Supreme Court has allowed the foreign lawyers to appear in the International Commercial Arbitration subject to relevant institutional rules.
On Tuesday, Supreme Court expounded that foreign law firms with foreign lawyers cannot set up offices in India.
Apex Court Bench comprising of Justice AK Goel and Justice UU Lalit, upheld Madras High Court and Bombay High Court judgments with certain modifications.
SC Bench was hearing a set of appeals filed against judgments of Madras and Bombay High Court.
Apex Court enunciated while upholding the Madras High Court judgment, that the HC only allowed the foreign lawyers to ‘fly in fly out’ to advise on the foreign law but it should be on a temporary casual basis.
In pursuance to this, Bench directed the Bar Council of India and Government of India to frame rules regarding participation of foreign law firms in International Commercial Arbitration.
Supreme Court was hearing the appeal filed by Bar Council of India in 2012 against the Madras High Court judgment.
Madras HC in its judgment in February 2012, had expounded that the 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 (Advocates Act) and the Bar Council of India Rules.
HC had further held that there is no bar either in the Advocates Act or the BCI Rules for 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 advice on foreign law to their clients in India.
The Court had also held that foreign lawyers cannot be debarred from coming to India and conducting arbitration proceedings in disputes involving international commercial arbitration.
Earlier in the year 2009, Bombay High Court had held that RBI was not justified in allowing foreign law firms (in this case White & Case, Chadbourne & Parke, and Ashurst) to open liaison offices in India. It had also held that these foreign law firms could carry on their liaison activities in India only on being enrolled as advocates under the Advocates Act, 1961 and further held that the expression “to practice the profession of law” is wide enough to cover persons practicing in litigious matters as well as persons practicing in non-litigious matters in India.