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

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]

Lawyer in foreign

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).

Leave a Reply

Categories

Archives

  • June 2024
  • May 2024
  • April 2024
  • March 2024
  • February 2024
  • January 2024
  • December 2023
  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010