Foreign lawyers / law firms in India – something debated for last 3 decades – various stakeholders, pulling and pushing, furthering their own agenda. For me, it was a question of ‘when’ and not ‘if’. In all interactions and interviews, I advocated a level playing field and fair competition, be it domestic or foreign – after all, legal ecosystem cannot be immune to what’s happening in other professions, in terms of globalisation and cooperation. We celebrated Indian lawyers’ global achievements, partnerships and so on; can’t keep our doors closed forever for reciprocity.
Now, Bar Council of India (BCI) has finally (and I guess, funnily) realized the need to open gateways to permit foreign law firms and lawyers to work in India. Accordingly, it has issued a set of rules yesterday defining the criteria for registration and areas of law wherein foreign law firms and lawyers are permitted and not permitted to practice in India.
Primary reason for this decision to permit foreign law firms and lawyers in India is Indian companies making it big globally and unprecedented levels of foreign investments in India.
Background:
1) Initially, BCI was resistant to this very idea of permitting foreign law firms to practice in India. However, during the tenure of 2007-2014, BCI was authorized to have interaction with central government, ministry of law and related stakeholders on the aspect of opening India to foreign lawyers and law firms.
2) In 2009, Bombay High Court landed another blow to prospect of foreign law firms practice in India in a case (Lawyers collective vs BCI) with a judgment that Reserve Bank of India was not justified in granting permission to the foreign law firms to open liaison offices in India.
3) In the year 2012, Madras High Court had made some interesting conclusions. As per Madras high court:
“Foreign law firms and lawyers cannot practice in India unless qualified to practice in India, however, nothing in law prevents foreign law firms to give advice on matters of foreign jurisdiction to its clients by visiting on a “fly in and fly out basis” on a temporary basis – Especially barring foreign law firms to provide advice in India will serve against the object of International Commercial Arbitration.”
Interesting both Madras and Bombay high court judgments were challenged by BCI and Collective Lawyers in the Supreme court.
4) Supreme court had taken following five key questions into consideration:
(i) Whether the expression ‘practise the profession of law’ includes only litigation practice or non-litigation practice also;
R) Supreme Court said that an advocate in discharging his duties he not only appears in courts, but also be consulted by clients outside the court and prepare diversified documentation for clients. Mostly, an Advocate needs to adhere to professional ethics in dealing with client matters and other legal fraternity inside and outside the court. In light of foregoing observation, Supreme Court declared practice of law includes litigation as well as non- litigation.
(ii) Whether such practice by foreign law firms or foreign lawyers is permissible without fulfilling the requirements of Advocates Act and the Bar Council of India Rules;
R) As declared above practice includes litigation and non-litigation matters, practice of law India is permitted to persons only qualified under the Indian advocates Act, 1961 and no other person (including foreigners) are permitted to practice to the extent they are not qualified under Advocates Act, 1961.
(iii) If not, whether there is a bar for the said law firms or lawyers to visit India on ‘fly in and fly out’ basis for giving legal advice regarding foreign law on diverse international legal issues;
R) Supreme court said that foreign lawyers coming to India on a casual visit to give advice ‘fly in and fly out’ basis may not amount to practice, which question of fact to be decided on a case by case basis. Further BCI and central government are at liberty to make appropriate rules in this regard.
(iv) Whether there is no bar to foreign law firms and lawyers from conducting arbitration proceedings and disputes arising out of contracts relating to international commercial arbitration;
R) Supreme court said that foreign law firms or lawyers may appear in arbitration proceedings to the extent is governed by an international commercial arbitration agreement, conduct of proceedings may fall under Section 32 or 33 read with the provisions of the Arbitration Act and subject to applicable code of conduct rules.
(v) Whether BPO companies providing integrated services are not covered by the Advocates Act or the Bar Council of India rules.
R) Supreme court said that the Advocates Act may not apply to BPO companies to the extent their services (directly or indirectly) do not amount to practice of law. Determination of service amount to practice or not depends on facts of each case.
Conclusion: Foreign law firms and lawyers are permitted to provide advice to clients in India on foreign law or their own system of law and on diverse international legal issues – To the extent their visit is casual and limited to giving advice to clients on aforesaid matters does not amount to practice. Further foreign lawyers are permitted to conduct international commercial arbitration to the extent Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act. BPO Companies services to the extent qualified services of law under Advocates Law, foreign law firms or lawyers are not allowed to provide such services.
5) Another interesting recent development in United Kingdom permits Indian lawyers and law firms to establish in England and Wales and to practice Indian law, international law as well as provide English law advice subject to some restrictions. In this context, Bar Councils of India and England and Wales are working on the idea of entering an MOU for the benefit of lawyers of both the countries
In the backdrop of all aforementioned matters and flourishing of Indian trade and business in international arena and foreign investors keen interest in exploring economic potential offered by India – BCI decided it is high time to open practice for foreign law firms and lawyers in India in a restricted and well controlled and regulated manner on the principle of reciprocity – This will work to the advantage of India and play a crucial role in shaping up international trade and cooperation with other countries on diversified matters.
Accordingly, BCI framed the Bar Council of India Rules for Registration and Regulation of foreign lawyers or foreign law firms in India.
Key rules:
1) Registration:
a) A foreign lawyer or foreign law firm is required to register with the BCI under these Rules to practice law in India. An exemption to this registration requirement is that a foreign lawyer or foreign law firm can give legal advice to the client in India on a ‘fly in and fly out’ basis.
b) Further such advice should be on foreign law and on diverse international legal issues. It is pertinent to note that such advice is procured by a client from a foreign lawyer or foreign law firm (with no office in India) in a foreign country.
c) Such ‘fly in and fly out basis’ is permitted to the extent such visits do not exceed 60 days in any period of 12 months.
d) ‘Right to practice law’ in the concerned ‘foreign country of the primary qualification’ is the primary qualification for practicing law in India under these rules.
2) Applications for registration, renewal of registration and matters connected with law practice in India
a) Application for registration in ‘FORM A’ along with registration fee and guarantee amount (with non-refundable Process charges) to be submitted to the Secretary, Bar Council of India either in person or through registered Post or via online permitted mode.
b) List of requisite documents to be submitted along with application:
i) Certificate from competent and authorized authority in India to the effect that an effective legal system exists in concerned foreign country of the primary qualification along with no objection for registration of applicant to practice in India.
ii) A certificate from competent foreign authority that:
(a) Applicant is authorized and competent to practice in respective country
(b) Advocates enrolled under the Advocates Act, 1961 are permitted to practice law in that country on par with lawyers registered in such country along with copies of the relevant Laws and Rules
(c) Confirming the eligibility of applicant to practice in that foreign country
(d) Applicant is not subject of any proceedings of professional or other misconduct
(e) Details of enrollment and related fees along with applicable rules
(f) ‘No objection Certificate’ to the effect applicant to practice in India
(g) Character certificate to the effect the applicant enjoys a good standing in the Bar
(h) A declaration on affidavit that applicant is no convict of any offence and any adverse order in any disciplinary matter.
iii) Consent and no objection declaration permitting BCI to do background verification and investigation to check the veracity and genuineness of application and documents submitted by applicant.
iv) Undertaking not to practice Indian law in any form or before any court.
v) Declaration to the effect applicant has no entitlement to guarantee amount or no claim to any interest on the guarantee amount.
vi) Declaration to the effect understanding of effect of registration for practice in India and such applicant on registration will be subject to authority of appropriate court, BCI and other competent authorities.
3) Validity of registration and renewal of registration
a) Certificate of practice is valid for a period of 5 (five) years only. Such certificate of practice to be renewed in Form B within 6 months before the date on which such validity expires.
b) Such renewal application (Form B) to be submitted to the Secretary, Bar Council of India along with applicable fees by a foreign lawyer or foreign Law Firm either in person or through registered Post.
c) Following documents along with Form B needs to be submitted.
i) Certificate from competent and authorized authority in India to the effect that an effective legal system exists in concerned foreign country of the primary qualification along with no objection for renewal of applicant to continue practice in India.
ii) A certificate from competent foreign authority that:
a) Applicant is authorized and competent to continue practice in respective country.
b) Advocates enrolled under the Advocates Act, 1961 are permitted to continue practice law in that country on par with lawyers enrolled in such country along with copies of the relevant Laws and Rules
c) Applicant is not subject of any VIEWS proceedings of professional or other misconduct during the period of registration of such applicant to practice law in India.
d) ‘No objection Certificate’ to the effect applicant to continue practice in India
e) A declaration on affidavit that applicant is no convict of any offence and any adverse order in any disciplinary matter.
f) Consent and no objection declaration permitting BCI to do background verification and investigation to check the veracity and genuineness of application and documents submitted by applicant.
d) BCI may limit the registration of foreign law firms or lawyers to preserve the interests of Indian lawyers and law firms and further refuse to register any Foreign Lawyer or Foreign Law Firm, if such registration could result in disproportionation to the number of Indian Lawyers or Indian Law Firms registered.
e) Following the receipt of renewal application BCI or other competent authority will conduct an inquiry and examination and then based on such inquiry and examination and if it deems fit will issue a renewal certificate. Such registration will be informed to government and concerned authorities.
4) Law practice by a foreign lawyer: nature and extent thereof
a) A foreign lawyer is permitted to practice law in India in non-litigious matters only subject to appropriate registration and relevant exceptions, conditions and limitations as are laid down
b) BCI may suspend foreign law firm or lawyer’s registration in case of any substantive misconduct.
c) No permission for the foreign lawyers or foreign Law Firms to appear before any courts or other designated authorities.
d) Foreign lawyers and law firms are permitted to work on transactional work /corporate and are not permitted to do any work pertaining to conveyancing of property, Title investigation or other similar works.
e) Areas of practice for a Foreign Lawyer and/or Foreign Law Firm:- (i) Transactional work
(ii) Advice and opinion concerning the laws of the country of the primary qualification
(iii) Representation of a client with business offices outside India (i.e foreign law firm or lawyer practice jurisdiction) in any international arbitration case (with or without involvement of foreign law) taking place in India
iii) Provision of legal expertise/advise and appearing as a lawyer for clients with business offices outside India (i.e foreign law firm or lawyer practice jurisdiction) before bodies (excluding Courts, Tribunals, Boards, statutory authorities) who are not legally entitled to take evidence on oath, in which knowledge of foreign law of the country of the primary qualification is essential
iv) Provision of legal expertise/advise concerning foreign laws and on diverse international legal issues without representation before or the preparation and without submission of documents regarding procedures before an Indian Court of Law, Tribunal or any other Authority competent, unless authorized under the rules.
v) Indian lawyers who are working as partner and associate with foreign lawyers and law firms registered in India can only work on matters permitted for such foreign lawyers and law firms and will not take up any matters relating to Indian laws.
5) Incidental matters
a) Foreign lawyer or law firms can open law office in India to provide services as permitted under these rules and need to inform the details of registered office to BCI.
b) Authorized to engage Indian Advocates Registered as foreign lawyers to procure legal expertise and advise
c) Authorized to procure legal advice and expertise on Indian laws from Indian lawyers enrolled with BCI.
d) Permitted to enter into Partnership with one or more Foreign Lawyers or Foreign Law Firm registered in India under these rules
6) Disciplinary issues:
a) A foreign lawyer or Lawyer associated with foreign Law Firm is required to comply with applicable ethical and professional practice standards.
b) BCI either has a reason to believe or on receipt of a complaint about foreign lawyer indulging in misconduct or act of violation of applicable laws, then BCI will refer the matter to appropriate foreign authority to do needful. However, if the issue in contention is prime facie and grave in nature then BCI may suspend the registration and refer the matter to the concerned Disciplinary Authority, with intimation of Government of India.
c) BCI can cancel the registration or renewal of foreign lawyer or law firm if it has satisfied such registration or renewal is obtained by misrepresentation or fraud, provided such cancel can be done after giving such foreign lawyer or law firm an opportunity of being heard.
d) Among other things council may:
i) Dismiss the complaint or drop the proceedings; if there is no substance in it
ii) Reprimand the Foreign Lawyer/Foreign Law Firm
iii) Suspend the registration of the foreign lawyer/foreign law firm for such period as it may deem fit
iv) impose penalty of such an amount as it may deem fit
vi) impose costs.
7) Regulatory authority: BCI is the competent authority for implementation of these rules and will coordinate and interact with central government and other competent Indian authorities and foreign governments and foreign competent authorities to promote reciprocity. BCI will take appropriate measures to secure the interests of Indian lawyers and law firms from time to time as and when needed.
Fee Schedule
A) Registration fee is USD 25,000/- (USD Twenty Five Thousand Only) in case of a foreign lawyer, if he is an individual
B) Registration fee is USD 50, 000/- (USD Fifty Thousand Only) in case of a foreign lawyer, if it is a firm, private limited partnership, company, Limited Liability Partnership (LLP) etc.
C) Renewal fee is USD 10,000/- (USD Ten Thousand Only) in case of a foreign lawyer
D) Renewal fee is USD 20, 000/- (USD Twenty Thousand Only) in case of a foreign lawyer, if it is a firm, private limited partnership, company, Limited Liability Partnership (LLP) etc.
E) The application for registration shall also be accompanied by Security Deposit as follows: –
i) Security Deposit is USD 15,000/- (USD Fifteen Thousand Only) in case of a foreign lawyer, if he is an individual
ii) Guarantee amount is USD 40,000/- (USD Forty Thousand Only)in case of a foreign lawyer, if it is a firm, private limited partnership, company, limited liability partnership (LLP) etc
This is only the beginning. There are lot of grey areas and scope for ambiguities. With time and enforcement, clarity will emerge.
