BCI Amends Rules Allowing Foreign Law Firms & Lawyers To Practice Non-Litigious Matters In India

The Bar Council of India (BCI) has notified amendments to rules allowing foreign lawyers and law firms to practice foreign law (non-litigation) in India on the basis of reciprocity. The recent notification of May 13 by BCI states that the amendment to the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 intends to regulate the practice of international law in India without causing any harm to the traditional litigation by Indian advocates. The notification states that the BCI "resolves to amend the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, earlier gazetted on 10th March, 2023." It further enforces the amended rules which "shall come into effect immediately upon publication in the Official Gazette". Notably, 'reciprocity basis' finds its roots under S. 47 of the Advocates Act 1961, as per which foreign lawyers can practise in India only if their respective home countries allow lawyers from India to practise there upon similar conditions. As per the recent development, BCI states that Indian lawyers and firms can register as 'foreign lawyers or foreign law firms' in other countries to expand their global practice without giving up their domestic practice. The notification also clarifies that foreign firms or foreign lawyers will be allowed to take part in International Commercial Arbitrations happening in India as long as it involves an element of foreign law/ international law.The relevant portions of the notification state : "The Bar Council of India believes that opening up the legal profession in India to foreign lawyers, limited to the practice of foreign law, handling diverse international legal issues in non litigious matters, and participating in international arbitration cases will meaningfully contribute to the growth of the legal domain in India, ultimately benefiting Indian lawyers as well.""It is noteworthy that the proficiency and standards of Indian lawyers are comparable to international standards, and the legal fraternity in India will be in advantage if law practice in India is opened to foreign lawyers in a restricted, controlled, and regulated manner based on the principle of reciprocity. Such an approach would be mutually beneficial for both Indian and foreign lawyers, and these rules represent a step by the Bar Council of India in this direction.""These rules will also address concerns about encouraging Foreign Direct Investment (FDI) in India and positioning the country as a hub for International Commercial Arbitration."Notably, the BCI in 2023 decided to permit foreign lawyers and law firms to practice foreign law in India on a reciprocity basis. The areas of practice of law by a foreign lawyer or a Foreign Law Firm shall be laid down by the Bar Council of India, in consultation with the Law Ministry, if need be. It had in 2023 notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022. The Objects and Reasons of the Rules state: "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."It said this opening up will be restricted, well-controlled and regulated to ensure that it is mutually beneficial for lawyers from India and abroad.It is significant to note that the Supreme Court had, in BCI v. AK Balaji, held that foreign law firms/companies or foreign lawyers cannot practice the profession of law in India either in the litigation or in the non-litigation side. It said that they can only give advice to Indian clients on a 'fly in and fly out' basis in a temporary basis. It had also held that foreign lawyers cannot be debarred from coming to India to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.What Is The Eligibility Criteria And Registration Process For The Foreign Firms/Lawyers? Rule 3 specifies the following : (1) A foreign lawyer or foreign law firm shall not be permitted to practice law in India unless registered with the Bar Council of India under these Rules. This applies to Indian Advocates and Indian Law Firms seeking registration as Foreign Lawyer and Foreign Law Firm as per applicable rules hereinunderProvided that this prohibition shall not apply to the practice of law by a foreign lawyer or foreign law firm conducted on a "fly-in, fly-out" basis,...

BCI Amends Rules Allowing Foreign Law Firms & Lawyers To Practice Non-Litigious Matters In India

Anmol Kaur Bawa

Tags