The Bar Council of India has made a significant decision to allow foreign lawyers and law firms to practice foreign law in India based on reciprocity. BCI will determine the areas of law that foreign lawyers and law firms can practice in consultation with the Law Ministry if necessary.
The rules came 5 years after the Supreme Court allowed temporary entry of foreign lawyers and law firms in India. The Bar Council of India has issued the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022.
“The Bar Council of India resolves to implement these Rules enabling the foreign lawyers and Foreign Law Firms to practice foreign law and diverse international law and international arbitration matters in India on the principle of reciprocity in a well defined, regulated and controlled manner…opening up of law practice in India to foreign lawyers in the field of practice of foreign law; diverse international legal issues in non-litigious matters and in international arbitration cases would go a long way in helping legal profession/domain grow in India to the benefit of lawyers in India too,” stated the rules.
The regulatory body stated that this process would be restricted, well-regulated and controlled to ensure that it is mutually beneficial for Indian as well as foreign lawyers.
“These rules will also help to address the concerns expressed about the flow of Foreign Direct Investment in the country and making India a hub of International Commercial Arbitration. In case, we sleep over the matter, the legal fraternity of India may be left behind in providing legal/professional expertise in accordance to the rule of law in a manner consistent with the best interests of this fast-growing class of clients in India. Let us ensure that an opportunity for creating development and growth for the legal profession and in the legal sphere in India is not lost,” BCI said.
Areas Of Practice For Foreign Lawyers And Law Firms In India
BCI rules allow foreign lawyers and law firms to transactional work /corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts and other related matters on a reciprocal basis. In addition to that, they shall not be involved in property matters.
Below mentioned are the areas in which foreign lawyers and law firms can practice in India.
- Doing work, transacting business, giving advice and opinion concerning the laws of the country of the primary qualification;
- Providing legal expertise/advise and appearing as a lawyer for a person, firm, company, corporation, trust, society etc. who/which is having an address or principal office or head office in a foreign country in any international arbitration case which is conducted in India and in such arbitration case “foreign law may or may not be involved;
- Providing legal expertise/advise and appearing as a lawyer for a person, firm, company, corporation, trust, society etc. who/which is having an address or principal office or head office in the foreign country of the primary qualification in proceedings before bodies other than Courts, Tribunals, Boards, statutory authorities who are not legally entitled to take evidence on oath, in which knowledge of foreign law of the country of the primary qualification is essential;
- Providing legal expertise/advise concerning the laws of the Country of primary qualification and on diverse international legal issues, provided that such legal expertise/advise, unless otherwise provided for in these Rules, shall not include representation or the preparation of documents regarding procedures before an Indian Court of Law, Tribunal or any other Authority competent to record evidence on oath or preparation of any documents, petitions etc. to be submitted to any such forum regarding such procedures.
- 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 under these rules and regulations, can take up only non-litigious matters and can advise on issues relating to countries other than the Indian Laws only. Such a Lawyer shall have no advantage/right of his being an Advocate enrolled in India.
How Foreign Lawyers And Law Firms Can Register In India?
The Bar Council of India has set forth rules that state that foreign lawyers and foreign law firms cannot practice law in India unless they are registered with the Bar Council of India. However, this prohibition does not apply to law practice by a foreign lawyer or foreign law firm that is done on a “fly in and fly out basis” and does not exceed 60 days in any 12-month period.
If a foreign lawyer or foreign law firm wishes to practice law in India for a longer duration, they may apply for registration with the Secretary of the Bar Council of India by submitting a completed “FORM A” along with a registration fee and non-refundable processing charges. The registration fee is USD 25,000 for an individual foreign lawyer and USD 50,000 for a foreign law firm, private limited partnership, company, or limited liability partnership (LLP). Additionally, a security deposit of USD 15,000 is required for an individual foreign lawyer, while a guarantee amount of USD 40,000 is required for a foreign law firm, private limited partnership, company, or LLP.
The completed form must also be accompanied by several documents, including certificates from various authorities in the foreign country of primary qualification, attesting to the applicant’s qualifications, good standing, and experience. The applicant must also provide a declaration on affidavit stating that they have not been convicted of any offence and have not suffered any adverse order in any disciplinary matter.
The registration is valid for a period of five years, after which the foreign lawyer or foreign law firm must renew their registration by filing an application for renewal in “Form B” at least six months before the registration’s expiration date. Once registered, the foreign lawyer or law firm is subject to the Advocates Act, 1961, and related rules and regulations, and is subject to the jurisdiction of Indian courts of law and the Bar Council of India. Additionally, the foreign lawyer or law firm may not practice Indian law in any form or before any court of law, tribunal, board, or any other authority legally entitled to record evidence on oath.
Supreme Court Verdict In Bar Council Of India vs A.K. Balaji has restricted foreign lawyers and law firms from establishing their offices in India but permitted their entry on a ‘fly in and fly out’ basis (temporary basis).
This article is written by Varsha. You can reach out to the author via email at bnbvarsha@gmail.com.
