1. Whether foreign law firms and lawyers may practice law in India, including fly-in-fly-out advisory services and international commercial arbitration, under the Advocates Act. (Para 1 , 5 , 6 )
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SUPREME COURT OF INDIA
ADARSH KUMAR GOEL, UDAY UMESH LALIT, JJ.
BAR COUNCIL OF INDIA – APPELLANT
VERSUS
A.K. BALAJI AND ORS. – RESPONDENTS
CIVIL APPEAL NOS.7875-7879 OF 2015
WITH
Association of Indian Lawyers
Versus
M/s. London Court of International Arbitration (LCIA) and ors.
CIVIL APPEAL NO.7170 OF 2015
AND
(Global Indian Lawyers versus Bar Council of India & Ors.)
CIVIL APPEAL NO. 8028 OF 2015
Decided On : 13-03-2018
(2001) 8 SCC 650; (2003) 2 SCC 45 – Relied upon
3 N.Y.2d 224 (1957); 43 N.J. 313 (1964); 204 A.2d 146; (1976) 2 SCC 291; 471 US 626 (1985); 486 US 466 – Referred
(b) Advocates Act, 1961 – Chapter-IV, sections 29 and 33 – Practising law – Advocates enrolled with Bar Council alone entitled to practice law – Prohibition applicable to any person other than advocate enrolled under the Advocates Act – Applies to any foreigner also. (Para 40)
(c) Advocates Act, 1961 – Section – Practising law – By foreign lawyers – Even on fly-in and fly-out basis – Amounting to practice if on regular basis – Casual visits not covered – Foreign lawyer even practicing foreign law in India – Held, Must subject himself to the regulatory mechanism of the Bar Council of India Rules – Prohibition applicable to an individual, equally applies to group of individuals or juridical persons. (Para 41)
(d) Advocates Act, 1961 – Sections 32 and 33 – Arbitration – Conducting by foreign lawyers – If governed by international commercial arbitration agreement – Will be regulated by section 32 or 33 r/w Arbitration and Conciliation Act, 1996 – For Bar Council of India to make specific provisions, if considered appropriate. (Para 42)
Facts of the case:
The issue involved in this batch of matters is whether foreign law firms/lawyers are permitted to practice in India.
Writ petition was filed before the Madras High Court by one A.K. Balaji, Advocate. Apart from official respondents, 32 law firms of U.K., U.S.A., France and Australia have been impleaded as respondents 9 to 40. Prayer in the writ petition is to take action against the original respondents 9 to 40 or any other foreign law firms or foreign lawyers illegally practicing the profession of law in India and direct them to refrain from having any illegal practice on the litigation side and in the field of commercial transactions in any manner whatsoever.
The fundamental question to be considered is, whether the foreign law firms by opening liaison offices in India could carry on the practice in non litigious matters without being enrolled as Advocates under the 1961 Act ?
Finding of the Court:
Foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in non-litigation side.
The expression “fly in and fly out” will only cover a casual visit not amounting to “practice”.
There is no absolute right of the foreign lawyer to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.
Mere label of BPO services cannot be treated as conclusive. If in pith and substance the services amount to practice of law, the provisions of the Advocates Act will apply and foreign law firms or foreign lawyers will not be allowed to do so.
Result: Appeals disposed of.
1. Whether foreign law firms and lawyers may practice law in India, including fly-in-fly-out advisory services and international commercial arbitration, under the Advocates Act. (Para 1 , 5 , 6 )
2. Whether the Advocates Act bars foreign lawyers from practicing in India, including non-litigation advisory and arbitration work, or whether fly-in-fly-out visits and foreign law advice are exempt from such restrictions. (Para 6 , 7 , 8 , 10 , 11 , 20 , 21 )
3. Foreign law firms cannot practice law in India in litigation or non-litigation; casual fly-in-fly-out visits for foreign law advice are permitted; BPO services amounting to law practice are prohibited. (Para 44 , 45 , 46 )
Yes. The Advocates Act applies to all persons practicing law in India, and the prohibition on practice by non-enrolled advocates applies equally to foreigners. The Act covers both litigation and non-litigation practice, and the regulatory mechanism applies to all, including foreign lawyers. (Para 40 , 41 , 44 )
No, not if the visit is casual and does not amount to practice. The expression 'fly-in-fly-out' covers only a casual visit not amounting to 'practice'. Whether a visit is casual or frequent is a question of fact determined from the situation. (Para 41 , 44 )
There is no absolute right. If the matter is governed by institutional arbitration rules or the Arbitration Act, foreign lawyers may conduct proceedings. However, they must follow the code of conduct applicable to the legal profession in India. (Para 42 , 45 )
No. The mere label of services is not conclusive. If in pith and substance the services amount to practice of law, the provisions of the Advocates Act apply and foreign law firms or foreign lawyers will not be allowed to render such services. (Para 43 , 46 )
Yes. The court held that practice of law includes litigation as well as non-litigation work, such as giving opinion, drafting instruments, and participation in conferences involving legal discussion. The regulatory mechanism for advocates applies to non-litigation work also. (Para 39 , 40 )
JUDGMENT
ADARSH KUMAR GOEL, JJ.
1. The issue involved in this batch of matters is whether foreign law firms/lawyers are permitted to practice in India. Reference needs to be made to two leading matters. Civil Appeal Nos.7875-79 of 2015 have been filed by the Bar Council of India against the Judgment of Madras High Court dated 21st February, 2012 in A.K. Balaji versus The Government of India (AIR 2012 Mad 124). Civil Appeal No.8028 of 2015 has been filed by Global Indian Lawyers against the judgment of Bombay High Court dated 16th December, 2009 in Lawyers Collective versus Bar Council of India (2010 (2) Mah LJ 726).
2. The Madras High Court held as follows:
“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.
(iv) The B.P.O. Companies providing wide range of customised and integrated services and functions to its customers like word-processing, secretarial support, transcription services, proof-reading services, travel desk support services, etc. do not come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules. However, in the event of any complaint made against these B.P.O. Companies violating the provisions of the Act, the Bar Council of India may take appropriate action against such erring companies.”
3. The Bombay High Court, on the other hand, concluded as follows:
“60. For all the aforesaid reasons, we hold that in the facts of the present case, the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under Section 29 of the 1973 Act. We further hold that the expressions ' to practise the profession of law' in Section 29 of the 1961 Act is wide enough to cover the persons practising in litigious matters as well as persons practising in non litigious matters and, therefore, to practise in non litigious matters in India, the respondent Nos. 12 to 14 were bound to follow the provisions contained in the 1961 Act. The petition is disposed of accordingly with no order as to costs.”
4. When the matter against the judgment of the Madras High Court came up for hearing before this Court on 4th July, 2012, following interim order was passed :
“In the meanwhile, it is clarified that Reserve Bank of India shall not grant any permission to the foreign law firms to open liaison offices in India under Section 29 of the Foreign Exchange Regulation Act, 1973. It is also clarified that the expression "to practice the profession of law" under Section 29 of the Advocates Act, 1961 covers the persons practicing litigious matters as well as non-litigious matters other than contemplated in para 63(ii) of the impugned order and, therefore, to practice in non-litigious matters in India the foreign law firms, by whatever name called or described, shall be bound to follow the provisions contained in the Advocates Act, 1961.”
The said order has thereafter continued and is still in force.
5. In Civil Appeal Nos.7875-7879 of 2015, writ petition was filed before the Madras High Court by one A.K. Balaji, Advocate. Apart from offi
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