TMI Blog2012 (2) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration. The B.P.O. Companies providing wide range of customized and integrated services and functions to its customers like word-processing, secretarial support, transcription services, proofreading services, travel desk support services, etc. do not come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules. However, in the event of any complaint made against these B.P.O. Companies violating the provisions of the Act, the Bar Council of India may take appropriate action against such erring companies. - W.P. No.5614 of 2010 - - - Dated:- 21-2-2012 - Mr. M.Y. EQBAL, Mr. JUSTICE T.S. SIVAGNANAM, JJ. For Petitioner :: Mr.AR.L.Sundaresan, Senior Counsel for Mr.R.Ezhilarasan Mr. N. Karthikeyan For Respondents :: Mr.M.Ravindran, Addl. Solicitor General assisted by Mr.P.Chandrasekaran, SCGC, Mr.P.S.Raman, Senior Counsel for Mr.K.Venkatakrishnan O R D E R The Hon ble the Chief Justice This writ petition has been filed under Article 226 of the Constitution of India for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms without any reciprocal arrangement similar to that of the arrangements prevailing in those foreign countries should not be entertained, and foreign law firms should not be allowed to exploit the Indian legal market without actually opening up their domestic markets to the Indian lawyers. Legal Bar : (b) It is stated that in the absence of enrolment in any of the State Bar Councils in accordance with the provisions of the Advocates Act, 1961, the foreigners are not entitled to practice the profession of law in India on account of the bar contained under Section 29 of the Advocates Act. While the legal position is such, under the guise of LPO and conducting seminars and arbitrations, the foreign lawyers are visiting India under Visitor s Visa and are earning money from their clients in India. By doing so, they also violate the provisions of Income Tax Laws and Immigration Laws, and also cause loss of revenue to our country s Exchequer. They have also opened up their offices in India and are actively doing legal practice in the fields of Mergers, Take-overs, Acquisitions, Amalgamations, etc. Disciplinary Authority : (c) It is further stated that the legal profession in India i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bar Council of India, nor the Bar Council of India has framed any rules and regulations under Section 42(2) of the Advocates Act in this regard, until such time, there is absolutely no scope for any foreign lawyer or foreign law firm to practice the profession of law in India. It is stated that the Advocates Act not only regulates the practice of advocates in courts alone, but it also regulates the practice of legal profession in various other forms such as giving legal opinion, drafting, chamber work, documentation, arbitration, mergers, take-overs, acquisitions, incorporations and so on and so forth. But, in spite of the restrictions, respondents 9 to 40 are carrying on their practice in utter disregard to the provisions of the Advocates Act and the relevant rules and regulations framed in this connection. Causing loss to the Exchequer : (f) Such foreign law firms did not get any permission either from the Government of India or from the Bar Council of India, from any State Bar Council, from the Tax Department or the Reserve Bank of India for transacting business within the country and repatriating the funds out of the country. On the above stated grounds, the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia in non-litigious matters on a reciprocity basis with foreign countries is under consultation with the Bar Council of India. Finally, in the counter filed on 17.11.2011, it is stated that the Government of India has decided to support the stand of the Bar Council of India that the provisions of the Advocates Act, 1961 would apply with equal force to both litigious and nonlitigious practice of law, and it is only persons enrolled under Section 24 of the Act, who can practice before the Indian Courts. 4. The Bar Council of India, which is the 7th respondent herein, in its counter stated that the issue involved in the present writ petition is no longer res integra and has been settled by the Bombay High Court by holding that practice of law would include even non-litigious practice, and therefore, foreign lawyers i.e., lawyers not enrolled as Advocates under the provisions of the Advocates Act, 1961 would not be entitled to practice law in India (In W.P.No.1526 of 1995 by order dated 16.12.2009 in the matter of Lawyers Collective Vs. Bar Council of India). It is further stated that since against the said judgment of the Bombay High Court no appeal was preferred, it attained fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent be deleted from the array of parties in the writ petition. 6. The 10th respondent in its counter clearly stated that it is a limited liability partnership incorporated under the laws of England. It provides legal services through law offices in a number of countries of the world including the United States of America, Spain, Germany, France, Singapore, etc. But it does not have a law office in India and also it does not give advice to its clients on Indian Laws. It is stated that the writ petition was not filed in public interest, whereas it is a publicity seeking writ petition. This is very clear from the act of the petitioner hosting a copy of the petition on the website www.legallyindia.com immediately after filing the same before the Court. Since, the contents of the affidavit deal with the subjects which are within the domain of policy decisions of the Government of India, the writ petition deserves to be dismissed in limine with exemplary costs. Further, the writ petitioner is not able to show violation of any constitutional right or any other legal right within the territorial jurisdiction of this Court. It is stated that in England, foreign lawyers are free to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly travel to the U.S. on a temporary basis for consultations on Indian law issues. Hence, the petitioner s submission in respect of lack of reciprocity was denied in the counter. It is stated that the Advocates Act, 1961 and the Bar Council Rules govern the practice of Indian law only and they do not apply to the practice of foreign or non-Indian law. Foreign lawyers, who are licensed in their jurisdictions, are not restrained by the Advocates Act, 1961 from advising their Indian clients on foreign law issues. As regards the allegation in respect of participation in seminars and conferences would amount to practising law, it is stated that participation in a seminar or conference does not constitute practising law, and in fact, several Indian lawyers participate in seminars and conferences around the world, and this in no way constitutes practising law. On the aspect of absence of regulating authority, it is stated that the rules and regulations of the regulating authority in a country will generally apply to lawyers even when they are working outside their home countries. In U.S. every State has its own rules which govern the practice of law in that jurisdiction. U.S. lawyers are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is stated that the absence of disciplinary control by the Bar Council of India/State Bar Council or the Supreme Court does not qualify as a valid reason, in law, to restrain or prevent foreign lawyers from advising on foreign law within the territory of India, as they are governed by the disciplinary control of the concerned jurisdiction in the United States, where they enrolled as advocates. Respondent 14 also denied the allegation that they are doing the practice of law as a business venture. Finally, it is stated that if foreign lawyers and law firms are prevented from advising on foreign law, within the territory of India in relation to transactions with an Indian connection, the transaction costs for Indian clients will increase considerably. 9. The 15th respondent in its counter stated that it is not at all practising law in India. It is not licensed to and does not practice law in any jurisdiction in the world, much less in India. It is a BPO company providing wide range of customised and integrated services and functions to its customers like word processing, secretarial support, transcription services, proof-reading services, travel desk support services, etc. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he territory of India. Further, it is stated that the lawyers from UK have not been prohibited from practising law in India by the Central Government by issuing a notification under Section 47(1) of the Advocates Act. It is stated that the activities of the 18th respondent in India do not amount to practising the profession of law in India. Further, it is stated that the respondent 18 does not own or operate LPOs in India. 12. The respondent Nos.19, 26, 39, and 40 in their its counter affidavits filed separately, however, on the same lines, inter alia state that they are limited liability partnerships incorporated under the laws of England and they provide legal services through law offices in a number of countries of the world including U.S., Spain, Germany, France, Singapore, Hong Kong etc. either through its branch offices located there or through various legal entities. It is stated that they did not have a law office in India and they did not give advice to its clients on Indian law. Like other respondents, these respondents also pleaded dismissal of the writ petition on the grounds of availability of efficacious alternative remedy, and the same being premature and a publici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning LPOs in India, it is stated that the said respondents does not own or operate LPOs in India. It is further stated that the lawyers from the respondents fly in and fly out of India on need basis to advise the clients on international transactions or other U.S. or international related matters, to which there is an Indian component. To the extent Indian law is involved, such matters are addressed by Indian lawyers enrolled under the Advocates Act. Regarding regulating authority, it is stated that they are governed by the regulations prevailing in their own country viz., U.S. It is finally stated that the prayers sought for by the petitioner are couched in broad terms and if granted, would cause irreparable hardship and prejudice to the, apart from being contrary to public interest. 14. The respondent 22 in its counter stated that it is an International Law Firm having offices at London, Abu Dhabi, Bangkok, Beijing, Brussels, Dubai, etc. But it does not have an office in India, nor does it have any interest in any Indian Law Firm, whether by shareholding, partnership or affiliation. It neither represents parties in the Indian Courts nor does it advise on Indian law. The only do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest in any Indian law firm, either by partnership, shareholding or affiliation. The only document produced by the petitioner with respect to respondent 29 is an extract from its website. The extract does not show that respondent 29 carries on the practice of law in India in contravention of Indian regulations. It does not outsource any work to India. It does not represent parties in Indian courts nor does it advise on Indian law. It is submitted in respect of arbitration, that respondent 29 is not giving advice to parties in International Arbitrations on Indian arbitral law. It clearly stated that attending seminars and conferences does not amount to legal practice in India. Regarding LPO, it is stated that respondent 29 does not have any LPO either in India or outside India. Respondent 29 stated that none of its activities amounts to practice of law in India, and therefore, it cannot be subjected to the disciplinary control of Indian authorities. 17. Respondent 35 in its counter affidavit stated that it does not maintain an office in India. It is stated that the issue involved in the writ petition is a policy matter which comes under the domain of the Executive, and hence, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an never deprive the petitioner of any work that the petitioner is competent and capable of carrying. 19. The 37th respondent in its counter, like other respondents denied the fact of having an office in India, or running LPO in India. It is further stated that it does not undertake litigation or nonlitigation practice in Indian Law, and only advises is clients with respect to regulatory laws, trade, investment and market access issues, and intellectual property issues with regard to Australia alone. The matters involving Indian law are entrusted to the Indian advocates. 20. Respondent 33 has filed a rejoinder to the counter affidavit filed by the 7th respondent viz., the Bar Council of India. In the said rejoinder, respondent 33 denied the stand taken by the Bar Council of India that the issue involved in the present writ petition is squarely covered by the Bombay High Court s judgment dated 16.12.2009 in the case of Lawyers Collective Vs. Bar Council of India reported in 2010 (112) Bombay Law Reports 32. In the said case, the Bombay High Court rejected the contention that practice of law, as per Section 29 of the Advocates Act, is confined to litigation practice and on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign jurisdictions/countries, including the risk that some foreign countries may restrict or even prohibit the practice Indian law by Indian lawyers in their territories, thus closing their markets to Indian lawyers. 21. Mr. AR.L. Sundaresan, learned senior counsel appearing on behalf of the writ petitioner, while reiterating the grounds raised in the writ petition, extensively relied on the provisions of the Advocates Act, 1961. According to him, an "advocate" as defined in Section 2(a) of the Act means an advocate entered in any roll. Section 24 makes it amply clear as to who may be admitted as an advocate on a State roll, in that it refers to only a citizen of India. However, the proviso to this Section states that a national of any other country may also be admitted as an advocate on a State roll, if only duly qualified citizens of India are permitted to practise law in that country. The proviso, therefore, does not give unfettered rights to citizens of other country to be admitted as advocates on a State roll and it is to be done purely on the basis of the principle of reciprocity that the other country also allows Indian nationals to practise in their country. As per Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions only in respect of persons illegally practising in judicial forums in India, while it does not provide any penal provision for breaches committed by persons practising in non-litigious matters, which goes to show that persons practising in non-litigious matters are not governed by the provisions of the Act. 23. Learned senior counsel submitted before the Bombay High Court, the Union of India took a different stand and supported the case of the writ petitioner therein, in that it was opposed to permitting the foreign law firms to open their branch offices in India. However, in this case, it has adopted the stand taken by the Bar Council of India. According to him, if foreign law firms are allowed to practice in India, there shall be no control in the matter of practice and consequently, the Indian advocates would be discriminated against, since they are to be enrolled in the State rolls for practising as advocates and also abide by the regulations framed by the Bar Council of India. 24. Mr. Abhishek Manu Singhvi, learned counsel appearing on behalf of some of the respondentlaw firms based in the United States began his arguments by putting forth two questions whether f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to practice and whether there is a business liaison under Section 29 of FERA when such practice is allowed, and no issue was remotely argued on the advisory practice of foreign law by foreign firms for a limited period, which is the issue on hand. He quoted various paragraphs from the aforesaid judgment in support of his submission. According to the learned counsel, by the present writ petition, the petitioner wants a ban by way of judicial legislation on the entry of foreign law firms in India, especially when there is no statutory ban in this behalf. This, he states, would have serious consequences on foreign investment in the country, in this ever expanding era of global economy. 25. The preliminary objection raised by Mr. Singhvi is that his clients are not practising Indian law. According to him, none of his clients has an office in India and in view of the fact that the US law firms do not practise Indian law, the lawyers from these firms have not applied for enrolment as advocates under the Advocates Act. The learned counsel referred to the Arbitration and Conciliation Act, 1996 where a specific provision is contained in Section 2(1)(f) which provides for internatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, has decided not to relax any of the statutory norms for practice of law in India by exercise of its powers under Section 47(2) read with Section 49(1)(e) of the Act, nor have been any explicit regulations made in this behalf. Learned senior counsel submitted that a resolution to the said effect was taken at the Joint Consultative Conference of the Members of the Bar Council of India and the Chairmen, Vice-Chairmen and Chairmen, Executive Committee of the State Bar Councils held at Kochi on the 17th and 18th of November, 2007 and the decision was arrived at after consultations with the representatives of the respective State Bar Councils. Learned senior counsel submitted that the term practice of law under Chapter IV of the Act encompasses myriad functions performed by a lawyer and is not confined to mere appearance/argument before judicial forums. Quoting the observations of the Supreme Court in the case of Ex-Capt. Harish Uppal vs. Union of India reported in (2003) 2 S.C.C 45 that the right of the advocate to practice envelopes a lot of acts to be performed by him in discharge of his professional duties, and apart from appearing in the courts, he can be consulted by his clients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try will stand to lose many of the arbitrations to Singapore, Paris and London. This is clearly contrary to the declared policy of the Government and will be against the national interest, especially when the Government wants India to be a hub of International Arbitration. 29. Mr. Krishnamoorthy also raised a question with regard to the maintainability of the writ petition. He immediately drew the Court s attention to the judgment of the Supreme Court in the case of Kusum Ingots and Alloys Ltd. vs. Union of India reported in (2004) 6 S.C.C. 254, wherein the Supreme Court has dealt with the question as to what cause of action, vis-`-vis a case is. According to the Supreme Court, it implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egorically assert that they have not violated Indian income tax law or any other law. According to the learned senior counsel, the respondents do not own or operate L.P.Os. in India. It is the case of these respondents that their lawyers fly in and out of India on need basis, to advise their clients on international transactions, to which there is an India component and their Indian counterparts, who are enrolled under the Advocates Act, are always there to advise them on aspects involving Indian law. Learned senior counsel submitted that the relief sought for in the writ petition is only for a direction to respondents 1 to 8 to take action against respondents 9 to 40 or any other Foreign Law Firms or foreign lawyers who are illegally practising the profession of Law in India and to forbear them from having any legal practice either on the litigation side or in the field of non-litigation and commercial transactions in any manner within the territory of India, and since none of his clients fall in that category, there is no question of granting the relief as against these respondents. According to the learned senior counsel, in the absence of a mandatory provision in this behalf, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Learned senior counsel pointed out that it would be relevant to note that no reply has been filed by the petitioner to the counter affidavit filed on behalf of this respondent and moreover, since no issues involving the BPOs has ever been raised in this writ petition, the writ petition cannot be sustained as far as the 15th respondent is concerned. 32. Mr. Aravind P. Datar, learned senior counsel appearing for some other foreign law firms also questioned the maintainability of the writ petition. According to him, the writ petition does not state as to how the cause of action has arisen within the jurisdiction of the State of Tamil Nadu. He submitted that the tests laid down by the Supreme Court in the judgment in State of Uttaranchal vs. Balwant Singh Chaufal reported in (2010) 3 S.C.C. 402, have not been satisfied in the instant writ petition. In the said case, the Supreme Court observed that courts must consider the following factors before entertaining Public Interest Litigations the credentials of the petitioner, the genuineness and bona fides of the PIL substantial public interest must be involved and the PIL should be aimed at redressal of a genuine public harm or injury ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey operate or own any LPO in India. It is the case of these respondents that their lawyers fly in and out of India on a need basis to advise their clients on international transactions or other matters involving Australian laws or international ventures to which there is an Indian component and the working of the Indian law is always entrusted to an Indian counterpart, from whom advise is sought with regard to the extent Indian law is applicable in the given circumstances. He submitted that the averments made in the writ petition with regard to the disciplining of Indian lawyers will not apply to the Australian firms. It is further submitted that these respondents have adhered to the law applicable with regard to advertising, canvassing and soliciting work and maintaining their website. According to the learned counsel, the statement that practice of law with respect to the Indian law has been misunderstood by the petitioner and it only conveys that these respondents also take up the work with regard to international subjects, which also involve Indian law. It is submitted that the respondents do not undertake litigation or non-litigation practice in Indian law. It is reiterated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and cases for getting advice for its clients. In situations where the clients of this respondent require legal advise in India, they refer work to various Indian lawyers and law firms in India located in cities where such advice is required. It has referred legal questions involving Indian law to senior counsel and law firms in Delhi and Mumbai which are enrolled with the respective Bar Councils. The respondent denies the petitioner s contention that Indian lawyers in the United States are not permitted to practice law there or are subjected to unfair discrimination in the matter of practice of law, thus precluding reciprocity with India. In fact, many Indian lawyers practice law in the U.S. and the American Bar Association Model Rule for the Licensing and Practice of Foreign Legal Consultants provides that an Indian advocate of good standing of an Indian Bar Council may be licensed to practice law in the U.S. without giving any examination and he only needs to submit an application certifying qualification to practice law in India, besides paying a modest fee. The variant of such Model rule has also been emulated by various States, which itself is testimony is that it is not di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, her client has consulted Indian law firms whenever it has been required to provide legal services in India for its clients. More importantly, as on date, the 9th respondent company has terminated services of all its employees by way of redundancy and only the Director of the company continues to act for the company as required, without compensation from the company, with advice from professional legal and accounting advisors in order to ensure that the firm meets their statutory obligations in India. 36. Mr. R. Yashod Vardhan, learned senior counsel appearing on behalf of the 23rd respondent submitted that his client is an international law firm, as is the case with most of the other respondents herein, having offices in London, Brussels, Hong Kong and Beijing. It has got clients throughout the world with international business interests. However, the scope of the 23rd respondent s practice is such that it advises only on matters of English, European Union and Hong Kong Law. According to him, his client has working relationships with leading law firms in major jurisdiction worldwide and it instructs appropriate local law firms to provide local law advise wherever it is requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries to ponder into the principle of reciprocity in this subject and to ascertain the details procedure of reciprocal arrangements and the restriction imposed for Indian lawyers to practice in the respective countries. It is further resolved to authorize the Bar Council of India to take the final decision in the matter in consultation with all the State Bar Councils in due course of time and at the appropriate stage as to whether entry of foreign lawyers and law firms could be permitted into the legal practice in India in any form or manner and subject to any limitations and restrictions imposed in the changed circumstances and as and when the situation ripens and in the best interest of the legal profession of India and that of the country and people. It is further resolved to protest against the Government of India s attitude in filing a counter affidavit in the Mumbai High Court adopting the stand that the Advocates Act has nothing to do with and does not bar the practice of foreign lawyers in India, while they are simultaneously in dialogue with the Bar Council of India and seeking the views of the Bar Council of India in the matter. Therefore, it is further resolved to request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wants to practise in non-litigious matters should have been enrolled as an advocate under the Act. The case of the petitioner therein was that the Advocates Act is a complete code for regulating the practice of law in India and since the expression "to practice the profession of law" includes both practise in litigious as well as non-litigious matters, foreign law firms could not have carried on practise in non-litigious matters without being enrolled as advocates under the Act. It was contended that the right to practice the profession of law cannot be confined to physical appearances in judicial forums, but it necessarily includes giving legal advice to a client, drafting and providing any other form of legal assistance. 41. The petitioner before the Bombay High Court was not averse to foreign law firms practising the profession of law in India, but its main grievance was that such firms cannot be permitted to practise even in non-litigious matters without being enrolled as advocates under the Act. The Bar Council of India, being a regulatory body, has been constituted with a view to keep a check on the lawyers who render services to their clients in litigious as well as non-li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices and its clients in and outside India. Since the Head Office and the branch offices of the foreign law firms are engaged in providing various legal services to their clients carrying on wide range of businesses all over the world, the liaison activity carried on in India, namely, to act as a coordination and communication channel would obviously be relating to providing legal services to the clients. The respondent No. 12 has further claimed in its affidavit in reply that their liaison activity inter alia included providing "office support services for lawyers of those offices working in India on India related matters" and also included drafting documents, reviewing and providing comments on documents, conducting negotiations and advising clients on international standards and customary practice relating to the client's transaction etc. It is contended by the respondent No. 12 to 14 that they never had and has no intention to practise the profession of law in India. Thus, from the affidavit in reply, it is evident that the liaison activities were nothing but practising the profession of law in non litigious matters. 42. The question then to be considered is, whether the forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign law firms had approached the Foreign Investment Promotion Board (FIPB for short) a High Powered body established under the New Industrial Policy seeking their approval in the matter. The FIPB had rejected the proposal submitted by the foreign law firms. Thereafter, these law firms sought approval from RBI and RBI granted the approval in spite of the rejection of FIPB. Though specific grievance to that effect is made in the petition, the RBI has chosen not to deal with those grievances in its affidavit in reply. Thus, in the present case, apparently, the stand taken by RBI FIPB are mutually contradictory. 45. In any event, the fundamental question to be considered herein is, whether the foreign law firms namely respondent Nos. 12 to 14 by opening liaison offices in India could carry on the practise in non litigious matters without being enrolled as Advocates under the 1961 Act? 47. The argument of the foreign law firms is that Section 29 of the 1961 Act is declaratory in nature and the said section merely specifies the persons who are entitled to practise the profession of law. According to the respondent Nos. 12 to 14, the expression 'entitled to practise the professio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own system of law or on English law. It appears that the 11th respondent has neither any office in India, nor does it practice law before any Court in India. It is an American Law Firms having its offices at New York, Washington, Los Angeles and other countries. It has clients dealing with diverse international legal issues, who require legal advice from different countries, for which the 11th respondent developed working relationship with local law firms in different countries. The 11th respondent has stated that for Indian clients requiring legal advice in India, it refers the work to various Indian lawyers and law firms located in cities where such advice is required. The 14th respondent is not owning or operating any LPOs in India. According to this respondent, the lawyers from the said foreign law firm "fly in and fly out of India" on need basis to their clients on international transactions, to which there is an Indian component. To the extent Indian law is involved, such matters are addressed by Indian lawyers enrolled under the Advocates Act, 1961. 47. Other foreign law firms have also categorically stated that the lawyers from the respondentforeign law firms "fly in and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear before any courts or tribunals anywhere in India. Such activities cannot at all be considered as practising law in India. It has not been controverted that in England, foreign lawyers are free to advice on their own system of law or on English Law or any other system of law without any nationality requirement or need to be qualified in England. 52. Before enacting the Arbitration and Conciliation Act, 1996 the Law Commission of India, several representative bodies of trade and industry and experts in the field of arbitration have proposed amendments to the Act to make it more responsive to contemporary requirements. It was also recognised that the economic reforms in India may not fully become effective if the law dealing with settlement of both domestic and international commercial disputes remains out of tune with such reforms. The United Nations Commission on International Trade Law (UNCITRAL) adopted in 1985 the Model Law on International Commercial Arbitration. The Arbitration and Conciliation Act is, therefore, consolidated and amended to the law relating to domestic and international commercial arbitration as well as for the enforcement of foreign arbitral award. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bal foreign direct investment. Overseas investments in joint ventures and wholly owned subsidiaries have been recognized as important avenues by Indian Entrepreneurs in terms of foreign exchange earning like dividend, loyalty, etc. India is the 7th largest, the second most populated country and the fourth largest economy in the world. Various economic reforms brought about have made India grow rapidly in the Asia-Pacific Region, and the Indian Private Sector has offered considerable scope for foreign direct investment, joint-venture and collaborations. Undoubtedly, these cross-border transactions and investments would give bigger opportunities for members of the legal fraternity, in order to better equip themselves to face the challenges. It is common knowledge that in the recent past, parties conducting International Commercial Arbitrations have chosen India as their destination. The arbitration law in India is modelled on the lines of the UNCITRAL Model Law of Arbitration and makes a few departures from the principles enshrined therein. The Arbitration and Conciliation Act 1996, provides for international commercial arbitration where at least one of the parties is not an Indian N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to avail the services of Indian lawyers. Therefore, the need to make India as a preferred seat for International Commercial Arbitration would benefit the economy of the country. 58. The Supreme Court in a recent decision in Vodafone International Holdings B.V. vs. Union of India and another, SLP(C) No.26529 of 2010, dated 20.01.2012, observed that every strategic foreign direct investment coming to India, as an investment destination should be seen in a holistic manner. The Supreme Court observed that the question involved in the said case was of considerable public importance, especially on Foreign Direct Investment, which is indispensable for a growing economy like India. Therefore, we should not lose site of the fact that in the overall economic growth of the country, International Commercial Arbitration would play a vital part. The learned counsel appearing for the foreign law firms have taken a definite stand that the clients whom they represent do not have offices in India, they do not advise their foreign clients on matters concerning Indian Law, but they fly in and fly out of India, only to advise and handhold their clients on foreign laws. The foreign law firms, who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian citizens with a Law Degree from a recognized Indian University could enrol as Advocates under the Act. The exceptions are provided under the proviso to Section 24(1)(a), Section 24(1)(c) (iv) and Section 47(2). In the light of the scheme of the Act, if a lawyer from a foreign law firm visits India to advice his client on matters relating to the law which is applicable to their country, for which purpose he "flies in and flies out" of India, there could not be a bar for such services rendered by such foreign law firm/foreign lawyer. 60. We are persuaded to observe so, since there may be several transactions in which an Indian company or a person of Indian origin may enter into transaction with a foreign company, and the laws applicable to such transaction are the laws of the said foreign country. There may be a necessity to seek legal advice on the manner in which the foreign law would be applied to the said transaction, for which purpose if a lawyer from a foreign law firm is permitted to fly into India and fly out advising their client on the foreign law, it cannot be stated to be prohibited. The corollary would be that such foreign law firm shall not be entitled to do an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Bar Council of India. Further, it is seen that the Government in consultation with the Bar Council of India proposes to commission a study as to the nature of activities of LPOs, and an appropriate decision would be taken in consultation with the Bar Council of India. 63. After giving our anxious consideration to the matter, both on facts and on law, we come to the following conclusion :- (i) Foreign law firms or foreign lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfil the requirement of the Advocates Act, 1961 and the Bar Council of India Rules. (ii) However, there is no bar either in the Act or the Rules for the foreign law firms or foreign lawyers to visit India for a temporary period on a "fly in and fly out" basis, for the purpose of giving legal advise to their clients in India regarding foreign law or their own system of law and on diverse international legal issues. (iii) Moreover, having regard to the aim and object of the International Commercial Arbitration introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers cannot be debarred to come to India and conduct arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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