In a recent move, the Bar Council of India (BCI) has agreed to allow foreign lawyers and law firms to practice foreign law in India on a reciprocity basis. This was notified on March 10 through the “BCI Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022″.
Per the notification, the guidelines would enable international lawyers and law firms to practice foreign law and offer legal services in international arbitration cases within India, based on the principle of reciprocity, in a well-defined, regulated, and monitored manner. The Indian legal profession stands to gain from the inclusion of foreign lawyers in areas such as international law and various international legal matters that don’t involve litigation.
Moreover, this regulatory tweak will address concerns about the inflow of foreign direct investment (FDI) into the country by establishing India as a center for international commercial arbitration. The measure also aligns with the best interests of the rapidly growing clientele base for international law in India.
In 2018, the Supreme Court of India made a significant ruling in the case of BCI v. AK Balaji, stating that foreign law firms, corporations, or attorneys would be restricted from practicing law in India, whether in litigation or non-litigation. The ruling allowed foreign lawyers to offer temporary “fly in and fly out” services to Indian clients, but they were not permitted to establish a regular practice in India. However, foreign attorneys were allowed to conduct arbitration hearings in India pertaining to issues resulting from contracts involving international commercial arbitration.
It should be noted that the UK has claimed to have authorized Indian lawyers and law firms to establish offices in England and Wales, allowing them to practice Indian law, international law, and provide legal advice under English law. The Bar Council of India has stated that it will verify these claims and reciprocate accordingly.
Last year, in September, representatives of the Law Society of England and Wales and the UK government’s department of international trade held discussions with representatives of Indian law firms to open up the legal services sector by removing restrictions on foreign lawyers practising here. This was in the backdrop of the previous deadline for the culmination of negotiations to the UK-India comprehensive free trade agreement (FTA) – Diwali [festival was observed in November] 2022.
Permissible areas of practice for foreign lawyers in India
Foreign lawyers and foreign law firms shall be allowed to practice transactional and corporate work in India, such as joint ventures, mergers and acquisitions, intellectual property matters, the drafting of contracts, and other related matters on a reciprocal basis.
Foreign lawyers and foreign law firms can practice law in the following areas:
- Doing work, transacting business, and giving advice and opinion concerning the laws of the country of the primary qualification.
- Giving legal advice and acting as an attorney on behalf of a person, firm, company, corporation, trust, society, etc. with a major headquarters or head office in a foreign country in any international arbitration matter that is handled in India and in which foreign law may or may not be involved.
- Providing legal advice and appearing as a lawyer for a person, firm, company, corporation, trust, society, etc. that has an address, principal office, or head office in the foreign country of the primary qualification in proceedings before bodies other than courts, tribunals, boards, or statutory authorities that are not legally entitled to take evidence on oath, in which knowledge of the foreign law of the country of the primary qualification is essential.
- Providing legal advice on a variety of international legal issues as well as the laws of the primary qualification country, with the caveat that, unless otherwise specified in these Rules, such legal advice shall not include representation in proceedings before an Indian court, tribunal, or other authority with the authority to record testimony under oath, or the preparation of any documents, petitions, etc. to be submitted to any such forum regarding such procedures.
- In accordance with these rules and regulations, only partners or associates of a foreign law practice that is registered in India are permitted to provide advice on non-litigious matters and offer advice on subjects pertaining to laws outside of India. Such lawyers will not benefit from being registered advocates in India.
- An Indian advocate registered under the Advocates Act who is a partner or an associate in a foreign law practice that is registered in India – in accordance with these Rules – will be permitted to take on only non-litigious matters and to offer advice on subjects pertaining to laws outside of India. Such a lawyer will not benefit from being an already registered advocate in India for the purpose of practising litigation.
Foreign lawyers or foreign law firms shall not be permitted to appear before any courts, tribunals, or other statutory or regulatory authorities in India.
Registration of foreign lawyers or foreign law firms in India
The Rules provide that foreign lawyers or foreign law firms shall not be entitled to practice law in India unless they are registered with the BCI. This prohibition will not apply to the practice of law by a foreign lawyer or foreign law firm in cases where such practice is done on a ‘fly in, fly out basis’, which does not, in aggregate, exceed 60 days in any 12-month period.
How can foreign lawyers and foreign firms register with the Bar Council of India?
A foreign lawyer or foreign law firm may apply for registration with the Secretary, BCI, in ‘Form A’ along with the registration fee and non-refundable processing charges.
The form shall also be accompanied by the following documents:
- Certificate from the Union Law Ministry and the Ministry of Foreign Affairs stating that the primary legal qualification is obtained in the relevant foreign nation and that the Ministry has no objections if the applicant is registered under these regulations and practices law in India.
- Document attesting that the applicant is qualified to practice law in the relevant foreign country, issued by the competent authority there.
- 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 a manner and to an extent that are comparable to the law practice permitted under these Rules, along with copies of the relevant laws and rules.
- Certification indicating the applicant has been in practice in the relevant primary qualifying country, as well as with any other appropriate authorities, courts, bar associations, bar councils, etc.
- Declaration from the competent authority of the concerned foreign country of the primary qualification nation that there are no ongoing cases of professional or other misconduct before it or any other body qualified to hear and rule on such cases.
- A certificate from the appropriate foreign country’s principal qualifying body detailing the fee structure and other costs that an advocate enrolled under the Act must pay to be authorized to practice law there, as well as any applicable rules and laws.
- ‘No Objection Certificate’ stating that the applicant has a good standing in the bar and that there are no issues with the foreign country in question objecting to the applicant starting a legal practice in India.
- A statement on affidavit stating that the applicant has never been convicted of an offense and has never received a negative disciplinary decision. (Copies of the order of conviction or adverse order and any other pertinent documents about the situation, such as an appeal or stay, any sentence or fine received or paid, etc., are to be affixed, if applicable, if they have received any relevant attested conviction or adverse order.).
- A declaration on affidavit stating that the applicant has no objections and consents to the BCI conducting inquiries and investigations on its own or through any government- or non-government-sponsored investigating agency as it may deem necessary to confirm the accuracy of the information provided by the applicant in the application and the legitimacy of the documents attached thereto.
- An undertaking on oath that they shall not practice Indian law in any form or before any court of law, tribunal, board, or other authority legally entitled to record evidence on oath.
- Declaration stating that the applicant or entity will not be entitled to and will not make any claims regarding interest on the guarantee amount deposited with the BCI at the time of registration under these Rules and that the BCI shall have the right to adjust and apply this guarantee amount to any penalties and costs that may be imposed by it in accordance with the provisions of these Rules.
- An oath-based declaration that the applicant recognizes and fully understands that, upon registration pursuant to rule 7 of these Rules, the Advocates Act, 1961 and Rules made thereunder apply to them in respect of any legal services rendered by them in India, and that they are subject to the jurisdiction of the Indian courts of law and the BCI with respect to such services.
- The registration will only be valid for a period of five years, and the foreign lawyers and law firms must renew it by submitting a renewal application in Form B within six months of the registration’s expiration date.
Registration fees and other charges
- Registration fee in case of a foreign lawyer, in case of an individual: US$25,000
- Registration fee in case of a foreign lawyer, if it is a firm, private limited partnership, company, or limited liability partnership (LLP): US$50, 000
- Security deposit in case of a foreign lawyer, in case of an individual: US$15,000
- Guarantee amount in case of a foreign lawyer, if it is a firm, private limited partnership, company, LLP, etc.: US$40,000
Consequences for misconduct
In case of substantial misconduct, the foreign lawyer or foreign law firm will have their registration cancelled under the BCI’s Rules; they will not be subject to disciplinary proceedings.