The Bar Council of India (BCI) has notified amended rules allowing foreign lawyers and law firms to practice foreign law in India on a reciprocity basis.
The BCI has enforced the amended
Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022,
earlier notified on March 10, 2023.
A press release states that the Rules have been amended and notified with the primary objective of safeguarding the interests of Indian advocates while regulating the practice of foreign law and international law in India.
The Rules make it clear that the work of foreign lawyers will be strictly confined to non-litigious areas involving foreign law, international law, and arbitration matters, particularly concerning cross-border transactions and international
disputes.
"The BCI has further clarified that foreign lawyers may participate in international commercial arbitration conducted in India, provided such arbitration involves foreign law or international law, thereby promoting India as a viable destination for international arbitration without compromising the rights of Indian legal professionals," a press release stated.
On the reciprocity the new Rules aim to bring in, the release states,
"Indian advocates and law firms may register as foreign lawyers or foreign law firms, allowing them to expand their practice to foreign law and international law consultancy without relinquishing their rights to practice Indian law in domestic forums. This dual registration provides Indian lawyers with an opportunity to broaden their professional horizons while maintaining their status as advocates under Indian law."
With a view to preventing undue competition and to protect the interests of Indian lawyers, the BCI has implemented stringent registration and renewal requirements for foreign lawyers and law firms seeking to practice foreign law in India.
The regulations mandate comprehensive documentation, including proof of primary legal qualification, no-objection certificates and declarations of compliance with Indian regulations.
"Indian-Foreign law firms"
The Rules introduce a new concept of Indian-Foreign law firms, which are defined as Indian entities which are authorised to practice law under the laws of India. Registration as an Indian-Foreign law firm enables the entity to gain rights similar to those conferred upon individual Indian advocates registered as foreign lawyers. As per Rule 2(vi)(b),
"Registration enables such firms to engage in legal practices in both Indian and foreign law...These firms are permitted to engage in non-litigious legal practices concerning foreign law, international law, and arbitration matters...Additionally, they retain the unrestricted ability to practice Indian law, including representing clients in litigation before Indian courts, tribunals, and other adjudicatory forums."
They may operate in foreign jurisdictions subject to reciprocal recognition of qualifications, and will be subject to the regulatory supervision of the BCI. Such firms may provide advisory on foreign laws and international law, offer legal documentation and consultancy related to cross-border transactions, and represent clients in arbitration proceedings involving foreign or international law.
"In conclusion, the creation of the Indian-Foreign Law Firm category facilitates professional advancement for Indian legal entities, enabling them to operate seamlessly in both Indian and international legal arenas while maintaining strict compliance with regulatory standards."
'Fly in-fly out' conditions
The Rules prohibit foreign lawyers and firms from practicing in India sans registration with the BCI. Such prohibition will not apply to 'fly in-fly-out' arrangements, based on the following conditions:
(a) Such practice is strictly limited to providing legal advice to clients in India concerning foreign law, the foreign lawyer's own legal system, or diverse international legal issues, and must not amount to "practice" as defined under Indian law.
(b) The engagement or expertise of the foreign lawyer or foreign law firm must be procured by the client either in a foreign country or in India.
(c) The foreign lawyer or foreign law firm must not establish, operate, or maintain any office, infrastructure, or regular presence in India for the purpose of such legal practice.
(d) The total duration of such practice in India shall not exceed 60 days in aggregate within any 12-month period, with the calculation starting from the first day of arrival in India. All subsequent days of presence within the 12-month period shall be counted consecutively, regardless of any interim departure and re-entry into India.
(e) In case of any dispute regarding whether the foreign lawyer's activities qualify as permissible "fly-in, fly-out" practice or constitute prohibited "practice" under Indian law, the matter shall be determined by the Bar Council of India.
(f) All rules and regulations that apply to registered foreign lawyers and registered foreign law firms to govern their activities including extending the applicability of the Code of Ethics to foreign lawyers and foreign law firms shall also apply to foreign lawyers and foreign law firms.
