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FOREIGN LAWYERS TO PARTICIPATE IN ARBITRATION PROCEEDING IN INDIA – BCI V. AK BALAJI and Ors. Civil Appeal No. 7875-7879 of 2015
INTRODUCTION AND FACTS
The BCI v. AK Balaji case paved way for foreign lawyers to practice law in India. Through this judgment, the Supreme Court has rightly stated the definition of the legal profession in India. ‘Practice and profession of law’ ambit have been widened for any legal profession such as drafting, participating in legal conferences, etc. The court thereby cleared that the practice and profession of law also expand the scope for foreign lawyers to practise foreign law in India and foreign lawyers to participate in arbitration proceedings.
The BCI had filed an appeal against the Madras HC’s decision. A writ petition was filed in the High court with 40 respondents (out of which 32 were foreign legal firms). The petitioner pleaded against the foreign lawyers and their practice in India. The Madras HC ruled in favour of the petitioner stating that foreign lawyers cannot practise foreign law in India unless the same requirements are laid down in the Advocates Act, 1961 and BCI rules. It was imposed uniformly irrespective of the nature of the practice.
However, another judgment was passed by the Bombay High Court in the same matter. The court held that as per sec.29 of the Advocates Act, ‘to practice the profession of law’ engulfs ‘litigious as well as non-litigious practice’. The Reserve Bank of India was questioned on granting permission to foreign law firms to open a liaison office in India.
ISSUES
The Supreme Court was presented with the question of:
- Whether practising the profession of law included litigious and non-litigious matters?
- Whether foreign lawyers can practice law in Indian courts?
DECISION
The Supreme Court’s judgment came with slight changes. It held that the practice and profession of law included litigious and non-litigious practice. To the Madras High Courts advice that foreign lawyers can ‘fly in and out to provide legal advice on international matters, SC has further added that this settlement might lead to casual or frequent visits based on different cases and directed the BCI to make appropriate rules on this regard. Hence, it is left to the BCI to decide as to what constitutes ‘causal’ and ‘frequent visits. The court held that foreign lawyers could appear in court with the prior permission of the court or tribunal.
The SC also made the relevant finding that no foreign lawyer is barred from conducting arbitration proceedings. If the rules of Institutional arbitration apply or matters are covered under sec.32 and 33 of the Arbitration and Conciliation Act, 1996, foreign lawyers may conduction arbitration proceedings. The court also stated that foreign lawyers will still be subjected to the code of conduct applicable to lawyers in India.
CONCLUSION
This judgment has been in favour of foreign lawyers to practice law in India. The arbitration forum is also free for foreign lawyers to participate in. This shows the openness of the Indian judiciary to make India a hub for arbitration. Foreign lawyers can participate and explore Indian arbitration proceedings.
LINKS REFERRED:
https://thecompany.ninja/bar-council-india-2015
http://www.nishithdesai.com/information/news-storage/news-details/newsid/4547/html/1.html
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, or Religion, Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre Foundation shall not be responsible for any errors caused due to human error or otherwise.
- INTRODUCTION AND FACTS
- ISSUES AND DECISION
- CONCLUSION
