LegallyIndia.com

I just read the judgment (or draft judgment)! What I find incredible is that neither the respondents nor the Court have considered or raised the issue of whether "practise of law" is limited to the practise of the laws of India or the practise of the law of ANY country. How come no one in the three foreign firms in question thought it fit to raise issues about whether they can represent Indian clients on an GDR/ADR deal or an M&A deal as US counsel or UK counsel? Is that "practise of law" or not? Isn't THAT one of the big questions that should have been addressed?

The whole thing seems to have hinged on whether "practise of law" means only litigation or whether it also includes non-litigious work. And it took them 14 years to arrive at a decision on THIS? Our country is truly Incredible India :-)

I don't think Indian companies could ever be stopped/restricted from hiring US/UK firms for doing ADR/GDRs - else how will they do the deal if dealing with a foreign investor and the context/doc is governed by non-Indian law?? firms abroad can of course practice the law they usually practice - just coz the client is resident in India or an Indian co can't make them subject to restrictions under the advocates act- this didn't seem to have been an issue at all- unless I am missing something...

Anonymous is absolutely right, Frankly, the determination of the 'practice of law' under the Indian Advocates Act can only be with respect to the practice of Indian law and it cannot logically be extended to English law or New York law.

The Act, and the court, simply cannot legitimately govern the practice of English, New York law or any other law for that matter. That is solely a matter for professional bodies in those jurisdictions to govern.

Clearly, the judgement is a 'stitch up'. There is nothing in the Advocates Act which prevents foreign lawyers or law firms from practicing their own law from Indian soil. Let's hope these firms have the courage to take the fight further!

This order appear a bit hasty and the evidence of haste can be seen in the jumble of justification used to arrive at the conclusion that the Reserve Bank ought not to have given permission to set up a liason office to these foreign firms.

1. Let's consider the RBI permission for a moment - RBI is not concerned with specific sectors, nor is it obliged to be. It's role in this context is to regulate inflow and outflow of foreign exchange into the country. Accordingly, it gavce consent to set up a liason office to a foreign entity that happened to be a law firm with various conditions restricting the right of such office to repatriate funds aborad, etc. As is usual, the consent was issued under the FEMA 1999 and came with a rider that it was not intended to be a consent under any other law in force. Obviously, the RBI washes its hands off sector-specific regulation. So if for instance, an aviation company or an oil company wanted to set up liason offices, such consent could indeed be granted without affecting the obligation of the oil / aviation company to obtain consents from the Ministry of Petroleum / DGCA (as the case may be if applicable). Irrespective of whether foreign law firms can practice non-litigation or not, the RBI consent cannot be faulted.

2. Can foreign firms practise non-litigation? Well in my view the answer is a mixed bag. The High Court may well be right by stating that the Advocates Act covers non-litigous practice also but it is foolish to use this as an excuse to ban foreign firms advising on aspects of foreign laws. The Advocates Act was certainly not enacted to regulate practise of foreign law in the country. It is not clear why the respondents took the plea that the Act does not cover non-litigous practice (Indian and foreign laws) completely but the High Court also went too far in holding that 'practice of law' includes foreign law

For myself, I think that this entire hysteria whipped up in the legal fraternity over entry of foreign law firms is nothing but a clever move by the top law firms in the country to avoid competition. Most of them are thoroughly unprofessional and cannot hold a candle to these foreign firms despite charging huge sums. All these foreign firms without exception target the corporate sector for non-litigous work and have no interest in the day to day legal representation before courts. Yet it is the solo advocates who feel threatened (thanks to the propaganda) and the rich firms that shed crocodile tears for their overseas' compatriots. The latter know only too well that their business would be wiped out if these foreign firms were allowed entry.

Bottomline - the clientale of these firms have no choice but to continue paying small ransoms for poor advice, rude lawyers and shoddy quality of work.

If you read the judgement to mean no foreign firms in India then please add no LPO's as well...

Looking at this judgement more closely, the characterisation of the practice of 'non-contentious' matters as law in the judgement is, simply bewildering. Where does one draw the line. Does the application of a bandage by anyone other than a doctor constitute the practice of medicine? Clearly not.

Would bankers, clients and accountants sitting in a hotel conference room in Delhi, negotiating and making amendments to a share purchase agreement constitute the practice of law? Again, clearly not.

Ultimately, this judgement makes the fundamental error of confusing the practice of law with the carrying out of commercial tasks, some of which may have a legal consequence. It is clearly illogical to label them one and the same.

Having gone through the judgment again; the main tenets seem to have been:

1. The foreign firms could not rely on RBI approval when they never enrolled under the Advocates Act. Para 3 of the judgment sums up the issue: was there a need for the firms to enrol when they were practising non litigious matters? The court has said yes. So it was really a question of requiring enrolment and observance of procedure under the Advocates Act, which was also said to include non litigious matters.

2. Only practitioners of Indian law can enrol under the Advocates Act. Thus, the result would be that foreign law firms could not enter as they would not be able to enrol their lawyers qualified in a foreign jurisdiction, unless the Central Government passes an appropriate law/takes a decision to allow their entry (Para 59 of the Judgment) - for the practice of foreign law (though not expressly stated this seems to have been the intent).

I think a foreign law firm under the Advocates Act can enrol itself in theory (can a firm be enroled or are the lawyers enrolled - this distintion is not very clear from the judgment it seems) to practice Indian law - by say hiring Indian lawyers. It is a different matter that they would not want to.

Conclusion: Foreign law firms can enter and practice non-litigious foreign law only when the government so allows (going by Para 59).

I respectfully disagree with IP Man Shan Henry's conclusion here. Whatever the Bombay High Court has said is irrelevant to the wider point that the Bar Council of India and the Advocates Act has no jurisdiction over a hypothetical foreign law firm practicing foreign law in India.

Provided that foreign exchange management rules are complied with, I see no reason to prevent any foreign law firm from setting up in India and practicing their own law. The Advocates Act applies to Indian law and therefore Indian legislation and the Indian courts have no jurisdiction over the practice of foreign law here in India, unless Parliament expressly legislates to the contrary.

All national laws are territorial. White & Case can still operate out of Singapore, advice on Indian law from there, send/receive documents by email, fax or courier, shake hands with clients on video con calls and make their money. I am sure they will do it.

Prima facie you feel that the Judgment may not be correct but on reading of the entire Judgement and the only two issues involved(i) whether practice of law include litigous and non-litigous matters and (ii) did RBI rightfully grant the permission u/s 29 of 1973 Act, I find the Judgment is well-reasoned and absolutely on the point. Had practice of law under Advocates Act be restricted to litigation then all foreign law firms would have entered the Indian market and practised corporate commercial law without the top legaue firms opposing so much. Every lawyer has to compulsorily enroll himself/herself whether he intends to prectice in courts or do only drafting and advisory work. Had this not been the case all solictors in Mumbai and Kolkata would not got themsleves enrolled on theire respective State Bars to continue practising when Bar Council of India did away with the distinctions between solicitors, barristers and advocates. All solictors before this distinction was removed were enrolled in separate roll mainatined for solictors. I totally agree with the Judgment when it says that practice of law includes both lit and non-lit work. Further, had this not been the case then any layman would give opinion on any law without having done a LLB course. On the second point, again the HC has ruled that the permission granted to establish liason offices cannot be granted to professionals as Section 29 relates to commercial activity or business purposes. The permission granted by RBI is wrong for having been granted under the provision of law not applying to professionals. Further, the law firms have themselves admitted in affidavits filed in matter that their liaison activities involved drafting and advising client on transactions which would fall within the ambit of services rendered by a legal professional and practice law. Thus, the activity being beyond the scope of only liaison activities. I agree with the Judgment on the basis of reasoning and issues involved. However, i want to make it clear that I not at all opposed to the entry of law firms...its hig time the GOI took a decision on the issue to put all controversies and such disputes at rest....probably making necessary amends in law.

Dear Kian,

Kindly modify the article to the extent that the Judgement is delivered by Hon'ble Justice J. P. Devdhar, who is not the Chief Justice of Bombay High Court.

Its a interesting judgement and has got a debate kind of stuff started in the legal circle. The Bombay High Court is full of opinions and views of the people on the judgement.

[Thanks, we have amended the unintentional error.]

It seems my brother Lord Wilberforce and I are on the same page but the pagination seems to have gone awry which seems to have caused some confusion as to whether we are in fact on the same page. I agree with the conclusion he has reached (and I would like it to be the case b/w); but the Bom HC seems to have reasoned that for parctising foreign law in India there would have to be express legislation. The ball has been put in the legislature's court.

I see 2 types of non litigious matters - (i) based on Indian law; (ii) based on foreign law.. The fulcrum of the whole judgment seems to have been the need to ENROL (see paras 8, 10 - counsel submission; 40, 45 - para 45 calls the enrolment issues the "fundamental issue") in India and that the firms in questions did not do, but rather went first to the FIPB (who said no) and then to the RBI (who said yes).

All thats needed would be to have a minor amendment to the Advocates Act to provide for enrolment of foreign lawyers under the Advocates Act. Ha ha - any chance of that happening?

Even if the firms in question had wanted to enrol and not go the RBI (which was not competent to deal with the issue according to the court) they would still not have been able to enrol given the fact that they practice non-Indian/foreign law and the Advocates Act would surely not have provision for such enrolment.

once the foreign law firms enter India, whether to do Indian laws or foreign laws, one adavantage I see is that at least lawyers will be respected, life-work balance will be restored and salaries will be actually paid [...].

before allowing foreign firms, BCI should at least straighten up things in house. systems should be in place so that foreign law firms are not taken by surprise and shy away from investing.

This judgment has done a few good things:
(1) Washed the dirty linen in public: everyone, including the foreigners and domestic lawyers eagerly awaiting the legal analysis of the provisions of the Advocate Act, have seen how vague [and out rightly disturbing] the provisions of the Act are. Every lawyer, no matter which side of the debate you are on, after reading the judgment must find it a stitch up. The judges were left helpless in making sense out of the words in the Act which is as old as time itself.
(2) Directions to GOI to decide on the fate of the firms.
(3) Intentional non-sensical judgment will open chances for this to be fought in the SC. That should politicise it massively both internationally and domestically, and the debate will reach the finals.

Some issues this raises:
1. Foreign lawyers cannot practice foreign law in India. Does that mean a foreign lawyer instructed by an Indian client on international elements of a deal cannot base himself temporarily in India? As per the judgment only an advocate can practice any kind of law and as the foreigner cannot be an advocate under the Act, he is not entitled to. So Indian clients should technically discuss everything over the phone or fly down to their lawyers abroad for all discussions, negotiations etc.
2. Foreign firms are not allowed to open liaison offices doing legal work on foreign law elements. This means a big blow the Indian LPOs.
3. What is the status of the lawyers not enrolled on the bar yet practicing as associates in law firms? Everyone has seen a lot of them around, some due to pure laziness or some because of no apparent need don't register themselves but still work.
4. If no legal work is happening at the liaison office, can it stay open in India? or is it still illegal?

Law graduates who are eligible to register as professional advocates should be permitted to practice the profession of law anywhere irrespective of any restrictions. The restrictions imposed either by law or by practice indicate that the professional lawyers are scared of competition. India has opened the Indian markets to FDI and the results of such a policy is visible. Why the same logic cannot be applied in case of legal profession? Are we scared of overseas lawyers? I am sure the overseas lawyers are not interested in appearing in Courts or Tribunals in India except in some rare cases where their appearances may perhaps be essential to uphold the principles of "persuasive values".

just check this formated judment

[Link deleted as it points to registration only site, please only link to publicly accessible documents where you do not have to sign up to read them. -Ed]