Supreme Court says foreign lawyers can't practice in India

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On a petition by the Bar Council of India, the Bench of Justices Adarsh Kumar Goel and Umesh Lalit made it clear that practice of law includes not only appearing in courts but also giving opinion, drafting documents and participating in conferences involving legal discussions.

The Madras High court had said that foreign lawyers can fly in and fly out for tendering legal advice on foreign laws.

Due to a phenomenal increase in global arbitrations involving foreign litigants, foreign law firms and lawyers have started appearing in many legal proceedings in India.

The apex court also held that foreign lawyers can appear in global commercial arbitration subject to relevant institutional framework and rules.

"Conversely, (the) plea that a foreign lawyer is entitled to practise foreign law in India without subjecting himself to the regulatory mechanism of the Bar Council of India Rules can also be not accepted".


The only exception that is available is for foreign lawyers coming to India for providing advice on foreign law or when they are coming in to take part in an worldwide commercial arbitration.

The court said that apex bar body, the Bar Council of India or the Central government would be "at liberty to make appropriate Rules in this regard including extending Code of Ethics being applicable" to foreign lawyers and entities.

One of them was passed by Madras High Court on February 21, 2012, and the other by Bombay High Court on December 16, 2009. According to The Times of India, BPO companies working on legal services have also been given a free pass to operate in India as they don't come under the ambit of the Advocates Act. It had demanded, much like the Madras High Court, that these lawyers be enrolled as advocates (under the Advocates Act) to be able to prosecute court cases or practice law in litigious and non-litigious matters.

"Visit of any foreign lawyer on fly-in-and-fly-out basis may amount to practice of law if it is on regular basis". Senior counsel Sajan Poovayya, who represented a few respondent law firms, had argued that "foreign lawyers coming to India to advice on foreign law are not barred".

Ajay Shaw, partner, DSK Legal, said: "This judgment will not have any bearing on Indian law firms at this stage".

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