BAR COUNCIL OF INDIA ALLOWS FOREIGN LAWYERS RESTRICTED PRACTICE IN INDIA

The Indian Legal fraternity had opposed the advent or entry of foreign lawyers into India for several years. The matter of foreign lawyers / law firms practicing in India had gone up to the Hon’ble Supreme Court of India in 2018 in the matter titled Bar Council of India vs. A.K. Balaji and Ors AIR 2018 SC 1382, wherein the Supreme Court had declared that the foreign lawyers / law firms are not entitled to practice laws in India either in the field of litigation or non-litigation. The plea taken by the Petitioner therein was that only Indian nationals possessing law degrees from recognized institutes could practice law in India. It was further contended that as Indian lawyers are not allowed to practice in other jurisdictions without a qualifying exam, foreigners should also be restricted from practicing law in India.

Despite the above restriction, foreigners were making an entry into the Indian legal practice in different ways which included rendering advice, working with local lawyers and conducting conferences. This was clearly a violation of the Advocates Act 1961 (Act).

However, with the Introduction of the recent Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, (Rules of 2022), vide BCI Notification bearing No. BCI : D: 1260/2023 dated 10-03-2023, the Bar Council of India (BCI) has allowed a limited practice to foreign lawyers in India in diverse international legal issues in non-litigious matters and in international arbitration cases. The BCI also contented that the Rules were introduced to encourage free flow of foreign direct investment and to make India a hub of international commercial arbitration.

The Rules of 2022 aim at giving foreign lawyers and law firms a limited entry into India based on the principle of reciprocity. The BCI observed that many countries have already allowed foreign lawyers to practice law and diverse international legal issues and arbitration matters in their countries in restricted fields with specific and prescribed conditions.

Under the Rules of 2022 a foreign lawyer has been defined under Rule 2 (iii), as a person, including a law firm, limited liability partnership, company or a corporation, by whatever name called or described, who/which is entitled to practice law in a foreign country. Further, an Indian lawyer means an Advocate enrolled on the roll of any of the State Bar Council of India, in accordance with the provisions of the Advocates Act, 1961. An Indian law firm means a partnership / limited liability partnership (LLP) firm with Indian lawyers as its partners. Under Rule 2 (x), a foreign client means an individual/s who is/are citizen/s of a foreign nation or a firm / corporation / business entity having its registered office / head office in a foreign country with a branch / regional office or manufacturing unit in India.

Under the Rules of 2022, a foreign lawyer / law firm will be required to register with BCI, if he/it opens an office in India. Registration / license to the foreign lawyers will be granted, only if the said lawyer / law firm fulfills the condition laid down by BCI and pays the requisite fees.[1] A license is granted for a period of 5 (five) years to be renewed from time to time.

Under the Rules of 2022, a foreign lawyer can only practice in the following areas:

(1) Non – litigation matters

(2)  The areas of practice of law by a foreign lawyer or foreign law firm shall be laid down by BCI and they shall be allowed to practice on transactional work / corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts and other related matters on reciprocal basis.

(3) Foreign lawyers cannot be involved in any work pertaining to conveyancing of property, title investigation or other similar works.

(4) The Practice of Law by a foreign lawyer and/or foreign law firm shall include the following arenas: –

(i) doing work, transacting business, giving advice and opinion concerning the laws of the country of the primary qualification;

(ii) providing legal expertise / advise and appearing as a lawyer in any international arbitration case which is conducted in India and in such arbitration case “foreign law may or may not be involved;

(iii) providing legal expertise / advise and appearing as a lawyer to take evidence on oath, in which knowledge of foreign law of the country of the primary qualification is essential;

(iv) providing legal expertise / advise concerning the laws of the Country of primary qualification and on diverse international legal issues, or the preparation of documents regarding procedures to record evidence on oath or preparation of any documents, petitions etc. to be submitted to any such forum regarding such procedures.

(v) Provided that an Advocate enrolled with any State Bar Council in India and is a partner or Associate in any foreign law firm registered in India can take up only the non-litigious matters and can advise on issues relating to countries other than the Indian Laws only.

Sushila Ram

Advocate and Chief Legal Consultant

The Indian Lawyer

 

[1] SCHEDULE OF RULES

(i) Registration fee in case of a foreign lawyer, if he is an individual: USD 25,000/- (USD Twenty Five Thousand Only);

(ii) Registration fee in case of a foreign lawyer, if it is a firm, private limited partnership, company, Limited Liability Partnership (LLP) etc.: USD 50, 000/- (USD Fifty Thousand Only);

(iii) Renewal fee in case of a foreign lawyer: USD 10,000/- (USD Ten Thousand Only);

(iv) Renewal fee in case of a foreign lawyer, if it is a firm, private limited partnership, company, Limited Liability Partnership (LLP) etc.: USD 20, 000/- (USD Twenty Thousand Only).

(E) The application for registration shall also be accompanied by Security Deposit as follows: –

(i) Security Deposit in case of a foreign lawyer, if he is an individual: USD 15,000/- (USD Fifteen Thousand Only);

(ii) Guarantee amount in case of a foreign lawyer, if it is a firm, private limited partnership, company, limited liability partnership (LLP) etc.: USD 40,000/- (USD Forty Thousand Only).