In a decision handed down on 13 March 2018, India’s Supreme Court has ruled that:

  • foreign lawyers can visit India on a “casual” basis and advise on foreign laws
  • foreign law firms cannot set up offices in India without the Indian Advocates Act of 1962 being changed
  • foreign lawyers can advise on international commercial arbitrations in India but the Bar Council of India may write rules governing this.

This appears to be a pragmatic response to a question which has been hanging around the legal sector for years following decisions in Madras allowing “fly in fly out” following an objection and in Bombay against foreign law firms having representation offices in India. The Indian Advocates Act of 1962 restricts the practice of law to Indian qualified lawyers. The debate has centred round whether this means all and any law or just Indian law.

The Supreme Court appears to have taken a pragmatic position allowing the continuation of a practice allowing Indian and international businesses to receive the foreign law advice they need in India while returning the question of allowing foreign lawyers to the legislature. International law firms will, however, note that the Supreme Court did flag that there the line is drawn between “casual” visits and “too frequent” visits will be for the Bar Council of India to decide.

While the Supreme Court has also allowed foreign lawyers to appear at international commercial arbitrations in India, international arbitration lawyers will be concerned over the requirement for the Bar Council of India to draft the rules relating to it, given previous delays in producing rules.

It is widely understood that the Indian government under Prime Minister Modi is in favour of allowing foreign law firms into India and has made moves before to find ways of allowing this. With the next Indian elections due in 12 months’ time (and rumours that the election may be brought forward to the end of 2018), the question now is how much of a priority is this issue in Modi’s reform agenda.