Foreign Law Firms case: BCI reiterates opposition to “fly in fly out” for advisory work and arbitration

The Bar Council of India (BCI) has filed its rejoinder affidavit in response to the counter affidavits filed by various foreign law firms in the case pertaining to the entry of foreign lawyers and law firms into India..In 14 separate rejoinder affidavits, filed through its advocate Ardhendumauli Kumar Prasad, the BCI has reaffirmed its position that the Madras High Court judgment, in so far as it permits “fly in and fly out” of foreign lawyers to advise clients and to conduct arbitration proceedings, is bad law..According to the BCI affidavit,.“It is most humbly submitted that the Hon’ble High Court erred in permitting temporary visit on a fly in fly out basis for the purpose of rendering legal advice and failed to appreciate that the same will bear serious consequences as to the legal profession in this country.”.The affidavit reiterates that the scope of the term “practice” includes work in the nature of advice, drafting, seminars and conferences and the same will be covered by the Advocates Act, 1961..“……the term “practice” means litigious as well as non-litigous work and hence advising clients, in the territory of India, will fall under the purview of Advocates Act, 1951…….the Hon’ble High Court of Bombay rightly held that Section 29 of the Act is wide enough to cover the persons practising in non-litigous matters and, therefore, foreign law firms are bound to follow the provisions of the Advocates Act, 1961…….practice of law does not necessarily mean rendering professional services on primary/ regular basis in the territory of India. Furthermore, it will neither be just or proper to state that discussion/ negotiation by way of seminars, conferences and arbitration will not constitute practising profession of law. It is, therefore, clarified that the practice of law, no matter of its manner, form or time period involved, is contrary to the provisions as well as the principles of Advocates Act, 1951 and Bar Council of India Rules.”.BCI has also pointed out the practical difficulties in implementing the “fly in fly out” law, stating that,.“….in case such foreign law firms/lawyers are even permitted to visit India on temporary basis, the regulation of such advisors by the Petitioner herein will become totally unrealistic and unworkable.”.BCI has further submitted that the intention behind barring foreign lawyers/ law firms is to ensure that only lawyers qualified in Indian law practice in India, considering the specialized nature of Indian laws..“…the entire intention is to permit only qualified lawyers to practice law in India because Indian laws are of specialized nature and in such circumstance, only those who have complete and overall idea of its functioning, are to be permitted to practice law by the Petitioner herein.”.The case will now come up for hearing on April 6, 2015. It is interesting to note that the Central government has not entered appearance in the case despite being one of the respondents..Read a detailed report on the submissions of foreign law firms here..Read a brief timeline of the case here.