The BCI’s recently published new rules, namely the “Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022”, allow foreign lawyers and law firms to practice foreign law, international law and international arbitration in India on the principle of reciprocity. Exercising foreign law as a foreign attorney would mean that a person in the other country would only be exercising the law of his country. India has only allowed the latter to a very limited extent.
In Singapore, foreign barristers registered in another jurisdiction may register with the Legal Services Regulatory Authority as foreign barristers to practice foreign law in Singapore. You do not have to take any courses or exams. In addition, overseas qualified attorneys who pass the Foreign Practitioner Examinations may register with the Legal Services Regulatory Authority as foreign attorneys to practice in permitted areas of Singaporean law. In addition, a judge may permit a qualified person who has completed at least 3 months of their internship period and who is serving their internship contract with a law firm in Singapore to act on behalf of that law firm in certain courts. Alternatively, they can practice as in-house lawyers or apply to the Minister for Justice for an exemption. Indian lawyers can practice foreign law and offer advice in Singapore but are bound by restrictions set by the regulator and the ministry.
The process of allowing foreign lawyers to practice law in India is regulated and controlled in consultation with other stakeholders such as the Department of Commerce and RBI to ensure balanced growth for Indian and foreign lawyers. The latest rules and regulations are designed to only authorize foreign lawyers to deal with non-procedural aspects of the legal field, thereby limiting their appearance before courts, commissions and tribunals. In addition, the notification implies that foreign lawyers/law firms need to obtain multiple approvals from different departments in order to practice law in India. Consequently, this process can be somewhat challenging for a boutique law firm or a sole proprietor.
The Restrictions on Foreign Lawyers Created by the Bar Council of India
Foreign lawyers are not permitted to carry out property transfer, title investigation or similar work in India. The focus of the Bar Council of India is to promote commercial arbitration and the application of international commercial laws in India. Foreign lawyers and law firms are only permitted to practice on a reciprocal basis, particularly in transactional and corporate matters such as joint ventures, mergers and acquisitions, intellectual property and contract drafting. Although they cannot appear in court, they can advise clients on foreign law and assist in corporate transactions. Indian lawyers working with foreign law firms are also subject to the same restrictions and can only engage in non-contentious practice. It is important to note that Indian lawyers registered with a State Bar Association in India who are partners or associates of a foreign law firm are only permitted non-contentious matters and advice on laws of countries other than India. Foreign lawyers or law firms are not permitted to practice law in India without registering with the BCI, except for the provision of legal advice on foreign or international legal matters on a fly in and fly out basis for a maximum of 60 days in any 12 month period. The registration fee for foreign attorneys is $25,000 while law firms pay $50,000. There are also other fees as per schedule.
Although critics have raised concerns that Indian lawyers face increased competition due to the entry of foreign lawyers, it is important to understand that the practice of foreign lawyers in India is strictly regulated and limited to corporate matters only, as stated in the notice. Therefore, the move is unlikely to have any impact on the work of Indian litigators who represent clients in court in civil and criminal cases.
I believe this move will help the legal profession to grow in India and open up opportunities for young lawyers to study and practice law in countries other than the UK and US. In addition, Indian corporate lawyers are expected to conform to international standards and the legal community is unlikely to suffer any disadvantage from the opening of corporate law practice to foreign lawyers in controlled, regulated areas and in non-contentious practice. The scope of the expression “practicing the legal profession” and whether or not the practice of law also includes the other non-procedural aspect has been explained by the Supreme Court of India, which ruled that the expression “practicing the legal profession” also included the non-judicial aspect of the Professional. In the case of Pravin C. Shah vs. KA Mohd. Ali, it has been established that the right to practice is a genus of which the right to appear and conduct cases is a species.
The question is whether this move truly globalizes the legal profession or simply makes it easier for law firms from first world countries to practice since a law firm operating only in countries like Bangladesh or Sri Lanka could not afford the registration fee and other related fees.
In practice, it should be noted that a significant part of economic growth takes place across borders. Working with international law firms would make transactions more efficient and faster, which would attract more foreign capital to the economy. It is also important to recognize that foreign companies are more likely to set up their manufacturing or production units in countries where doing business is easy and hassle-free. Cooperation between Indian and international law firms would guarantee that the best legal minds from around the world work together to incorporate and run companies.
However, the BCI should consider making an arrangement for issuing a dual certificate for the exercise of the right. The term “Dual Qualification of Law” means being able to practice in two different jurisdictions and is practiced by many countries around the world. Countries have introduced different procedures for dual qualification in law. In the United States, Indian attorneys can obtain a US qualification by passing the State Bar Exam or pursuing an LLM degree if they have not completed a two-year law degree. In the UK, Indian solicitors and students must sit the Solicitors Qualifying Examination (SQE) and meet additional requirements. In Canada, the process for obtaining admission to the bar includes completion of an NCA Law Degree Equivalency Certificate or LLM degree, completion of a law practice program, and passing a bar exam.
As a final note, I would like to say that the new rules allowing foreign lawyers and law firms to practice foreign law in India are certainly groundbreaking and will give impetus to the rapidly growing global legal industry and boost Indian law firm revenues by billions-dollars global legitimate industry, of which India accounts for only a marginal percentage of the total value. Local lawyers would thrive to the best of their ability, formative competition would excite the Indian legal industry and corporations would have choice and cost certainty like never before.
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The views expressed above are the author’s own.
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