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TMI Blog2012 (2) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... ized in a nutshell herein below :- Enrolment : (a) It is stated that the writ petitioner is an active practitioner of law having enrolled himself in the "State Roll" maintained by the Bar Council of Tamil Nadu as per Section 17 of the Advocates Act, 1961. It is stated that to practice the profession of law in India, a person should be a citizen of India and should possess a Degree in Law obtained from a Recognised University within the Territory of India. It is further stated that Nationals of any other country may also be admitted as an Advocate on the State Roll, if citizens of India duly qualified are permitted to practice law in such other country as per the rule of reciprocity contained under Section 47 of the Advocates Act, 1961. It is also stated that those persons who have obtained degree of law from any University outside the Territory of India may also be permitted to practice the profession of law in India provided that the said degree is recognised by the Bar Council of India and subject to such conditions as may be imposed by the Bar Council of India from time to time. The writ petitioner, prima facie, states that the Law Graduates from India are not allowed to pract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of these authorities. As such, it is stated that if any person who is not subject to the disciplinary control of the above said authorities is allowed to practice the profession of law, he/she would go scot-free and would not be subject to the supervision and disciplinary jurisdiction of the above said authorities. Therefore, they should not be permitted to practice the profession of law in our country. Noble Profession : (d) It is also stated that in India, legal profession is considered as a noble profession, intended to serve the society, and not treated as a business venture. But, it is not so for the foreign law firms, which are treating it as a trade and business venture for earning money. It is submitted that here in India, the lawyers are prohibited from advertising, canvassing and soliciting work. No lawyer in India is permitted, either through print media or through electronic media or in any other form, to canvass or solicit work or market the profession. Whereas the foreign law firms, who are impleaded here as respondents 9 to 40, are glaringly advertising through their websites about their capabilities and they also canvass and solicit work by assuring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not take any action, he was constrained to file the present writ petition seeking the prayer stated herein above. 3. The first respondent Union of India filed four counter affidavits on 19.08.2010, 24.11.2010, 19.04.2011 and 17.11.2011. In one of the counter affidavits, it is stated that the Bar Council of India, which has been established under the Advocates Act, 1961, regulates the advocates who are on the "Rolls", but law firms as such are not required to register themselves before any statutory authority, nor do they require any permission to engage in non-litigation practice. Exploiting this loophole, many accountancy and management firms are employing law graduates who are rendering legal services, which is contrary to the provisions of the Advocates Act. It is stated that the Government of India along with the Bar Council of India is considering this issue and is trying to formulate a regulatory framework in this regard. The 1st respondent in his counter warns that if the foreign law firms are not allowed to take part in negotiations, settling up documents and arbitrations in India, it will have a counter productive effect on the aim of the government to make India a hub of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of foreign law within the territory of India would also be subject to the regulatory powers of the Bar Council of India. It is stated that in a Joint Consultative Conference of the Members of the Bar Council of India and the Chairmen, Vice-Chairmen, and Executive Committee Members of the State Bar Councils held at Kochi on 17th and 18th November, 2007 it was decided not to relax any of the statutory norms for practice of law in India by exercising the powers conferred to the Bar Council of India under Section 47(2) read with Section 49(1)(e) of the Advocates Act, 1961. Finally, it is stated that the provisions of the Advocates Act, 1961 would apply with equal force to both litigious and non-litigious practice of law, and only persons enrolled under Section 24 of the Act can engage in the same. 5. The 9th respondent law firm in its counter clarified that it is not Rouse as mentioned in the writ petition, and it is Rouse India Pvt. Limited which is a part of a group of companies called Rouse & Co. International Limited a U.K. based Corporation. It is stated that it is not a law firm as stated in the writ petition, but it is a duly incorporated and registered company under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian lawyers, it is stated that there are lot of Indian lawyers practising in English Courts after their re-qualification as English solicitors. Therefore, it is false to say that work permits to Indian lawyers are almost always being refused. It is further stated that the issue of reciprocity is in the realm of the policy of the Government of India and it cannot and ought not to be agitated before this Court. 7. The 11th respondent in its counter prima facie stated that neither it has any office in India nor it practice law before any Courts in India. As such, no cause of action arises in India involving the 11th respondent. It is stated that the 11th respondent is an American Law Firm having its offices at New York, Washington DC, Los Angeles, Chicago, Stamford, Parsippany and Brussels. It has clients with diverse international legal issues, who require legal advice from different countries, for which the 11th respondent developed working relationships with local law firms in different countries. It is stated that for Indian clients requiring legal advice in India, the 11th respondent refers the work to various Indian lawyers and law firms located in cities where such advice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 14th respondent. It is stated that since the writ petitioner has relied upon a representation given by the Association of Indian Lawyers to the official respondents herein, and because the alleged inaction of the said respondents is the basis for the writ petition, the petition ought to have been filed by the Association itself and the writ petitioner has no locus standi to file the present writ petition. It is stated that the Advocates Act and the Rules govern the practice of Indian law only, and they do not govern the practice of foreign or non-Indian law. Therefore, as per prevailing law, foreign lawyers, including lawyers from the 14th respondent law firm, are not required to and cannot enrol as Advocates to practice non-Indian law. As per prevailing law, such lawyers are not restrained from advising on foreign law within the territory of India. As stated in the counter of the 11th respondent, the 14th respondent also in its counter denied the allegation that the lawyers from India are restrained from practising law in the U.S.A. and it is stated that in fact, Indian lawyers are practising law in the U.S.A. in different forms, viz., opening permanent office in U.S.A. by submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayed for the dismissal of the writ petition on the ground of availability of efficacious alternative remedy. Like other respondents, the 16th respondent also stated that it has no office in India and therefore, the official respondents viz., respondents 1 to 8 do not have the authority to exercise any control over the 16th respondent. The 16th respondent also claimed that this is a publicity seeking writ petition. It is stated that since the writ petitioner fails to show violation of any constitutional or other legal right within the territorial jurisdiction of this Court, and since he places reliance on the general statements, the writ petition is liable to be dismissed in limine. Like other respondents, the 16th respondent also narrated the procedures adopted in England for a foreign lawyer to enter the legal field in India, in order to show that there is no curb on the Indian lawyers to enter and practice the profession of law in England. 11. The 18th respondent in its counter, like other respondents, challenged the writ petition on the grounds of cause of action and locus standi of the petitioner. The 18th respondent stated in its counter that it is an international legal fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es does not amount to practising law in India. 13. Respondents Nos.20, 21, 24, 25, 27, 28, 30, 31, 32, 33, 34 and 38 filed separate counter affidavits on the same lines stating, inter alia, that they do not have offices in India and they do not practice Indian law, and hence, there is no cause of action against them and consequently, this Court does not have jurisdiction over them. Like other respondents, these respondents have also pleaded dismissal of the writ petition on the grounds of it being premature, publicity seeking and availability of efficacious alternative remedy. They state that their lawyers do not practice Indian law, and therefore, they have not sought enrolment as advocates under the Advocates Act, 1961, based on their foreign legal qualification or otherwise. It is stated that the Advocates Act and the Rules framed thereunder only govern the practice of Indian law and they do not apply or govern the practice of foreign or non-Indian law. Therefore, the lawyers from the respondent-law firms are not required to enrol their name under the provisions of the Advocates Act. That apart, as per the prevailing law, such lawyers are not restrained from advising on foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner contravening Indian regulations. Therefore, the said respondent sought the dismissal of the writ petition in limine. 15. The respondent No. 23 in its counter categorically stated that it has no establishment of any kind India, much less a LPO. It is an international law firm with offices in London, Brussels, Hong Kong and Beijing. It has clients throughout the world with international business interests. However, the scope of legal practice of respondent No 23 is a restricted one i.e., advising only on matters of English, European Union and Hong Kong laws. It has working relationships with leading law firms in major jurisdictions worldwide and instructs appropriate local law firms to provide local law advice where such advice is required. It has never advised on matters of Indian law, either from within India or outside India. It has no formal or exclusive relationships, including in respect of referral arrangements, with any Indian law firm. Therefore, it is stated that the allegations levelled in the affidavit accompanying the writ petition in connection with respondent No 23 are misconceived, incorrect and made without any basis. Therefore, it is prayed for the dismissal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide legal advice. As such, it is not practising the profession of law in India. The writ petitioner has not made any specific or particularised allegation against respondent 35. The existence of a legal right and the violation of such a right is absent in this case, and hence, the discretionary jurisdiction under Article 226 of the Constitution of India cannot be exercised in this case. Respondent 35 is not organised under the laws of India nor does it maintain an office within the territory of India. It is neither a "State" nor an "authority" within the meaning of Article 12 of the Constitution of India. Respondent 35 does not perform any public function and is not a delegate of any public authority. As such, no writ under Article 226 of the Constitution ought to be issued against the respondent 35. 18. The 36th respondent in its counter affidavit stated that since the Advocates Act and Rules govern only with regard to practice of Indian law and not on the practice of foreign law within the territory of India, the 36th respondent s lawyers are not enrolled themselves as advocates under the Advocates Act. It is stated that respondent 36 does not have an office in any part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form, does not deal with or prescribe the qualifications for or provide for the regulatory framework for the practice of foreign law or international law within the territory of India. It is also denied in the rejoinder that only Indian citizens, who are duly qualified as per Section 24 of the Advocates Act, are entitled to practice foreign or international law within the territory of India. In fact, foreign law, including English and US law are not taught in Indian Law Colleges. Therefore, lawyers with Indian law degrees clearly do not have the knowledge to practice foreign law. On the contrary, most persons with the requisite knowledge in foreign law will be non-citizens with a law degree from a foreign university. As per the prevailing provisions of the Advocates Act, such persons will not be entitled to enrol as advocates without the special dispensation of the Bar Council. Therefore, the only reasonable interpretation of the Advocates Act will be that it is a statute which governs the practice of Indian law. It is stated that respondent 33 is not liable to be restrained from practising foreign law or international law within the territory of India on the basis of the resolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrolled as advocates on any State rolls in this country. Section 47 of the Act elaborates on the proviso contained in Section 24 referred to above, and it specifically states that any country which prevents the citizens of India from practising the profession of law or subjects them to unfair discrimination in that country shall not be entitled to practise the profession of law in India. Subsection (2) empowers the Bar Council of India to prescribe conditions, 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 the Act. According to the learned senior counsel, the Bar Council of India has not framed any regulations of the kind referred to in Section 47 of the Act and therefore, citizens of other countries are barred from practising the profession of law in India. Learned senior counsel placed reliance on the Division Bench judgment of the Bombay High Court in the case of Lawyers Collective vs. Bar Council of India reported in 2010 (112) Bom. L.R. 32. 22. It is interesting to note that in that case, the Bar Council of India as well as the Bar Council of Maharashtra & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel, International Arbitration is going on big time in India as well as in almost all the countries across the globe. India is a signatory to the World Trade Agreement, which has opened the gates for many international business establishments based in different parts of the world to come and set up their respective businesses in India. In such a scenario, these international establishments entering into trade agreements would require to consult legal experts on the implications of such agreements on their country s laws, and advocates practising Indian law would not be competent to offer them advise on their laws. Therefore, this makes it utmost necessary for foreign legal experts to visit India, stay here and offer advice to their clients in India on their respective laws, and there is no specific provision in the Act prohibiting a foreign lawyer to visit India for a temporary period to advise his/her clients on foreign law. According to the learned counsel, practising Indian law in India is implicit in the Act and advising foreign law is not at all barred. He submitted that there can be no two opinions about the fact that if any of the foreign law firms allowed to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of disputes arising in the context of international commercial relations by recourse to conciliation. According to the learned counsel, this necessitates the involvement of foreign legal experts having knowledge of foreign law. Learned counsel referred to the judgment rendered by the Supreme Court in the case of Vodafone International Holdings B.V. vs. Union of India in S.L.P. (C) No.26529 of 2010, which extensively dealt with issues relating to the impact of foreign investment and inflow of foreign currency on Indian economy, as also other issues involving fiscal implications on the economic development of the country vis-`- vis international commercial transactions. 26. Mr. P.S. Raman, learned senior counsel appearing on behalf of the Bar Council of India submitted that the issue raised in this writ petition is no longer res integra and has been settled by the judgment cited supra, wherein it has been held that the practice of law would include even non-litigious practice and therefore, foreign lawyers not enrolled as advocates under the Act would not be entitled to practice. The said judgment of the Bombay High Court, not having been appealed against, has attained finality. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s practice of law and it is only persons enrolled under Section 24 who can engage in the same. 27. Mr. M. Raveendran, learned Additional Solicitor General appearing for the Union of India submitted that the proposal to consider an amendment of Section 29 of the Advocates Act to permit foreign law firms to practice law in India in non-litigious matters on reciprocity basis with foreign countries is under consideration, in consultation with the Bar Council of India. 28. Mr. R. Krishnamoorthy, learned senior counsel appearing for a couple of law firms based in the United Kingdom submitted that the Bar Council of India regulates the advocates enrolled in India, and law firms as such are not required to register themselves before any statutory authority or require permission to engage in non-litigation practise. In other words, Indian law firms are operating in a free environment without any regulation and the oversight of the Bar Council with regard to such non-litigation activities of law firms is virtually non-existent. By exploiting this loophole, many accountancy and management firms are employing law graduates who are rendering legal services which are contrary to the Act. In su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court, the phraseology used in Section 20(c) of CPC and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) of CPC shall apply to writ proceedings also. It was further observed that the entire bundle of facts pleaded need not constitute a cause of action, as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression "material facts" is also known as integral facts. Learned senior counsel also relied upon the judgment rendered by the Supreme Court in the case of Neetu vs. State of Punjab reported in A.I.R. 2007 S.C. 758, where it was observed that courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. It was further observed that no litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy access to justice should not be misused as a licence to file misconceived and friv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourcing (BPO) or a Knowledge Process Outsourcing (KPO) company, whose business primarily involves importing jobs that are normally done by its clients abroad into India and having them executed by the 15th respondent, which is a separate and distinct legal entity incorporated and registered under the Companies Act, 1956. The respondent provides a wide range of customized and integrated services and functions to its customers which, inter alia, include word processing, secretarial support, transcription services, proof-reading services, presentation graphics, pitch support, concierge and travel desk support services, knowledge management, CRM database management and reporting, business development, IT training and support, HR administration, trend awareness, finance & accounting, billing, accounts payable, and general ledger, management reporting and analysis, payroll management, hiring and intake administration, project management etc. The respondent, having agreed to provide such services, has contractual agreements/self-owned data processing units in several locations worldwide, which ensures that the contracted services are provided. The said services are not in the nature of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple has been laid down in the case of State of Haryana vs. Chanan Mal reported in A.I.R. 1976 1654 as also in Saraswati Industrial Syndicate Ltd. vs. Union of India reported in A.I.R. 1975 S.C. 460. A distinction was sought to be made by the learned senior counsel to the judgment in Lawyers Collective s case (supra), in that it involved the provisions of FERA, 1973 and at that time, under Section 29 of the said Act, there was a complete restriction, which was sought to be changed in the year 1999, when the FEMA came into force. Moreover, the Bombay High Court in the aforesaid judgment, has not considered the issue vis-`-vis various other statutory provisions. According to Mr. Datar, the prayer sought for in the writ petition, if granted, will lead to drastic consequences and will have the effect on other statutes. Learned senior counsel also placed reliance on the provisions of the Arbitration and Conciliation Act and contended that the issue has to be seen from the global perspective and the writ petition, dismissed. 33. Mr. K.S. Natarajan, learned counsel appearing for respondents 36 and 37, which are Australian law firms, submitted that the Advocates Act and Bar Council of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the said respondents on the said representation is the basis for the writ petition. According to the learned counsel, this Court lacks the jurisdiction to entertain the writ petition as against these respondents since these respondents are not carrying on any business activity within the territorial limits of India and within the limits of this Court and moreover, there is no cause of action against these respondents. The petitioner has not made any specific claim as against the 37th respondent in relation to the maintenance of an office and/or the practice of the profession of law by the 37th respondent within Tamil Nadu or even in India and as such, the present writ petition against this respondent is not maintainable. The learned counsel would submit that law can never be static and be confined in the hands of a restricted group or individuals, especially in the present context of developing global economy. The apprehension of the petitioner is not justified, since these respondents, who do not have any office in India, can never deprive the petitioner of any work that he is competent and capable of carrying. 34. Mr. Satish Parasaran, learned counsel appearing for the 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a corollary, the Act and Rules do not apply to the practice of foreign or non-Indian law. Foreign lawyers, who are licensed in their respective jurisdiction, are not restrained by the Act from advising their Indian clients on foreign law issues. Hence, lawyers from the 11th respondent are entitled to advise their Indian clients on foreign or U.S. legal issues, as long as they are qualified and licensed in their respective jurisdictions. The contention that persons who are not governed by disciplinary rules of Indian Bar Councils would not be subjected to supervision or be governed by rules, regulations and ethics is denied and it is stated that the rules of a Bar Council would equally apply to lawyers even when they are working outside their home countries. Every State in the U.S. has rules which govern the practice of law in that jurisdiction and U.S. lawyers are governed by their State s regulatory bodies. Lawyers registered in that State must conform to its rules regardless of where they practice law. The American Bar Association s Model Rules of Professional Conduct serve as models for the ethics rules of most States. In New York, for instance, the New York State Bar Associatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndatory that a person who is enrolled as an advocate under this Act is only entitled to practise in any Court in the country, which includes practice in matters of arbitration. Therefore, the contention on behalf of the petitioners that they are not appearing before any judicial forum in India cannot be sustained. Similarly, the respondents cannot also be heard to contend that they are entitled to carry on with their practice in arbitration proceedings by placing reliance on the Preamble to the Arbitration and Conciliation Act. 38. Learned senior counsel placed reliance on the resolution passed by the Bar Council of India in the Proceeding of the Consultative Conference held at Kochi on the 17th and 18th of November, 2007, wherein it was unanimously resolved with regard to the entry of foreign law firms and foreign lawyers into India as follows :- "This joint consultative conference of the Bar Council of India and the Chairmen, Vice- Chairmen and Chairmen, Executive Committee of all State Bar Councils in India hereby unanimously resolve to support and affirm the resolution of the Bar Council of India No.17/2006 dated 12.2.2006 and further resolves to request the Government of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eserve Bank of India to some foreign law firms to open liaison offices in India, as the same being illegal and in violation of the provisions of the Advocates Act, 1961. In that case, the respondents, which were foreign law firms practising the profession of law in UK/USA and having branch offices in different parts of the world, had applied to the RBI during the period 1993-1995 seeking permission to open their liaison offices in India. While granting such permission, the RBI made it clear that the permission granted to the foreign law firms in that case was limited for the purpose of Section 29 of the Foreign Exchange Regulation Act, 1971 and that the said permission should not be construed in any way regularizing, condoning or in any manner validating any violations, contraventions or other lapses, if any, under the provisions of any law for the time being in force. 40. In other words, the challenge before the Bombay High Court was to the permission granted by the Reserve Bank of India to foreign law firms to establish their liaison offices in India under Section 29 of FERA, 1973, and assuming such permission was valid, whether these foreign law firms could carry on their liais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs were being subjected to the provisions of the Act as well as the rules framed by the Bar Council, whereas their foreign counterparts were neither being subjected to the Act nor the rules framed by the Bar Council. 42. The Division Bench of the Bombay High Court formulated the following two questions for determination (i) Whether the permission granted by the RBI to respondents 12 to 14-foreign law firms to establish their place of business in India (liaison office) under Section 29 of FERA is legal and valid? (ii) Assuming such permissions are valid, whether these law firms could carry on their liaison activities in India only on being enrolled as advocate under the Advocates Act, 1961? In specific, the question was, whether practising in non-litigious matters amounts to "practising the profession of law" under Section 29 of the Advocates Act. 43. After thoroughly examining the widespread ramifications of the issue involved, the Division Bench held as follows :- "40. In the present case, the core dispute is with reference to the permission granted by RBI to the respondents No. 12 to 14 to open their liaison offices in India under Section 29 of the 1973 Act. The resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n countries cannot be said to be engaged in industrial, commercial and trading activities. The liaison activities of respondent Nos. 12 to 14 in India being activities relating to the profession of law, no permission could be granted to the foreign law firms under Section 29 of the 1973 Act. The Apex Court in the case of M.P. Electricity Board v. Shiv Narayan reported in (2005) 7 Supreme Court Cases 283 has held that there is a fundamental distinction between the professional activity and the activity of a commercial character. The Apex Court has further held that to compare the legal profession with that of trade and business would be totally incorrect. Therefore, in the facts of the present case, the RBI could not have granted permission to carry on the practise in non litigious matters by opening liaison offices in India under Section 29 of the 1973 Act. 43. It is not the case of the foreign law firms that the activity carried on by their liaison offices in India are different from the activity carried on by them at their head office and the branch offices world over. In fact, it is the specific case of respondents No. 12 to 14 that the main activity at their liaison offices in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tising before Court and other authorities? 44. As noticed above, the fact of the case before the Bombay High Court were that the respondents which were foreign law firms practising the profession of law in US/UK sought permission to open their liaison office in India and render legal assistance to another person in all litigious and non-litigious matters. The Bombay High Court, therefore, rightly held that establishing liaison office in India by the foreign law firm and rendering liaisoning activities in all forms cannot be permitted since such activities are opposed to the provisions of the Advocates Act and the Bar Council of India Rules. We do not differ from the view taken by the Bombay High Court on this aspect. 45. However, the issue which falls for consideration before this Court is as to whether a foreign law firm, without establishing any liaison office in India visiting India for the purpose of offering legal advice to their clients in India on foreign law, is prohibited under the provisions of the Advocates Act. In other words, the question here is, whether a foreign lawyer visiting India for a temporary period to advise his client on foreign law can be barred under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 35th respondent stated, inter alia, that it is an international law firm providing legal services to its international clients. Some Indian businesses that have international legal requirements consult this respondent relying upon its international expertise, and all such consultations and legal services rendered are in relation only to the laws of the specific international jurisdiction. 50. According to the 36th respondent - foreign law firm, their lawyers "fly in and fly out" of India on need basis to advise its clients on international transactions and other matters involving Indian laws and international ventures, to which there is an Indian component. 51. We find force in the submission made by the learned counsel appearing for the foreign law firms that if foreign law firms are not allowed to take part in negotiations, for settling up documents and conduct arbitrations in India, it will have a counter productive effect on the aim of the Government to make India a hub of International Arbitration. According to the learned counsel, many arbitrations with Indian Judges and Lawyers as Arbitrators are held outside India, where both foreign and Indian law firms advise their cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is (i) an individual who is a national of, or habitually resident in, any country other than India; or (ii) a body corporate which is incorporated in any country other than India; or (iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or (iv) the Government of a foreign country." 54. From the above definition, it is manifestly clear that any arbitration matter between the parties to the arbitration agreement shall be called an "international commercial arbitration" if the matter relates to the disputes, which may or may not be contractual, but where at least one of the parties habitually resides abroad whether a national of that country or not. The New York Convention will apply to an arbitration agreement if it has a foreign element or flavour involving international trade and commerce, even though such an agreement does not lead to a foreign award. 55. International arbitration is growing big time in India and in almost all the countries across the globe. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be denied that disputes and differences are bound to arise in such International contracts. When one of the contracting party is a foreign entity and there is a binding arbitration agreement between the parties and India is chosen as the seat of arbitration, it is but natural that the foreign contracting party would seek the assistance of their own solicitors or lawyers to advice them on the impact of the laws of their country on the said contract, and they may accompany their clients to visit India for the purpose of the Arbitration. Therefore, if a party to an International Commercial Arbitration engages a foreign lawyer and if such lawyers come to India to advice their clients on the foreign law, we see there could be no prohibition for such foreign lawyers to advise their clients on foreign law in India in the course of a International Commercial transaction or an International Commercial Arbitration or matters akin thereto. Therefore, to advocate a proposition that foreign lawyers or foreign law firms cannot come into India to advice their clients on foreign law would be a far fetched and dangerous proposition and in our opinion, would be to take a step backward, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of (a) all persons who were entered as an Advocate on the roll of any High Court under the Indian Bar Council Act, 1926, immediately before the appointed date and (b) all other persons admitted to be Advocates on the roll of the State Bar Council under the Act on or after the appointed date. In terms of Section 24(1) of the Act, subject to the provisions of the Act and the Rules made thereunder, a person shall be qualified to be admitted as an advocate on a state roll if he fulfils the conditions (a) a citizen of India, (b) has completed 21 years of age and (c) obtained a degree in Law. The proviso to Section 24(1)(a) states that subject to the other provisions of the Act, a National of any other country may be admitted as an Advocate on a State roll, if a citizen of India, duly qualified is permitted to practice law in that other country. In terms of Section 47 (1) of the Act, where any country specified by the Central Government by notification prevents citizens of India practicing the profession of Law or subjects them to unfair discrimination in that country, no subject of any such country shall be entitled to practice the profession of Law in India. In terms of Sub-Section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graduate level in Indian Law schools, except Comparative Law Degree Courses at the Master's level. 61. As noticed above, the Government of India, in their counter affidavit dated 19.08.2010, have stated that the contention raised by the petitioner that foreign law firms should not be allowed to take part in negotiating settlements, settling up documents and arbitrations will be counter productive, as International Arbitration will be confined to a single country. It is further pointed out that many arbitrations are held outside India with Indian Judges and Lawyers as Arbitrators where both foreign and Indian Law firms advise their clients. It has been further stated if foreign law firms are denied permission to deal with arbitration in India, then we would lose many arbitrations to other countries and this is 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. 62. At this juncture, it is necessary to note yet another submission made by the Government of India in their counter. It has been stated that law firms as such or not required to register themselve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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