In a judgment recently, the Supreme Court of India has put some restrictions as to what International Lawyers in India can and cannot do within the peripheries on the country. It is therefore elementary that all international lawyers and law firms know and follow this guideline to avoid any further legal hassles and obligations. Ideally, this judgment comes at the wake of the debate that has been ongoing for two decades now. This judgment eliminates the chances of the legal services industry of India to be plagued by narrowing the services of foreign lawyers and law firms in India.
The story behind
Way back in 2009, the Bombay High Court prohibited foreign lawyers and International Lawyer Firms India from practicing irrespective of it being for litigation, commercial or transaction. It relied on the Advocates Act, 1961 that allows only those persons to practice in India who is enrolled with the Bar Council of India. After three years, the Madras High Court also followed suit. However, in this time the court did offer some flexibility to the foreign lawyers. It allowed lawyers to visit India temporarily. They can advise clients on foreign law and international legal issues as per the ‘fly in and fly out’ rule but all should be related to the international laws and not that of India.
Other flexible terms
The judgment of the Madras High Court also allowed the foreign lawyers to participate in arbitration in India provided it is related to international commercial disagreements. Apart from that, the court allowed foreigners to become a business process outsourcing service provider. This once again was allowed for ancillary non-practice related services only by the International Lawyers in India that includes secretarial support, travel desk support, and transcription services. However, according to the experts, both these cases may trigger incidents wherein the foreign players may set up offices in India and advise Indian clients regarding Indian law and commercial deals in the pretext of offering guidance on foreign law.
The Supreme Court decision
The apex court confirmed both the rulings of the Bombay High Court and the Madras High Court. However, experts once again feel that this judgment has perhaps made the access for the International Law Firms India a bit tougher. They point out that the judgment does not specify the amounts to practice and how the foreign lawyers may advise on different aspects of foreign law and its consequences on Indian deals. Therefore, experts opined that modifications are required to the ‘Fly in and fly out’ rule and therefore the apex court has narrowed that ruling. It says that if such visits are regular then the foreign player may be barred from the ‘practice of law’ and this must be deemed on a case-to-case basis.
An exception is in arbitration
The second modification made by the Supreme Court is related to arbitration practices by the foreign lawyers in India. Noting the requirement for arbitration that involves negotiating and drafting of documents, the apex court constricted the framework. It says that the ability of the foreign lawyer in arbitration in India is not absolute. They must follow the rules and regulations of institutional arbitration as per the Arbitration Act. Their activity will also be governed by the code of conduct applicable to any legal profession in India. All gaps must be covered by Bar Council of India and the government by framing rules.