In an important ruling, the Supreme Court of India held that visit of any foreign lawyer to India on ‘fly in and fly out’ basis for giving legal advice regarding foreign law may amount to practice of law if it is on regular basis.
“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”, the Court said.
The Court said 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”, it opined.
Stating that the expression ‘practice the profession of law’ includes both litigation and non-litigation practice, the Court said 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.
The Court also said 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 in India.
“If the Rules of Institutional Arbitration apply or the matter is covered by 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”, the Court added.
The Court also held that if in pith and substance the BPO services provided by various companies in India 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.