Foreign Law Firms case: Supreme Court to hear matter on Friday as A&O, Herbert Smith et all contend BCI is “confusing issues”

The year 2015 may be witness to the opening up of the Indian legal sector, an issue that has been under discussion for the last two decades. With the Society of Indian Law Firms (SILF) no longer opposing the entry of foreign law firms and, in fact, proposing to open up the sector, a liberalized Indian legal market might just become reality..In an interview with Business Standard, SILF President Lalit Bhasin said that the opening up of the legal sector could happen this year, albeit in a “phased, sequential manner”..Bhasin’s statement comes at a time when the Supreme Court is preparing to hear the appeal against the decision in AK Balaji. In 2012, the Bar Council of India (BCI) had filed an appeal against the Madras High Court’s decision, contending that Madras High judgment was in conflict with the 2009 judgment of Bombay High Court in the Lawyers Collective case..The matter was listed earlier this year on January 6, 2015 when BCI sought time to file a rejoinder to the reply filed by the law firms. The case is now listed on February 27, 2015 before a Bench of Justices Anil R Dave and Shiva Kirti Singh..Out of thirty law firms impleaded in BCI’s appeal, twelve law firms have filed their replies. The rest have been deleted, as the BCI was unable to serve them..The 12 law firms include,.Allen & Overy, Ashurst, Bird & Bird, Clifford Chance, Clyde & Co, Covington & Burling, Eversheds, Herbert Smith, LinkLaters, Norton Rose, Slaughter and May and White & Case..Madras High Court Judgment (In appeal) – February 2012.In AK Balaji, the Madras High Court held that foreign law firms or foreign lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfill the requirement of the Advocates Act, 1961 and the Bar Council of India Rules..However, the Court clearly stated that there is no bar either in the Advocates Act or the BCI Rules for 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 on foreign law to their clients in India..The Court also held that 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..BCI Appeal – April 2012.In April, 2012, the BCI filed a SLP challenging this decision on the ground that the Madras High judgment was in conflict with the 2009 judgment of Bombay High Court in the Lawyers Collective case. The BCI’s argument was that the 2009 judgment had attained finality, as it was not challenged before the Supreme Court..The BCI has also argued that the foreign lawyers who intend to practice in India should first enroll themselves with the BCI as per the Advocates Act, 1961..Foreign Law Firms Response: Lawyer’s Collective was considered by Madras HC, Advocates Act not applicable.In response, the foreign law firms, have filed a series of objections. Their primary arguments are summarised below:.a) Non-maintainability – These firms do not have offices in India, none provide advice on Indian law to their clients in India..b) Lawyer’s Collective not applicable – The BCI is attempting to confuse issues, AK Balaji related to applicability of Advocates Act 1961 and Bar Council Rules to practice of ‘non-Indian and/or foreign law’ in India by foreign law firms.In Lawyer’s collective these issues were not resolved by Bombay High Court..c) Advocates Act, BCI Rules not applicable – Neither the Advocates Act, 1961 nor the Bar Council Rules govern the practice of non-Indian Law/Foreign Law..The Advocates Act, 1961 does not define ‘practice of the profession of law’’ does not apply to advise given to clients outside the Courts.No prohibition on foreign lawyers from appearing in international commercial arbitration conducted in India..d) Onl advise on non-Indian law – These law firms provide advise only on non-Indian law to Indian clients involve in cross-national transactions..e) No appearance in any Indian court or tribunal – No lawyer appears before any Indian Court or Tribunal..f) No bar on international commercial arbitration: No prohibition/bar on foreign lawyers flying in and flying out of India, appearing in international commercial arbitration..Under the Arbitration and Conciliation Act, 1996 one of the parties in international commercial arbitration would be a foreigner and they would prefer to atleast have their home country lawyers to appear for them..g) Damaging Indian economy – Disallowing foreign law firms from appearing in international arbitrations would affect the growing Indian economy and decrease investor confidence..BCI Rejoinder – February 2015.The BCI is yet to file the rejoinder in this case. Given below is the list of law firms involved and their legal counsel..You can read the counter-affidavits of the following firms:.1. Allen & Overy.2. Ashurst.3. Covington & Burling.4. Clifford Chance.5. Herbert Smith.6. Linklaters.7. Norton Rose.8. White & Case