[Exclusive]: Foreign law firms to be allowed in India? SC issues notice in challenge to Lawyers Collective [READ PETITION]

Six years after the Bombay High Court delivered its judgment in the Lawyer’s Collective case, a society of lawyers has chosen to appeal the judgment. At stake is the opening up of India’s legal market to the world..Global Indian Lawyers, a society formed with the intention of promoting the global growth of the legal fraternity, has chosen to file the appeal. And, unlike the AK Balaji case, the society does not want to limit discussion to the “fly in fly out” provision; rather it wants the apex court to decide whether the entry to foreign law firms is permitted or not..The basic rationale behind this move is the belief that one of the most effective methods to provide international exposure to Indian lawyers is to allow the entry of foreign law firms..The Supreme Court today after hearing Senior Advocate Huzefa Ahmadi issued notice in the matter. The Bench of Justices Anil R Dave and Kurian Joseph has tagged the Global Indian Lawyers case along with AK Balaji and will hear both the matters together on July 20. BCI counsels Senior Advocate MN Krishnamani and Advocate AK Prasad accepted notice on behalf of BCI..In 2009, the Bombay High Court had held that the RBI was not justified in allowing foreign law firms (in this case White & Case, Chadbiurne & Parke, and Ashurst) to open the liaison offices in India. The Court also held that these foreign law firms could carry on their liaison activities in India only on being enrolled as advocates under the Advocates Act, 1961 and further held that the expression “to practice the profession of law” is wide enough to cover persons practicing in litigious matters as well as persons practicing in non-litigious matters in India..Challenging this decision of the Bombay High Court, the GIL’s petition settled by Senior Advocate Harish Salve, argues that the qualification on foreign firms to register as advocates under the Advocates Act, is completely erroneous. This argument is supported by the fact that there are no restrictions under the Advocates Act or under the Bar Council of India Rules (the “BCI Rules”) against a foreign law firm establishing an office in India..Under the provisions of the Advocates Act, claims the petition, it is only the individual lawyers who are required to be registered and not law firms. Further explaining the concept of a law firm, the petition states,.“Such registered lawyers collectively form a law firm, which is only a structure, sometimes in the form of partnership, an LLP, or a sole proprietorship. Hence, the necessary corollary to this requirement would entail that even in respect of a foreign law firm, it is not the ‘firm’ which is required to be registered under the Advocates Act (as has been held by the High Court of Bombay), but the individual lawyers of that firm seeking to practice Indian law who are mandated to enroll under the provisions of the Advocates Act.”.Therefore, according to the petition, a blanket restriction on foreign law firms to establish offices in India under the pretext that they cannot be enrolled as advocates under the Advocates Act is wholly misconceived..In essence, GIL is claiming that both Lawyer’s Collective and AK Balaji have failed to examine some of the most important issues in the entire debate, such as:.1. The fact that an Indian qualified lawyer can practice in multiple jurisdictions and there is no restriction on such Indian qualified lawyer from practicing Indian law as well as the law of the other jurisdiction(s) where he or she has qualified.2. The fact that courts have not examined the registration requirements under the Advocates Act and the BCI Rules based upon the demarcation of the practice of the profession of law into the practice of Indian law and the practice of foreign law.3. The fact that it is possible for foreign law firms to have Indian qualified lawyers who practice Indian law, whereas foreign lawyers only practice foreign law.4. The fact that the Advocates Act and the BCI Rules only apply to the practice of Indian law.5. The fact that the Bombay High Court had erred in assuming that the work conducted by foreign law firms in India would go unregulated..But the petition does not limit itself to these questions alone. It goes on to argue that the restrictions on the Indian legal market have actually caused a “brain drain” in this country. A number of young lawyers have chosen to practice outside of India; if foreign firms are allowed a presence in India, these very lawyers would return..The Petition also gives examples of countries where foreign law firms i.e. firms practicing the law other than the laws of the home state, are allowed to practice.