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2018 (3) TMI 716 - SC - Indian LawsWhether foreign law firms/lawyers are permitted to practice in India? Whether the expression practise the profession of law includes only litigation practice or non-litigation practice also? - Held that - In Pravin C. Shah versus K.A. Mohd. Ali 2001 (10) TMI 1049 - SUPREME COURT OF INDIA , it was observed that right to practice is genus of which right to appear and conduct cases is specie - 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. 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? - 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. 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? - Held that - 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 - If prohibition applies to an individual, it equally applies to group of individuals or juridical persons. 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? - Held that - 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 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. Whether BPO companies providing integrated services are not covered by the Advocates Act or the Bar Council of India rules? - Held that - 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. The foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in nonlitigation side - however, 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. 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 - appeal disposed off.
Issues Involved:
1. Whether foreign law firms/lawyers are permitted to practice in India. 2. Whether the expression "practice the profession of law" includes only litigation or non-litigation practice as well. 3. Whether foreign law firms or lawyers can visit India on a "fly in and fly out" basis for giving legal advice. 4. Whether foreign law firms and lawyers can conduct arbitration proceedings in India. 5. Whether BPO companies providing integrated services are covered by the Advocates Act or the Bar Council of India rules. Issue-Wise Detailed Analysis: Issue 1: Permissibility of Foreign Law Firms/Lawyers Practicing in India The Supreme Court addressed whether foreign law firms or lawyers are allowed to practice in India. It was concluded that foreign law firms/lawyers cannot practice the profession of law in India either in the litigation or non-litigation side unless they fulfill the requirements of the Advocates Act, 1961 and the Bar Council of India Rules. This decision aligns with the judgments of both the Madras and Bombay High Courts. Issue 2: Scope of "Practice the Profession of Law" The Court clarified that the term "practice the profession of law" includes both litigation and non-litigation practices. This encompasses not only appearing in courts but also giving legal opinions, drafting instruments, and participating in legal discussions. The Court upheld the view that both litigation and non-litigation practices are regulated under the Advocates Act, 1961. Issue 3: "Fly in and Fly out" Visits for Legal Advice The Court examined whether foreign lawyers could visit India on a "fly in and fly out" basis to provide legal advice. It was held that such visits might amount to the practice of law if done on a regular basis. Casual visits for giving advice do not constitute practicing law. The Court emphasized that the determination of whether a visit is casual or regular is a question of fact. The Bar Council of India or the Union of India can make appropriate rules to regulate such visits. Issue 4: Conducting Arbitration Proceedings The Court addressed whether foreign lawyers could conduct arbitration proceedings in India. It concluded that there is no absolute right for foreign lawyers to conduct arbitration proceedings in India. However, if the arbitration is governed by specific institutional rules or falls under the Arbitration and Conciliation Act, 1996, foreign lawyers may not be debarred from conducting such proceedings. They would still be subject to the code of conduct applicable to the legal profession in India. Issue 5: BPO Companies and the Advocates Act The Court considered whether BPO companies providing integrated services fall under the purview of the Advocates Act. It was held that merely labeling services as BPO does not exempt them from the Act. If the services in substance amount to the practice of law, the provisions of the Advocates Act will apply. The determination of whether such services constitute practicing law will be made on a case-by-case basis. Conclusion The Supreme Court upheld the judgments of the Madras and Bombay High Courts with modifications. Foreign law firms and lawyers cannot practice law in India without complying with the Advocates Act and Bar Council of India Rules. Casual "fly in and fly out" visits for giving legal advice are permitted, but regular visits amounting to practice are not. Foreign lawyers may conduct arbitration proceedings under specific conditions and are subject to the Indian legal profession's code of conduct. BPO companies providing services that amount to practicing law are also regulated under the Advocates Act. The civil appeals were disposed of accordingly.
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