外国律师不能再印度领土从事任何法律工作（无论是诉讼、或与商业和贸易相关的法律工作）

允许外国律师临时访问印度和向客户提供外国法律和多种国际法问题服务，也成为“飞进飞出”规则（fly in and fly out）；

允许外国律师在印度进行仲裁业务，前提是仲裁涉及国际商事纠纷；

允许外国从业者成为业务外包服务提供商，只提供辅助的与业务无关的服务，如秘书支持、转录服务或旅行台支持。

最高院的裁定可能会让外国律师更难进入，其一：就从事法律工作没有定论；其二：就外国律师如何就印度业务外国法提供建议进行限制。

最高院认定惯常性的拜访仍定性为“从事法律工作”，并被禁止。并且将一事一议，认定是否属于“从事法律工作”，并将由律师协会和政府做出决定。

最高院就外国律师代理国际商事仲裁进行了限制，认为 并不绝对有权从事仲裁业务，将受制于仲裁机构的仲裁规则、仲裁法和印度法律职业适用的行为守则。

印度最高院明确外国律师在印度可以从事国际商事仲裁业务，但是还是有一定的限制，并将由律师协会和政府出具相应的规定，并且将考虑具体仲裁的机构仲裁规则、仲裁法和印度法律职业的行为守则，最终决定是否外国辣翅可以从事某一具体国际商事仲裁业务。

Back in 2009, the Bombay High Court had held that foreign lawyers cannot practice any law within the territory of India—whether such practice is litigation or commercial and transaction related. This decision relied on the Advocates Act, 1961 that permits only persons enrolled with the Bar Council of India to practice law in the country.

Three years later, the Madras High Court came to the same conclusion. But the court did weave in some flexibility for foreign lawyers by:

·    allowing foreign lawyers to visit India temporarily and advise their clients on foreign law aspects and diverse international legal issues—this came to be referred as the ‘fly in and fly out’ rule.

·  permitting foreign lawyers to conduct arbitration in India, if such arbitration relates to international commercial disputes.

· permitting foreign players to become business process outsourcing service providers for only ancillary non-practice related services such as secretarial support, transcription services or travel desk support.

This week, the apex court not only confirmed both the Bombay High Court and the Madras High Court rulings but experts said it has perhaps made the access for foreign lawyers tougher. One, by leaving open the question of what amounts to practice of law. And two, by imposing limitations on how the foreign lawyers advise on foreign law aspects of Indian deals.

Modification Of Fly In-Fly Out Rule
Foreign lawyers and law firms play a significant role in the structuring deals and negotiating and drafting legal documents in cross-border and commercial transactions having foreign implications. Lending an ear to this issue, the Madras High Court had permitted foreign lawyers to visit India temporarily on a fly in-fly out basis for giving advice on foreign law matters. But the apex court narrowed that by ruling that visits, if regular, may still qualify as ‘practice of law’ and therefore be barred. What is deemed as ‘practice of law’ would need to be determined on a case-by-case basis and the Bar Council of India and the government can frame rules to regulate this, the Supreme Court held.

In doing so the Supreme Court order modified the earlier Madras High Court decision and provided that BCI should establish a code of conduct on what constitutes fly in and out, Lalit Bhasin, the president of Bar Association of India, told BloombergQuint.

There is more clarity now, Desai said.

The principle is laid down and the intent is to ensure that foreign visits are not a regular occurrence. To continuously have people on the ground over here continuously advising albeit not with an office and a signboard outside,is not permitted.

Anand Desai, Managing Partner, DSK Legal

Arbitration, An Exception

The second modification that the Supreme Court made to the Madras High Court order relates to arbitration practice by foreign lawyers in India. It is common practice for foreign lawyers to represent foreign clients in commercial arbitration conducted in India. These lawyers are not just involved in conducting arbitrations but also negotiating and drafting documents that relate to such arbitration.

Noting this requirement and the intent of the government to popularise India as a hub for commercial arbitration, the Madras High Court had allowed foreign lawyers to conduct international commercial arbitration for disputes arising out of commercial contracts. But the apex court tightened this framework to say that the ability of a foreign lawyer to represent clients in arbitration proceedings in India is not absolute. It will be subject to rules of institutional arbitration, the Arbitration Act and governed by the code of conduct that applies to the legal profession in India. Here too, the apex court provided for the government and the BCI to frame rules to cover the gaps.

It’s not that lawyers are not allowed, and international lawyers are completely disbarred from international arbitrations, Poovayya explained.

The Supreme Court has interpreted the law correctly. Therefore, I don’tthink it will make any negative difference to the manner in which arbitrations have been conducted in this country.

Sajan Poovayya, Senior Advocate, Supreme Court of India

The Supreme Court judgment provides some much-needed clarity on a matter that has been pending for quite some time now, said Alexander Fessas, general secretary ofthe ICC Court, to Bloomberg Quint. The International Chambers of Commerce administer arbitration through the International Court of Arbitration.

It is now clearer that foreign counsel can represent clients in arbitration hearings that are taking place within India when the dispute is an international commercial arbitration dispute, Fessas added while pointing to certain restrictions.

But the Supreme Court judgement does come with a caveat, it does imposecertain conditions. Mainly that the arbitration needs to be administered by aninstitution and the parties must have agreed under the institutional rules oralternatively that the dispute is being conducted under the Arbitration Act. Atthe same time, the ICC court notes and welcomes the encouragement that theSupreme Court judgment passes on the Indian Bar Council in ensuring that rulesframed with regards to conduct by foreign counsel within cases administered inIndia should be developed.

Alexander Fessas, General Secretary, ICC Court

The judgment,experts said, is a positive development as it removes ambiguity around what foreign lawyers are permitted to do in India.

Any relief for foreign lawyers will be forthcoming only when the government decides on whetheror not to open up India’s legal services sector.