Lexpert

By Lexpert

Let’s imagine a situation where you’re deprived of your right to lead your regular life for a while. You can no longer drive to your place of work, put in a good day at the office, come back home and spend some time with the family. You run around, trying to bring things back to normal and, after spending several months and a large amount of money, you’re told that regular transmission has resumed. Your first reaction is almost certainly relief. Your second reaction might well be anger.

So far, I’m guessing the 40 respondents in AK Balaji v. Union of India feel relieved by the court’s….er…relief.[1]Before the litigation started, foreign lawyers flew in and out of India on a regular basis, advised clients on issues of U.S. and other foreign laws, participated in deal closings and in foreign arbitral proceedings. After the litigation, foreign lawyers have been assured that they can continue to do all of these things, as long as they do not practice Indian law, whether for litigation or transactional purposes. I suspect the respondents will see this as a favorable result - and so they should, for it is effectively a return to the status quo ante. In addition, it provides clarity and certainty where there was none. These are all good things.

But if I were a foreign lawyer, I might also feel a little angry for what I’d been put through. Consider for a moment the costs of litigation in India - they have risen every year and represent a substantial drain on any organization's resources.The matter has so far been running for about two years, and if the petitioner decides to take things further to the Supreme Court of India, it could well go on for another two, or three…or ten.

Consider the disruption caused by the wide scope of the petition - firms have had to alter marketing content, change websites and brochures, cancel or reschedule business trips, some mandates have been thrown into doubt (and perhaps even declined in some cases) and all until the hon’bleMadras High Court clarifiedwhich practices are in conformity with the law of India.If this litigation has helped in the ongoing process of creating a favorable investment climate in India, it is only to the extent that it has now relieved foreign lawyers of the burden of having to guess precisely which practices are, or are not, permitted under the Advocates Act.

For LPOs, on the other hand, the judgment is an unequivocal step forward since it finds that LPO’s, in the ordinary course of their activities, do not violate the Advocates Act. Here, conversely, there may be a risk of foreign litigation as Indian lawyers become more familiar with certain kinds of activities such as due diligence and document review exercises. In the not-so-distant future, one might well see a disgruntled New York lawyer bringing suit in a foreign forum alleging the unauthorized practice of foreign law by Indian lawyers. That would be part two in the ongoing Law Wars. For the moment, however, we might just have a ceasefire.

[1] Or at least the 31 respondents who are foreign law firms or commercial organizations.

Paginate