By Prarthana Mitra
A Supreme Court bench of Justice A.K. Goel and Justice U.U. Lalit upheld the rulings of the Bombay and Madras High Courts denying foreign law firms the permission to set up office or practice law in India.
Reserving the right to practice for Indians
The apex courts ruling came in response to appeals filed by the Bar Council of India against the Chennai High Courts judgement in 2012 regarding the involvement of foreign lawyers in Indian litigation, stating that foreign lawyers will have to toe the line and comply with the Advocates Act, 1961 (Advocates Act) and the Bar Council of India Rules and must have a license to practice law here.
Foreign lawyers can advise on foreign law
The Supreme Court made certain modifications to the high court judgements, making allowances for foreign law firms to offer legal advice on foreign laws, but only on a temporary fly in and fly out basis. The license to set up a permanent office has been reserved solely for Indian firms and lawyers.
To put the verdict into immediate effect, the bench directed the Bar Council and the Centre to frame rules regarding participation of foreign law firms in International Commercial Arbitration. According to The Times of India, BPO companies working on legal services have also been given a free pass to operate in India as they don’t come under the ambit of the Advocates Act.
Bombay High Court vs. RBI
The Bombay High Court had in 2009 challenged the RBIs decision to allow foreign law firms such as White & Case, Chadbourne & Parke, and Ashurst to set up liaison offices on Indian soil. It had demanded, much like the Madras High Court, that these lawyers be enrolled as advocates (under the Advocates Act) to be able to prosecute court cases or practice law in litigious and non-litigious matters. The high courts decision was subsequently challenged by Global Indian Lawyers Association, a society aimed at globalising the Indian legal fraternity.
A retrograde measure?
At this juncture, the Supreme Courts decision comes off as a protectionist move to prevent foreign law practices and legal professionals from exposing the gaps in the Indian judiciary, especially after the Ministry of Commerce and Industry had amended a rule last year to allow foreign legal firms to set up offices and advise clients hailing from Special Economic Zones (SEZs).