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March 01, 2012

Indian Court Decision Allows “Fly-In Fly-Out” for Foreign Lawyers

ABA emphasizes importance of such activities

The Indian Madras High Court ruled Feb. 21 that foreign lawyers may participate in international arbitration proceedings in India and advise clients on foreign law on a “fly-in fly-out” basis.

The court, ruling in a case involving many of the largest law firms in the United States, rejected a petition by an individual Indian lawyer who accused 31 foreign law firms and a legal process outsourcing company of illegally practicing law in violation of India’s Advocate’s Act. In the decision, the court stated that many Indian companies take part in transactions that require advice on foreign laws that Indian lawyers may not be able to address.

In a letter last fall to the Bar Council of India, ABA President Wm. T. (Bill) Robinson III emphasized the importance of “fly-in fly-out” activities.

 “Allowing such activities is critical not only for the mutual benefit of legal practitioners in both countries, but also for fostering the vital and already close relationship between India and the U.S. and to promote the robust growth of trade and investments between our two countries,” he wrote.

The ruling does not affect the current ban prohibiting foreign law firms from opening offices in India, advising on Indian law, or appearing in Indian courts. The Bar Council of India indicated, however, that it may appeal the decision to the Supreme Court of India, maintaining that it is in conflict with a 2009 Bombay High Court decision.

The Madras decision comes as the United States is negotiating a Bilateral Investment Treaty with India. 

In a letter last summer to Secretary of State Hillary Clinton, then ABA President Stephen N. Zack noted the importance of India as the fourteenth largest trading partner of the United States and emphasized that a critical element in increasing the size of that trade and investment and the relationship between the two nations is the provision of legal services in their support.

The ABA Model Rule of Licensing and Practice by Foreign Legal Consultants, as adopted by 32 U.S. jurisdictions, allows overseas licensed lawyers, including those from India, upon acceptance of a registration with the local bar or court, to establish offices in the United States and provide legal services to businesses in this country.

In his letter, Zack urged Clinton to advocate that the government of India establish a similar rule allowing non-Indian lawyers to provide advice to their clients in India on laws of their home jurisdictions.

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