Knowledge Centre

The Bar Council Of India Has Authorized The Practice Of Foreign Law and International Arbitration Matters In India By Foreign Lawyers And Law Firms

In an unprecedented development, the Bar Council of India has permitted foreign lawyers and foreign law firms to practice foreign law in India on a reciprocal basis vide the Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 (“Rules”). Such lawyers and law firms shall be registered under the Rules to practice foreign law in India.

It noted that the opening up of law practice in India to foreign lawyers will go a long way in helping the legal profession/domain grow in India, which will be beneficial to the lawyers in India as well. It further noted that this process will be restricted, well-controlled and regulated to ensure that it is not disadvantageous to the legal fraternity in India.

It is pertinent to note that in 2018, the Supreme Court in BCI v. AK Balaji & Ors. (2018) 3 MLJ 470 held that foreign law firms/companies or foreign lawyers cannot practice the profession of law in India except on a ‘fly in and fly out’ basis.

 PERMISSIBLE AREAS OF PRACTICE

1. Foreign law firms and lawyers after registration can practice only a limited area of law. Rule 8 provides that such areas of practice of law shall be laid down by the Bar Council of India and if needed, consultation with the Government of India, Ministry of Law and Justice can be made for the same.
2. They are permitted to appear for a person, firm, company, corporation, trust, society etc., having an address or principal office or head office in a foreign country in any international arbitration case which is conducted in India. In such a case, foreign law may or may not be involved.
3. However, it has been made clear that foreign lawyers/foreign law firms shall not be permitted to appear before any courts, tribunals or other statutory or regulatory authorities. They shall also not be permitted to do any work pertaining to the conveyancing of property, title investigation or other similar works.
4. They shall be allowed to practice transactional work/corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts and other related matters on a reciprocal basis.
5. However, it is further clarified that they are permitted to do transactional or advisory work concerning the laws of the country of the preliminary qualification.

INDIAN LAWYERS ENGAGED WITH FOREIGN LAW FIRMS

It is relevant to note that Rule 8(2)(v) provides 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 shall have no advantage/right of his being an Advocate enrolled in India. Such a Lawyer can take up only non-litigious matters and can advise on issues relating to countries other than the Indian laws only.

REGISTRATION OF FOREIGN LAWYERS OR FOREIGN LAW FIRMS

 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 the registration fee, and Non-Refundable Process Charges. The applicant shall provide 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.

1. [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/-]
2. [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/-]

REGULATION

Where on receipt of a complaint or otherwise if the Bar Council of India has reason to believe that any foreign lawyer/foreign law firm registered under these Rules has been guilty of professional or other misconduct in connection with a 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 the face of the record, then the Bar Council of India may suspend the registration and refer the matter to the concerned Disciplinary Authority, with an intimation to the Government of India through the Ministry of Foreign Affairs and the Ministry of Law and Justice.