The Chennai High Court has cleared foreign lawyers from flying in and out of India to advise on foreign law, as well as the operations of legal process outsourcing (LPO) outfits, although it added that foreign lawyers would not be allowed to practice domestic law unless they registered with the Bar Council of India (BCI).
[Update: Download full judgment via Indian Kanoon]
The case against 31 foreign law firms and an LPO (AK Balaji v The Government of India, Ashurst LLP, White & Case et al (WP5614/2010)) was last heard on 1 February. The Madras High Court passed its order today.
Karthikeyan, counsel for the petitioner AK Balaji, said that the bench ruled that “foreign law firms are not allowed to practice in India, whether in litigation or non-litigation. Neither firms nor individuals are allowed”.
However, he added that “they are allowed to enter into international commercial arbitration, and advise on foreign law not Indian law”.
“LPO [legal process outsourcing companies] are allowed to be set-up, but they have to restrict their work. They cannot give any legal advice,” said Kartikheyan about the ruling.
Counsel for the foreign law firms was not available for comment and the judgment was not available at the time of going to press.
Foreign lawyers admitted at the American Bar Association (ABA) conference in India last month that the current rules on “fly-in fly-out”, particularly after the Chennai writ petition, were unclear.
Update: Chennai-based Dua Associates partner Senthil Kumar confirmed that the judges had made four main points, namely that:
1. Foreign lawyers and law firms can not practise the profession of law in India, either in litigation or non-litigation.
2. There is no bar on foreign lawyers to visit India for a “temporary period” on a fly-in-fly-out basis to give legal advice regarding foreign law or their own system of law.
3. Foreign lawyers can not be debarred from participating in international commercial arbitration proceedings in India, such as those between an Indian and foreign company.
4. LPO companies are not violation of the Advocates Act or rules, but if there were any complaints against them appropriate action should be taken.
Kumar added that the full judgment would likely be available tomorrow (Wednesday 22 February).
[Update: Download full judgment from Judis]
Read more on:
- All previous stories on the Chennai writ petition against foreign firms
- Balaji original petition against foreign law firms, dated March 2010
Photo by Luis Argerich
Comments
It does not say that, they cannot practice domestic law.
It does not say that, they cannot practice domestic law.[/quote]
Foreign lawyers will be unable to register with the BCI because they will be unable to meet the eligibility criteria for enrollment.
Even if they are practicing domestic laws, is there an enforcement mechanism to find them out.
[quote name="Observer"][quote name="r"]The body of the news says that, the foreign lawyers would not be allowed to practice domestic law unless they are registered with the Bar Council of India.
It does not say that, they cannot practice domestic law.[/quote]
Foreign lawyers will be unable to register with the BCI because they will be unable to meet the eligibility criteria for enrollment.[/quote]
http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=35290
"63. After giving our anxious consideration to the matter, both on facts and on law, we come to the following conclusion :-
(i) Foreign law firms or foreign lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfil the requirement of the Advocates Act, 1961 and the Bar Council of India Rules.
(ii) However, there is no bar either in the Act or the Rules for the foreign law firms or foreign lawyers to visit India for a temporary period on a fly in and fly out basis, for the purpose of giving legal advise to their clients in India regarding foreign law or their own system of law and on diverse international legal issues.
(iii) Moreover, having regard to the aim and object of the International Commercial Arbitration introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.
....."
Though I wonder how many international commercial arbitrations take place in India or will take place from here on. I think that the HC wanted to grant relief to the foreign law firms and they found a good camouflage in the avowed objective of making India a hub of international arbitration.
Or is the exact reproduction of the 4 points a little not to taste?
What about In house legal counsel, do they have to be advocates under the Act ( this would also mean that the Indian in house lawyers lawyers cannot be salaried employees and should be on retainer)?
So retainer is the only option for in house lawyers?
Though successive law ministers have voiced their commitment to opening up the legal market, and suggested it’s just round the corner, sustained opposition from domestic law firms and a protectionist Bar Council have stymied it.
http://www.indianexpress.com/news/walls-and-laws/915450/0
Another bad aspect is Registrar of Company's website (ROC) recognizes only the CAs and CSs to incorporate a company, and Lawyers are not allowed to enter into this arena. Cleverly, the CSs have removed Lawyers from this area of practice and no objection (other than 2 cases at Northern India) have been raised by any Law Associations, so far. I have tried to escalate this issue at several forums, but in vain.
If they impose a rule to compulsorily attach a 'Legal-Opinion' or 'Title Trace Certificate' duly signed by an Advocate practising at local jurisdiction, with every property document being registered, fraudulent practices prevailing at Registrar Offices will come to an end, besides, it will create more practice to local advocates.