The Madras High Court petition of A.K. Balaji “prayed for a direction to prohibit the firms or foreign lawyers from having any legal practice either on the litigation side or non-litigation and commercial transactions in any manner in the country”, wrote Indian daily The Hindu today.
The Hindu added that the petition argued that a “wholesome reading of the Advocates Act would make it abundantly clear that to be entitled to practise law in India, a person should be a citizen of India and possess a law degree obtained from a university in the country”.
It is understood that 30 non-Indian law firms have been named in the petition, including the Allen & Overy, Clifford Chance, Linklaters and Freshfields Bruckhaus Deringer, and most other corporate firms with India practices, US firms, French firms, Singaporean firms and Australian firms and LPO provider Integreon, although this could not be authoritatively verified. Legally India has contacted several of the firms but it is understood that none had been served with notices at the time of going to press.
All firms were unavailable for comment, as some are understood to be evaluating whether the claim is vexatious or a genuine one.
The Hindu wrote: “Allowing entry of foreign law firms with no reciprocal arrangements with respect to Indian lawyers should not be entertained. In response, Indian lawyers have to be allowed to work in the respective countries. Otherwise, foreign law firms should not be allowed to exploit the Indian legal market.”
“The petitioner said while the law on the subject was clear, various international law firms having roots outside India had opened offices in the country or neighbouring countries and taking up legal practice within the country such as mergers, takeovers, acquisitions, amalgamations, and so on, and were into various commercial transactions and arbitrations,” said the paper.
The case is listed on the causelist of Friday 18 March 2010 as M/S.R.Ethilarasan (PIL) Karthikeyan for injunction 5614 / 2010, although no documents have been uploaded to the court’s website yet and it is not confirmed whether the petition has been accepted on merits.
News site Express Buzz reported today that “the First Bench comprising Chief Justice HL Gokhale and Justice V Dhanapalan, before which the public interest writ petition from AK Balaji of Harur came up for hearing on Friday, ordered issuance of notice to the authorities concerned returnable by April 8”.
On 16 December 2009 the Bombay High Court had ruled in the Lawyers Collective case that the Reserve Bank of India (RBI) should not have granted Ashurst, Chadbourne & Parke and White & Case licences to open up liaison offices in India and that the firms had been “practising law” contrary to the Advocates Act.
Comments
when you're not busy bailing out sajjan kumar could you please resolve the issue once and for all and allow foreign laws?
No matter how many of such frivilous petitons get filed our Indian law firms cannot curtail the competiton for eterninty!! [ besides having such foreign law firms is a bonus for us law students 8)].
Not even would it escalate the packages but the work culture too.
Opinions invited.
I am not very sure about the legal status of the GATS agreement provisions relating to free trade in legal services. Thoughts any1?
The last I heard, the adjourment or "chalta rahe, chalta rahe" culture is highly unique to the justice system of India and all lawyers would have reached a high level of proficiency in this art.
In the circumstances, have some pity on Indian lawyers who may not be able to cope with the speed at which other justice systems function.
It is like sending a tortoise to enter a race with hares.
We all know that odd endings only happen in fairy tales where tortoises win.
The HC should not entertain it. No wonder there is a backlog of cases in the courts. You're raising issues such as these while half the population does not have access to basic amenities.
So wait for the reality to come out whether it has been filed yet or not.
perhaps the uk law firms could contemplate operating from a neighbouring country like sri lanka or china?
Integreon is managing an entity which is known as OSC Exports (really sad name). Now this entity is the knowledge centre of CLifford Chance which is one of the biggest firms in the world...CC gets all its research work and other sidey work done from this office and in fact these people working there have access to the entire CC databases across the world just like any other associate in the CC office. OSC Exports says it is an independant body and that CC is one of their client but the entire money to run it comes from CC which can be further substantiated from the fact 2 'Associates' at OSC were taken 'Associates' in CC's London and Dubai office (this was reported in legally india).
If this is not illegal practice then what is?
I am not sure if any enactments are in place to enforce GATS. If there is, they may override Advocates Act. That's why I also asked if anyone (in trade law practice?) can give some ideas.
Btw, I did read the petition. It makes very valid points. LOOKS LIKE THIS IS GONNA BE A BIGGER PAIN FOR THE RESPONDENTS (AS COMPARED TO LAWYERS' COLLECTIVE JUDGEMENT OF BOM HC) AND A PAIN FOR THE GOVT. TOO
It would be great if people debate the merits of the writ petition in light of the existing law applicable to the questions raised before the Hon'ble High Court.
It's extremely myopic to say that the Advocates' Act prohibits an Indian lawyer from working for a foreign law firm on non-Indian legal issues. The Advocates' Act is a 1961 legislation, - almost 50 years old. The Act was passed when there was no internet, no computers, and no fax machines. Effectively, the legislature did not even contemplate a situation where a person sitting in India could assist a foreign law firm. Such off-shoring of US/UK legal work to India has been made possible only through the development of technology. None of the provisions in the Advocates' Act prohibit such "practice." The Act provides that to practice law, one needs a recognized law degree and be a citizen of India. This effectively was meant to prohibit British lawyers (who had stayed over after independence) from practicing in Indian courts. All said and done, the term "practice of law" necessarily needs to be interpreted as "practice of Indian law." As I see it - there is nothing illegal in what Clifford Chance is doing through OSC.
Legal Dodo
- It is a writ - CPC will apply/ori side rules will apply - what will apply?
- Without proper service of process can the court proceed?
How will this even proceed? What are the rules? This seems interesting.
1. The petition proceeds on an entirely wrong premise of lack of reciprocity in an attempt to to establish that the respondents are violating the law. Reciprocity is about letting lawyers from one jurisdiction practise the law of ANOTHER jurisdiction! That argument could be used if UK/US lawyers were providing Indian law advice, and cannot be used for instances where they are merely acting as international counsel and not opining or advising on Indian law matters. The petition goes on to bark up the reciprocity tree by saying how difficult it is for an Indian lawyer to become a practising lawyer in the UK etc etc......but the key point that is being missed is that the QLTT etc are part of a process to allow foreign lawyers to practise UK law (in whatever limited way), and not to advise on foreign law!!!! There are Indian law firms that have offices in UK/US etc and just like any other international law firm, these firms advise only on Indian law from those offices. Are those countries not permitting them to maintain an office and practise Indian law?
2. The petition makes a big hoo-haa about the fact that US/UK lawyers regularly stay in hotels and advise Indian clients. What's the big deal? The real question should be: what is the law they are providing advise on? If any of these firms are providing Indian law advice which they are not qualified to, of course, it is a violation and a serious one (in any jurisdiction, it would be). But if they are staying in India for 2 weeks and advising as international counsel and providing services as such, how can that be illegal? Is the petitioner saying tht if Tata Motors wants to buy a JLR, its top management needs to fly to London to have discussions with its UK law firm instead of getting the UK lawyers to come down to India for the same??? Or is he trying to say Indian clients should ONLY use Indian law firms for everything?
3. The petitioner says all the respondent firms are violating the Income Tax ACt by not paying taxes though they earn income from India. While I am of course, not aware, if any of the fims in question have breached the Income Tax laws or not, the petitioner clearly does not seem to be aware that there are well settled Indian law principles on the concept of what constitutes a "permanent establishment", and these firms should be subject to Indian taxes only if they have a "permanent establishment" in India (yes, EVEN if they earn income from Indian clients in India!). It's like saying any overseas business that provides a service to an Indian client should pay tax in India in all circumstances, which is not what the Indian tax laws say!
4. Lastly, and most ridiculously, the petitioner has a rather "fair" suggestion to the Hon'ble Court. He thinks the reciprocity principle on which foreign law firms should be allowed to set foot in India in any form is that if they derive benefit of 5% of the Indian market, Indian lawyers should be allowed to derive benefit of 5% of tht country's legal market!!!!! This one is a TRUE gem and leaves me speechless :-) If 50 UK law firms together capture 5% of India's $ 500 mn legal market, Indian lawyers should get access to the $50 billion (or whatever other number) UK legal market!!!! Even ignoring the absurdity of the suggestion, I would like to ask the petitioner if he'd like to volunteer to monitor and administer this quota system of his :-)
non-litigious services like advice, negotiation etc is practicing the profession of law in India is ok if the services offered are under INDIAN LAW; how can any service even if offered by a professional qualified and trained under a foreign legal system also become practice of profession of law in India, irrespective of foreign law advice/competence being involved? Lawyers Collective never answered this specific question expressly which is the key issue in this whole debate....
What is the thin red (disappearing line?) in India between:
FOREIGN LAW ADVICE/COMPETENCE -----VS-------- "PRACTICE OF PROFESSION OF LAW"
CAN PRACTICE OF PROFESSION OF LAW POTENTIALLY INCLUDE NON-LITIGIOUS SERVICES UNDER FOREIGN LAW BY PROFESSIONALS WITH COMPETENCE UNDER SUCH FOREIGN LAW? The Advocates Act in my opinion could never have intended this as it is providing for enrollment of Indian lawyers with an Indian legal education (unless foreign legal degrees are recognized)
http://www.legallyindia.com/images/stories/docs/Balaji-writ-petition.txt
We can not confirm at present whether this is an accurate and final version of the petition but understand that it is close to the version which is being served on the respondents.
Best regards,
Kian
#11: no foreign firms believe the hype...they just have to use Indian lawyers due to the protectionist privileges enjoyed by Indian lawyers. To date, I have worked with no more than 2-3 Indian lawyers who truly deserve to be paid at equal rates to the best foreign lawyers.
If you wanna come and eat a piece of the pie just say you are hungry and are struggling to make your hours this year don't make bald sweeping statements. Bald statements as your training in the big firm that you work in may have taught you are bad in pleadings and as I am telling you are laughable in public forums such as the present.
Law is nothing more than codified societal needs, it is not holy writ, rather, it is a structured process to conduct our affairs, a law cannot therefore be interpreted in vacuum but should be applied based on societal need at a given point of time and if that is done, every law is susceptible to change based on changing societal needs. Rather than being myopic, young lawyers ought to face the challenge head on and they will only be the better for it. Hiding behind provisions of law and seeking relief from the justice system which should better serve public good is nothing more than a pampered brat crying foul.
I say, let them come, lets learn everything we can from them and lets rule the world through them. That is the way ahead, after all, we are Indians, we dont just survive, we excel. Today, just 60 odd years after independence we are the third largest economy in the world with a tremendous potential to rule the world.
As a professional, I merely resent the fact that clients have to pay for second-rate lawyers only because those lawyers' jobs are protected...for no rational reason other than to protect so-called professionals from competition from better trained legal cultures.
As someone of Indian origin, it shames me that so many intelligent professionals in India are scared to compete on a level playing field. What are you guys scared of?
Does anyone have more information on this?