The Supreme Court is likely to pronounce its verdict on Tuesday on whether the Indian legal sector should be opened up for practice to foreign lawyers and international law firms, an issue that has been central to the debate about globalization of the Indian legal sector.
As it stands today, foreign lawyers and international law firms cannot practice law in India either on litigation or corporate law side, unless they fulfil the requirements of the Advocates Act, 1961 and comply with the rules of the Bar Council of India (BCI).
If allowed, it may be seen as a boon for the Indian legal system by encouraging exchange of global knowledge over international disputes and may contribute to overall globalization of the Indian legal sector. On the flip side, allowing foreign law firms to practice in India is expected to capsize existing opportunities open only to the Indian legal sector as of now.
A bench headed by justice Rohinton F. Nariman will be ruling on an appeal by the BCI against an order of the Madras high court that held that foreign lawyers could visit India for a temporary period for the purpose of giving legal advice.
The Madras high court ruling of 2012 had highlighted that there was no bar on them under the Indian law and regulations to visit India on a “fly in and fly out” basis, for rendering legal advice to their clients in India.
It was added that foreign lawyers could not be barred from coming to India for conducting arbitration proceedings in disputes involving international commercial arbitration.
In January, the centre told the apex court that the BCI should consider framing rules to open up the legal sector to foreign lawyers and law firms, failing which it would step in to assist in the process.
BCI, on its part, has shown reservations in opening up the legal field to foreign players. It has maintained that although, it is not averse to the idea of practice of law by foreign lawyers and firms, it should be based on reciprocity and regulated by the Advocates Act. The “fly in fly out” policy should also be subject to the Indian regulatory framework.
“The ‘fly-in-fly-out’ policy is in violation of the provisions of the Advocates Act, 1961 which provides that there shall be only one class of persons who can practice law in India, i.e., advocates admitted on the state bar council rolls,” senior advocate C.U. Singh, appearing for BCI, had said.
BCI further contented that arbitration must also be subject to BCI regulations, as it was the top regulating body for legal practices in India.
This was opposed by Dushyant Dave, the counsel for London Council of Arbitration, who argued that this would result in being a dampener for commercial arbitration. He quoted examples of Indian lawyers participating in commercial arbitration proceedings in other countries like Singapore and the UK without the need to acquire any special permission.
Arvind Datar, who represented six UK-based law firms, said that as of today, there was no regulatory mechanism under the Advocates Act, 1961 to allow or disallow foreign lawyers or firms as the trend of cross-border, international commercial law had not been anticipated under it.
As carried in LM