Citation: (2018) 5 SCC 379
Coram: Adarsh Kumar Goel, Uday Umesh Lalit
Date: March 13th, 2018
The Supreme Court in this decision essentially settled the law on the scope of foreign lawyers to participate in arbitration proceedings in India. Moreover, they also looked into the interpretation of the words “practise the profession of law” and looked at the scope of foreign lawyers to practise law in India.
This case came to the Supreme Court as an appeal to the decisions given by the Madras High Court and Bombay High Court on the subject matter. The Madras High Court had held that foreign lawyers could not be debarred from coming to India and conducting arbitration proceedings with respect to disputes arising from an international commercial arbitration and that foreign lawyers and firms could visit India on the basis of the “fly in fly out” policy for giving legal advice to their clients. However, the Court also held that foreign law firms and foreign lawyers could not practise law in India until they had met with the requisites of the Advocates Act as well as the Bar Council Rules.
- Whether the expression ‘practise the profession of law’ includes only litigation practice or non-litigation practice also?
- Whether such practice by foreign law firms or foreign lawyers is permissible without fulfilling the requirements of Advocates Act and the Bar Council of India Rules?
- If not, whether there is a bar for the said law firms or lawyers to visit India on ‘fly in and fly out’ basis for giving legal advice regarding foreign law on diverse international legal issues?
- Whether there is no bar to foreign law firms and lawyers from conducting arbitration proceedings and disputes arising out of contracts relating to international commercial arbitration?
In the present case, the Supreme Court allowed for causal visits by foreign lawyers in order to give legal advice to their clients on either foreign law or other diverse international legal issues. This narrows the scope of the Madras High Court decision as the Court also held that the “fly in fly out” policy could amount to practising law if it was done on a regular basis but it also held that this would have to be determined on a case to case basis. Moreover, the Court also upheld the decision of the Bombay and Madras High Court by observing that firms could not do what individual advocates and lawyers were prohibited from doing and that a foreign lawyer could only appear in court with the prior permission of the court or tribunal since on reviewing the Advocates Act it was clear that only advocates enrolled with the Bar were entitled to practise law. The Court also held that the expression “practise the profession of law” included both litigation as well as non-litigation practise.
In terms of arbitration proceedings, the Supreme Court held that foreign lawyers are not completely debarred from conducting arbitration proceedings and specifically looked at internal commercial arbitrations which fell under sections of the Advocates Act as well as the Arbitration and Conciliation Act. Here, the Court held that even though foreign lawyers were not debarred, they would be governed by the code of conduct which applied to the legal profession in India. Moreover, the Court also stated that the Bar Council or the Union of India who had the power to frame rules with respect to this aspect has opined that foreign lawyers are not completely debarred to conduct arbitration proceedings.
In the present case, the Supreme Court upheld the decision of the Bombay and Madras High Court while also narrowing the scope for foreign lawyers to practise in India. The decision does allow foreign lawyers to conduct arbitration proceedings but these would be subject to the code of conduct which governs the Indian legal profession as well as gives the power to the Union of India and the Bar Council to frame regulations regarding this.