It’s the latest chapter in a long story. In Lawyer’s Collective v. Ashurst, the Bombay High Court appears to have stated that the Reserve Bank of India did not have the authority to grant licenses to law firms to engage in transactional practice in India and that the Advocates Act of 1961 governs both litigious as well as non-litigious legal practice. Fair enough, but just how much further does India’s prohibition on foreign lawyers extend? It is to be hoped that the recent writ petition filed in the Madras High Court by  one A.K. Balaji will clarify things somewhat. This column seeks to briefly examine the petition and some of its salient implications.

First, there’s the curious question of names. The petition names no less than 31 law firms and one LPO firm as respondents, along with the usual suspects, i.e., the Government of India and the Reserve Bank of India. The names named in the petition range from French and Australian firms to English members of the Magic Circle and not a few New York white-shoe shops. But even with this long list, one might ask “Why these names and no others?” Particularly puzzling is the presence of firms such as Wilmer Hale or Arnold & Porter, firms whose involvement (if at all) in Indian matters is far smaller than many other market leaders.

Why not name Skadden Arps, Latham & Watkins or Cleary Gottlieb? Each of these firms boasts a major India practice – often far bigger than the ones named in the petition. Is there a reason some firms were named and others, often with a bigger Indian footprint, were left out of the list? Or can we expect a sequel?

After the names, one might turn to the addresses. The petition specifically identifies certain firms such as Ashurst, Kennedy’s, Kelley Drye and White & Case in terms of Indian addresses. Are these liaison offices or more extensive and thus potentially illegal operations or what? By contrast, the Magic Circle and US firms, even those with best friends or closer relationships on the ground, are identified in terms of their London, New York or other foreign addresses.

Third, and most importantly, there’s the question of what it really means to practice Indian law. In paragraph 12, the petition seems to suggest that conducting arbitration in an Indian hotel amounts to practicing Indian law. But this need not be the case if the substantive law is not Indian and if an Indian firm is handling the procedural points. Similarly, let’s suppose A and B contract to buy and sell goods and subject the contract to Indian law but agree that the courts of London shall have jurisdiction. This is perfectly possible as a matter of English conflict of laws. As a result of this clause, English lawyers would find themselves arguing Indian law before the Royal Courts of Justice in a manner that is perfectly legal under English law.

Once again, let’s suppose an American lawyer decides to advise a US company on issues of US law arising from its operations in India (on FCPA issues, for example). This does not amount to the practice of Indian law although the operations of the company are in India. Nor is a referral of an issue involving Indian law by a U.S. firm to an Indian law firm a violation of the Advocates Act, indeed, it is an acknowledgment of the Act’s basic principles regarding the practice of Indian law by Indian advocates. The term “India practice” is therefore somewhat vague – it covers a range of activities carried out by a range of attorneys, some eligible to practice in India, others not.  Thus, the issue is not some non-existent dichotomy between litigation and transactional work, but the precise nature of the advice given on the transaction or litigation in question.

The intention here is not to suggest that the petition’s contentions are correct or incorrect. It is merely to highlight the fact that in an India which is endlessly engaged with the Western world, the boundaries of what constitutes the practice of Indian law need to be clearly delineated. The coming weeks will likely provide some clarity to foreign firms on what they may or may not do on matters of Indian law.

Paginate