The Supreme Court bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit took up the foreign lawyers’ case again on Thursday (February 1) and some key issues were discussed, including foreign law firms setting up offices in India, foreign lawyers practising in India and Indian lawyers teaming up with foreign lawyers to set up partnership firms in India.
To the Indian office of a foreign firm there seems to be no objection (it has to have an Indian partner and will follow partnership rules of the country), but the issue could face the hurdle of foreign lawyers practicing in India without being enrolled. Enrollment is possible only with requisite qualification and it acts both ways – Indian lawyers wanting to practice in the US, for example, will need US qualification for enrolment there. Hence, without an Indian qualification it would be difficult to enroll a foreign lawyer, hence regular practice cannot be possible.
However, fly-in-and-fly-out options for foreign lawyers are available.
The case arises from a writ petition by the Bar Council of India asking for the issuance of a Writ of Mandamus directing any foreign law firm or foreign lawyers, who are illegally practising in India from not doing so.
The counsel for the Global Indian Lawyers’ Society again placed his arguments against a Bombay High Court judgment and raised two issues:
- Whether any restriction applies to setting up of law firms in India.
- Whether Indian qualified advocates can be dually qualified to practice in and outside the territory of India.
The answer available for No. 2 was yes, bar the question of qualification which is the key to enrolment in any country.
The Advocates’ Act prohibits foreign lawyers from practicing in India unless he/she is enrolled here, that the court concurred with. However, that too, involves qualification.
The other important issue raised before the court was in relation to the regulatory authority in case of misconduct by a non-Indian lawyer. Regarding this issue it was concluded by the court that in case of misconduct by the advocates Section 35 (1), 36 applies, but in case of non-enrolled advocates there are no specific provisions.
The counsel suggested that recommendations can be given to the BCI for implementation and framing of rules in this regard and for taking disciplinary action.
Another issue raised by the Global Indian Lawyers’ Society was whether an Indian advocate can team up with a non-Indian advocate and set up a law firm in India.
The court said that in such cases, rules of partnership will apply and there can be no master-servant relationship as an advocate can be employed only by an advocate.
Another counsel for the respondent did not challenge the Bombay and Madras High Court orders, but addressed two important concepts.
- The fly-in-fly-out concept
- Regarding international commercial arbitration.
In relation to the first concept counsel submitted that court should not disallow foreign advocates to render their services unless question of permanency arises.
Regarding international commercial arbitration the counsel submitted that an arbitrator can be of any profession and of personal choice so here the rule of permanency cannot be applied and it should be construed differently.
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