Madras High Court Rules That Foreign Lawyers May “Fly-In and Fly-Out” To Provide Advice on Foreign Law to Indian Clients

On February 21, 2012 the Madras High Court in A.K Balaji v. Govt. of India [2012] 18 taxmann.com 283 (Madras) observed that foreign law firms/lawyers may visit India for a temporary period on a ‘fly in and fly out’ basis to advise their clients in India on foreign law/international legal issues.

In the instant case, most of the respondent law firms were carrying out consultancy/support services in the field of protection and management of intellectual, business, and industrial proprietary rights, carrying out market surveys and market research, and publication of reports and journals without rendering any legal service including advice in the form of opinions.

The question involved was whether foreign firms and foreign lawyers are entitled to practice on the litigation side and non-litigation side in any manner within the territory of India or not. The High Court held that:

• Foreign law firms or foreign lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfill the requirement of the Advocates Act, 1961 and the Bar Council of India Rules.
• There is no bar either in the Act or the Rules for the foreign law firms or foreign lawyers to visit India for a temporary period on a ‘fly in and fly out’ basis, for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues.
• Moreover, with regard to the aim and object of the International Commercial Arbitration introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings for disputes arising out of a contract relating to international commercial arbitration.
• P.O. companies providing wide range of customized and integrated services and functions to its customers like word-processing, secretarial support, transcription services, proofreading services, travel desk support services, etc. do not come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules. However, in the event of any complaint made against these B.P.O. Companies violating the provisions of the Act, the Bar Council of India may take appropriate action against such erring companies.

Therefore in the light of the scheme of the Act if a lawyer from a foreign law firm visits India to advice his client on matters relating to the law which is applicable to their country, for which purpose he ‘flies in and flies out’ of India, there could not be a bar for such services rendered by such foreign law firm/foreign lawyer.

The case presented interesting issues on whether foreign lawyers can come to India for the purpose of offering legal advice to their clients here on foreign law and whether any provision of law prohibits practice of foreign law in India.

Mr. Aseem Chawla is a Partner, and Ms. Surabhi Singhi is an Associate, Amarchand & Mangaldas & Suresh A. Shroff & Co., based out of Delhi, India. Mr. Chawla leads the tax practice group of the firm and can be contacted at aseem.chawla@amarchand.com. Ms. Singhi is an Associate with the tax practice group of the firm and can be contacted at surabhi.singhi@amarchand.com.