REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7875-7879 OF 2015
BAR COUNCIL OF INDIA …APPELLANT
VERSUS
A.K. BALAJI AND ORS. ...RESPONDENTS
WITH
CIVIL APPEAL NO.7170 OF 2015
(Association of Indian Lawyers versus M/s. London Court of
International Arbitration (LCIA) and ors.)
AND
CIVIL APPEAL NO. 8028 OF 2015
(Global Indian Lawyers versus Bar Council of India & Ors.)
J U D G M E N T
ADARSH KUMAR GOEL, J
1. The issue involved in this batch of matters is whether
foreign law firms/lawyers are permitted to practice in India.
Reference needs to be made to two leading matters. Civil
Appeal Nos.7875-79 of 2015 have been filed by the Bar
Council of India against the Judgment of Madras High Court
dated 21st February, 2012 in A.K. Balaji versus The
Government of India
1
. Civil Appeal No.8028 of 2015 has
1 AIR 2012 Mad 124
1
been filed by Global Indian Lawyers against the judgment of
Bombay High Court dated 16th December, 2009 in Lawyers
Collective versus Bar Council of India
2
.
2. The Madras High Court held as follows:
“63. After giving our anxious consideration to the
matter, both on facts and on law, we come to the
following conclusion :-
(i) Foreign law firms or foreign lawyers cannot
practice the profession of law in India either on the
litigation or non-litigation side, unless they fulfil the
requirement of the Advocates Act, 1961 and the Bar
Council of India Rules.
(ii) However, there is no bar either in the Act or the
Rules for the foreign law firms or foreign lawyers to
visit India for a temporary period on a "fly in and fly
out" basis, for the purpose of giving legal advise to
their clients in India regarding foreign law or their
own system of law and on diverse international legal
issues.
(iii) Moreover, having regard to the aim and object of
the International Commercial Arbitration introduced
in the Arbitration and Conciliation Act, 1996, foreign
lawyers cannot be debarred to come to India and
conduct arbitration proceedings in respect of disputes
arising out of a contract relating to international
commercial arbitration.
(iv) The B.P.O. Companies providing wide range of
customised and integrated services and functions to
its customers like word-processing, secretarial
support, transcription services, proof-reading
services, travel desk support services, etc. do not
come within the purview of the Advocates Act, 1961
or the Bar Council of India Rules. However, in the
event of any complaint made against these B.P.O.
Companies violating the provisions of the Act, the Bar
Council of India may take appropriate action against
such erring companies.”
2
2010 (2) Mah LJ 726
2
3. The Bombay High Court, on the other hand, concluded as
follows:
“60. For all the aforesaid reasons, we hold that in the
facts of the present case, the RBI was not justified in
granting permission to the foreign law firms to open
liaison offices in India under Section 29 of the 1973
Act. We further hold that the expressions ' to practise
the profession of law' in Section 29 of the 1961 Act is
wide enough to cover the persons practising in
litigious matters as well as persons practising in non
litigious matters and, therefore, to practise in non
litigious matters in India, the respondent Nos. 12 to
14 were bound to follow the provisions contained in
the 1961 Act. The petition is disposed of accordingly
with no order as to costs.”
4. When the matter against the judgment of the Madras
High Court came up for hearing before this Court on 4th July,
2012, following interim order was passed :
“In the meanwhile, it is clarified that Reserve
Bank of India shall not grant any permission to
the foreign law firms to open liaison offices in
India under Section 29 of the Foreign Exchange
Regulation Act, 1973. It is also clarified that the
expression "to practice the profession of law"
under Section 29 of the Advocates Act, 1961
covers the persons practicing litigious matters as
well as non-litigious matters other than
contemplated in para 63(ii) of the impugned
order and, therefore, to practice in non-litigious
matters in India the foreign law firms, by
whatever name called or described, shall be
bound to follow the provisions contained in the
Advocates Act, 1961.”
The said order has thereafter continued and is still in force.
3
5. In Civil Appeal Nos.7875-7879 of 2015, writ petition was
filed before the Madras High Court by one A.K. Balaji,
Advocate. Apart from official respondents, 32 law firms of
U.K., U.S.A., France and Australia have been impleaded as
respondents 9 to 40. Prayer in the writ petition is to take
action against the original respondents 9 to 40 or any other
foreign law firms or foreign lawyers illegally practicing the
profession of law in India and direct them to refrain from
having any illegal practice on the litigation side and in the
field of commercial transactions in any manner whatsoever.
PLEADINGS
6. Averments in the petition are that the writ petitioner was
an advocate enrolled with the Bar Council of Tamil Nadu. To
practice law in India, a person has to be Indian citizen and
should possess degree in law from a recognized University in
India. Nationals of other countries could be admitted as
advocates in India only if citizens of India are permitted to
practice in such other countries. Foreign degree of law from a
University outside India requires recognition by the Bar
Council of India. The Indian advocates are not allowed to
practice in U.K., U.S.A., Australia and other foreign nations
except on fulfilling onerous restrictions like qualifying tests,
4
experience, work permit. Foreign lawyers cannot be allowed
to practice in India without reciprocity.
7. Under the Advocates Act (the Act), a foreigner is not
entitled to practice in India in view of bar contained in Section
29. However, under the guise of LPOs (Legal Process
Outsourcing), conducting seminars and arbitrations, foreign
lawyers are visiting India on Visitor Visa and practicing
illegally. They also violate tax and immigration laws. They
have also opened their offices in India for practice in the fields
of mergers, take-overs, acquisitions, amalgamations, etc.
Disciplinary jurisdiction of the Bar Council extends only to
advocates enrolled under the Act. In India, the legal
profession is considered as a noble profession to serve the
society and not treated as a business but the foreign law firms
treat the profession as trade and business venture to earn
money. Indian lawyers are prohibited from advertising,
canvassing and solicit work but foreign law firms are
advertising through websites and canvass and solicit work by
assuring results. Many accountancy and management firms
are also employing graduates and thus rendering legal
services.
8. The stand of the Union of India initially was that if
foreign law firms are not allowed to take part in negotiations,
5
settling of documents and arbitrations in India, it will obstruct
the aim of making India a hub of international arbitration.
Many arbitrations with Indian Judges as arbitrators and Indian
lawyers are held outside India where foreign and Indian law
firms advise their clients. Barring the entry of foreign law
firms for arbitrations in India will result in many arbitrations
shifting to Singapore, Paris and London, contrary to the
declared policy of the Government and against national
interest. However, its final stand in affidavits dated 19th April,
2011 and 17th November, 2011 was different as recorded in
Para 3 of the High Court Judgment as follows :
“3 . The first respondent Union of India filed four
counter affidavits on 19.08.2010, 24.11.2010,
19.04.2011 and 17.11.2011. In one of the counter
affidavits, it is stated that the Bar Council of India,
which has been established under the Advocates Act,
1961, regulates the advocates who are on the
"Rolls", but law firms as such are not required to
register themselves before any statutory authority,
nor do they require any permission to engage in nonlitigation
practice. Exploiting this loophole, many
accountancy and management firms are employing
law graduates who are rendering legal services,
which is contrary to the provisions of the Advocates
Act. It is stated that the Government of India along
with the Bar Council of India is considering this issue
and is trying to formulate a regulatory framework in
this regard. The 1
st
respondent in his counter warns
that if the foreign law firms are not allowed to take
part in negotiations, settling up documents and
arbitrations in India, it will have a counter productive
effect on the aim of the government to make India a
hub of International Arbitration. In this connection, it
is stated that many arbitrations with Indian Judges
and Lawyers as Arbitrators are held outside India,
where both foreign and Indian Law Firms advise their
clients. If foreign law firms are denied entry to deal
6
with arbitrations in India, then India will lose many of
the arbitrations to Singapore, Paris and London. It
will be contrary to the declared policy of the
government and against the national interest. In the
counter affidavit filed on 19.04.2011, it is
stated that a proposal to consider an
amendment to Section 29 of the Advocates
Act, 1961 permitting foreign law firms to
practice law in India in non litigious matters on
a reciprocity basis with foreign countries is
under consultation with the Bar Council of
India. Finally, in the counter filed on
17.11.2011, it is stated that the Government of
India has decided to support the stand of the
Bar Council of India that the provisions of the
Advocates Act, 1961 would apply with equal
force to both litigious and non-litigious
practice of law, and it is only persons enrolled
under Section 24 of the Act, who can practice
before the Indian Courts.”
(emphasis added)
9. In this Court, stand of the Union of India is that
presently it is waiting for the Bar Council of India to frame
rules on the subject. However, it can frame rules under
Section 49A at any stage.
10. Stand of the Bar Council of India before the High Court
is that even non litigious practice is included in the practice
of law which can be done only by advocates enrolled under
the Act. Reliance was placed on the judgment of the Bombay
High Court in Lawyers Collective (supra). Further
reference was made to Sections 24 and 29 of the Act.
Section 47(2) read with Section 49(1)(e) provides for
7
recognition of qualifications of foreigners being recognized
for practice. It was submitted that practice of foreign lawyers
in India should be subject to regulatory powers of the Bar
Council.
11. Stand of the foreign law firms, inter alia, is that there is
no bar to a company carrying on consultancy/support
services in the field of protection and management of
intellectual, business and industrial proprietary rights,
carrying out market service and market research, publication
of reports, journals etc. A person not appearing before
Courts or Tribunals and not giving legal advice cannot be said
to be practice of law. The ninth respondent stated that it was
a part of group of companies and not a law firm and was duly
registered under the Indian Companies Act, 1956. The tenth
respondent, another foreign law firm, submitted that there is
no violation of law in giving advice on foreign law. Even
Indian lawyers are permitted to practice outside India and
issue of reciprocity is a policy matter to be decided by the
Government of India. It does not have a law office in India
and does not give advice on Indian laws. In England, foreign
lawyers are free to advice on their own system of law without
nationality requirement or qualification of England. The
8
eleventh respondent is an American law firm and submitted
that it advises clients on international legal issues from
different countries. Indian clients are given advice through
Indian lawyers and law firms which are enrolled with the Bar
Council. There is no discrimination in U.S. against Indian
citizens practicing law. Indian lawyers travel to US on
temporary basis for consultation on Indian law issues.
12. The Act and the Bar Council Rules govern practice of
Indian law and not foreign law. Participation in seminars and
conferences does not constitute practice in law. The
fourteenth respondent denied the existence of its office in
India and that it was practicing Indian law. It also took the
same stand as Respondent No.11 that regulatory framework
for advocates did not govern practice of foreign law. It
denied that it is operating a Legal Process Outsourcing office
(LPOs) in India. Its lawyers fly in and fly out of India on need
basis to advice clients on international transactions. To the
extent Indian law is involved, such matters are addressed by
Indian lawyers. If the foreign law firms are prevented from
advice on foreign law, the transaction cost of Indian clients
for consultation on foreign law will increase. Other foreign
law firms have also taken more or less similar stand.
9
Fifteenth respondent stated that it is a Business Process
Outsourcing (BPO) company providing wide range of
customized and integrated services and functions. The
sixteenth respondent also stated that it has no office in India
and is only rendering services other than practice of Indian
law. The eighteenth respondent stated that it does not have
any office in India and does not practice law in India. It only
advises on non Indian law. Respondent Nos.19, 26, 39 and
40 stated that they are limited law partnerships under Laws
of England. They do not have any law office in India.
Respondents Nos.20, 21, 24, 25, 27, 28, 30, 31, 32, 33, 34
and 38 also stated that they do not have any office in India
and do not practice Indian law. Indian lawyers cannot advice
on foreign laws and the requirement of Indian litigants in
regard is met by foreign lawyers. Its lawyers fly in and fly out
of India on need basis to advise the clients on international
transactions. To the extent Indian law is involved such
matters are addressed by Indian lawyers.
13. The respondent No.22 stated that it is an international
law firm but does not have any office in India. It advises
clients on laws other than Indian laws. Its India Practice
Group advises clients on commercial matters involving an
10
"Indian Element" relating to mergers, acquisitions, capital
markets, projects, energy and infrastructure, etc. from an
international legal perspective and it does not amount to
practice in Indian law. Respondent No.23 stated that it is
only advising on matters of English, European Union and
Hong Kong laws. It has working relationships with leading law
firms in major jurisdictions and instructs appropriate local law
firms to provide local law advice. Respondent No.29 stated
that it is a limited law partnership registered in England and
Wales and does not have office in India. It does not
represent parties in Indian courts nor advises on Indian law.
Respondent No.35 stated that it does not maintain any office
in India and its expertise in international law. 36th
Respondent stated that it does not practice Indian law and
has no office in India nor it operates any LPO. Its lawyers fly
in and fly out on need basis to advise clients on international
transactions or matters involving Australian laws or
international Benches to which there is an Indian component.
Working of Indian laws is entrusted to Indian lawyers. The
37th Respondent denied that it has any office in India or is
running LPO in India. It only advises with respect to
regulatory laws other than Indian law.
11
FINDINGS
14. The High Court upheld the plea of the foreign law firms
to the effect that there was no bar to such firms taking part
in negotiations, settling of documents and conducting
arbitrations in India. There was no bar to carrying on
consultancy/support services in the field of protection and
management of intellectual, business and industrial
proprietary rights, carrying out market survey and research,
publication of reports, journals etc. without rendering any
legal advice. This could not be treated as practice of law in
India. Referring to Section 2(1)(f) of the Arbitration and
Conciliation Act, 1996 (the Arbitration Act), it was observed
that if in international commercial arbitration, India is chosen
as the seat of arbitration, the foreign contracting party is
bound to seek assistance from lawyers of their own country
on the contract. There could be no prohibition for such
foreign lawyers to advise their clients on the foreign law.
15. Judgment of the Bombay High Court in Lawyers
Collective (supra) was distinguished on the ground that
setting up of law offices for litigious and non litigious matters
was different but if a foreign law firm without establishing
12
any liaison office in India offers advice to their clients on
foreign law, there was no legal bar to do so.
16. The Bombay High Court in its judgment observed:
“44. It appears that before approaching RBI, these
foreign law firms had approached the Foreign
Investment Promotion Board (FIPB for short) a High
Powered body established under the New Industrial
Policy seeking their approval in the matter. The FIPB
had rejected the proposal submitted by the foreign
law firms. Thereafter, these law firms sought
approval from RBI and RBI granted the approval in
spite of the rejection of FIPB. Though specific
grievance to that effect is made in the petition, the
RBI has chosen not to deal with those grievances in
its affidavit in reply. Thus, in the present case,
apparently, the stand taken by RBI & FIPB are
mutually contradictory.
45. In any event, the fundamental question to be
considered herein is, whether the foreign law firms
namely respondent Nos. 12 to 14 by opening liaison
offices in India could carry on the practise in non
litigious matters without being enrolled as Advocates
under the 1961 Act ?
46. Before dealing with the rival contentions on the
above question, we may quote Sections 29, 30, 33
and 35 of the 1961 Act, which read thus:
29. Advocates to be the only recognised
class of persons entitled to practice law. -
Subject to the provisions of this Act and any
rules made there under, there shall, as from
the appointed day, be only one class of
persons entitled to practise the profession
of law, namely, advocates. (not brought into
force so far)
30. Right of advocates to practise. -Subject
to provisions of this Act, every advocate
whose name is entered in the State roll shall
be entitled as of right to practise throughout
the territories to which this Act extends,
13
(i) in all Courts including the Supreme
Court;
(ii) before any tribunal or person
legally authorized to take evidence;
(iii) before any other authority or
person before whom such advocate
by or under any law for the time being
in force entitled to practise.
33 . Advocates alone entitled to practise.
-Except as otherwise provided in this Act or
in any other law for the time being in force,
no person shall, on or after the appointed
day, be entitled to practice in any Court or
before any authority or person unless he is
enrolled as an advocate under this Act.
35 . Punishment of advocates for
misconduct - (1) Where on receipt of a
complaint or otherwise a State Bar Council
has reason to believe that any advocate on
its roll has been guilty of professional or
other misconduct, it shall refer the case for
disposal to its disciplinary committee.
(1-A) The State Bar Council may, either of
its own motion or on application made to it
by any person interested, withdraw a
proceeding pending before its disciplinary
committee and direct the inquiry to be
made by any other disciplinary committee
of that State Bar Council.
(2) The disciplinary committee of a State
Bar Council [***] shall fix a date for the
hearing of the case and shall cause a notice
thereof to be given to the advocate
concerned and to the Advocate-General of
the State.
(3) The disciplinary committee of a State
Bar Council after giving the advocate
concerned and the Advocate-General an
opportunity of being heard, may make any
of the following orders, namely:
14
(a) dismiss the complaint or, where
the proceedings were initiated at the
instance of the State Bar Council,
direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from
practice or such period as it may
deem fit;
(d) remove the name of the advocate
from the State roll of advocates.
(4) Where an advocate is suspended from
practice under Clause (c) of Sub-section (3),
he shall, during the period of suspension, be
debarred from practising in any Court or
before any authority or person in India.
(5) Where any notice is issued to the
Advocate-General under Subsection (2), the
Advocate-General may appear before the
disciplinary committee of the State Bar
Council either in person or through any
advocate appearing on his behalf.
Explanation-In this section, (Section 37 and
Section 38), the expressions "AdvocateGeneral"
and "Advocate-General of the
State" shall, in relation to the Union territory
of Delhi, mean the Additional Solicitor
General of India.
47 . The argument of the foreign law firms is that
Section 29 of the 1961 Act is declaratory in nature
and the said section merely specifies the persons
who are entitled to practise the profession of law.
According to the respondent Nos. 12 to 14, the
expression 'entitled to practise the profession of law'
in Section 29 of the 1961 Act does not specify the
field in which the profession of law could be
practised. It is Section 33 of the 1961 Act which
provides that advocates alone are entitled to practise
in any Court or before any authority or person.
Therefore, according to respondent Nos. 12 to 14 the
1961 Act applies to persons practising as advocates
before any Court / authority and not to persons
practising in non litigious matters. The question,
therefore, to be considered is, whether the 1961 Act
15
applies only to persons practising in litigious matters,
that is, practising before Court and other
authorities ?
48. In the statements of Objects & Reasons for
enacting the 1961 Act, it is stated that the
main object of the Act is to establish All India
Bar Council and a common roll of advocates
and Advocate on the common roll having a
right to practise in any part of the country and
in any Court, including the Supreme Court.
Thus, from the Statement of Objects and
Reasons, it is seen that the 1961 Act is
intended to apply to (one) persons practising
the profession of law in any part of the country
and (two) persons practising the profession of
law in any Court including the Supreme Court.
Thus, from the statement of objects and
reasons it is evident that the 1961 Act is
intended to apply not only to the persons
practising before the Courts but it is also
intended to apply to persons who are
practising in non litigious matters outside the
Court.
49. Apart from the above, Section 29 of the
1961 Act specifically provides is that from the
appointed day, there shall be only one class of
persons entitled to practice the profession of
law, namely Advocates. It is apparent that
prior to the 1961 Act there were different
classes of persons entitled to practise the
profession of law and from the appointed day
all these class of persons practising the
profession of law, would form one class,
namely, advocates. Thus, Section 29 of the
1961 Act clearly provides that from the
appointed day only advocates are entitled to
practise the profession of law whether before
any Court / authority or outside the Court by
way of practise in non litigious matters.
50. Section 33 of the 1961 Act is a prohibitory
section in the sense that it debars any person
from appearing before any Court or authority
unless he is enrolled as an advocate under the
1961 Act. The bar contained in Section 33 of
the 1961 Act has nothing to do with the
persons entitled to be enrolled as advocates
16
under Section 29 of the 1961 Act. A person
enrolled as an advocate under Section 29 of
the 1961 Act, may or may not be desirous of
appearing before the Courts. He may be
interested in practising only in non litigious
matters. Therefore, the bar under Section 33
from appearing in any Court (except when
permitted by Court under Section 32 of the
1961 Act or any other Act) unless enrolled as
an advocate does not bar a person from being
enrolled as an advocate under Section 29 of
the 1961 Act for practising the profession of
law in non litigious matters. The Apex Court in
the case of Ex-Capt. Harish Uppal (supra) has
held that the right to practise is the genus of
which the right to appear and conduct cases in
the Court may be a specie. Therefore, the fact
that Section 33 of the 1961 Act provides that
advocates alone are entitled to practice before
any Court / authority it cannot be inferred that
the 1961 Act applies only to persons practising
in litigious matters and would not apply to
person practising in non litigious matters.
51. It was contended that the 1961 Act does
not contain any penal provisions for breaches
committed by a person practicing in nonlitigious
matter and, therefore, the 1961 Act
cannot apply to persons practising in nonlitigious
matters. There is no merit in this
contention, because, Section 35 of the 1961
Act provides punishment to an advocate who is
found to be guilty of professional or other
misconduct. The fact that Section 45 of the
1961 Act provides imprisonment for persons
illegally practicing in Courts and before other
authorities, it cannot be said that the 1961 Act
does not contain provisions to deal with the
persons found guilty of misconduct while
practising in non litigious matters. Once it is
held that the persons entitled to practice the
profession of law under the 1961 Act covers
the persons practising the profession of law in
litigious matters as well as non-litigious
matters, then, the penal provisions contained
in Section 35 of the 1961 Act would apply not
only to persons practising in litigious matter,
but would also apply to persons practising the
profession of law in non-litigious matters. The
17
very object of the 1961 Act and the Rules
framed by the Bar Council of India are to
ensure that the persons practising the
profession of law whether in litigious matters
or in non litigious matters, maintain high
standards in professional conduct and
etiquette and, therefore, it cannot be said that
the persons practising in non litigious matters
are not governed by the 1961 Act.
52 . Strong reliance was placed by the counsel
for the respondent No. 12 on the decision of
the Apex Court in the case of O.N. Mohindroo
(supra) in support of his contention that the
1961 Act applies only to persons practising the
profession of law before Courts / Tribunals /
other authorities. It is true that the Apex Court
in the above case has held that the 1961 Act is
enacted by the Parliament in exercise of its
powers under entry 77 and 78 in List I of the
Seventh Schedule to the Constitution.
However, the fact that entry 77 and 78 in List I
refers to the persons practising before the
Supreme Court and the High Courts, it cannot
be said that the 1961 Act is restricted to the
persons practising only before the Supreme
Court and High Courts. Practising the
profession of law involves a larger concept
whereas, practising before the Courts is only a
part of that concept. If the literal construction
put forth by the respondents is accepted then,
the Parliament under entry 77 & 78 in List I of
the Seventh Schedule to make legislation only
in respect of the advocates practicing before
the Supreme Court / High Courts and the
Parliament cannot legislate under that entry in
respect of advocates practising before the
District Courts/ Magistrate's Courts / other
Courts / Tribunals / authorities and
consequently, the 1961 Act to the extent it
applies to advocates practising in Courts other
than the High Courts and Supreme Court would
be ultra vires the Constitution. Such a narrow
construction is unwarranted because, once the
Parliament invokes its power to legislate on
advocates practising the profession of law,
then the entire field relating to advocates
would be open to the Parliament to legislate
and accordingly the 1961 Act has been enacted
18
to cover the entire field. In any event, the
question as to whether the persons practicing
the profession of law exclusively in nonlitigious
matters are covered under the 1961
Act, or not was not an issue directly or
indirectly considered by the Apex Court in the
case of O.N. Mohindroo (supra). Therefore, the
decision of the Apex Court in the above case
does not support the case of the contesting
respondents.
……..
……..
55. It was contended by the counsel for Union
of India that if it is held that the 1961 Act
applies to persons practising in non-litigious
matters, then no bureaucrat would be able to
draft or give any opinion in non-litigious
matters without being enrolled as an advocate.
There is no merit in the above argument,
because, there is a distinction between a
bureaucrat drafting or giving opinion, during
the course of his employment and a law firm or
an advocate drafting or giving opinion to the
clients on professional basis. Moreover, a
bureaucrat drafting documents or giving
opinion is answerable to his superiors,
whereas, a law firm or an individual engaged in
non litigious matters, that is, drafting
documents / giving opinion or rendering any
other legal assistance are answerable to none.
To avoid such anomaly, the 1961 Act has been
enacted so as to cover all persons practising
the profession of law be it in litigious matters
or in non-litigious matters within the purview
of the 1961 Act.
56. The argument that the 1961 Act and the Bar
Councils constituted there under have limited role to
play has been time and again negatived by the Apex
Court. Recently, the Apex Court in the case of Bar
Council of India v. Board of Management, Dayanand
College of Law reported in MANU/SC/5219/2006 :
(2007) 2 SCC 202 held thus:
It may not be correct to say that the Bar
Council of India is totally unconcerned with
the legal education, though primarily legal
education may also be within the province
19
of the universities. But, as the apex
professional body, the Bar Council of India is
concerned with the standards of the legal
profession and the equipment of those who
seek entry into that profession. The Bar
Council of India is also thus concerned with
the legal education in the country.
Therefore, instead of taking a pendantic
view of the situation, the State Government
and the recommending authority are
expected to ensure that the requirement set
down by the Bar Council of India is also
complied with.
Thus, when efforts are being made to see
that the legal profession stand tall in this
fast changing world, it would be improper to
hold that the 1961 Act and the Bar Council
constituted there under have limited role to
play in the field relating to practising the
profession of law.
57. It is not in dispute that once a person is
enrolled as an advocate, he is entitled to
practise the profession of law in litigious
matters as well as non-litigious matters. If the
argument of the respondents that the 1961 Act
is restricted to the persons practising the
profession of law in litigious matters is
accepted, then an advocate found guilty of
misconduct in performing his duties while
practising in non-litigious matters cannot be
punished under the 1961 Act. Similarly, where
an advocate who is debarred for professional
misconduct can merrily carry on the practise in
nonlitigious matters on the ground that the
1961 Act is not applicable to the persons
practising the profession of law in non litigious
matters. Such an argument which defeats the
object of the 1961 Act cannot be accepted.
58. It may be noted that Rule 6(1) in Chapter
III Part VI of the Bar Council of India Rules
framed under Section 49(1) (ah) of the 1961
Act provides that an advocate whose name has
been removed by an order of the Supreme
Court or a High Court or the Bar Council as the
case may be, shall not be entitled to practise
the profession of law either before the Court
20
and authorities mentioned under Section 30 of
the 1961 Act, or in chambers, or otherwise.
The above rule clearly shows that the chamber
practise, namely, practise in non litigious
matters is also within the purview of the 1961
Act.
59 . Counsel for the Union of India had argued that
the Central Government is actively considering the
issue relating to the foreign law firms practising the
profession of law in India. Since the said issue is
pending before the Central Government for more
than 15 years, we direct the Central Government to
take appropriate decision in the matter as
expeditiously as possible. Till then, the 1961 Act as
enacted would prevail, that is, the persons practising
the profession of law whether in litigious matters or
non litigious matters would be governed by the 1961
Act and the Bar Councils framed there under, apart
from the powers of the Court to take appropriate
action against advocates who are found guilty of
professional misconduct.
60. For all the aforesaid reasons, we hold that in the
facts of the present case, the RBI was not justified in
granting permission to the foreign law firms to open
liaison offices in India under Section 29 of the 1973
Act. We further hold that the expressions ' to practise
the profession of law' in Section 29 of the 1961 Act is
wide enough to cover the persons practising in
litigious matters as well as persons practising in non
litigious matters and, therefore, to practise in non
litigious matters in India, the respondent Nos. 12 to
14 were bound to follow the provisions contained in
the 1961 Act. The petition is disposed of accordingly
with no order as to costs.”
17. The Madras High Court agreed with the above view as follows :
“44. As noticed above, the facts of the case before
the Bombay High Court were that the respondents
which were foreign law firms practising the
profession of law in US/UK sought permission to open
their liaison office in India and render legal
assistance to another person in all litigious and nonlitigious
matters. The Bombay High Court, therefore,
rightly held that establishing liaison office in India by
the foreign law firm and rendering liaisoning
21
activities in all forms cannot be permitted since such
activities are opposed to the provisions of the
Advocates Act and the Bar Council of India Rules. We
do not differ from the view taken by the
Bombay High Court on this aspect.”
18. The Madras High Court after above observation proceeded to
consider the matter as follows:
“45 . However, the issue which falls for
consideration before this Court is as to whether a
foreign law firm, without establishing any liaison
office in India visiting India for the purpose of offering
legal advice to their clients in India on foreign law, is
prohibited under the provisions of the Advocates Act.
In other words, the question here is, whether a
foreign lawyer visiting India for a temporary period to
advise his client on foreign law can be barred under
the provisions of the Advocates Act. This issue was
neither raised nor answered by the Bombay High
Court in the aforesaid judgment.”
19. It was held :
“51. We find force in the submission made by the
learned counsel appearing for the foreign law firms
that if foreign law firms are not allowed to take part
in negotiations, for settling up documents and
conduct arbitrations in India, it will have a counter
productive effect on the aim of the Government to
make India a hub of International Arbitration.
According to the learned counsel, many arbitrations
with Indian Judges and Lawyers as Arbitrators are
held outside India, where both foreign and Indian law
firms advise their clients. If foreign law firms are
denied entry to deal with arbitrations in India, then
India will lose many of the arbitrations to foreign
countries. It will be contrary to the declared policy of
the Government and against the national interest.
Some of the companies have been carrying on
consultancy/support services in the field of
protection and management of intellectual, business
and industrial proprietary rights, carrying out market
surveys and market research and publication of
22
reports, journals, etc. without rendering any legal
service, including advice in the form of opinion, but
they do not appear before any courts or tribunals
anywhere in India. Such activities cannot at all be
considered as practising law in India. It has not been
controverted that in England, foreign lawyers are
free to advice on their own system of law or on
English Law or any other system of law without any
nationality requirement or need to be qualified in
England.
52. Before enacting the Arbitration and Conciliation
Act, 1996 the Law Commission of India, several
representative bodies of trade and industry and
experts in the field of arbitration have proposed
amendments to the Act to make it more responsive
to contemporary requirements. It was also
recognised that the economic reforms in India may
not fully become effective if the law dealing with
settlement of both domestic and international
commercial disputes remains out of tune with such
reforms. The United Nations Commission on
International Trade Law (UNCITRAL) adopted in 1985
the Model Law on International Commercial
Arbitration. The Arbitration and Conciliation Act is,
therefore, consolidated and amended to the law
relating to domestic and international commercial
arbitration as well as for the enforcement of foreign
arbitral award. The Act was enacted as a measure of
fulfilling India's obligations under the International
Treaties and Conventions. On account of the growth
in the international trade and commerce and also on
account of long delays occurring in the disposal of
suits and appeals in courts, there has been
tremendous movement towards the resolution of
disputes through alternative forum of arbitrators.
53. Section 2(1)(f) of the Act defines the term
"International Commercial Arbitration" as under:-
(f) International Commercial Arbitration means
an arbitration relating to disputes arising
out of legal relationships, whether
contractual or not, considered as
commercial under the law in force in India
and where at least one of the parties is
(i) an individual who is a national of, or
habitually resident in, any country other
than India; or
23
(ii) a body corporate which is incorporated in
any country other than India; or
(iii) a company or an association or a body of
individuals whose central management
and control is exercised in any country
other than India; or
(iv) the Government of a foreign country.
54 . From the above definition, it is manifestly clear
that any arbitration matter between the parties to
the arbitration agreement shall be called an
"international commercial arbitration" if the matter
relates to the disputes, which may or may not be
contractual, but where at least one of the parties
habitually resides abroad whether a national of that
country or not. The New York Convention will apply to
an arbitration agreement if it has a foreign element
or flavour involving international trade and
commerce, even though such an agreement does
not lead to a foreign award.
55 . International arbitration is growing big time in
India and in almost all the countries across the globe.
India is a signatory to the World Trade Agreement,
which has opened up the gates for many
international business establishments based in
different parts of the world to come and set up their
respective businesses in India.
56 . Large number of Indian Companies have been
reaching out to foreign destinations by mergers,
acquisition or direct investments. As per the data
released by the Reserve Bank of India during 2009,
the total out ward investment from India excluding
that which was made by Banks, had increased 29.6%
to U.S. Dollar 17.4 billion in 2007-08 and India is
ranked third in global foreign direct investment.
Overseas investments in joint ventures and wholly
owned subsidiaries have been recognized as
important avenues by Indian Entrepreneurs in terms
of foreign exchange earning like dividend, loyalty,
etc. India is the 7th largest, the second most
populated country and the fourth largest economy in
the world. Various economic reforms brought about
have made India grow rapidly in the Asia-Pacific
Region, and the Indian Private Sector has offered
considerable scope for foreign direct investment,
joint-venture and collaborations. Undoubtedly, these
cross-border transactions and investments would
24
give bigger opportunities for members of the legal
fraternity, in order to better equip themselves to face
the challenges. It is common knowledge that in the
recent past, parties conducting International
Commercial Arbitrations have chosen India as their
destination. The arbitration law in India is modelled
on the lines of the UNCITRAL Model Law of
Arbitration and makes a few departures from the
principles enshrined therein. The Arbitration and
Conciliation Act 1996, provides for international
commercial arbitration where at least one of the
parties is not an Indian National or Body corporate
incorporated in India or a foreign Government.
57. Institutional Arbitration has been defined to be
an arbitration conducted by an arbitral institution in
accordance with the rules of the institution. The
Indian Council of Arbitration is one such body. It is
reported that in several cases of International
Commercial Arbitration, foreign contracting party
prefers to arbitrate in India and several reasons have
been stated to choose India as the seat of
arbitration. Therefore, when there is liberalization of
economic policies, throwing the doors open to
foreign investments, it cannot be denied that
disputes and differences are bound to arise in such
International contracts. When one of the contracting
party is a foreign entity and there is a binding
arbitration agreement between the parties and India
is chosen as the seat of arbitration, it is but natural
that the foreign contracting party would seek the
assistance of their own solicitors or lawyers to advice
them on the impact of the laws of their country on
the said contract, and they may accompany their
clients to visit India for the purpose of the
Arbitration. Therefore, if a party to an International
Commercial Arbitration engages a foreign lawyer and
if such lawyers come to India to advice their clients
on the foreign law, we see there could be no
prohibition for such foreign lawyers to advise their
clients on foreign law in India in the course of a
International Commercial transaction or an
International Commercial Arbitration or matters akin
thereto. Therefore, to advocate a proposition that
foreign lawyers or foreign law firms cannot come into
India to advice their clients on foreign law would be a
far fetched and dangerous proposition and in our
opinion, would be to take a step backward, when
India is becoming a preferred seat for arbitration in
25
International Commercial Arbitrations. It cannot be
denied that we have a comprehensive and
progressive legal frame work to support International
Arbitration and the 1996 Act, provides for maximum
judicial support of arbitration and minimal
intervention. That apart, it is not in all cases, a
foreign company conducting an International
Commercial Arbitration in India would solicit the
assistance of their foreign lawyers. The legal
expertise available in India is of International
standard and such foreign companies would not
hesitate to avail the services of Indian lawyers.
Therefore, the need to make India as a preferred seat
for International Commercial Arbitration would
benefit the economy of the country.
58. The Supreme Court in a recent decision in
Vodafone International Holdings B.V. vs. Union of
India and another, SLP(C) No.26529 of 2010, dated
20.01.2012, observed that every strategic foreign
direct investment coming to India, as an investment
destination should be seen in a holistic manner. The
Supreme Court observed that the question involved
in the said case was of considerable public
importance, especially on Foreign Direct Investment,
which is indispensable for a growing economy like
India. Therefore, we should not lose site of the fact
that in the overall economic growth of the country,
International Commercial Arbitration would play a
vital part. The learned counsel appearing for the
foreign law firms have taken a definite stand that the
clients whom they represent do not have offices in
India, they do not advise their foreign clients on
matters concerning Indian Law, but they fly in and fly
out of India, only to advise and hand-hold their
clients on foreign laws. The foreign law firms, who
are the private respondents in this writ petition, have
accepted the legal position that the term "practice"
would include both litigation as well as non-litigation
work, which is better known as chamber practice.
Therefore, rendering advice to a client would also be
encompassed in the term "practice".
59. As noticed above, Section 2(a) of the Advocates
Act defines 'Advocate' to mean an advocate entered
in any roll under the provisions of the Act. In terms of
Section 17(1) of the Act, every State Bar Council
shall prepare and maintain a roll of Advocates, in
which shall be entered the names and addresses of
26
(a) all persons who were entered as an Advocate on
the roll of any High Court under the Indian Bar
Council Act, 1926, immediately before the appointed
date and (b) all other persons admitted to be
Advocates on the roll of the State Bar Council under
the Act on or after the appointed date. In terms of
Section 24(1) of the Act, subject to the provisions of
the Act and the Rules made thereunder, a person
shall be qualified to be admitted as an advocate on a
state roll if he fulfils the conditions (a) a citizen of
India, (b) has completed 21 years of age and (c)
obtained a degree in Law. The proviso to Section
24(1)(a) states that subject to the other provisions of
the Act, a National of any other country may be
admitted as an Advocate on a State roll, if a citizen
of India, duly qualified is permitted to practice law in
that other country. In terms of Section 47(1) of the
Act, where any country specified by the Central
Government by notification prevents citizens of India
practicing the profession of Law or subjects them to
unfair discrimination in that country, no subject of
any such country shall be entitled to practice the
profession of Law in India. In terms of Sub-Section (2)
of Section 47, subject to the provision of Sub-Section
(1), the Bar Council of India may prescribe
conditions, if any, subject to which foreign
qualifications in law obtained by persons other than
citizens of India shall be recognized for the purpose
of admission as an Advocate under the Act. Thus,
Section 47 deals with reciprocity. As per the
statement of objects and reasons of the Advocates
Act, it was a law enacted to provide one class of
legal practitioners, specifying the academic and
professional qualifications necessary for enrolling as
a practitioner of Indian Law, and only Indian citizens
with a Law Degree from a recognized Indian
University could enrol as Advocates under the Act.
The exceptions are provided under the proviso to
Section 24(1)(a), Section 24(1)(c)(iv) and Section
47(2). In the light of the scheme of the Act, if a
lawyer from a foreign law firm visits India to advice
his client on matters relating to the law which is
applicable to their country, for which purpose he
"flies in and flies out" of India, there could not be a
bar for such services rendered by such foreign law
firm/foreign lawyer.
60 . We are persuaded to observe so, since there
may be several transactions in which an Indian
27
company or a person of Indian origin may enter into
transaction with a foreign company, and the laws
applicable to such transaction are the laws of the
said foreign country. There may be a necessity to
seek legal advice on the manner in which the foreign
law would be applied to the said transaction, for
which purpose if a lawyer from a foreign law firm is
permitted to fly into India and fly out advising their
client on the foreign law, it cannot be stated to be
prohibited. The corollary would be that such foreign
law firm shall not be entitled to do any form of
practice of Indian Law either directly or indirectly.
The private respondents herein, namely the foreign
law firms, have accepted that there is express
prohibition for a foreign lawyer or a foreign law firm
to practice Indian Law. It is pointed out that if an
interpretation is given to prohibit practice of foreign
law by a foreign law firms within India, it would result
in a manifestly absurd situation wherein only Indian
citizens with Indian Law degree who are enrolled as
an advocate under the Advocates Act could practice
foreign law, when the fact remains that foreign laws
are not taught at graduate level in Indian Law
schools, except Comparative Law Degree Courses at
the Master's level.
61 . As noticed above, the Government of India, in
their counter affidavit dated 19.08.2010, have stated
that the contention raised by the petitioner that
foreign law firms should not be allowed to take part
in negotiating settlements, settling up documents
and arbitrations will be counter productive, as
International Arbitration will be confined to a single
country. It is further pointed out that many
arbitrations are held outside India with Indian Judges
and Lawyers as Arbitrators where both foreign and
Indian Law firms advise their clients. It has been
further stated if foreign law firms are denied
permission to deal with arbitration in India, then we
would lose many arbitrations to other countries and
this is contrary to the declared policy of the
Government and will be against the National interest,
especially when the Government wants India to be a
hub of International Arbitration
62 . At this juncture, it is necessary to note yet
another submission made by the Government of
India in their counter. It has been stated that law
firms as such or not required to register themselves
28
or require permission to engage in non-litigation
practice and that Indian law firms elsewhere are
operating in a free environment without any curbs or
regulations. It is further submitted that the oversight
of the Bar Council on non-litigation activities of such
law firms was virtually nil till now, and exploiting this
loop hole, many accountancy and management firms
are employing law graduates, who are rendering
legal services, which is contrary to the Advocates
Act. Therefore, the concern of the Government of
India as expressed in the counter affidavit requires to
be addressed by the Bar Council of India. Further, it
is seen that the Government in consultation with the
Bar Council of India proposes to commission a study
as to the nature of activities of LPOs, and an
appropriate decision would be taken in consultation
with the Bar Council of India.”
RIVAL CONTENTIONS
20. Shri C.U. Singh, learned senior counsel for the Bar Council of
India submitted that Advocates enrolled with the Bar Council of India
are the only recognized class of persons entitled to practice law in
India. Unless any other law so permits, no person can practice
before any ‘Court, authority or person’ other than an Advocate
enrolled under the Act. In particular cases, the ‘Court, authority or
person’ may permit a person other than an advocate enrolled under
the Act to appear before him. It was submitted that the expression
“practice profession of law” covered not only appearance before the
Court but also opinion work which is also known as chamber
practice. The Ethics prescribed by the Bar Council of India covered
not only conduct in appearing before Court or authority but also in
dealing with the clients including giving legal opinion, drafting or
29
participation in law conference. If a person practices before any
‘Court, authority or person’ illegally, is liable to punishment for
imprisonment which may extend to six months. Thus, the view
taken by the Madras High Court that visit by a foreign lawyer on fly
in and fly out basis to give advice on foreign law or to conduct
arbitration in international commercial arbitrations was erroneous.
Reference has also been made to definition of the term ‘advocate’
under Section 2(a) of the Act. Section 6 lays down functions of the
Bar Council including admission of persons as advocates,
safeguarding rights, privileges and interests of advocates. Section
17 lays down that every State Bar Council shall prepare a roll of
advocates and no person can be enrolled in more than one State Bar
Council. Section 24 lays down qualifications for admission on the
roll of a State Bar council. The qualifications include the citizenship
of India, unless a person is national of a country where citizens of
India are permitted to practice. One is required to have the
prescribed qualification from India or out of India if such degree is
recognized by the Bar Council of India, being a Barrister called to
the Bar before 31st December, 1976, passing of articled clerks
examination or any other examination specified by the Bombay or
Calcutta High Court or obtaining foreign qualification recognized by
the Bar Council of India are also the prescribed qualifications. It was
submitted that even in other jurisdictions, persons other than those
30
enrolled with the concerned Bar Council are not allowed to practice.
Even short term running of legal service is subject to regulatory
regime.
21. Learned counsel for the foreign law firms S/Shri Arvind Datar,
Sajjan Poovayya, Dushyant Dave, learned senior counsel and Mr.
Nakul Dewan, learned counsel supported the direction of the Madras
High Court permitting foreign lawyers to render legal services on fly
in and fly out basis and also with reference to international
commercial arbitrations. It was submitted that Bar Council could
come into picture only in respect of advocates enrolled with it. It is
only with reference to appearance before the Courts or other
authorities or persons that the regulatory regime of the Bar Council
may apply but with regard to non litigation/advisory work even
those not enrolled as advocates under the Advocates Act are not
debarred. It was also submitted by Shri Dewan that Advocates Act
applies only to individuals and not to law firms. Provision for
reciprocity applies only for enrolment under the Advocates Act and
not for casual legal services on fly in and fly out basis or in
connection with international commercial arbitration. Foreign
lawyers are regulated by the disciplinary regime applicable to them
and only their Bar Councils could take action with regard to their
working in India also. Practice of law in India did not cover advising
on foreign law. Thus, if by a pre-determined invitation, a foreign
31
lawyer visited India to advise on a foreign law, there is no bar
against doing so.
22. Certain decisions have been cited at the Bar to which
reference may be made. In Roel versus New York County
Lawyers Association
3
, the Court of Appeals of the State of New
York dealt with a case where a Mexican citizen and lawyer, who was
not a citizen of the United States nor a member of the New York Bar,
maintained his office in New York and advised members of the
public on Mexican law. He did not give any advice as to New York
law. The majority held that this was not permissible. It was
observed:
“To allow a Mexican lawyer to arrange the
institution of divorce proceedings for a New
York resident in a Mexican court, without
allowing him to tell the client that the divorce
might be invalid (Querze v. Querze, 290 N.Y.
13) or that it might adversely affect estate or
other property rights or status in this State
(Matter of Rathscheck, 300 N.Y. 346), is to give
utterly inadequate protection to him (See 70
Harv.L.Rev. 1112-1113). Nor are we in anywise
persuaded by the argument in the brief of the
Association of the Bar that there is any
difference between the right of a Mexican
lawyer to act and advise the public in divorce
matters and the right (3 N.Y.2d 232) of foreign
lawyers generally to act an advise with respect
to foreign law. … …
The complex problem posed by the
activities of foreign attorneys here is a
long-standing one. It may well be that
3
3 N.Y.2d 224 (1957)
32
foreign attorneys should be licensed to
deal with clients in matters exclusively
concerning foreign law, but that is solely
within the province of the Legislature.
Our courts are given much control over
the lawyers admitted to the Bar of our
State; we have no control, however, over
those professing to be foreign law
experts.
We see no substance in appellant’s claim
that section 270 of the Penal Law when
applied to him deprives him of liberty and
property without due process of law, in
that the statute as so construed is
unreasonable and serves no public
purpose.”
23. The minority view, on the other hand, held that:
“In this century when the United States has
become the creditor nation of the world and
when the ramifications of our industrial,
commercial, financial and recreational lives
extend to every corner of the global, it is
especially improbable that the Legislature
intended to preclude the giving of legal advice
in this State to our citizens concerning these
far-flung enterprises by trained lawyers from
abroad who are equipped to give accurate
information and opinions regarding them. The
customary residential requirements for
admission to the Bar would in themselves
often preclude their becoming admitted to our
Bar. … …
The omission of the Legislature to enact
statutes licensing or regulating the conduct of
foreign lawyers in practicing purely foreign law
in this State, does not indicate that such
conduct is prohibited by sections 270 and 271
of the Penal Law, but merely that the
Legislature has not seen fit to subject them to
regulation. Whatever the merits of such
33
proposed legislation, it is not for us to enact it.
If foreign lawyers came under section 270 and
271 of the Penal Law, it would stifle their
activities to the detriment of the large and
increasing number of our nationals who
engage in transactions in foreign countries,
inasmuch as it would be impossible for most of
them to be admitted to practice in this State.”
24. In Appell versus Reiner
4
, the Supreme Court of New Jersey
dealt with a case of New York lawyer, who was not admitted to the
New Jersey Bar, giving legal services to New Jersey residents in a
matter involving the extension of credit and the compromise of
claims held by New York and New Jersey creditors. The Chancery
Division held that the New York lawyer could not advice in respect
of New Jersey creditors. The Supreme Court of New Jersey held:-
“The Chancery Division correctly delineated
the generally controlling principle that legal
services to be furnished to New Jersey
residents relating to New Jersey matters may
be furnished only by New Jersey counsel. We
nevertheless recognize that there are unusual
situations in which a strict adherence to such a
thesis is not in the public interest. In this
connection recognition must be given to the
numerous multi-state transactions arising in
modern times. This is particularly true of our
State, situated as it is in the midst of the
financial and manufacturing center of the
nation. An inflexible observance of the
generally controlling doctrine may well
occasion a result detrimental to the public
interest, and it follows that there may be
instances justifying such exceptional treatment
warranting the ignoring of state lines. This is
such a situation. Under the peculiar facts here
4
43 N.J. 313 (1964); 204 A.2d 146
34
present, having in mind the nature of the
services to be rendered, the inseparability of
the New York and New Jersey transactions, and
the substantial nature of the New York claim,
we conclude that plaintiff’s agreement to
furnish services in New Jersey was not illegal
and contrary to public policy.
It must be remembered that we are not here
concerned with any participated by plaintiff in
a court proceeding. What is involved is the
rendering of advice and assistance in obtaining
extensions of credit and compromises of
indebtedness. … …”
25. Again, there was a dissenting view as follows:
“… …Regulation of the interests of the public
and the bar requires a rule of general
application. In cases such as we have here,
the only fair and workable rule is one which
recognizes that the client’s matter is primarily
a New Jersey one and calls for the engagement
of a member of our bar for the legal services
to be rendered here. And, in that connection,
in the interest of interstate amity, if an out-ofstate
attorney renders legal services in New
Jersey which are a minor or incidental part of a
total problem which has its principal and
primary aspects in his state, he should be
allowed to recover in our courts for the work
done in this jurisdiction.”
26. Mr. Poovayya referred to Rules of the Indian Council of
Arbitration which could apply only if there was an agreement
between the parties that the arbitration was to be in accordance
with the Rules of the Indian Council of Arbitration. Rule 45 laid
down that parties have no right to be represented by lawyers
unless the arbitral tribunal considers it necessary and allows.
35
27. Referring to the Arbitration Act, it was submitted that
international commercial arbitration is defined under Section 2(f)
which covers arbitration relating to disputes where one of the
parties is a national or habitual resident of a country other than
India or a body corporate incorporated outside India or an
association of body of individuals whose management and control is
exercised in a country other than India or a Government of a foreign
country. In such cases, parties may agree to have an arbitrator of
any nationality, to any language to be used in arbitration
proceedings, to any place of arbitration. Section 28(b) permits
Arbitral Tribunal to decide disputes in accordance with rules of law
applicable to the substance of the dispute as agreed by the parties.
The arbitrator has to give equal opportunity to the parties to
present their case (Section 18). Parties can agree on the procedure
to be followed (Section 19). Section 34(2)(a)(iii) provides that an
award may be set aside, inter-alia, on the ground that the party was
unable to present its case in the arbitration proceedings. Procedure
for presenting case of a party before the arbitrator may be
governed by agreement or by the procedural rules.
28. Shri Dushyant Dave referred to rules of certain Arbitration
Institutions to the effect that the parties are free to be represented
by an outside lawyer. It was submitted that by way of Convention
36
in international commercial arbitrations, there cannot be any
compulsion to engage only a local lawyer. Section 48(1)(b) of the
Arbitration Act provides that enforcement of a foreign award can be
refused if the parties were unable to present their case. The New
York Convention Awards are governed by the First Schedule to the
Act. Article-II provides for recognition of an arbitration agreement
between the parties. Article-V(1)(b) provides that if the party
against whom the award is invoked was not given proper notice or
could not present his case, the award cannot be enforced. Section
53 of the Arbitration Act refers to Geneva Convention Awards which
is regulated by the Second Schedule to the Act containing similar
provisions.
29. Mr. Dave submitted that the Special Leave Petition arising out
of the Delhi High Court order is on the question whether London
Court of International Arbitration could use the expression “COURT”
had become infructuous as the respondent had closed its working
in India. He, however, referred the following:
I) Handbook of ICC Arbitration – Commentary,
Precedents, Materials – Second Edition (Michael
W. Buhler and Thomas H. Webster)
Article 21(4): “The parties may appear in person or
through duly authorized representatives. In addition,
they may be assisted by advisers.”
The authors’ comment is as follows:
37
“In an ICC arbitration, parties have the right to
be represented by the persons of their choice. A
distinction should however be made between
“authorized representatives” and “advisors”.
Usually, the parties have attorneys represent
them in the arbitration. Thus, an attorney may
have both capacities, but this may not always be
the case. As an adviser, he or she would not
need a power of attorney. On the other hand, as
a representative of a party, he or she might need
a power of attorney. In arbitration. The major
centres of arbitration do not appear to have
restrictions on the right of lawyers from other
countries to argue cases in those countries, with
the possible exception of California.”
The footnote 31 is as follows:
“See Birbower, Montabano, Condon & Frank, P.C.
v. The Superior Court of Santa Clara, 949 P.2d 1
(Cal. 1998); see also Holtzmann and Donovan,
“United States Country Report” in ICCA
Handbook, Supp. 28 (Paulsson edn, 1999). The
California Rules of Court were modified in 2004
in order to permit any US qualified lawyer to
represent a party in an arbitration (r.966).
However, it remains unclear whether lawyers
admitted to foreign bars can represent parties in
national or international arbitration.”
II) Arbitration of Commercial Disputes –
International and English Law and Practice
(Andrew Tweeddale and Keren Tweeddale).
Representation of the parties
10.15. The right to legal representation at trial
has existed both in the common law and in
international treaties for centuries
5
. However,
5 See, for example, art 42 of the Statute of the International Court of Justice which states: ‘1. The
parties shall be represented by agents. 2. They may have the assistance of counsel or advocates
before the Court. 3. The agents, counsel, and advocates of parties before the Court shall enjoy the
privileges and immunities necessary to the independent exercise of their duties.’ See also art 37 of
the Hague Convention 1899 which states: ‘The parties have the right to appoint delegates or
special agents to attend the Tribunal, for the purpose of serving as intermediaries between them
38
the right to legal representation is not absolute.
The parties may agree to dispense with legal
representation
6
. Furthermore, some rules of
arbitration prohibit the use of legal
representation
7
. In international commercial
arbitrations it is generally accepted that the
parties may choose their own advocate without
necessarily choosing one qualified at the seat of
the arbitration
8
. However, in a few recent cases
that principle has been challenged
9
.”
III) Redfern and Hunter on International Arbitration
“In general, the parties may also be represented
by engineers, or commercial men, for the
purpose of putting forward the oral submissions,
and even for the examination of witnesses. It is
not uncommon, where a case involves technical
issues, for an engineer or other professional man
to be part of the team of advocates representing
a party at a hearing, although it is more usual for
such technical experts to be called as witnesses
and the Tribunal. They are further authorized to retain, for the defense of their rights and interests
before the Tribunal, counsel or advocates appointed by them for this purpose.’
6
Henry Bath & Son Ltd. v. Birgby Products [1962] Lloyd’s Rep 389; and see also the
English Arbitration Act 1996, s 36.
7 The arbitration rules of the Australian Football league, for example, limit legal representation.
8 See, for example, In the matter of an Arbitration between Lawler, Matusky and Skelly, Engineers
and the Attorney General of Barbados (No.320 of 1981) 22 August 1983 where the High Court of
Barbados held that there was a ‘common law right of everyone who is sui juris to appoint an agent
for any purpose’. The court held that this included the right to appoint a representative to appear
as advocate on a party’s behalf in a commercial arbitration.
9
In the matter of an Arbitration between Builders Federal (Hong Kong) Ltd. and Joseph Gartner &
Co., and Turner (East Asia) Pte Ltd (No. 90 of 1987) (1988) 2 MLJ 280 the Malaysian Judicial
Commissioner Chan Sek Keong ruled that the respondents, who were a foreign company, could
not select a counsel from their own country because Singapore’s Legal Profession Act operated as
a bar to foreign lawyers from representing their clients in international arbitrations in Singapore.
However, in June 2004 Singapore finally amended its Legal Profession Act to eliminate this
restriction on representation by foreign lawyers in arbitrations in Singapore. See also Birbrower,
Montabano, Condon & Frank v. Superior Court of Santa Clara County, 1998 Cal LEXIS 2, 1998
WL 1346 (Cal 1/5/98) where the court held that a New York lawyer representing a client in a
Californian arbitration was not qualified to act for his client because he was not called to the
Californian bar and therefore not entitled to recover his fees. The court, however, stated that this
principle would not apply to an international commercial arbitration.
39
in order that their opinions and submissions may
be tested by cross-examination. However, it
may sometimes be convenient and save time if
technical experts address the arbitral tribunal
directly as party representatives
10
.
The Supreme Court of California held in 1998
that representing a party in an arbitration
without its seat in California was ‘engaging in the
practice of law’ in that state. It followed that a
New York lawyer, not a member of the
Californian Bar, was not qualified to represent his
client in a Californian arbitration; and was thus
unable to recover his fee when he sued for it
11
.
Fortunately the court stated that the rule did not
apply in international arbitration. IN England
there is not, and never has been, any danger of
a similar situation arising
12
. A party to an
arbitration may, in theory, be represented by his
plumber, his dentist, or anyone else of his
choosing, although the choice usually falls on a
lawyer or specialist claims consultant in the
relevant industry
13
.”
IV) LONDON COURT OF INTERNATIONAL
ARBITRATION (LCIA) RULES (2014)
Article 18 – Legal Representatives
“18.1Any party may be represented in the
arbitration by one or more authorized legal
representatives appearing by name before the
Arbitral Tribunal.
18.2 Until the Arbitral Tribunal’s formation, the
Registrar may request from any party: (i) written
proof of the authority granted by that party to
any legal representative designated in its
Request or Response; and (ii) written
10 Both the UNCITRAL RULES (Art4) and the LCIA Rules (Art18) make it clear that parties are
entitled to be represented by non-lawyers.
11 Birbrower, Montabane, Condon Frank v. The Superior Court of Santa Clara County, 1998 Cal
Lexis2; 1998 WL 1346 (Cal 1/5/98)
12 i.e. that only a member of the local bar should be entitled to represent a party in a judicial or
quasi-judicial proceeding.
13 English Arbitration Act, 1996, s 36. This reaffirms the previous common law position.
40
confirmation of the names and addresses of all
such party’s legal representatives in the
arbitration. After its formation, at any time, the
arbitral Tribunal may order any party to provide
similar proof or confirmation in any form
considers appropriate.”
V) CHINA INTERNATIONAL ECONOMIC AND TRADE
ARBITRATION COMMISSIN (CIETAC)
ARBITRATION RULES.
Article 22 - Representation
“A party may be represented by its authorized
Chinese and/or foreign representative(s) in
handling matters relating to the arbitration. In
such a case, a Power of Attorney shall be
forwarded to the Arbitration Court by the party
or its authorized representative(s).”
VI) ARBITRATION RULES, MEDIATION RULES OF
INTERNATIONAL CHAMBER OF COMMERCE.
ARTICLE 26 – Hearings
“4. The parties may appear in person or
through duly authorized representatives. In
addition, they may be assisted by advisers.”
VII) COMMERCIAL ARBITRATION RULES AND
MEDIATION PROCEDURES OF AMERICAN
ARBITRATION ASSOCIATION
R-26. Representation
“Any party may participate without
representation (pro se), or by counsel or any
other representative of the party’s choosing,
unless such choice is prohibited by applicable
law. A party intending to be so represented shall
notify the other party and the AAA of the name,
telephone number and address, and email
41
address if available, of the representative at
least seven calendar days prior to the date set
for the hearing at which that person is first to
appear. When such a representative initiates an
arbitration or responds for a party, notice is
deemed to have been given.”
VIII)ARBITRATION RULES OF THE SINGAPORE
INTERNATIONAL ARBITRATION CENTRE (SIAC)
Party Representatives
“23.1Any party may be represented by legal
practitioners or any other authorized
representatives. The Registrar and/or the
Tribunal may require proof of authority of any
party representatives.
23.2 After the constitution of the Tribunal, any
change or addition by a party to its
representatives shall be promptly communicated
in writing to the parties, the Tribunal and the
Registrar.”
IX) RULES OF INTERNATIONAL COMMERCIAL
ARBITRATION BY INDIAN COUNCIL OF
ARBITRATION
20. Party Representation and assistance
“At the hearing, a party shall be entitled to
appear through Attorney, Advocate or a duly
authorized Advisor or Representative or in
person, subject to such proof of authority to the
satisfaction of the Registrar or the Tribunal.”
30. Shri C.U. Singh, learned senior counsel, by way of rejoinder,
opposed the submissions of learned counsel appearing for the
foreign law firms. He submitted that the stand of the Central
Government finally was to support the stand of the Bar Council of
42
India. The argument that participation of foreign lawyers will be in
the interest of the country was raised by the foreign law firms only
as shown from para 51 of the Madras High Court judgment. He
submitted that the arbitrator was also an ‘authority’ before whom
only advocates enrolled in India alone could appear. The arbitrator
could record evidence and summon witnesses through
Court(Section 27). Rules of Arbitration Institutions have to be in
conformity with the law of the land. He also submitted that the
rules framed by the Bar Council of India under Section 49 define the
practice of law so as to cover even giving of opinion.
31. Shri Singh further pointed out that Ethics for the profession as
applicable in India are different from the Ethics applicable in other
countries. In this regard, it was submitted that Rule 36 in Part VI,
Chapter II of the BCI Rules prohibits direct or indirect advertising by
advocates, or solicitation by any means whatsoever. Rule 18 bars
an advocate from fomenting litigation. In Bar Council of
Maharashtra versus M.V. Dabholkar
14
, this Court held that
advertising was a serious professional misconduct for an advocate.
As against this, in USA Rule 7.3 of the American Bar Association
Rules bars only in-person or live telephonic solicitation of clients,
but expressly permits lawyer-to-lawyer solicitation, as well as client
solicitation by written, recorded or electronic communication, unless
14 (1976) 2 SCC 291
43
the target of solicitation has made known to the lawyer his desire
not to be solicited, or the solicitation involved coercion, duress or
harassment. The US Supreme Court, inter alia, in Zauderer
versus Office of Disciplinary Counsel
15 and in Shapero versus
Kentucky Bar Association
16
struck down disciplinary actions
against lawyers for soliciting clients through print advertisements or
hoardings. In UK, Solicitors Regulation Authority(SRA) is a
regulatory body established under the Legal Services Act, 2007.
Chapter 8 of the SRA Handbook permits publicity of the law firm but
prohibits solicitations.
32. In India, with regard to Contingency fees, Rule 20 in Part VI,
Chapter II of the BCI Rules bars an advocate from stipulating a fee
contingent on the results of the litigation or from agreeing to share
the proceeds thereof. Rule 21 prohibits practices akin to champerty
or maintenance, and prohibits an advocate from buying or
trafficking in or stipulating or agreeing to receive any share or
interest in an actionable claim. In USA Rule 1.5 (c) of the ABA Rules
permits lawyers to charge contingency fees, except in certain
specified cases like criminal defence, etc. Fee-splitting
arrangements between lawyers from different firms are also
permitted with some restrictions. In U.K., Section 58 of the Courts
and Legal Services Act, 1990 permits “conditional fee agreements”
15 471 US 626 (1985)
16 486 US 466
44
except in criminal proceedings and family law matters and Section
58AA permits “damages-based fee agreements”, all of which entitle
legal practitioners to a share of the “winnings”.
33. In India, there are no rules framed by the Bar Council on the
subject ‘sale of law practice’. In U.S.A., Rule 1.17 permits law firms
or lawyers having private practice to sell their practice including the
goodwill. In U.K., SRA Guidelines permit sale of practice as a going
concern or acquisition of a practice which is closing down.
34. In India, senior advocates are barred from interacting directly
with clients, and are not permitted to draft pleadings or affidavits,
correspond on behalf of clients, or to appear in court unassisted by
an advocate (Part VI, Chapter I of the Bar Council of India Rules). In
U.S.A., no such distinction or designations are made. In U.K., there
appear to be no restrictions on Queen’s Counsel (QCs) similar to the
ones imposed by the Bar Council in India. QCs are permitted to join
law firms as partners.
35. In India, funding of litigation by advocates is not explicitly
prohibited, but a conjoint reading of Rule 18 (fomenting litigation),
Rule 20 (contingency fees), Rule 21 (share or interest in an
actionable claim) and Rule 22 (participating in bids in execution,
etc.) would strongly suggest that advocates in India cannot fund
litigation on behalf of their clients. There appears to be no
45
restriction on third parties (non-lawyers) funding the litigation and
getting repaid after the outcome of the litigation. In U.S.A., lawyers
are permitted to fund the entire litigation and take their fee as a
percentage of the proceeds if they win the case. Third Party
Litigation Funding/Legal Financing agreements are not prohibited.
In U.K., Section 58B of the Courts and Legal Services Act, 1990
permits litigation funding agreements between legal service
providers and litigants or clients, and also permits third party
Litigation Funding or Legal Financing agreements, whereby the third
party can get a share of the damages or “winnings”.
36. In India, partnerships with non-lawyers for conducting legal
practice is not permitted. In U.K., Section 66 of the Courts and
Legal Services Act, 1990 expressly permits solicitors and barristers
to enter into partnerships with non-solicitors and non-barristers.
CONSIDERATION OF THE ISSUES
37. We have considered the rival submissions. Questions for
consideration mainly arise out of directions in para 63 of the Madras
High Court judgment which have already been quoted in the
beginning of this judgment. viz. :
(i) Whether the expression ‘practise the profession of law’
includes only litigation practice or non-litigation practice
also;
46
(ii) Whether such practice by foreign law firms or foreign
lawyers is permissible without fulfilling the requirements
of Advocates Act and the Bar Council of India Rules;
(iii) If not, whether there is a bar for the said law firms or
lawyers to visit India on ‘fly in and fly out’ basis for giving
legal advice regarding foreign law on diverse international
legal issues;
(iv) Whether there is no bar to foreign law firms and lawyers
from conducting arbitration proceedings and disputes
arising out of contracts relating to international
commercial arbitration;
(v) Whether BPO companies providing integrated services are
not covered by the Advocates Act or the Bar Council of
India rules.
RE : (i)
38. In Pravin C. Shah versus K.A. Mohd. Ali
17
, it was observed
that right to practice is genus of which right to appear and conduct
cases is specie. It was observed:
“………The right of the advocate to practise
envelopes a lot of acts to be performed by him in
discharge of his professional duties. Apart form
appearing in the courts he can be consulted by
17 (2001) 8 SCC 650
47
his clients, he can give his legal opinion
whenever sought for, he can draft instruments,
pleadings, affidavits or any other documents, he
can participate in any conference involving legal
discussions etc. ……”
In Ex. Capt. Harish Uppal versus Union of India
18
, same
view was reiterated.
39. Ethics of the legal profession apply not only when an advocate
appears before the Court. The same also apply to regulate practice
outside the Court. Adhering to such Ethics is integral to the
administration of justice. The professional standards laid down from
time to time are required to be followed. Thus, we uphold the view
that practice of law includes litigation as well as non litigation.
RE : (ii)
40. We have already held that practicing of law includes not only
appearance in courts but also giving of opinion, drafting of
instruments, participation in conferences involving legal discussion.
These are parts of non-litigation practice which is part of practice of
law. Scheme in Chapter-IV of the Advocates Act makes it clear that
advocates enrolled with the Bar Council alone are entitled to
practice law, except as otherwise provided in any other law. All
others can appear only with the permission of the court, authority or
person before whom the proceedings are pending. Regulatory
mechanism for conduct of advocates applies to non-litigation work
18 (2003) 2 SCC 45
48
also. The prohibition applicable to any person in India, other than
advocate enrolled under the Advocates Act, certainly applies to any
foreigner also.
RE : (iii)
41. Visit of any foreign lawyer on fly in and fly out basis may
amount to practice of law if it is on regular basis. A casual visit for
giving advice may not be covered by the expression ‘practice’.
Whether a particular visit is casual or frequent so as to amount to
practice is a question of fact to be determined from situation to
situation. Bar Council of India or Union of India are at liberty to
make appropriate rules in this regard. We may, however, make it
clear that the contention that the Advocates Act applies only if a
person is practicing Indian law cannot be accepted. Conversely,
plea that a foreign lawyer is entitled to practice foreign law in India
without subjecting himself to the regulatory mechanism of the Bar
Council of India Rules can also be not accepted. We do not find any
merit in the contention that the Advocates Act does not deal with
companies or firms and only individuals. If prohibition applies to an
individual, it equally applies to group of individuals or juridical
persons.
RE: (iv)
42. It is not possible to hold that there is absolutely no bar to a
foreign lawyer for conducting arbitrations in India. If the matter is
49
governed by particular rules of an institution or if the matter
otherwise falls under Section 32 or 33, there is no bar to conduct
such proceedings in prescribed manner. If the matter is governed by
an international commercial arbitration agreement, conduct of
proceedings may fall under Section 32 or 33 read with the
provisions of the Arbitration Act. Even in such cases, Code of
Conduct, if any, applicable to the legal profession in India has to be
followed. It is for the Bar Council of India or Central Government to
make a specific provision in this regard, if considered appropriate.
RE: (v)
43. The BPO companies providing range of customized and
integrated services and functions to its customers may not violate
the provisions of the Advocates Act, only if the activities in pith and
substance do not amount to practice of law. The manner in which
they are styled may not be conclusive. As already explained, if their
services do not directly or indirectly amount to practice of law, the
Advocates Act may not apply. This is a matter which may have to
be dealt with on case to case basis having regard to a fact situation.
44. In view of above, we uphold the view of the Bombay High
Court and Madras High Court in para 63 (i) of the judgment to the
effect that foreign law firms/companies or foreign lawyers cannot
practice profession of law in India either in the litigation or in nonlitigation
side. We, however, modify the direction of the Madras
50
High Court in Para 63(ii) that there was no bar for the foreign law
firms or foreign lawyers to visit India for a temporary period on a
“fly in and fly out” basis for the purpose of giving legal advice to
their clients in India regarding foreign law or their own system of law
and on diverse international legal issues. We hold that the
expression “fly in and fly out” will only cover a casual visit not
amounting to “practice”. In case of a dispute whether a foreign
lawyer was limiting himself to “fly in and fly out” on casual basis for
the purpose of giving legal advice to their clients in India regarding
foreign law or their own system of law and on diverse international
legal issues or whether in substance he was doing practice which is
prohibited can be determined by the Bar Council of India. However,
the Bar Council of India or Union of India will be at liberty to make
appropriate Rules in this regard including extending Code of Ethics
being applicable even to such cases.
45. We also modify the direction in Para 63 (iii) that foreign
lawyers cannot be debarred from coming to India to conduct
arbitration proceedings in respect of disputes arising out of a
contract relating to international commercial arbitration. We hold
that there is no absolute right of the foreign lawyer to conduct
arbitration proceedings in respect of disputes arising out of a
contract relating to international commercial arbitration. If the
Rules of Institutional Arbitration apply or the matter is covered by
51
the provisions of the Arbitration Act, foreign lawyers may not be
debarred from conducting arbitration proceedings arising out of
international commercial arbitration in view of Sections 32 and 33 of
the Advocates Act. However, they will be governed by code of
conduct applicable to the legal profession in India. Bar Council of
India or the Union of India are at liberty to frame rules in this regard.
46. We also modify the direction of the Madras High Court in Para
63(iv) that the B.P.O. Companies providing wide range of customized
and integrated services and functions to its customers like word
processing, secretarial support, transcription services, proof reading
services, travel desk support services, etc. do not come within the
purview of the Advocates Act, 1961 or the Bar Council of India Rules.
We hold that mere label of such services cannot be treated as
conclusive. If in pith and substance the services amount to practice
of law, the provisions of the Advocates Act will apply and foreign law
firms or foreign lawyers will not be allowed to do so.
The Civil Appeals are disposed of accordingly.
.….………………………………..J.
[ADARSH KUMAR GOEL]
.….………………………………..J.
[UDAY UMESH LALIT]
NEW DELHI;
MARCH 13, 2018.
52
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7875-7879 OF 2015
BAR COUNCIL OF INDIA …APPELLANT
VERSUS
A.K. BALAJI AND ORS. ...RESPONDENTS
WITH
CIVIL APPEAL NO.7170 OF 2015
(Association of Indian Lawyers versus M/s. London Court of
International Arbitration (LCIA) and ors.)
AND
CIVIL APPEAL NO. 8028 OF 2015
(Global Indian Lawyers versus Bar Council of India & Ors.)
J U D G M E N T
ADARSH KUMAR GOEL, J
1. The issue involved in this batch of matters is whether
foreign law firms/lawyers are permitted to practice in India.
Reference needs to be made to two leading matters. Civil
Appeal Nos.7875-79 of 2015 have been filed by the Bar
Council of India against the Judgment of Madras High Court
dated 21st February, 2012 in A.K. Balaji versus The
Government of India
1
. Civil Appeal No.8028 of 2015 has
1 AIR 2012 Mad 124
1
been filed by Global Indian Lawyers against the judgment of
Bombay High Court dated 16th December, 2009 in Lawyers
Collective versus Bar Council of India
2
.
2. The Madras High Court held as follows:
“63. After giving our anxious consideration to the
matter, both on facts and on law, we come to the
following conclusion :-
(i) Foreign law firms or foreign lawyers cannot
practice the profession of law in India either on the
litigation or non-litigation side, unless they fulfil the
requirement of the Advocates Act, 1961 and the Bar
Council of India Rules.
(ii) However, there is no bar either in the Act or the
Rules for the foreign law firms or foreign lawyers to
visit India for a temporary period on a "fly in and fly
out" basis, for the purpose of giving legal advise to
their clients in India regarding foreign law or their
own system of law and on diverse international legal
issues.
(iii) Moreover, having regard to the aim and object of
the International Commercial Arbitration introduced
in the Arbitration and Conciliation Act, 1996, foreign
lawyers cannot be debarred to come to India and
conduct arbitration proceedings in respect of disputes
arising out of a contract relating to international
commercial arbitration.
(iv) The B.P.O. Companies providing wide range of
customised and integrated services and functions to
its customers like word-processing, secretarial
support, transcription services, proof-reading
services, travel desk support services, etc. do not
come within the purview of the Advocates Act, 1961
or the Bar Council of India Rules. However, in the
event of any complaint made against these B.P.O.
Companies violating the provisions of the Act, the Bar
Council of India may take appropriate action against
such erring companies.”
2
2010 (2) Mah LJ 726
2
3. The Bombay High Court, on the other hand, concluded as
follows:
“60. For all the aforesaid reasons, we hold that in the
facts of the present case, the RBI was not justified in
granting permission to the foreign law firms to open
liaison offices in India under Section 29 of the 1973
Act. We further hold that the expressions ' to practise
the profession of law' in Section 29 of the 1961 Act is
wide enough to cover the persons practising in
litigious matters as well as persons practising in non
litigious matters and, therefore, to practise in non
litigious matters in India, the respondent Nos. 12 to
14 were bound to follow the provisions contained in
the 1961 Act. The petition is disposed of accordingly
with no order as to costs.”
4. When the matter against the judgment of the Madras
High Court came up for hearing before this Court on 4th July,
2012, following interim order was passed :
“In the meanwhile, it is clarified that Reserve
Bank of India shall not grant any permission to
the foreign law firms to open liaison offices in
India under Section 29 of the Foreign Exchange
Regulation Act, 1973. It is also clarified that the
expression "to practice the profession of law"
under Section 29 of the Advocates Act, 1961
covers the persons practicing litigious matters as
well as non-litigious matters other than
contemplated in para 63(ii) of the impugned
order and, therefore, to practice in non-litigious
matters in India the foreign law firms, by
whatever name called or described, shall be
bound to follow the provisions contained in the
Advocates Act, 1961.”
The said order has thereafter continued and is still in force.
3
5. In Civil Appeal Nos.7875-7879 of 2015, writ petition was
filed before the Madras High Court by one A.K. Balaji,
Advocate. Apart from official respondents, 32 law firms of
U.K., U.S.A., France and Australia have been impleaded as
respondents 9 to 40. Prayer in the writ petition is to take
action against the original respondents 9 to 40 or any other
foreign law firms or foreign lawyers illegally practicing the
profession of law in India and direct them to refrain from
having any illegal practice on the litigation side and in the
field of commercial transactions in any manner whatsoever.
PLEADINGS
6. Averments in the petition are that the writ petitioner was
an advocate enrolled with the Bar Council of Tamil Nadu. To
practice law in India, a person has to be Indian citizen and
should possess degree in law from a recognized University in
India. Nationals of other countries could be admitted as
advocates in India only if citizens of India are permitted to
practice in such other countries. Foreign degree of law from a
University outside India requires recognition by the Bar
Council of India. The Indian advocates are not allowed to
practice in U.K., U.S.A., Australia and other foreign nations
except on fulfilling onerous restrictions like qualifying tests,
4
experience, work permit. Foreign lawyers cannot be allowed
to practice in India without reciprocity.
7. Under the Advocates Act (the Act), a foreigner is not
entitled to practice in India in view of bar contained in Section
29. However, under the guise of LPOs (Legal Process
Outsourcing), conducting seminars and arbitrations, foreign
lawyers are visiting India on Visitor Visa and practicing
illegally. They also violate tax and immigration laws. They
have also opened their offices in India for practice in the fields
of mergers, take-overs, acquisitions, amalgamations, etc.
Disciplinary jurisdiction of the Bar Council extends only to
advocates enrolled under the Act. In India, the legal
profession is considered as a noble profession to serve the
society and not treated as a business but the foreign law firms
treat the profession as trade and business venture to earn
money. Indian lawyers are prohibited from advertising,
canvassing and solicit work but foreign law firms are
advertising through websites and canvass and solicit work by
assuring results. Many accountancy and management firms
are also employing graduates and thus rendering legal
services.
8. The stand of the Union of India initially was that if
foreign law firms are not allowed to take part in negotiations,
5
settling of documents and arbitrations in India, it will obstruct
the aim of making India a hub of international arbitration.
Many arbitrations with Indian Judges as arbitrators and Indian
lawyers are held outside India where foreign and Indian law
firms advise their clients. Barring the entry of foreign law
firms for arbitrations in India will result in many arbitrations
shifting to Singapore, Paris and London, contrary to the
declared policy of the Government and against national
interest. However, its final stand in affidavits dated 19th April,
2011 and 17th November, 2011 was different as recorded in
Para 3 of the High Court Judgment as follows :
“3 . The first respondent Union of India filed four
counter affidavits on 19.08.2010, 24.11.2010,
19.04.2011 and 17.11.2011. In one of the counter
affidavits, it is stated that the Bar Council of India,
which has been established under the Advocates Act,
1961, regulates the advocates who are on the
"Rolls", but law firms as such are not required to
register themselves before any statutory authority,
nor do they require any permission to engage in nonlitigation
practice. Exploiting this loophole, many
accountancy and management firms are employing
law graduates who are rendering legal services,
which is contrary to the provisions of the Advocates
Act. It is stated that the Government of India along
with the Bar Council of India is considering this issue
and is trying to formulate a regulatory framework in
this regard. The 1
st
respondent in his counter warns
that if the foreign law firms are not allowed to take
part in negotiations, settling up documents and
arbitrations in India, it will have a counter productive
effect on the aim of the government to make India a
hub of International Arbitration. In this connection, it
is stated that many arbitrations with Indian Judges
and Lawyers as Arbitrators are held outside India,
where both foreign and Indian Law Firms advise their
clients. If foreign law firms are denied entry to deal
6
with arbitrations in India, then India will lose many of
the arbitrations to Singapore, Paris and London. It
will be contrary to the declared policy of the
government and against the national interest. In the
counter affidavit filed on 19.04.2011, it is
stated that a proposal to consider an
amendment to Section 29 of the Advocates
Act, 1961 permitting foreign law firms to
practice law in India in non litigious matters on
a reciprocity basis with foreign countries is
under consultation with the Bar Council of
India. Finally, in the counter filed on
17.11.2011, it is stated that the Government of
India has decided to support the stand of the
Bar Council of India that the provisions of the
Advocates Act, 1961 would apply with equal
force to both litigious and non-litigious
practice of law, and it is only persons enrolled
under Section 24 of the Act, who can practice
before the Indian Courts.”
(emphasis added)
9. In this Court, stand of the Union of India is that
presently it is waiting for the Bar Council of India to frame
rules on the subject. However, it can frame rules under
Section 49A at any stage.
10. Stand of the Bar Council of India before the High Court
is that even non litigious practice is included in the practice
of law which can be done only by advocates enrolled under
the Act. Reliance was placed on the judgment of the Bombay
High Court in Lawyers Collective (supra). Further
reference was made to Sections 24 and 29 of the Act.
Section 47(2) read with Section 49(1)(e) provides for
7
recognition of qualifications of foreigners being recognized
for practice. It was submitted that practice of foreign lawyers
in India should be subject to regulatory powers of the Bar
Council.
11. Stand of the foreign law firms, inter alia, is that there is
no bar to a company carrying on consultancy/support
services in the field of protection and management of
intellectual, business and industrial proprietary rights,
carrying out market service and market research, publication
of reports, journals etc. A person not appearing before
Courts or Tribunals and not giving legal advice cannot be said
to be practice of law. The ninth respondent stated that it was
a part of group of companies and not a law firm and was duly
registered under the Indian Companies Act, 1956. The tenth
respondent, another foreign law firm, submitted that there is
no violation of law in giving advice on foreign law. Even
Indian lawyers are permitted to practice outside India and
issue of reciprocity is a policy matter to be decided by the
Government of India. It does not have a law office in India
and does not give advice on Indian laws. In England, foreign
lawyers are free to advice on their own system of law without
nationality requirement or qualification of England. The
8
eleventh respondent is an American law firm and submitted
that it advises clients on international legal issues from
different countries. Indian clients are given advice through
Indian lawyers and law firms which are enrolled with the Bar
Council. There is no discrimination in U.S. against Indian
citizens practicing law. Indian lawyers travel to US on
temporary basis for consultation on Indian law issues.
12. The Act and the Bar Council Rules govern practice of
Indian law and not foreign law. Participation in seminars and
conferences does not constitute practice in law. The
fourteenth respondent denied the existence of its office in
India and that it was practicing Indian law. It also took the
same stand as Respondent No.11 that regulatory framework
for advocates did not govern practice of foreign law. It
denied that it is operating a Legal Process Outsourcing office
(LPOs) in India. Its lawyers fly in and fly out of India on need
basis to advice clients on international transactions. To the
extent Indian law is involved, such matters are addressed by
Indian lawyers. If the foreign law firms are prevented from
advice on foreign law, the transaction cost of Indian clients
for consultation on foreign law will increase. Other foreign
law firms have also taken more or less similar stand.
9
Fifteenth respondent stated that it is a Business Process
Outsourcing (BPO) company providing wide range of
customized and integrated services and functions. The
sixteenth respondent also stated that it has no office in India
and is only rendering services other than practice of Indian
law. The eighteenth respondent stated that it does not have
any office in India and does not practice law in India. It only
advises on non Indian law. Respondent Nos.19, 26, 39 and
40 stated that they are limited law partnerships under Laws
of England. They do not have any law office in India.
Respondents Nos.20, 21, 24, 25, 27, 28, 30, 31, 32, 33, 34
and 38 also stated that they do not have any office in India
and do not practice Indian law. Indian lawyers cannot advice
on foreign laws and the requirement of Indian litigants in
regard is met by foreign lawyers. Its lawyers fly in and fly out
of India on need basis to advise the clients on international
transactions. To the extent Indian law is involved such
matters are addressed by Indian lawyers.
13. The respondent No.22 stated that it is an international
law firm but does not have any office in India. It advises
clients on laws other than Indian laws. Its India Practice
Group advises clients on commercial matters involving an
10
"Indian Element" relating to mergers, acquisitions, capital
markets, projects, energy and infrastructure, etc. from an
international legal perspective and it does not amount to
practice in Indian law. Respondent No.23 stated that it is
only advising on matters of English, European Union and
Hong Kong laws. It has working relationships with leading law
firms in major jurisdictions and instructs appropriate local law
firms to provide local law advice. Respondent No.29 stated
that it is a limited law partnership registered in England and
Wales and does not have office in India. It does not
represent parties in Indian courts nor advises on Indian law.
Respondent No.35 stated that it does not maintain any office
in India and its expertise in international law. 36th
Respondent stated that it does not practice Indian law and
has no office in India nor it operates any LPO. Its lawyers fly
in and fly out on need basis to advise clients on international
transactions or matters involving Australian laws or
international Benches to which there is an Indian component.
Working of Indian laws is entrusted to Indian lawyers. The
37th Respondent denied that it has any office in India or is
running LPO in India. It only advises with respect to
regulatory laws other than Indian law.
11
FINDINGS
14. The High Court upheld the plea of the foreign law firms
to the effect that there was no bar to such firms taking part
in negotiations, settling of documents and conducting
arbitrations in India. There was no bar to carrying on
consultancy/support services in the field of protection and
management of intellectual, business and industrial
proprietary rights, carrying out market survey and research,
publication of reports, journals etc. without rendering any
legal advice. This could not be treated as practice of law in
India. Referring to Section 2(1)(f) of the Arbitration and
Conciliation Act, 1996 (the Arbitration Act), it was observed
that if in international commercial arbitration, India is chosen
as the seat of arbitration, the foreign contracting party is
bound to seek assistance from lawyers of their own country
on the contract. There could be no prohibition for such
foreign lawyers to advise their clients on the foreign law.
15. Judgment of the Bombay High Court in Lawyers
Collective (supra) was distinguished on the ground that
setting up of law offices for litigious and non litigious matters
was different but if a foreign law firm without establishing
12
any liaison office in India offers advice to their clients on
foreign law, there was no legal bar to do so.
16. The Bombay High Court in its judgment observed:
“44. It appears that before approaching RBI, these
foreign law firms had approached the Foreign
Investment Promotion Board (FIPB for short) a High
Powered body established under the New Industrial
Policy seeking their approval in the matter. The FIPB
had rejected the proposal submitted by the foreign
law firms. Thereafter, these law firms sought
approval from RBI and RBI granted the approval in
spite of the rejection of FIPB. Though specific
grievance to that effect is made in the petition, the
RBI has chosen not to deal with those grievances in
its affidavit in reply. Thus, in the present case,
apparently, the stand taken by RBI & FIPB are
mutually contradictory.
45. In any event, the fundamental question to be
considered herein is, whether the foreign law firms
namely respondent Nos. 12 to 14 by opening liaison
offices in India could carry on the practise in non
litigious matters without being enrolled as Advocates
under the 1961 Act ?
46. Before dealing with the rival contentions on the
above question, we may quote Sections 29, 30, 33
and 35 of the 1961 Act, which read thus:
29. Advocates to be the only recognised
class of persons entitled to practice law. -
Subject to the provisions of this Act and any
rules made there under, there shall, as from
the appointed day, be only one class of
persons entitled to practise the profession
of law, namely, advocates. (not brought into
force so far)
30. Right of advocates to practise. -Subject
to provisions of this Act, every advocate
whose name is entered in the State roll shall
be entitled as of right to practise throughout
the territories to which this Act extends,
13
(i) in all Courts including the Supreme
Court;
(ii) before any tribunal or person
legally authorized to take evidence;
(iii) before any other authority or
person before whom such advocate
by or under any law for the time being
in force entitled to practise.
33 . Advocates alone entitled to practise.
-Except as otherwise provided in this Act or
in any other law for the time being in force,
no person shall, on or after the appointed
day, be entitled to practice in any Court or
before any authority or person unless he is
enrolled as an advocate under this Act.
35 . Punishment of advocates for
misconduct - (1) Where on receipt of a
complaint or otherwise a State Bar Council
has reason to believe that any advocate on
its roll has been guilty of professional or
other misconduct, it shall refer the case for
disposal to its disciplinary committee.
(1-A) The State Bar Council may, either of
its own motion or on application made to it
by any person interested, withdraw a
proceeding pending before its disciplinary
committee and direct the inquiry to be
made by any other disciplinary committee
of that State Bar Council.
(2) The disciplinary committee of a State
Bar Council [***] shall fix a date for the
hearing of the case and shall cause a notice
thereof to be given to the advocate
concerned and to the Advocate-General of
the State.
(3) The disciplinary committee of a State
Bar Council after giving the advocate
concerned and the Advocate-General an
opportunity of being heard, may make any
of the following orders, namely:
14
(a) dismiss the complaint or, where
the proceedings were initiated at the
instance of the State Bar Council,
direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from
practice or such period as it may
deem fit;
(d) remove the name of the advocate
from the State roll of advocates.
(4) Where an advocate is suspended from
practice under Clause (c) of Sub-section (3),
he shall, during the period of suspension, be
debarred from practising in any Court or
before any authority or person in India.
(5) Where any notice is issued to the
Advocate-General under Subsection (2), the
Advocate-General may appear before the
disciplinary committee of the State Bar
Council either in person or through any
advocate appearing on his behalf.
Explanation-In this section, (Section 37 and
Section 38), the expressions "AdvocateGeneral"
and "Advocate-General of the
State" shall, in relation to the Union territory
of Delhi, mean the Additional Solicitor
General of India.
47 . The argument of the foreign law firms is that
Section 29 of the 1961 Act is declaratory in nature
and the said section merely specifies the persons
who are entitled to practise the profession of law.
According to the respondent Nos. 12 to 14, the
expression 'entitled to practise the profession of law'
in Section 29 of the 1961 Act does not specify the
field in which the profession of law could be
practised. It is Section 33 of the 1961 Act which
provides that advocates alone are entitled to practise
in any Court or before any authority or person.
Therefore, according to respondent Nos. 12 to 14 the
1961 Act applies to persons practising as advocates
before any Court / authority and not to persons
practising in non litigious matters. The question,
therefore, to be considered is, whether the 1961 Act
15
applies only to persons practising in litigious matters,
that is, practising before Court and other
authorities ?
48. In the statements of Objects & Reasons for
enacting the 1961 Act, it is stated that the
main object of the Act is to establish All India
Bar Council and a common roll of advocates
and Advocate on the common roll having a
right to practise in any part of the country and
in any Court, including the Supreme Court.
Thus, from the Statement of Objects and
Reasons, it is seen that the 1961 Act is
intended to apply to (one) persons practising
the profession of law in any part of the country
and (two) persons practising the profession of
law in any Court including the Supreme Court.
Thus, from the statement of objects and
reasons it is evident that the 1961 Act is
intended to apply not only to the persons
practising before the Courts but it is also
intended to apply to persons who are
practising in non litigious matters outside the
Court.
49. Apart from the above, Section 29 of the
1961 Act specifically provides is that from the
appointed day, there shall be only one class of
persons entitled to practice the profession of
law, namely Advocates. It is apparent that
prior to the 1961 Act there were different
classes of persons entitled to practise the
profession of law and from the appointed day
all these class of persons practising the
profession of law, would form one class,
namely, advocates. Thus, Section 29 of the
1961 Act clearly provides that from the
appointed day only advocates are entitled to
practise the profession of law whether before
any Court / authority or outside the Court by
way of practise in non litigious matters.
50. Section 33 of the 1961 Act is a prohibitory
section in the sense that it debars any person
from appearing before any Court or authority
unless he is enrolled as an advocate under the
1961 Act. The bar contained in Section 33 of
the 1961 Act has nothing to do with the
persons entitled to be enrolled as advocates
16
under Section 29 of the 1961 Act. A person
enrolled as an advocate under Section 29 of
the 1961 Act, may or may not be desirous of
appearing before the Courts. He may be
interested in practising only in non litigious
matters. Therefore, the bar under Section 33
from appearing in any Court (except when
permitted by Court under Section 32 of the
1961 Act or any other Act) unless enrolled as
an advocate does not bar a person from being
enrolled as an advocate under Section 29 of
the 1961 Act for practising the profession of
law in non litigious matters. The Apex Court in
the case of Ex-Capt. Harish Uppal (supra) has
held that the right to practise is the genus of
which the right to appear and conduct cases in
the Court may be a specie. Therefore, the fact
that Section 33 of the 1961 Act provides that
advocates alone are entitled to practice before
any Court / authority it cannot be inferred that
the 1961 Act applies only to persons practising
in litigious matters and would not apply to
person practising in non litigious matters.
51. It was contended that the 1961 Act does
not contain any penal provisions for breaches
committed by a person practicing in nonlitigious
matter and, therefore, the 1961 Act
cannot apply to persons practising in nonlitigious
matters. There is no merit in this
contention, because, Section 35 of the 1961
Act provides punishment to an advocate who is
found to be guilty of professional or other
misconduct. The fact that Section 45 of the
1961 Act provides imprisonment for persons
illegally practicing in Courts and before other
authorities, it cannot be said that the 1961 Act
does not contain provisions to deal with the
persons found guilty of misconduct while
practising in non litigious matters. Once it is
held that the persons entitled to practice the
profession of law under the 1961 Act covers
the persons practising the profession of law in
litigious matters as well as non-litigious
matters, then, the penal provisions contained
in Section 35 of the 1961 Act would apply not
only to persons practising in litigious matter,
but would also apply to persons practising the
profession of law in non-litigious matters. The
17
very object of the 1961 Act and the Rules
framed by the Bar Council of India are to
ensure that the persons practising the
profession of law whether in litigious matters
or in non litigious matters, maintain high
standards in professional conduct and
etiquette and, therefore, it cannot be said that
the persons practising in non litigious matters
are not governed by the 1961 Act.
52 . Strong reliance was placed by the counsel
for the respondent No. 12 on the decision of
the Apex Court in the case of O.N. Mohindroo
(supra) in support of his contention that the
1961 Act applies only to persons practising the
profession of law before Courts / Tribunals /
other authorities. It is true that the Apex Court
in the above case has held that the 1961 Act is
enacted by the Parliament in exercise of its
powers under entry 77 and 78 in List I of the
Seventh Schedule to the Constitution.
However, the fact that entry 77 and 78 in List I
refers to the persons practising before the
Supreme Court and the High Courts, it cannot
be said that the 1961 Act is restricted to the
persons practising only before the Supreme
Court and High Courts. Practising the
profession of law involves a larger concept
whereas, practising before the Courts is only a
part of that concept. If the literal construction
put forth by the respondents is accepted then,
the Parliament under entry 77 & 78 in List I of
the Seventh Schedule to make legislation only
in respect of the advocates practicing before
the Supreme Court / High Courts and the
Parliament cannot legislate under that entry in
respect of advocates practising before the
District Courts/ Magistrate's Courts / other
Courts / Tribunals / authorities and
consequently, the 1961 Act to the extent it
applies to advocates practising in Courts other
than the High Courts and Supreme Court would
be ultra vires the Constitution. Such a narrow
construction is unwarranted because, once the
Parliament invokes its power to legislate on
advocates practising the profession of law,
then the entire field relating to advocates
would be open to the Parliament to legislate
and accordingly the 1961 Act has been enacted
18
to cover the entire field. In any event, the
question as to whether the persons practicing
the profession of law exclusively in nonlitigious
matters are covered under the 1961
Act, or not was not an issue directly or
indirectly considered by the Apex Court in the
case of O.N. Mohindroo (supra). Therefore, the
decision of the Apex Court in the above case
does not support the case of the contesting
respondents.
……..
……..
55. It was contended by the counsel for Union
of India that if it is held that the 1961 Act
applies to persons practising in non-litigious
matters, then no bureaucrat would be able to
draft or give any opinion in non-litigious
matters without being enrolled as an advocate.
There is no merit in the above argument,
because, there is a distinction between a
bureaucrat drafting or giving opinion, during
the course of his employment and a law firm or
an advocate drafting or giving opinion to the
clients on professional basis. Moreover, a
bureaucrat drafting documents or giving
opinion is answerable to his superiors,
whereas, a law firm or an individual engaged in
non litigious matters, that is, drafting
documents / giving opinion or rendering any
other legal assistance are answerable to none.
To avoid such anomaly, the 1961 Act has been
enacted so as to cover all persons practising
the profession of law be it in litigious matters
or in non-litigious matters within the purview
of the 1961 Act.
56. The argument that the 1961 Act and the Bar
Councils constituted there under have limited role to
play has been time and again negatived by the Apex
Court. Recently, the Apex Court in the case of Bar
Council of India v. Board of Management, Dayanand
College of Law reported in MANU/SC/5219/2006 :
(2007) 2 SCC 202 held thus:
It may not be correct to say that the Bar
Council of India is totally unconcerned with
the legal education, though primarily legal
education may also be within the province
19
of the universities. But, as the apex
professional body, the Bar Council of India is
concerned with the standards of the legal
profession and the equipment of those who
seek entry into that profession. The Bar
Council of India is also thus concerned with
the legal education in the country.
Therefore, instead of taking a pendantic
view of the situation, the State Government
and the recommending authority are
expected to ensure that the requirement set
down by the Bar Council of India is also
complied with.
Thus, when efforts are being made to see
that the legal profession stand tall in this
fast changing world, it would be improper to
hold that the 1961 Act and the Bar Council
constituted there under have limited role to
play in the field relating to practising the
profession of law.
57. It is not in dispute that once a person is
enrolled as an advocate, he is entitled to
practise the profession of law in litigious
matters as well as non-litigious matters. If the
argument of the respondents that the 1961 Act
is restricted to the persons practising the
profession of law in litigious matters is
accepted, then an advocate found guilty of
misconduct in performing his duties while
practising in non-litigious matters cannot be
punished under the 1961 Act. Similarly, where
an advocate who is debarred for professional
misconduct can merrily carry on the practise in
nonlitigious matters on the ground that the
1961 Act is not applicable to the persons
practising the profession of law in non litigious
matters. Such an argument which defeats the
object of the 1961 Act cannot be accepted.
58. It may be noted that Rule 6(1) in Chapter
III Part VI of the Bar Council of India Rules
framed under Section 49(1) (ah) of the 1961
Act provides that an advocate whose name has
been removed by an order of the Supreme
Court or a High Court or the Bar Council as the
case may be, shall not be entitled to practise
the profession of law either before the Court
20
and authorities mentioned under Section 30 of
the 1961 Act, or in chambers, or otherwise.
The above rule clearly shows that the chamber
practise, namely, practise in non litigious
matters is also within the purview of the 1961
Act.
59 . Counsel for the Union of India had argued that
the Central Government is actively considering the
issue relating to the foreign law firms practising the
profession of law in India. Since the said issue is
pending before the Central Government for more
than 15 years, we direct the Central Government to
take appropriate decision in the matter as
expeditiously as possible. Till then, the 1961 Act as
enacted would prevail, that is, the persons practising
the profession of law whether in litigious matters or
non litigious matters would be governed by the 1961
Act and the Bar Councils framed there under, apart
from the powers of the Court to take appropriate
action against advocates who are found guilty of
professional misconduct.
60. For all the aforesaid reasons, we hold that in the
facts of the present case, the RBI was not justified in
granting permission to the foreign law firms to open
liaison offices in India under Section 29 of the 1973
Act. We further hold that the expressions ' to practise
the profession of law' in Section 29 of the 1961 Act is
wide enough to cover the persons practising in
litigious matters as well as persons practising in non
litigious matters and, therefore, to practise in non
litigious matters in India, the respondent Nos. 12 to
14 were bound to follow the provisions contained in
the 1961 Act. The petition is disposed of accordingly
with no order as to costs.”
17. The Madras High Court agreed with the above view as follows :
“44. As noticed above, the facts of the case before
the Bombay High Court were that the respondents
which were foreign law firms practising the
profession of law in US/UK sought permission to open
their liaison office in India and render legal
assistance to another person in all litigious and nonlitigious
matters. The Bombay High Court, therefore,
rightly held that establishing liaison office in India by
the foreign law firm and rendering liaisoning
21
activities in all forms cannot be permitted since such
activities are opposed to the provisions of the
Advocates Act and the Bar Council of India Rules. We
do not differ from the view taken by the
Bombay High Court on this aspect.”
18. The Madras High Court after above observation proceeded to
consider the matter as follows:
“45 . However, the issue which falls for
consideration before this Court is as to whether a
foreign law firm, without establishing any liaison
office in India visiting India for the purpose of offering
legal advice to their clients in India on foreign law, is
prohibited under the provisions of the Advocates Act.
In other words, the question here is, whether a
foreign lawyer visiting India for a temporary period to
advise his client on foreign law can be barred under
the provisions of the Advocates Act. This issue was
neither raised nor answered by the Bombay High
Court in the aforesaid judgment.”
19. It was held :
“51. We find force in the submission made by the
learned counsel appearing for the foreign law firms
that if foreign law firms are not allowed to take part
in negotiations, for settling up documents and
conduct arbitrations in India, it will have a counter
productive effect on the aim of the Government to
make India a hub of International Arbitration.
According to the learned counsel, many arbitrations
with Indian Judges and Lawyers as Arbitrators are
held outside India, where both foreign and Indian law
firms advise their clients. If foreign law firms are
denied entry to deal with arbitrations in India, then
India will lose many of the arbitrations to foreign
countries. It will be contrary to the declared policy of
the Government and against the national interest.
Some of the companies have been carrying on
consultancy/support services in the field of
protection and management of intellectual, business
and industrial proprietary rights, carrying out market
surveys and market research and publication of
22
reports, journals, etc. without rendering any legal
service, including advice in the form of opinion, but
they do not appear before any courts or tribunals
anywhere in India. Such activities cannot at all be
considered as practising law in India. It has not been
controverted that in England, foreign lawyers are
free to advice on their own system of law or on
English Law or any other system of law without any
nationality requirement or need to be qualified in
England.
52. Before enacting the Arbitration and Conciliation
Act, 1996 the Law Commission of India, several
representative bodies of trade and industry and
experts in the field of arbitration have proposed
amendments to the Act to make it more responsive
to contemporary requirements. It was also
recognised that the economic reforms in India may
not fully become effective if the law dealing with
settlement of both domestic and international
commercial disputes remains out of tune with such
reforms. The United Nations Commission on
International Trade Law (UNCITRAL) adopted in 1985
the Model Law on International Commercial
Arbitration. The Arbitration and Conciliation Act is,
therefore, consolidated and amended to the law
relating to domestic and international commercial
arbitration as well as for the enforcement of foreign
arbitral award. The Act was enacted as a measure of
fulfilling India's obligations under the International
Treaties and Conventions. On account of the growth
in the international trade and commerce and also on
account of long delays occurring in the disposal of
suits and appeals in courts, there has been
tremendous movement towards the resolution of
disputes through alternative forum of arbitrators.
53. Section 2(1)(f) of the Act defines the term
"International Commercial Arbitration" as under:-
(f) International Commercial Arbitration means
an arbitration relating to disputes arising
out of legal relationships, whether
contractual or not, considered as
commercial under the law in force in India
and where at least one of the parties is
(i) an individual who is a national of, or
habitually resident in, any country other
than India; or
23
(ii) a body corporate which is incorporated in
any country other than India; or
(iii) a company or an association or a body of
individuals whose central management
and control is exercised in any country
other than India; or
(iv) the Government of a foreign country.
54 . From the above definition, it is manifestly clear
that any arbitration matter between the parties to
the arbitration agreement shall be called an
"international commercial arbitration" if the matter
relates to the disputes, which may or may not be
contractual, but where at least one of the parties
habitually resides abroad whether a national of that
country or not. The New York Convention will apply to
an arbitration agreement if it has a foreign element
or flavour involving international trade and
commerce, even though such an agreement does
not lead to a foreign award.
55 . International arbitration is growing big time in
India and in almost all the countries across the globe.
India is a signatory to the World Trade Agreement,
which has opened up the gates for many
international business establishments based in
different parts of the world to come and set up their
respective businesses in India.
56 . Large number of Indian Companies have been
reaching out to foreign destinations by mergers,
acquisition or direct investments. As per the data
released by the Reserve Bank of India during 2009,
the total out ward investment from India excluding
that which was made by Banks, had increased 29.6%
to U.S. Dollar 17.4 billion in 2007-08 and India is
ranked third in global foreign direct investment.
Overseas investments in joint ventures and wholly
owned subsidiaries have been recognized as
important avenues by Indian Entrepreneurs in terms
of foreign exchange earning like dividend, loyalty,
etc. India is the 7th largest, the second most
populated country and the fourth largest economy in
the world. Various economic reforms brought about
have made India grow rapidly in the Asia-Pacific
Region, and the Indian Private Sector has offered
considerable scope for foreign direct investment,
joint-venture and collaborations. Undoubtedly, these
cross-border transactions and investments would
24
give bigger opportunities for members of the legal
fraternity, in order to better equip themselves to face
the challenges. It is common knowledge that in the
recent past, parties conducting International
Commercial Arbitrations have chosen India as their
destination. The arbitration law in India is modelled
on the lines of the UNCITRAL Model Law of
Arbitration and makes a few departures from the
principles enshrined therein. The Arbitration and
Conciliation Act 1996, provides for international
commercial arbitration where at least one of the
parties is not an Indian National or Body corporate
incorporated in India or a foreign Government.
57. Institutional Arbitration has been defined to be
an arbitration conducted by an arbitral institution in
accordance with the rules of the institution. The
Indian Council of Arbitration is one such body. It is
reported that in several cases of International
Commercial Arbitration, foreign contracting party
prefers to arbitrate in India and several reasons have
been stated to choose India as the seat of
arbitration. Therefore, when there is liberalization of
economic policies, throwing the doors open to
foreign investments, it cannot be denied that
disputes and differences are bound to arise in such
International contracts. When one of the contracting
party is a foreign entity and there is a binding
arbitration agreement between the parties and India
is chosen as the seat of arbitration, it is but natural
that the foreign contracting party would seek the
assistance of their own solicitors or lawyers to advice
them on the impact of the laws of their country on
the said contract, and they may accompany their
clients to visit India for the purpose of the
Arbitration. Therefore, if a party to an International
Commercial Arbitration engages a foreign lawyer and
if such lawyers come to India to advice their clients
on the foreign law, we see there could be no
prohibition for such foreign lawyers to advise their
clients on foreign law in India in the course of a
International Commercial transaction or an
International Commercial Arbitration or matters akin
thereto. Therefore, to advocate a proposition that
foreign lawyers or foreign law firms cannot come into
India to advice their clients on foreign law would be a
far fetched and dangerous proposition and in our
opinion, would be to take a step backward, when
India is becoming a preferred seat for arbitration in
25
International Commercial Arbitrations. It cannot be
denied that we have a comprehensive and
progressive legal frame work to support International
Arbitration and the 1996 Act, provides for maximum
judicial support of arbitration and minimal
intervention. That apart, it is not in all cases, a
foreign company conducting an International
Commercial Arbitration in India would solicit the
assistance of their foreign lawyers. The legal
expertise available in India is of International
standard and such foreign companies would not
hesitate to avail the services of Indian lawyers.
Therefore, the need to make India as a preferred seat
for International Commercial Arbitration would
benefit the economy of the country.
58. The Supreme Court in a recent decision in
Vodafone International Holdings B.V. vs. Union of
India and another, SLP(C) No.26529 of 2010, dated
20.01.2012, observed that every strategic foreign
direct investment coming to India, as an investment
destination should be seen in a holistic manner. The
Supreme Court observed that the question involved
in the said case was of considerable public
importance, especially on Foreign Direct Investment,
which is indispensable for a growing economy like
India. Therefore, we should not lose site of the fact
that in the overall economic growth of the country,
International Commercial Arbitration would play a
vital part. The learned counsel appearing for the
foreign law firms have taken a definite stand that the
clients whom they represent do not have offices in
India, they do not advise their foreign clients on
matters concerning Indian Law, but they fly in and fly
out of India, only to advise and hand-hold their
clients on foreign laws. The foreign law firms, who
are the private respondents in this writ petition, have
accepted the legal position that the term "practice"
would include both litigation as well as non-litigation
work, which is better known as chamber practice.
Therefore, rendering advice to a client would also be
encompassed in the term "practice".
59. As noticed above, Section 2(a) of the Advocates
Act defines 'Advocate' to mean an advocate entered
in any roll under the provisions of the Act. In terms of
Section 17(1) of the Act, every State Bar Council
shall prepare and maintain a roll of Advocates, in
which shall be entered the names and addresses of
26
(a) all persons who were entered as an Advocate on
the roll of any High Court under the Indian Bar
Council Act, 1926, immediately before the appointed
date and (b) all other persons admitted to be
Advocates on the roll of the State Bar Council under
the Act on or after the appointed date. In terms of
Section 24(1) of the Act, subject to the provisions of
the Act and the Rules made thereunder, a person
shall be qualified to be admitted as an advocate on a
state roll if he fulfils the conditions (a) a citizen of
India, (b) has completed 21 years of age and (c)
obtained a degree in Law. The proviso to Section
24(1)(a) states that subject to the other provisions of
the Act, a National of any other country may be
admitted as an Advocate on a State roll, if a citizen
of India, duly qualified is permitted to practice law in
that other country. In terms of Section 47(1) of the
Act, where any country specified by the Central
Government by notification prevents citizens of India
practicing the profession of Law or subjects them to
unfair discrimination in that country, no subject of
any such country shall be entitled to practice the
profession of Law in India. In terms of Sub-Section (2)
of Section 47, subject to the provision of Sub-Section
(1), the Bar Council of India may prescribe
conditions, if any, subject to which foreign
qualifications in law obtained by persons other than
citizens of India shall be recognized for the purpose
of admission as an Advocate under the Act. Thus,
Section 47 deals with reciprocity. As per the
statement of objects and reasons of the Advocates
Act, it was a law enacted to provide one class of
legal practitioners, specifying the academic and
professional qualifications necessary for enrolling as
a practitioner of Indian Law, and only Indian citizens
with a Law Degree from a recognized Indian
University could enrol as Advocates under the Act.
The exceptions are provided under the proviso to
Section 24(1)(a), Section 24(1)(c)(iv) and Section
47(2). In the light of the scheme of the Act, if a
lawyer from a foreign law firm visits India to advice
his client on matters relating to the law which is
applicable to their country, for which purpose he
"flies in and flies out" of India, there could not be a
bar for such services rendered by such foreign law
firm/foreign lawyer.
60 . We are persuaded to observe so, since there
may be several transactions in which an Indian
27
company or a person of Indian origin may enter into
transaction with a foreign company, and the laws
applicable to such transaction are the laws of the
said foreign country. There may be a necessity to
seek legal advice on the manner in which the foreign
law would be applied to the said transaction, for
which purpose if a lawyer from a foreign law firm is
permitted to fly into India and fly out advising their
client on the foreign law, it cannot be stated to be
prohibited. The corollary would be that such foreign
law firm shall not be entitled to do any form of
practice of Indian Law either directly or indirectly.
The private respondents herein, namely the foreign
law firms, have accepted that there is express
prohibition for a foreign lawyer or a foreign law firm
to practice Indian Law. It is pointed out that if an
interpretation is given to prohibit practice of foreign
law by a foreign law firms within India, it would result
in a manifestly absurd situation wherein only Indian
citizens with Indian Law degree who are enrolled as
an advocate under the Advocates Act could practice
foreign law, when the fact remains that foreign laws
are not taught at graduate level in Indian Law
schools, except Comparative Law Degree Courses at
the Master's level.
61 . As noticed above, the Government of India, in
their counter affidavit dated 19.08.2010, have stated
that the contention raised by the petitioner that
foreign law firms should not be allowed to take part
in negotiating settlements, settling up documents
and arbitrations will be counter productive, as
International Arbitration will be confined to a single
country. It is further pointed out that many
arbitrations are held outside India with Indian Judges
and Lawyers as Arbitrators where both foreign and
Indian Law firms advise their clients. It has been
further stated if foreign law firms are denied
permission to deal with arbitration in India, then we
would lose many arbitrations to other countries and
this is contrary to the declared policy of the
Government and will be against the National interest,
especially when the Government wants India to be a
hub of International Arbitration
62 . At this juncture, it is necessary to note yet
another submission made by the Government of
India in their counter. It has been stated that law
firms as such or not required to register themselves
28
or require permission to engage in non-litigation
practice and that Indian law firms elsewhere are
operating in a free environment without any curbs or
regulations. It is further submitted that the oversight
of the Bar Council on non-litigation activities of such
law firms was virtually nil till now, and exploiting this
loop hole, many accountancy and management firms
are employing law graduates, who are rendering
legal services, which is contrary to the Advocates
Act. Therefore, the concern of the Government of
India as expressed in the counter affidavit requires to
be addressed by the Bar Council of India. Further, it
is seen that the Government in consultation with the
Bar Council of India proposes to commission a study
as to the nature of activities of LPOs, and an
appropriate decision would be taken in consultation
with the Bar Council of India.”
RIVAL CONTENTIONS
20. Shri C.U. Singh, learned senior counsel for the Bar Council of
India submitted that Advocates enrolled with the Bar Council of India
are the only recognized class of persons entitled to practice law in
India. Unless any other law so permits, no person can practice
before any ‘Court, authority or person’ other than an Advocate
enrolled under the Act. In particular cases, the ‘Court, authority or
person’ may permit a person other than an advocate enrolled under
the Act to appear before him. It was submitted that the expression
“practice profession of law” covered not only appearance before the
Court but also opinion work which is also known as chamber
practice. The Ethics prescribed by the Bar Council of India covered
not only conduct in appearing before Court or authority but also in
dealing with the clients including giving legal opinion, drafting or
29
participation in law conference. If a person practices before any
‘Court, authority or person’ illegally, is liable to punishment for
imprisonment which may extend to six months. Thus, the view
taken by the Madras High Court that visit by a foreign lawyer on fly
in and fly out basis to give advice on foreign law or to conduct
arbitration in international commercial arbitrations was erroneous.
Reference has also been made to definition of the term ‘advocate’
under Section 2(a) of the Act. Section 6 lays down functions of the
Bar Council including admission of persons as advocates,
safeguarding rights, privileges and interests of advocates. Section
17 lays down that every State Bar Council shall prepare a roll of
advocates and no person can be enrolled in more than one State Bar
Council. Section 24 lays down qualifications for admission on the
roll of a State Bar council. The qualifications include the citizenship
of India, unless a person is national of a country where citizens of
India are permitted to practice. One is required to have the
prescribed qualification from India or out of India if such degree is
recognized by the Bar Council of India, being a Barrister called to
the Bar before 31st December, 1976, passing of articled clerks
examination or any other examination specified by the Bombay or
Calcutta High Court or obtaining foreign qualification recognized by
the Bar Council of India are also the prescribed qualifications. It was
submitted that even in other jurisdictions, persons other than those
30
enrolled with the concerned Bar Council are not allowed to practice.
Even short term running of legal service is subject to regulatory
regime.
21. Learned counsel for the foreign law firms S/Shri Arvind Datar,
Sajjan Poovayya, Dushyant Dave, learned senior counsel and Mr.
Nakul Dewan, learned counsel supported the direction of the Madras
High Court permitting foreign lawyers to render legal services on fly
in and fly out basis and also with reference to international
commercial arbitrations. It was submitted that Bar Council could
come into picture only in respect of advocates enrolled with it. It is
only with reference to appearance before the Courts or other
authorities or persons that the regulatory regime of the Bar Council
may apply but with regard to non litigation/advisory work even
those not enrolled as advocates under the Advocates Act are not
debarred. It was also submitted by Shri Dewan that Advocates Act
applies only to individuals and not to law firms. Provision for
reciprocity applies only for enrolment under the Advocates Act and
not for casual legal services on fly in and fly out basis or in
connection with international commercial arbitration. Foreign
lawyers are regulated by the disciplinary regime applicable to them
and only their Bar Councils could take action with regard to their
working in India also. Practice of law in India did not cover advising
on foreign law. Thus, if by a pre-determined invitation, a foreign
31
lawyer visited India to advise on a foreign law, there is no bar
against doing so.
22. Certain decisions have been cited at the Bar to which
reference may be made. In Roel versus New York County
Lawyers Association
3
, the Court of Appeals of the State of New
York dealt with a case where a Mexican citizen and lawyer, who was
not a citizen of the United States nor a member of the New York Bar,
maintained his office in New York and advised members of the
public on Mexican law. He did not give any advice as to New York
law. The majority held that this was not permissible. It was
observed:
“To allow a Mexican lawyer to arrange the
institution of divorce proceedings for a New
York resident in a Mexican court, without
allowing him to tell the client that the divorce
might be invalid (Querze v. Querze, 290 N.Y.
13) or that it might adversely affect estate or
other property rights or status in this State
(Matter of Rathscheck, 300 N.Y. 346), is to give
utterly inadequate protection to him (See 70
Harv.L.Rev. 1112-1113). Nor are we in anywise
persuaded by the argument in the brief of the
Association of the Bar that there is any
difference between the right of a Mexican
lawyer to act and advise the public in divorce
matters and the right (3 N.Y.2d 232) of foreign
lawyers generally to act an advise with respect
to foreign law. … …
The complex problem posed by the
activities of foreign attorneys here is a
long-standing one. It may well be that
3
3 N.Y.2d 224 (1957)
32
foreign attorneys should be licensed to
deal with clients in matters exclusively
concerning foreign law, but that is solely
within the province of the Legislature.
Our courts are given much control over
the lawyers admitted to the Bar of our
State; we have no control, however, over
those professing to be foreign law
experts.
We see no substance in appellant’s claim
that section 270 of the Penal Law when
applied to him deprives him of liberty and
property without due process of law, in
that the statute as so construed is
unreasonable and serves no public
purpose.”
23. The minority view, on the other hand, held that:
“In this century when the United States has
become the creditor nation of the world and
when the ramifications of our industrial,
commercial, financial and recreational lives
extend to every corner of the global, it is
especially improbable that the Legislature
intended to preclude the giving of legal advice
in this State to our citizens concerning these
far-flung enterprises by trained lawyers from
abroad who are equipped to give accurate
information and opinions regarding them. The
customary residential requirements for
admission to the Bar would in themselves
often preclude their becoming admitted to our
Bar. … …
The omission of the Legislature to enact
statutes licensing or regulating the conduct of
foreign lawyers in practicing purely foreign law
in this State, does not indicate that such
conduct is prohibited by sections 270 and 271
of the Penal Law, but merely that the
Legislature has not seen fit to subject them to
regulation. Whatever the merits of such
33
proposed legislation, it is not for us to enact it.
If foreign lawyers came under section 270 and
271 of the Penal Law, it would stifle their
activities to the detriment of the large and
increasing number of our nationals who
engage in transactions in foreign countries,
inasmuch as it would be impossible for most of
them to be admitted to practice in this State.”
24. In Appell versus Reiner
4
, the Supreme Court of New Jersey
dealt with a case of New York lawyer, who was not admitted to the
New Jersey Bar, giving legal services to New Jersey residents in a
matter involving the extension of credit and the compromise of
claims held by New York and New Jersey creditors. The Chancery
Division held that the New York lawyer could not advice in respect
of New Jersey creditors. The Supreme Court of New Jersey held:-
“The Chancery Division correctly delineated
the generally controlling principle that legal
services to be furnished to New Jersey
residents relating to New Jersey matters may
be furnished only by New Jersey counsel. We
nevertheless recognize that there are unusual
situations in which a strict adherence to such a
thesis is not in the public interest. In this
connection recognition must be given to the
numerous multi-state transactions arising in
modern times. This is particularly true of our
State, situated as it is in the midst of the
financial and manufacturing center of the
nation. An inflexible observance of the
generally controlling doctrine may well
occasion a result detrimental to the public
interest, and it follows that there may be
instances justifying such exceptional treatment
warranting the ignoring of state lines. This is
such a situation. Under the peculiar facts here
4
43 N.J. 313 (1964); 204 A.2d 146
34
present, having in mind the nature of the
services to be rendered, the inseparability of
the New York and New Jersey transactions, and
the substantial nature of the New York claim,
we conclude that plaintiff’s agreement to
furnish services in New Jersey was not illegal
and contrary to public policy.
It must be remembered that we are not here
concerned with any participated by plaintiff in
a court proceeding. What is involved is the
rendering of advice and assistance in obtaining
extensions of credit and compromises of
indebtedness. … …”
25. Again, there was a dissenting view as follows:
“… …Regulation of the interests of the public
and the bar requires a rule of general
application. In cases such as we have here,
the only fair and workable rule is one which
recognizes that the client’s matter is primarily
a New Jersey one and calls for the engagement
of a member of our bar for the legal services
to be rendered here. And, in that connection,
in the interest of interstate amity, if an out-ofstate
attorney renders legal services in New
Jersey which are a minor or incidental part of a
total problem which has its principal and
primary aspects in his state, he should be
allowed to recover in our courts for the work
done in this jurisdiction.”
26. Mr. Poovayya referred to Rules of the Indian Council of
Arbitration which could apply only if there was an agreement
between the parties that the arbitration was to be in accordance
with the Rules of the Indian Council of Arbitration. Rule 45 laid
down that parties have no right to be represented by lawyers
unless the arbitral tribunal considers it necessary and allows.
35
27. Referring to the Arbitration Act, it was submitted that
international commercial arbitration is defined under Section 2(f)
which covers arbitration relating to disputes where one of the
parties is a national or habitual resident of a country other than
India or a body corporate incorporated outside India or an
association of body of individuals whose management and control is
exercised in a country other than India or a Government of a foreign
country. In such cases, parties may agree to have an arbitrator of
any nationality, to any language to be used in arbitration
proceedings, to any place of arbitration. Section 28(b) permits
Arbitral Tribunal to decide disputes in accordance with rules of law
applicable to the substance of the dispute as agreed by the parties.
The arbitrator has to give equal opportunity to the parties to
present their case (Section 18). Parties can agree on the procedure
to be followed (Section 19). Section 34(2)(a)(iii) provides that an
award may be set aside, inter-alia, on the ground that the party was
unable to present its case in the arbitration proceedings. Procedure
for presenting case of a party before the arbitrator may be
governed by agreement or by the procedural rules.
28. Shri Dushyant Dave referred to rules of certain Arbitration
Institutions to the effect that the parties are free to be represented
by an outside lawyer. It was submitted that by way of Convention
36
in international commercial arbitrations, there cannot be any
compulsion to engage only a local lawyer. Section 48(1)(b) of the
Arbitration Act provides that enforcement of a foreign award can be
refused if the parties were unable to present their case. The New
York Convention Awards are governed by the First Schedule to the
Act. Article-II provides for recognition of an arbitration agreement
between the parties. Article-V(1)(b) provides that if the party
against whom the award is invoked was not given proper notice or
could not present his case, the award cannot be enforced. Section
53 of the Arbitration Act refers to Geneva Convention Awards which
is regulated by the Second Schedule to the Act containing similar
provisions.
29. Mr. Dave submitted that the Special Leave Petition arising out
of the Delhi High Court order is on the question whether London
Court of International Arbitration could use the expression “COURT”
had become infructuous as the respondent had closed its working
in India. He, however, referred the following:
I) Handbook of ICC Arbitration – Commentary,
Precedents, Materials – Second Edition (Michael
W. Buhler and Thomas H. Webster)
Article 21(4): “The parties may appear in person or
through duly authorized representatives. In addition,
they may be assisted by advisers.”
The authors’ comment is as follows:
37
“In an ICC arbitration, parties have the right to
be represented by the persons of their choice. A
distinction should however be made between
“authorized representatives” and “advisors”.
Usually, the parties have attorneys represent
them in the arbitration. Thus, an attorney may
have both capacities, but this may not always be
the case. As an adviser, he or she would not
need a power of attorney. On the other hand, as
a representative of a party, he or she might need
a power of attorney. In arbitration. The major
centres of arbitration do not appear to have
restrictions on the right of lawyers from other
countries to argue cases in those countries, with
the possible exception of California.”
The footnote 31 is as follows:
“See Birbower, Montabano, Condon & Frank, P.C.
v. The Superior Court of Santa Clara, 949 P.2d 1
(Cal. 1998); see also Holtzmann and Donovan,
“United States Country Report” in ICCA
Handbook, Supp. 28 (Paulsson edn, 1999). The
California Rules of Court were modified in 2004
in order to permit any US qualified lawyer to
represent a party in an arbitration (r.966).
However, it remains unclear whether lawyers
admitted to foreign bars can represent parties in
national or international arbitration.”
II) Arbitration of Commercial Disputes –
International and English Law and Practice
(Andrew Tweeddale and Keren Tweeddale).
Representation of the parties
10.15. The right to legal representation at trial
has existed both in the common law and in
international treaties for centuries
5
. However,
5 See, for example, art 42 of the Statute of the International Court of Justice which states: ‘1. The
parties shall be represented by agents. 2. They may have the assistance of counsel or advocates
before the Court. 3. The agents, counsel, and advocates of parties before the Court shall enjoy the
privileges and immunities necessary to the independent exercise of their duties.’ See also art 37 of
the Hague Convention 1899 which states: ‘The parties have the right to appoint delegates or
special agents to attend the Tribunal, for the purpose of serving as intermediaries between them
38
the right to legal representation is not absolute.
The parties may agree to dispense with legal
representation
6
. Furthermore, some rules of
arbitration prohibit the use of legal
representation
7
. In international commercial
arbitrations it is generally accepted that the
parties may choose their own advocate without
necessarily choosing one qualified at the seat of
the arbitration
8
. However, in a few recent cases
that principle has been challenged
9
.”
III) Redfern and Hunter on International Arbitration
“In general, the parties may also be represented
by engineers, or commercial men, for the
purpose of putting forward the oral submissions,
and even for the examination of witnesses. It is
not uncommon, where a case involves technical
issues, for an engineer or other professional man
to be part of the team of advocates representing
a party at a hearing, although it is more usual for
such technical experts to be called as witnesses
and the Tribunal. They are further authorized to retain, for the defense of their rights and interests
before the Tribunal, counsel or advocates appointed by them for this purpose.’
6
Henry Bath & Son Ltd. v. Birgby Products [1962] Lloyd’s Rep 389; and see also the
English Arbitration Act 1996, s 36.
7 The arbitration rules of the Australian Football league, for example, limit legal representation.
8 See, for example, In the matter of an Arbitration between Lawler, Matusky and Skelly, Engineers
and the Attorney General of Barbados (No.320 of 1981) 22 August 1983 where the High Court of
Barbados held that there was a ‘common law right of everyone who is sui juris to appoint an agent
for any purpose’. The court held that this included the right to appoint a representative to appear
as advocate on a party’s behalf in a commercial arbitration.
9
In the matter of an Arbitration between Builders Federal (Hong Kong) Ltd. and Joseph Gartner &
Co., and Turner (East Asia) Pte Ltd (No. 90 of 1987) (1988) 2 MLJ 280 the Malaysian Judicial
Commissioner Chan Sek Keong ruled that the respondents, who were a foreign company, could
not select a counsel from their own country because Singapore’s Legal Profession Act operated as
a bar to foreign lawyers from representing their clients in international arbitrations in Singapore.
However, in June 2004 Singapore finally amended its Legal Profession Act to eliminate this
restriction on representation by foreign lawyers in arbitrations in Singapore. See also Birbrower,
Montabano, Condon & Frank v. Superior Court of Santa Clara County, 1998 Cal LEXIS 2, 1998
WL 1346 (Cal 1/5/98) where the court held that a New York lawyer representing a client in a
Californian arbitration was not qualified to act for his client because he was not called to the
Californian bar and therefore not entitled to recover his fees. The court, however, stated that this
principle would not apply to an international commercial arbitration.
39
in order that their opinions and submissions may
be tested by cross-examination. However, it
may sometimes be convenient and save time if
technical experts address the arbitral tribunal
directly as party representatives
10
.
The Supreme Court of California held in 1998
that representing a party in an arbitration
without its seat in California was ‘engaging in the
practice of law’ in that state. It followed that a
New York lawyer, not a member of the
Californian Bar, was not qualified to represent his
client in a Californian arbitration; and was thus
unable to recover his fee when he sued for it
11
.
Fortunately the court stated that the rule did not
apply in international arbitration. IN England
there is not, and never has been, any danger of
a similar situation arising
12
. A party to an
arbitration may, in theory, be represented by his
plumber, his dentist, or anyone else of his
choosing, although the choice usually falls on a
lawyer or specialist claims consultant in the
relevant industry
13
.”
IV) LONDON COURT OF INTERNATIONAL
ARBITRATION (LCIA) RULES (2014)
Article 18 – Legal Representatives
“18.1Any party may be represented in the
arbitration by one or more authorized legal
representatives appearing by name before the
Arbitral Tribunal.
18.2 Until the Arbitral Tribunal’s formation, the
Registrar may request from any party: (i) written
proof of the authority granted by that party to
any legal representative designated in its
Request or Response; and (ii) written
10 Both the UNCITRAL RULES (Art4) and the LCIA Rules (Art18) make it clear that parties are
entitled to be represented by non-lawyers.
11 Birbrower, Montabane, Condon Frank v. The Superior Court of Santa Clara County, 1998 Cal
Lexis2; 1998 WL 1346 (Cal 1/5/98)
12 i.e. that only a member of the local bar should be entitled to represent a party in a judicial or
quasi-judicial proceeding.
13 English Arbitration Act, 1996, s 36. This reaffirms the previous common law position.
40
confirmation of the names and addresses of all
such party’s legal representatives in the
arbitration. After its formation, at any time, the
arbitral Tribunal may order any party to provide
similar proof or confirmation in any form
considers appropriate.”
V) CHINA INTERNATIONAL ECONOMIC AND TRADE
ARBITRATION COMMISSIN (CIETAC)
ARBITRATION RULES.
Article 22 - Representation
“A party may be represented by its authorized
Chinese and/or foreign representative(s) in
handling matters relating to the arbitration. In
such a case, a Power of Attorney shall be
forwarded to the Arbitration Court by the party
or its authorized representative(s).”
VI) ARBITRATION RULES, MEDIATION RULES OF
INTERNATIONAL CHAMBER OF COMMERCE.
ARTICLE 26 – Hearings
“4. The parties may appear in person or
through duly authorized representatives. In
addition, they may be assisted by advisers.”
VII) COMMERCIAL ARBITRATION RULES AND
MEDIATION PROCEDURES OF AMERICAN
ARBITRATION ASSOCIATION
R-26. Representation
“Any party may participate without
representation (pro se), or by counsel or any
other representative of the party’s choosing,
unless such choice is prohibited by applicable
law. A party intending to be so represented shall
notify the other party and the AAA of the name,
telephone number and address, and email
41
address if available, of the representative at
least seven calendar days prior to the date set
for the hearing at which that person is first to
appear. When such a representative initiates an
arbitration or responds for a party, notice is
deemed to have been given.”
VIII)ARBITRATION RULES OF THE SINGAPORE
INTERNATIONAL ARBITRATION CENTRE (SIAC)
Party Representatives
“23.1Any party may be represented by legal
practitioners or any other authorized
representatives. The Registrar and/or the
Tribunal may require proof of authority of any
party representatives.
23.2 After the constitution of the Tribunal, any
change or addition by a party to its
representatives shall be promptly communicated
in writing to the parties, the Tribunal and the
Registrar.”
IX) RULES OF INTERNATIONAL COMMERCIAL
ARBITRATION BY INDIAN COUNCIL OF
ARBITRATION
20. Party Representation and assistance
“At the hearing, a party shall be entitled to
appear through Attorney, Advocate or a duly
authorized Advisor or Representative or in
person, subject to such proof of authority to the
satisfaction of the Registrar or the Tribunal.”
30. Shri C.U. Singh, learned senior counsel, by way of rejoinder,
opposed the submissions of learned counsel appearing for the
foreign law firms. He submitted that the stand of the Central
Government finally was to support the stand of the Bar Council of
42
India. The argument that participation of foreign lawyers will be in
the interest of the country was raised by the foreign law firms only
as shown from para 51 of the Madras High Court judgment. He
submitted that the arbitrator was also an ‘authority’ before whom
only advocates enrolled in India alone could appear. The arbitrator
could record evidence and summon witnesses through
Court(Section 27). Rules of Arbitration Institutions have to be in
conformity with the law of the land. He also submitted that the
rules framed by the Bar Council of India under Section 49 define the
practice of law so as to cover even giving of opinion.
31. Shri Singh further pointed out that Ethics for the profession as
applicable in India are different from the Ethics applicable in other
countries. In this regard, it was submitted that Rule 36 in Part VI,
Chapter II of the BCI Rules prohibits direct or indirect advertising by
advocates, or solicitation by any means whatsoever. Rule 18 bars
an advocate from fomenting litigation. In Bar Council of
Maharashtra versus M.V. Dabholkar
14
, this Court held that
advertising was a serious professional misconduct for an advocate.
As against this, in USA Rule 7.3 of the American Bar Association
Rules bars only in-person or live telephonic solicitation of clients,
but expressly permits lawyer-to-lawyer solicitation, as well as client
solicitation by written, recorded or electronic communication, unless
14 (1976) 2 SCC 291
43
the target of solicitation has made known to the lawyer his desire
not to be solicited, or the solicitation involved coercion, duress or
harassment. The US Supreme Court, inter alia, in Zauderer
versus Office of Disciplinary Counsel
15 and in Shapero versus
Kentucky Bar Association
16
struck down disciplinary actions
against lawyers for soliciting clients through print advertisements or
hoardings. In UK, Solicitors Regulation Authority(SRA) is a
regulatory body established under the Legal Services Act, 2007.
Chapter 8 of the SRA Handbook permits publicity of the law firm but
prohibits solicitations.
32. In India, with regard to Contingency fees, Rule 20 in Part VI,
Chapter II of the BCI Rules bars an advocate from stipulating a fee
contingent on the results of the litigation or from agreeing to share
the proceeds thereof. Rule 21 prohibits practices akin to champerty
or maintenance, and prohibits an advocate from buying or
trafficking in or stipulating or agreeing to receive any share or
interest in an actionable claim. In USA Rule 1.5 (c) of the ABA Rules
permits lawyers to charge contingency fees, except in certain
specified cases like criminal defence, etc. Fee-splitting
arrangements between lawyers from different firms are also
permitted with some restrictions. In U.K., Section 58 of the Courts
and Legal Services Act, 1990 permits “conditional fee agreements”
15 471 US 626 (1985)
16 486 US 466
44
except in criminal proceedings and family law matters and Section
58AA permits “damages-based fee agreements”, all of which entitle
legal practitioners to a share of the “winnings”.
33. In India, there are no rules framed by the Bar Council on the
subject ‘sale of law practice’. In U.S.A., Rule 1.17 permits law firms
or lawyers having private practice to sell their practice including the
goodwill. In U.K., SRA Guidelines permit sale of practice as a going
concern or acquisition of a practice which is closing down.
34. In India, senior advocates are barred from interacting directly
with clients, and are not permitted to draft pleadings or affidavits,
correspond on behalf of clients, or to appear in court unassisted by
an advocate (Part VI, Chapter I of the Bar Council of India Rules). In
U.S.A., no such distinction or designations are made. In U.K., there
appear to be no restrictions on Queen’s Counsel (QCs) similar to the
ones imposed by the Bar Council in India. QCs are permitted to join
law firms as partners.
35. In India, funding of litigation by advocates is not explicitly
prohibited, but a conjoint reading of Rule 18 (fomenting litigation),
Rule 20 (contingency fees), Rule 21 (share or interest in an
actionable claim) and Rule 22 (participating in bids in execution,
etc.) would strongly suggest that advocates in India cannot fund
litigation on behalf of their clients. There appears to be no
45
restriction on third parties (non-lawyers) funding the litigation and
getting repaid after the outcome of the litigation. In U.S.A., lawyers
are permitted to fund the entire litigation and take their fee as a
percentage of the proceeds if they win the case. Third Party
Litigation Funding/Legal Financing agreements are not prohibited.
In U.K., Section 58B of the Courts and Legal Services Act, 1990
permits litigation funding agreements between legal service
providers and litigants or clients, and also permits third party
Litigation Funding or Legal Financing agreements, whereby the third
party can get a share of the damages or “winnings”.
36. In India, partnerships with non-lawyers for conducting legal
practice is not permitted. In U.K., Section 66 of the Courts and
Legal Services Act, 1990 expressly permits solicitors and barristers
to enter into partnerships with non-solicitors and non-barristers.
CONSIDERATION OF THE ISSUES
37. We have considered the rival submissions. Questions for
consideration mainly arise out of directions in para 63 of the Madras
High Court judgment which have already been quoted in the
beginning of this judgment. viz. :
(i) Whether the expression ‘practise the profession of law’
includes only litigation practice or non-litigation practice
also;
46
(ii) Whether such practice by foreign law firms or foreign
lawyers is permissible without fulfilling the requirements
of Advocates Act and the Bar Council of India Rules;
(iii) If not, whether there is a bar for the said law firms or
lawyers to visit India on ‘fly in and fly out’ basis for giving
legal advice regarding foreign law on diverse international
legal issues;
(iv) Whether there is no bar to foreign law firms and lawyers
from conducting arbitration proceedings and disputes
arising out of contracts relating to international
commercial arbitration;
(v) Whether BPO companies providing integrated services are
not covered by the Advocates Act or the Bar Council of
India rules.
RE : (i)
38. In Pravin C. Shah versus K.A. Mohd. Ali
17
, it was observed
that right to practice is genus of which right to appear and conduct
cases is specie. It was observed:
“………The right of the advocate to practise
envelopes a lot of acts to be performed by him in
discharge of his professional duties. Apart form
appearing in the courts he can be consulted by
17 (2001) 8 SCC 650
47
his clients, he can give his legal opinion
whenever sought for, he can draft instruments,
pleadings, affidavits or any other documents, he
can participate in any conference involving legal
discussions etc. ……”
In Ex. Capt. Harish Uppal versus Union of India
18
, same
view was reiterated.
39. Ethics of the legal profession apply not only when an advocate
appears before the Court. The same also apply to regulate practice
outside the Court. Adhering to such Ethics is integral to the
administration of justice. The professional standards laid down from
time to time are required to be followed. Thus, we uphold the view
that practice of law includes litigation as well as non litigation.
RE : (ii)
40. We have already held that practicing of law includes not only
appearance in courts but also giving of opinion, drafting of
instruments, participation in conferences involving legal discussion.
These are parts of non-litigation practice which is part of practice of
law. Scheme in Chapter-IV of the Advocates Act makes it clear that
advocates enrolled with the Bar Council alone are entitled to
practice law, except as otherwise provided in any other law. All
others can appear only with the permission of the court, authority or
person before whom the proceedings are pending. Regulatory
mechanism for conduct of advocates applies to non-litigation work
18 (2003) 2 SCC 45
48
also. The prohibition applicable to any person in India, other than
advocate enrolled under the Advocates Act, certainly applies to any
foreigner also.
RE : (iii)
41. Visit of any foreign lawyer on fly in and fly out basis may
amount to practice of law if it is on regular basis. A casual visit for
giving advice may not be covered by the expression ‘practice’.
Whether a particular visit is casual or frequent so as to amount to
practice is a question of fact to be determined from situation to
situation. Bar Council of India or Union of India are at liberty to
make appropriate rules in this regard. We may, however, make it
clear that the contention that the Advocates Act applies only if a
person is practicing Indian law cannot be accepted. Conversely,
plea that a foreign lawyer is entitled to practice foreign law in India
without subjecting himself to the regulatory mechanism of the Bar
Council of India Rules can also be not accepted. We do not find any
merit in the contention that the Advocates Act does not deal with
companies or firms and only individuals. If prohibition applies to an
individual, it equally applies to group of individuals or juridical
persons.
RE: (iv)
42. It is not possible to hold that there is absolutely no bar to a
foreign lawyer for conducting arbitrations in India. If the matter is
49
governed by particular rules of an institution or if the matter
otherwise falls under Section 32 or 33, there is no bar to conduct
such proceedings in prescribed manner. If the matter is governed by
an international commercial arbitration agreement, conduct of
proceedings may fall under Section 32 or 33 read with the
provisions of the Arbitration Act. Even in such cases, Code of
Conduct, if any, applicable to the legal profession in India has to be
followed. It is for the Bar Council of India or Central Government to
make a specific provision in this regard, if considered appropriate.
RE: (v)
43. The BPO companies providing range of customized and
integrated services and functions to its customers may not violate
the provisions of the Advocates Act, only if the activities in pith and
substance do not amount to practice of law. The manner in which
they are styled may not be conclusive. As already explained, if their
services do not directly or indirectly amount to practice of law, the
Advocates Act may not apply. This is a matter which may have to
be dealt with on case to case basis having regard to a fact situation.
44. In view of above, we uphold the view of the Bombay High
Court and Madras High Court in para 63 (i) of the judgment to the
effect that foreign law firms/companies or foreign lawyers cannot
practice profession of law in India either in the litigation or in nonlitigation
side. We, however, modify the direction of the Madras
50
High Court in Para 63(ii) that there was no bar for the foreign law
firms or foreign lawyers to visit India for a temporary period on a
“fly in and fly out” basis for the purpose of giving legal advice to
their clients in India regarding foreign law or their own system of law
and on diverse international legal issues. We hold that the
expression “fly in and fly out” will only cover a casual visit not
amounting to “practice”. In case of a dispute whether a foreign
lawyer was limiting himself to “fly in and fly out” on casual basis for
the purpose of giving legal advice to their clients in India regarding
foreign law or their own system of law and on diverse international
legal issues or whether in substance he was doing practice which is
prohibited can be determined by the Bar Council of India. However,
the Bar Council of India or Union of India will be at liberty to make
appropriate Rules in this regard including extending Code of Ethics
being applicable even to such cases.
45. We also modify the direction in Para 63 (iii) that foreign
lawyers cannot be debarred from coming to India to conduct
arbitration proceedings in respect of disputes arising out of a
contract relating to international commercial arbitration. We hold
that there is no absolute right of the foreign lawyer to conduct
arbitration proceedings in respect of disputes arising out of a
contract relating to international commercial arbitration. If the
Rules of Institutional Arbitration apply or the matter is covered by
51
the provisions of the Arbitration Act, foreign lawyers may not be
debarred from conducting arbitration proceedings arising out of
international commercial arbitration in view of Sections 32 and 33 of
the Advocates Act. However, they will be governed by code of
conduct applicable to the legal profession in India. Bar Council of
India or the Union of India are at liberty to frame rules in this regard.
46. We also modify the direction of the Madras High Court in Para
63(iv) that the B.P.O. Companies providing wide range of customized
and integrated services and functions to its customers like word
processing, secretarial support, transcription services, proof reading
services, travel desk support services, etc. do not come within the
purview of the Advocates Act, 1961 or the Bar Council of India Rules.
We hold that mere label of such services cannot be treated as
conclusive. If in pith and substance the services amount to practice
of law, the provisions of the Advocates Act will apply and foreign law
firms or foreign lawyers will not be allowed to do so.
The Civil Appeals are disposed of accordingly.
.….………………………………..J.
[ADARSH KUMAR GOEL]
.….………………………………..J.
[UDAY UMESH LALIT]
NEW DELHI;
MARCH 13, 2018.
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