Supreme Court bars foreign law firms from practising in India: The Supreme Court on Tuesday upheld the Madras High Court and Bombay High Court judgments regarding the question of foreign law firms practicing in India. As per the latest apex court ruling, the foreign law firms and foreign lawyers cannot practise in India. A bench of Justices Adarsh K Goel and Uday U Lalit ruled out foreign law firms and foreign lawyers practising in India for both litigatious (likely to engage in lawsuits) and non-litigatious activities.
However, upholding the Madras High Court judgment, the court allowed foreign lawyers to ‘fly in fly out’ to advise on foreign law but on a temporary casual basis. The court also allowed foreign lawyers to appear in International Commercial Arbitration. The International Commercial Arbitration is a method of resolving disputes arising out of commercial transactions between private parties across national borders. The Bench has also directed the Bar Council of India and the Government of India to frame rules in this regard.
Supreme Court bars foreign law firms from practising in India: Here are the five important things to know about the case
What is the case?
The case of foreign law firms entering India reached the Supreme Court in July 2012 when the Bar Council of India filed an appeal against the Madras High Court judgment. The High Court had barred foreign law firms and foreign lawyers from practicing the profession of law in India.
What was the objection?
The apex court barred the foreign law firms and lawyers from practicing in India observing that they can not practise law in India either on the litigation or non-litigation side unless they fulfilled conditions of the Advocates Act, 1961 and Bar Council of India Rules (BCI). Earlier BCI had stated that the Indian laws are of specialised nature and that in such circumstances, only those who have a complete and overall idea of its functioning, are permitted to practice law by it.
What is the counter-point?
The counter-point lies in the Section 47 of the Indian Advocates Act 1961, which says, “The Bar Council of India may prescribe the conditions, if any, subject to which foreign qualifications in law obtained by persons other than citizens of India shall be recognised for the purpose of admission as an advocate under this Act.” Many argue that Indian lawyers carrying the card of a global law firm are free to ply their trade in some countries after passing their bar exams, thereby providing a level-playing-field. The argument was that if foreigners want to practice Indian laws, they should be welcomed to pass the country’s bar examinations and then practice law.
What is the global practice?
Many foreign nations allow nationals of another country to practice law in their country, however, on few conditions. The major two of them being – a) by registering with the relevant authorities, which are typically the government and the lawyers’ national professional body (the national Bar council); b) to practice the country’s domestic law — via a legal conversion and licensing process, which typically involves (a) obtaining some kind of local legal qualifications or by sitting and passing the national Bar exam of the country.
Will it impact Indian lawyers?
In an earlier hearing in the case on January 31, 2018, the Supreme Court asked, “If we bar the foreign law firms and lawyers, would that not stop India from becoming the hub of activities?” Some experts fear that Indian lawyers could miss a chance matching steps with their international counterparts if the foreign law firms or lawyers are barred from practicing in India. Probably, due to this, the SC has not barred the foreign lawyers to ‘fly in fly out’ to advise on foreign law. The ruling surely reduces the competition level for the Indian lawyers, some experts feel.