In an important development or if we can say historic, Bar Council of India notified rules and regulations for foreign law firms in India, and thus, allowed the foreign law firms to work in India.
The notification starts with quoting the words of Hon’ble former justice Krishna Iyer,
“In India Legal profession is treated as a noble profession. There is and should be no commercial competition or procurement associated with the Legal Profession. Legal Profession is not treated as a commercial activity or service in India. Law is not a trade, and briefs no merchandise so the leaven of commercial competition or procurement should not vulgarize the legal profession.”
The notification tells the object of the rules and regulations as follows-
- In the opinion of Bar Council of India the legal profession in India has to rise to the occasion to meet the global changes in the Legal Arena caused by migration of people from one country to other on such a large scale that had not been witnessed in earlier days.
- Growth in international legal work sphere and globalization of legal practice and internationalization of the law is increasingly becoming relevant to the growth of the legal profession and practices in India.
- Time has come to take a call on the issue. Bar Council of India is of the view that 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 is noteworthy that 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 as it would be mutually beneficial for lawyers from India and abroad and these Rules are an attempt by Bar Council of India in this direction.
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.
- 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.
The notification defines the ‘foreign lawyers’ as,
“Foreign lawyer’ means 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.”
The procedure of registration the extent and conditions subject to which they can practice law in India has been described as under-
- A foreign lawyer should be registered under bar council of India to practice in India.
- However, if they just practice on ‘fly in and fly out basis’ for the purpose of giving legal advice to the client in India regarding foreign law and on diverse international legal issues then this prohibition of registration does not work.
And for this foreign lawyer cannot maintain office in Indian and such practice in India for one or more periods does not, in aggregate, exceed 60 days in any period of 12 months.
- The Bar Council of India may refuse to register any Foreign Lawyer or Foreign Law Firm, if in the opinion of the Council, the number of Foreign Lawyers or Foreign Law Firms of any particular Foreign country registered in India is likely to become disproportionate to the number of Indian Lawyers or Indian Law Firms registered or allowed to practice law in the corresponding foreign country.
- Bar Council of India may limit the number of registration of Foreign Lawyers and/or Foreign Law Firm in order to maintain a balance or to ensure complete reciprocity or to protect the interest of Indian Law Firms/Indian Lawyers.
- The government of India shall have the right of recommending cancellation of the registration or renewal at any time on the ground of national security or if it is of the opinion that such registration or renewal is against the National interest, or for any other valid ground.
- Bar Council of India may seek information from the Government of India through and Ministry of Law and Justice or various Ministries of Union Government about the existence of an effective legal system in the concerned foreign country and also about the existence of any unfair discrimination in the matter of law practice by Indian advocates in that country and Bar Council of India may initiate proceedings for cancellation of registration or for cancellation of renewal of registration in case government of India certifies, either on its asking or otherwise, that an effective legal system no longer exists in the concerned foreign country and that Indian Lawyers are being subjected to unfair discrimination there.
The registered foreign lawyer or foreign Law Firm shall be entitled to do the following things in connection with the practice of law in India: –
(i) to open law office or offices in India for carrying on law practice in India;
(ii) to engage and procure legal expertise/advise of one or more Indian Advocates Registered as foreign lawyers,
(iii) to procure the legal expertise/advise of any Advocate enrolled with any State Bar Council in India on any subject relating to Indian Laws.
Law practice by Foreign Lawyers
Law practice by a foreign lawyer shall extend to-
- Non-litigious matters only;
- The areas of practice of law by a foreign lawyer or Foreign Law Firm shall be laid down by Bar Council of India And if need be, the Bar Council of India may consult the Govt. of India, Ministry of Law and Justice in this regard.
- The foreign lawyers or foreign Law Firms shall not be permitted to appear before any courts, tribunals or other statutory or regulatory authorities.
- 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.
- They shall not be involved or permitted to do any work pertaining to conveyancing of property, Title investigation or other similar works.
A foreign lawyer or Lawyer associated with foreign Law Firm registered under these rules shall normally be subject to the same ethical and practice standards laid down under the Advocates Act, 1961 and Rules made there under as are the advocates enrolled under the Act.