Fly in & Fly out – Says Madras HC on Foreign Lawyers 22 Feb. 2012 13:56 Soibam Rocky Singh New Delhi The Madras High Court has held that the Advocates Act, 1961 and the Bar Council Rules, which govern the practice of law in India, do not bar foreign law firms or foreign lawyers per se from giving legal advice to their clients in India on foreign law. A bench of Chief Justice MY Eqbal and Justice TS Sivagnanam has held that there is no law in India which prohibits foreign law firms or foreign lawyers to visit India for a temporary period on a “fly in and fly out” basis, and give legal advise on foreign law or on international legal issues. The bench however remarked that the relaxation extended to foreign law firms or foreign lawyers were only limited to giving legal advice and that they 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. “Since there may be several transactions in which an Indian 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 bench noted. The bench explained that after the liberalization of economic policies in India, ‘throwing the doors open to foreign investments, it cannot be denied that disputes and differences are bound to arise in such International contracts.’ In such circumstances, ‘international arbitration is growing in India’, the bench added. The bench further explained that “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.” The bench observed that foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings as it was not contemplated in the International Commercial Arbitration introduced in the Arbitration and Conciliation Act, 1996. “If foreign law firms are not allowed to take part in negotiations, for settling 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,” the bench added. The verdict of the High Court came on a petition seeking to bar foreign law firm or foreign lawyers from practicing the profession of law in India either on the litigation side or in the field of non-litigation and commercial transactions. The petitioner, AK Balaji, a lawyer, had stated in his petition that the Law Graduates from India are not allowed to practice the profession of law in United Kingdom, United States of America, Australia and various other foreign nations. Balaji also contended that the procedure for Indian Lawyers to practice in foreign countries was more cumbersome and costly, apart from restrictions like qualifying tests, prior experience, work permits, etc.. He argued that there were no such procedures in the Advocates Act, 1961 in respect of foreign lawyers who intend to practice law in India.