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This article, like many others, was first published exclusively for long-term supporters, some time before everyone else got to read it.

Liberalisation case closed: Foreign lawyers finally more cautious • LCIA argued for allowing foreigners to arbitrate here • BCI says no (again)

All balls are now with the Supreme Court (and then, shortly after, with the government)
All balls are now with the Supreme Court (and then, shortly after, with the government)

The Supreme Court today finished hearing counsel in the Bar Council of India (BCI) petition against the practice of law by foreign lawyers in India, in a hearing that began in the morning and reconvened at 3pm to finish only by nearly 5:30pm.

Closing arguments by lawyers for foreign firms reiterated that the bench of justices AK Goel and UU Lalit protect the Madras high court’s Balaji case status quo of fly-in, fly-out, rather than overturning it to allow foreign lawyers in wholesale.

While today’s argument's by counsel for the foreign lawyers were more defensive, they had been more aggressive in their arguments yesterday and the day before, even prompting from Justice Goel the question of why foreign lawyers shouldn't be allowed to practice foreign law in India semi-permanently.

Senior counsel Sajan Poovayya, arguing for US firms White & Case and Covington Burling, said: “Our position was very clear. As regards fly-in and fly-out, we believe there is no regulatory prohibition and the Chennai high court recognises that a lawyer can come to advise on foreign law and that needs no interference.”

Senior counsel Arvind Datar was also arguing for a number of foreign law firms and had told the court today in the afternoon, that foreign law firms did not want to set up offices here, but they just wanted to be able to fly in and service their existing clients.

“Maybe they read the mind of the judges that they’re not going to allow complete liberalisation of the regime,” mused one lawyer who was present in court today.

The other option is that they are hoping to get this case over with quickly, in order for the government to have free reign to legislate for the entry of foreign firms, as it has said it wants to, without the case hanging over its head.

While it's understandable the foreign firms wanted to make sure they didn't lose what little they had under the AK Balaji Madras high court judgment, that judgment also currently prohibits them from acting in international arbitrations within India.

Arbitrations or not?

This was attacked by senior counsel Dushyant Dave, who is was acting for the London Court of International Arbitration. The LCIA, despite having shut its doors in India in 2016, was in 2011 also dragged into court by the same collective that the original Madras high court petitioner, AK Balaji, was a member of.

Dave told the Supreme Court that Indian lawyers were allowed to argue before any arbitral tribunal in the world, so why should India-based arbitrations prevent foreigners from appearing here.

Senior counsel CU Singh, appearing for the BCI, responded that the BCI remained opposed to foreign lawyers even practising international commercial arbitration, which in its view was just as verboten under the Advocates Act as foreign lawyers doing transactional law here.

Dave, commenting by phone to us today, said: “I would assume that so far as international commercial arbitrations are concerned, the judges should take a favourable view and allow the foreign lawyers to come and practice.”

Indian lawyer and London-practising barrister Nakul Dewan appeared for the Global Indian Lawyers Association (GILA), which is an intervener in this case to defend the rights of dual-qualified Indian lawyers to continue practising foreign law in India.

“Our second argument,” said Pradhuman Gohil, president of GILA, “was to allow the foreign law firms to come here. It will give better prospects to the lawyers who studied abroad and are qualified to practice in multiple jurisdictions but want to practice here in India.

“And advice on foreign law in which they are qualified and may be in affiliation with foreign law firm, which be duly regulated by BCI or as per order of the Hon'ble Supreme Court of India.”


The Supreme Court has given parties until next week to file any additional written submissions, after which it could take at least three or four weeks for them to hand down their judgment.

According to one observer in court today, the judges would be disinclined to allow foreign law firms to come into India, with their Lordships having expressed concern about how if foreign law firms were to partner with Indian lawyers, the revenues would all flow out and overseas.

Another lawyer, who supports the entry of foreign firms, added: “There have been parts of the hearing where [the judges have been in favour of foreign firms coming in], but the bigger issue was whether foreign law firms are vacillating whether they want to be regulated like an Indian law firm.” The foreign law firms had apparently argued in the morning that they'd have been fine with being regulated by the BCI, but by evening had retrenched to the Madras high court position.

“Justice Lalit said to everybody, I want an answer to this question,” the lawyer recounted. “If you are not willing to be subjected to the [BCI] rules, should the court let you do something that’s a bit of a stretch under the Act?”

The lawyer added that it was possible for the Supreme Court to also confirm fly-in and fly-out for arbitrations, possibly on one-off client requests.

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