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Breaking: BCI Permits Foreign Lawyers & Firms To Practice Foreign Law, Diverse International Law And International Arbitration Matters In India
LIVELAW NEWS NETWORK
15 March 2023 6:45 AM GMT
In a pathbreaking development, the Bar Council of India has decided to permit foreign lawyers and law firms to practice foreign law in India on reciprocity basis. The areas of practice of law by a foreign lawyer or Foreign Law Firm shall be laid down by Bar Council of India, in consultation with the Law Ministry, if need be.It has notified the Bar Council of India Rules for Registration...
In a pathbreaking development, the Bar Council of India has decided to permit foreign lawyers and law firms to practice foreign law in India on reciprocity basis. The areas of practice of law by a foreign lawyer or Foreign Law Firm shall be laid down by Bar Council of India, in consultation with the Law Ministry, if need be.
It has 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.
"These rules will also help to address the concerns expressed about 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 than an opportunity for creating development and growth for legal profession and in the legal sphere in India is not lost," the regulatory body said.
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 profession of law in India either in the litigation or in non-litigation side. It said that they can only give advice to Indian clients on 'fly in and fly out' mode in 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.
However, the BCI in its notification said,
"the standards of Indian lawyers in proficiency in law is comparable with the international standards and the legal fraternity in India is not likely to suffer any disadvantage in case law practice in India is opened up to foreign lawyers in a restricted and well controlled and regulated manner on the principle of reciprocity."
It also noted that the UK claims to have permitted Indian lawyers/law firms to establish in England and Wales and can practice Indian law, international law as well as provide English law advice. BCI said it will verify the claims and reciprocate accordingly.
AREA OF PRACTICE
Foreign Lawyer and/or Foreign Law Firm 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.
They shall not be involved or permitted to do any work pertaining to conveyancing of property, Title investigation or other similar works
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 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;
(iii) 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;
(iv) 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.
(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 under these rules and regulations, can take up only the non-litigious matters and can advise on issues relating to countries other than the Indian Laws only. Such Lawyer shall have no advantage / right of his being an Advocate enrolled in India.
The foreign lawyers or foreign Law Firms shall not be permitted to appear before any courts, tribunals or other statutory or regulatory authorities.
REGISTRATION OF FOREIGN LAWYERS OR FOREIGN LAW FIRMS
The Rules provide that a foreign lawyer or foreign law firm shall not be entitled to practice law in India unless he/it is registered with the Bar Council of India. This prohibition will not apply to law practice by a foreign lawyer or foreign law firm in case such practice is done on a ‘fly in and fly out basis’, which does not in aggregate exceed 60 days in any period of 12 months.
A foreign lawyer or foreign law firm may apply for registration with the Secretary, Bar Council of India in ‘FORM A' appended to the Rules along with registration fee, non-refundable Process charges.
[Registration fee in case of a foreign lawyer, if he is an individual: USD 25,000/- (USD Twenty Five Thousand Only); 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/-]
[Security Deposit in case of a foreign lawyer, if he is an individual: USD 15,000/- (USD Fifteen Thousand Only); 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/-]
The Form shall also be accompanied by the following documents:
(i) A certificate from Union Law Ministry and Ministry of External Affairs that an effective legal system exists in concerned foreign country of the primary qualification and that it has no objection in case the applicant is registered under these Rules and practices law in India;
(ii) A certificate from the Competent Authority of the concerned foreign country of primary qualification certifying that the applicant is entitled to practice law in that Country;
(iii) A certificate from the Government of the foreign country of primary qualification or from a competent Authority thereof certifying that advocates enrolled under the Advocates Act, 1961 are permitted to practice law in that country in the manner and to the extent which is comparable to the law practice permitted under these Rules along with copies of the relevant Laws and Rules;
(iv) A certificate from the Competent Authority of the concerned country of primary qualification or any other competent authority/ies, Courts, Bar Association, Bar Council etc. that the applicant has been in practice in that country;
(v) A certificate of the competent authority of the concerned foreign country of primary qualification that no proceedings of professional or other misconduct are pending either before it or before any other authority competent to entertain and decide such proceedings; (vi) A certificate of the competent authority of the concerned foreign country of primary qualification giving details of the fee structure and other amounts chargeable from an advocate enrolled under the Act for enabling him to practice law in that country along with relevant Rules and Laws; (vii) ‘No objection Certificate' of the competent authority of the concerned foreign country of primary qualification that it has no objection in case the applicant starts law practice in India and that the applicant enjoys a good standing in the Bar.
(viii) A declaration on affidavit that the applicant has not been convicted of any offence and has not suffered any adverse order in any disciplinary matter. (In case he has suffered relevant attested any conviction/adverse order, copies of the order of conviction/adverse order and other related documents about the matter like appeal and stay, if any, or sentence/fine suffered/paid etc. are to be annexed);
(ix) A declaration on affidavit that the applicant has no objection and consents to the making of enquiries and investigation by the Bar Council of India on its own or through such government or non-government investigating agency, as it may deem fit, to verify the veracity of the particulars disclosed by the applicant in the application and genuineness of the documents annexed therewith;
(x) An undertaking on oath that he/it shall 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;
(xi) A declaration on oath that he/it shall not be entitled to and shall not claim any interest on the guarantee amount deposited by him/it with Bar Council of India at the time of registration under these Rules and that the Bar Council shall be entitled to adjust and apply this guarantee amount to the penalty and cost amounts that may be awarded by the Bar Council of India under the provisions of these Rules;
The registration shall be valid for a period of 5 years only and the foreign lawyer and/or Law Firm would be required to renew it by filing an application for renewal in Form B within 6 months before the date on which such validity expires.
Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any foreign lawyer or foreign law firm registered under these Rules has been guilty of professional or other misconduct in connection with law practice in India or has violated the terms and conditions and / or provisions of these Rules in any manner, the Bar Council of India shall refer the matter to the Disciplinary authority of the concerned foreign country for the needful.
However, if the misconduct or violation is grave and prima-facie apparent on face of record, then the Council may suspend the registration and refer the matter to the concerned Disciplinary Authority, with intimation of Government of India through Ministries of Foreign Affairs and Ministry of Law and Justice.
