Posted by Milan Kapadia, Partner
Supreme Court of India grants foreign lawyers ‘fly in and fly out’ licence to practice
India has long been protective about opening up its legal industry to foreign practitioners. The question of whether foreign law firms or lawyers can practice in India was left in limbo until it was considered in March 2018 by the Supreme Court of India following an appeal by the Bar Council of India of the decision of the Madras High Court in February 2012 and by the ‘Global Indian Lawyers’ organisation of the decision of the High Court in Bombay in December 2009.
How the debate started
The debate started after some US and UK law firms applied to the Foreign Investment Promotion Board for permission to operate in India in the early nineties; that permission was initially denied. Shortly thereafter, those law firms (which included White & Case, Chadbourne & Parke and Ashurst) sought permission from the Reserve Bank of India to set up what is know as a ‘liaison office’ to, amongst other things, coordinate communications between its offices and clients and explore investment opportunities. The Reserve Bank of India did grant conditional permission.
In the mid nineties, a public trust organisation filed a case in the High Court of India to challenge the ability of foreign law firms to open liaison offices in India, both for contentious and non-contentious work, and to challenge the ability of foreign lawyers to practice in India without being registered as Indian qualified advocates.
The case only came before the court around fifteen years later when the High Court decided that the Reserve Bank of India did not have authority to grant permission to foreign law firms to open liaison offices, and that foreign lawyers ought to subscribe to the profession in India in the same way that Indian lawyers do.
The decision of the Appeal Court
The Appeal judges decided that the any foreign lawyer intending to practice law in India must be enrolled as an advocate in the same way that Indian lawyers are under the Advocates Act. Otherwise they cannot practice the profession in India, either as a contentious or non-contentious lawyers.
However, they also stated that foreign lawyers could give advice on a ‘casual visit’ on a ‘fly in and fly out’ basis so long as it was not too frequent so as to amount to ‘practice’ of the profession. The Appeal judges also said that it may be possible in certain circumstances for foreign lawyers to conduct international commercial arbitrations in India. The Bar Council of India is at liberty to devise rules about such practice and any code of ethics.
The Appeal Judges did also decide that support services provided to law firms, such as word processing and secretarial support, did not fall foul of any of the restrictions.
A full copy of the appeal judgment can be found here.
As one would expect, reactions have been mixed. Some foreign lawyers are of the view that the outcome is a setback for India and the decision can be seen as stalling progress when liberalisation was needed. However, others are of the view that the decision is fair and does not encroach on the profession as it is in India.
The Law Society of England and Wales said this is an important milestone in India’s journey towards opening up its legal market and that this would enable clients to get some legal advice they need without having to secure it from outside the jurisdiction.
Royds Withy King has significant experience in advising clients in cross border transactions and disputes in India and also has contacts with a significant number of lawyers in India.
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