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Liberalisation in SC: Centre, LCIA feel Indian lawyers would bear brunt offshore if BCI, SC don’t hurry up in welcoming foreign firms

Foreigners in India: Yet again being debated in the Supreme Court
Foreigners in India: Yet again being debated in the Supreme Court

Indian lawyers practising abroad would end up bearing the brunt of the Bar Council of India (BCI) potential regulation of foreign law firms under the current regulatory regime, argued London Court of International Arbitration (LCIA) counsel Dushyant Dave before the Supreme Court yesterday.

Meanwhile, the Centre told the court that it feared that a delay in legal services liberalisation in India would harm practising privileges of Indian lawyers abroad, reported Live Law.

Senior advocate Dave was rebutting senior counsel CU Singh's argument for the BCI that foreign law firms should be allowed to enter India only under the current regulatory regime.

Dave said: “As Indian lawyers, we take part in international commercial arbitration matters in Singapore, London, Paris etc, without the need of procurement of any permission. If the BCI regulates foreign lawyers in this respect, it would also hurt the interests of Indian lawyers.”

Singh had argued: “The BCI is not averse to practice of law in India by foreign lawyers and firms, but the same must be regulated and fall within the four corners of the Advocates’ Act. Even if such practice is on a temporary basis, it must be subject to our regulatory regime.”

Additional solicitor general Maninder Singh, acting for the central government, submitted that if the BCI doesn't frame rules to expedite the entry of foreign law firms, the central government would take up that mantle, as the government doesn't want Indian lawyers to be denied practice privileges abroad that India is currently denying to foreign law firms domestically.

BCI appeal grounds

CU Singh, appearing for the BCI in its appeal from the Madras HC judgment in AK Balaji Vs BCI said the following:

  • That the BCI considers even fly-in-fly-out (FIFO) advice by foreign lawyers in India and foreign lawyers conducting international arbitration in India, as the “practice of the profession of law”, which should be regulated under the current Advocates Act 1961 and the BCI Rules.
  • That the Bombay HC had already ruled in 2009 in its judgment in Lawyers Collective vs BCI that foreign law firm liaison offices in India were illegal and that the practice of law included both litigious and non-litigious practice.
  • That the Advocates Act 1961 only permits advocates enrolled on state bar council rolls to practice law in India, therefore FIFO of foreign lawyers not enrolled in India, yet being allowed to arbitrate etc. in India, would be in violation of the law.
  • That there is no provision in the law to allow non-enrolled advocates to practise via special permission, except for the purpose of appearing before a court or authority.

ASG Singh submitted that the Centre could not afford any more delay in legal sector liberalisation in India so if the BCI doesn't frame rules to regulate foreign law firms entering India, the centre would do so itself.

The hearing will continue at 3pm today.

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