services, such as giving opinions or drafting documents.
Upholding similar verdicts of the Bombay and Madras High Courts, a Bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit, however, said there was no bar on foreign law firms or foreign lawyers visiting India for a temporary period on a “fly in and fly out” basis for giving legal advice to their clients on foreign law or their own system of law and on international legal issues.
‘Only casual visit’
“We hold that the expression ‘fly in and fly out’ will only cover a casual visit not amounting to ‘practice’,” the Bench said, adding that any dispute in this issue would be decided by the Bar Council of India. The ruling settles a long-standing argument on whether foreign firms or attorneys should be allowed to enter the Indian legal market.
The court also ruled that foreign law firms and lawyers did not have an “absolute right” to conduct arbitration proceedings and disputes arising out of contracts relating to international commercial arbitration. Though they might not be debarred from conducting arbitration in India arising out of international commercial arbitration, they would be governed by the code of conduct applicable to the legal profession in India.
The court said Business Process Outsourcing (BPO) companies providing a range of services to customers like word processing, secretarial support, transcription and proof reading services, travel desk support services and others would not come under the Advocates Act.
The ruling settles a long-standing argument on whether foreign firms or attorneys should be allowed to enter the Indian legal market. Sections of the legal fraternity have been opposing their entry, contending that Indian advocates are not allowed to practise in the U.K., the U.S., Australia and other nations, except on fulfilling onerous restrictions like qualifying tests, experience and work permit. It was also argued that foreign lawyers cannot be allowed to practise in India without reciprocity. The closely watched case saw 32 law firms from various countries participating. They had argued that there was no bar on a company carrying on consultancy or support services. The Bar Council of India contended that even non-litigious practice came under the term ‘practice of law’, and that could be done only by those enrolled under the Advocates Act in the country.
Frequent visits may account to practice: SC
December 16, 2009
Bombay HC says RBI is not justified in granting permission to foreign law firms. Holds that law practice includes work on litigation and non-litigation side.
February 21, 2012
Madras HC rules that no foreign law firm or lawyer can practise in the country without complying with the Advocates’ Act, allows such lawyers to ‘fly-in, fly-out’.
March 13, 2018
SC allows ‘flying in and flying out’ as long as it is casual, not frequent.