The Supreme Court, on Tuesday, held that international regulation companies can’t arrange places of work in India or apply in Indian Courts. It, alternatively, clarified that they are able to recommendation Indian purchasers on a “fly in and fly out” foundation, now not amounting to common apply.
The judgment was once delivered through a Bench comprising Justice A.Okay. Goel and Justice U.U. Lalit, which was once listening to appeals difficult Madras and Bombay High Court judgments.
The Bombay High Court had, in 2009, held that the RBI was once now not justified in permitting international regulation companies to ascertain liaison places of work in India. It had then dominated that such international regulation companies can identify their places of work in India most effective after being enrolled as advocates underneath the Advocates Act, 1961. This judgment were challenged prior to the Supreme Court through the Global Indian Lawyers Association.
The Madras High Court had, in February, 2012, held that international attorneys and regulation companies can’t apply regulation in India both at the litigation or non-litigation aspect until they satisfy the requirement of the Advocates Act and the Bar Council of India (BCI) Rules. It had, alternatively, held that they’ll discuss with India on a “fly in and fly out” foundation for advising purchasers on international regulation. It had additional held that there is not any restriction in opposition to them coming to India for accomplishing arbitration complaints in disputes involving world industrial arbitration. This choice were appealed in opposition to through the BCI.
Issues thought to be through the Court
Here are the problems framed through the Court and its observations at the identical:
Whether the expression ‘practice the profession of law’ comprises most effective litigation apply or non-litigation apply additionally?
The Court held that the apply of regulation comprises litigation in addition to non-litigation actions. It relied at the judgment relating to Pravin C. Shah as opposed to Okay.A. Mohd. Ali to carry:
“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 apply through international regulation companies or international attorneys is permissible with out pleasing the necessities of Advocates Act and the Bar Council of India Rules?
The Court famous that the Advocates Act lets in most effective Advocates enrolled with the Bar Council to apply regulation, and that this prohibition, which applies to all Indian voters would observe to foreigners as neatly. It defined:
“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. The 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 also.”
If now not, whether or not there’s a bar for the stated regulation companies or attorneys to discuss with India on ‘fly in and fly out’ foundation for giving prison recommendation relating to international regulation on various world prison problems?
The Court dominated that the discuss with of a international attorney on a fly in and fly out foundation might also quantity to apply of regulation, whether it is performed frequently. It left it open to the BCI to border suitable regulations on this regard, watching:
“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.”
The Court additional rejected the contentions in opposition to the appliance of Advocates Act to such international attorneys and regulation companies, opining:
“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.”
Whether there is not any bar to international regulation companies and attorneys from accomplishing arbitration complaints and disputes bobbing up out of contracts when it comes to world industrial arbitration?
The Court famous that it could now not be conceivable to carry an absolute loss of bar on international attorneys accomplishing arbitrations in India, and left it open for the Bar Council of India or the Centre to make explicit provisions on this regard. It defined:
“If the matter 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.”
Whether BPO corporations offering built-in services and products aren’t coated through the Advocates Act or the Bar Council of India regulations?
The Court dominated that BPOs would now not violate provisions of the Advocates Act provided that their actions don’t quantity to ‘practice of law’ as outlined previous. It noticed:
“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.”
With such solutions to the questions posed through it, the Court upheld the impugned judgments, ruling that international regulation companies/corporations or international attorneys can’t apply occupation of regulation in India, neither within the litigation nor within the non-litigation aspect.
It, alternatively, changed the Madras High Court’s remark at the bar in opposition to international attorneys visiting India on a fly in and fly out foundation to carry that the expression “fly in and fly out” will most effective duvet an off-the-cuff discuss with now not amounting to apply. This, it stated, will also be made up our minds through the BCI, watching:
“In case of a dispute whether or not a international attorney was once proscribing himself to “fly in and fly out” on informal foundation for the aim of giving prison recommendation to their purchasers in India relating to international regulation or their very own device of regulation and on various world prison problems or whether or not in substance he was once doing apply which is illegitimate will also be made up our minds through the Bar Council of India. However, the Bar Council of India or Union of India might be at liberty to make suitable Rules on this regard together with extending Code of Ethics being acceptable even to such instances.”
It additional dominated that international attorneys would not have an absolute proper to behavior arbitration complaints in appreciate of disputes bobbing up out of a freelance when it comes to world industrial arbitration. It noticed:
“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. Bar Council of India or the Union of India are at liberty to frame rules in this regard.”
Read the Judgment Here