Uncertainty ruled today in a marathon Supreme Court of India hearing as final arguments were made in the six-year-old Bar Council of India (BCI) challenge against foreign lawyers working in India.
In three days of substantive hearings in India’s highest court, counsel reiterated the bar council's long-held stance against foreign lawyers flying to India - even if only to temporarily advise on non-Indian law transactions or to appear in international arbitrations.
At the beginning of the week lawyers for a number of foreign law firms had begun by attacking the vague wording of the 1961 Advocates Act, which contains a restriction that law in India may be practised only by Indian nationals. Justice A.K. Goel even quizzed lawyers why foreign law firms should not simply be allowed to fly in and stay in India to advise on foreign law. But lawyers for foreign firms closed with pleas for the top court simply to protect the status quo.
That was established by 2012’s Madras high court judgment in a case brought by local advocate A.K. Balaji against 31 foreign firms, which held that they would not be allowed to set up offices in India but would be allowed to fly in to advise their clients on transactional work (but not arbitrations), as long as they did not stay too long.
Senior counsel Sajan Poovayya, for US firms White & Case LLP and Covington & Burling LLP, explained: ’Our position was very clear: as regards to fly-in and fly-out, we believe there is no regulatory prohibition… and that needs no interference.’
That somewhat conservative position may have been keeping in mind the Indian government’s position: this case was pending in the Supreme Court from 2012 to last July when the government took the unusual step of asking for expedited hearings after it publicly advocated liberalisation of the Indian legal market, by legislation if necessary.
Justices Goel and U.U. Lalit have now given the parties a week to make any further written submissions, after which they will begin writing their decision. This will take at least three weeks, or longer, predicted one lawyer with knowledge of the case, though he and two others interviewed were unwilling to predict the outcome.