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Liberalisation in SC: Goel J suggests FIAS (Fly In And Stay) instead of FIFO for foreign lawyers, as Nakul, Arvind interpret the Act

Fly in, fly out, fly away or stay, was the question in the SC today about foreign lawyers in India
Fly in, fly out, fly away or stay, was the question in the SC today about foreign lawyers in India

The ongoing hearing of the Bar Council of India (BCI) appeal in the apex court against the AK Balaji Madras high court judgment took an interesting turn today, with Justice AK Goel suggesting to the counsel that instead of the current FIFO (fly-in and Flying Out) that had been suggested by the high court, foreign lawyers should rather stay here, and offer legal advice, to get relief from any restrictions.

A foreign lawyer who stays in India, would not lead to a loss of revenue to the country, the judge said on a bench that also included Justice UU Lalit. Elaborating, Goel added that if an American lawyer comes and stays in India to offer legal advice on American law, there is no problem.

The issue is only when an American firm sets up a branch here, and still wants to avoid subjecting itself to any regulations here, he explained.

Today, Supreme Court lawyer and London-based 20 Essex Street barrister Nakul Dewan began his arguments at 3.30 pm, suggesting that nothing actually prevented the BCI, from introducing a regulatory regime for this purpose.

Dewan, is representing the Global Indian Lawyers Association (GILA), which is an intervener in this case.

Intervening, senior counsel CU Singh on behalf of the BCI, said that the BCI rules provide that advocates can’t join anyone other except another advocate, to practice law.

Therefore, Singh hinted that there was a clear bar on joining a firm comprising of non-advocates, if one wants to practice.

“Foreign firms can’t control legal practice in India through surrogate firms”, he told the court.

The legal conflict

There are two conflicting high court judgments in the case, which the Supreme Court is trying to sort out.

The Madras high court, in its judgment delivered on 21 February 2012 in the case of Bar Council of India v AK Balaji had accepted the contention that international establishments entering into trade agreements would require to consult legal experts on the implications of such agreements on their country’s laws. It also noted that advocates practicing Indian law would not be competent to offer such advice on foreign laws.

The high court also conceded that there was no specific provision in the Advocates Act prohibiting a foreign lawyer to visit India for a temporary period to advise his/her clients on foreign law.

The high court therefore defended FIFO – flying in and flying out – to refer to foreign lawyers who fly into India and fly out again after offering advice on foreign law to their Indian clients.

The Bombay high court, however, held in the prior Lawyers Collective case, that establishing of a liaison office in India by foreign law firms and rendering liaisoning activities could not be permitted, as it was contrary to the AA and the BCI Rules.

The Madras high court verdict, which came after the Bombay high court verdict, agreed with this view, but suggested FIFO as a way out.

And how does the SC feel about this?

Today, the bench quizzed Dewan on behalf of the association he represents, and asked what GILA stood to gain or lose in this case. Justice Lalit remarked that the functions of the Society and the individuals who comprise it don’t go hand in hand.

Dewan replied that the Society’s objective was the growth of the Indian legal profession. Justice Goel asked whether the society’s petition, claiming to have a locus in this case, could be called a PIL in disguise (GILA is challenging the Bombay high court’s decision).

Dewan’s counter-contention was that the AA does not apply to law firms, but applies only to individual lawyers.

On Monday, 29 January, senior counsel Arvind Datar, representing a number of foreign law firms that had been impleaded in the Madras high court, attacked the vague wording in the Advcoates Act that states that only advocates shall be allowed to practice law.

But Datar argued that just because an advocate can do A, B, C and D, it does not mean that a non-advocate could not also do A, B, C and D. In other words, he said, ‘if I am not an advocate, it doesn’t mean I can’t give an opinion’.

Interpreting the relevant provisions of the AA, Datar said it is his privilege to practice anywhere.

His view is that foreign lawyers can appear in India for non-litigation work. A person, who is not a lawyer, can make a submission before an arbitrator. “There is no judgment of any court which says that if you are not an advocate, you can’t practice”, he said categorically.

Just as an Indian lawyer can go to the U.S. and give advice on Indian law, a foreign lawyer can come to India, and do research for a fee, Datar clarified.

Arguments will continue on February 1.

Photo by Stephen Brace

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