Analysis of Bar Council Notification Permitting Entry of Foreign Lawyers and Firms

8th April, 2023 - 11:41 am Categories: Foreign Law Intellectual Property 0 Comments

Introduction

In a recent momentous development in the legal world, The BCI has allowed foreign lawyers and firms to practise in India on a reciprocity basis.^[1] Reciprocity here means the allowance of rights and privileges extended by BCI to the lawyers and firms of one state if it extends identical rights to Indian legal professionals.^[2] The said decision has been taken after the Bar council notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India 2022. This regulation in some manner is contradictory and different from the pronouncement of Apex Court in the case BCI V/s AK Balaji wherein the court ensured that foreign firms/lawyers shall not practice the legal profession either in the litigation or non-litigation matters.^[3] They were only allowed to assist their clients on fly-in and fly-out majorly on a provisional and temporary basis for a shorter duration of time.

[Image Sources : Shutterstock]

After the advent of this new regulation, foreign legal establishments are allowed to practise law in India subject to certain terms and Conditions. These firms are restricted to practise without their formal registration with BCI. Additionally, they are only permitted to advise on the matters of public and private International laws, M&A, IP Matters, Contract drafting and are not allowed to appear before any court, tribunals or any statutory authority whatsoever.^[4] The Rules further provide the scope of further transformation as it states that the next decision in this regard could be taken by the BCI in consultation with the Ministry of Law & Justice, Govt. of India. However, there exists no constraint as to the maximum limit of Indian lawyers that can be hired by these firms and corporations.

Possible aftermath of the notification

The academicians feel that the said notification is in response to the global demand for liberalising legal education all around the world. It is beneficial for legal professionals from different jurisdictions to work within a well-defined legal framework. The notification will act as a guiding force to the legal petitioners who are already working with their counterparts. These regulations will further provide the impetus to all students who sought to work in the field of Arbitration and Dispute Resolution. The BCI has explicitly mentioned in the objects & purpose of the notification that the concerned decision will lead to the inflow of foreign Direct Investments (FDI) that could assist India to become the hub of International Commercial Arbitration.^[5]

Whilst the response from the Indian legal fraternity is generally positive and constructive, a few concerns are related to the extent of the interplay between foreign and domestic regulations. Along with this, the concern arises that the change could potentially be led to the loss of livelihood for independent advocates in India. Likewise, it could also pose hurdles in the employability of fresh legal graduates as there is a huge variance between the degree of legal training provided in India and other countries. The difference could further impact the newly independent lawyers and law graduates. These reservations from the legal fraternity highlighted the fact that BCI and other concerned regulators have to step in to address the apprehensions posed.

The Bar council with regard to the concerns posed can resort to section 47 of the Advocates Act which empowers the council to prescribe employment conditions subject to which the lawyers of different jurisdictions may enrol as an advocate in India.^[6] Further, the involvement of Regulation 8 of BCI rules is still an issue to ponder upon. Rule 8 clarifies that an advocate shall not appear before the court in favour of or against any authority and organisation if he is a member of the concerned authority.^[7] The rule implicitly implies that the motive is only to allow foreign professionals to advise on the issue pertaining to the law of their respective country.

Possible Recommendations  

The foremost recommendation is to update the legal program and its curriculum in line with the changing International prospects by providing both the theoretical and practical set of knowledge and skills that are essential for law graduates to compete with their counterparts. An adequate and straight dialogue apparatus has to be set up between the academia and industry contestants to ensure that the training should be conducted in line with the demands of the profession. These foreign firms can be allowed to establish the Joint Venture (JV) with domestic legal establishments. The liberalization in phases will permit India to compete with International firms and at the same time could convince foreign law firms to use Indian law for transactions which could provide an incentive to the Indian legal market to get transformed into an international hub for arbitration. Along with the procedural reforms, the BCI could also consider relaxing the advertisement guidelines in certain phases to ensure fair competition.

Conclusion

The decision of BCI is indeed pathbreaking that could enhance the competitive spirit and improve the efficiency of the legal market. The step might outweigh the cost concerns of market participants indicating the proclivity of consumers towards the liberalization of the sector. There exists a high chance that the Indian economy might reap maximum benefits from the opening up of the legal market. However, there is no doubt that BCI has to be quite cautious and vigilant to prevent any misuse or manipulation of laws by overseas legal establishments. It has to undertake necessary reforms to ensure the equal footing of the Indian legal fraternity with its future competitors.

Author: Shivesh Saini, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[1] NH Legal bureau, Bar Council of India allows foreign lawyers and law firms to practice in India, NATIONAL HERALD ( Mar 16, 2023 ) Bar Council of India allows foreign lawyers and law firms to practice in India (nationalheraldindia.com).

[2] Bhadra Sinha, Bar council finally allows entry of foreign lawyers and firms in India, but these conditions apply, THE PRINT (Mar 15, 2023 ) https://theprint.in/india/bci-finally-allows-entry-of-foreign-lawyers-and-firms-in-india-but-these-conditions-apply/1445354/.

[3] Bar Council of India v. A.K.Balaji and others , AIR 2018 SC 1382.

[4] Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 (March 113, 2023) https://www.livelaw.in/pdf_upload/bar-council-of-india-rules-for-registration-and-regulation-of-foreign-lawyers-and-foreign-law-firms-in-india-2022-463531.pdf.

[5] Id.

[6] The Advocates Act 1961, S. 47 No. 25, Acts of Parliament, 1961 (India).

[7] BAR COUNCIL OF INDIA RULES, R. 8, Bar Council of India (2010).