In a major development, the Bar Council of India has allowed the entry of foreign lawyers and law firms to practice foreign law in India on a reciprocity basis as it notified Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022.
The Rules are framed to enable International Lawyers and Arbitration practitioners to practice in India. The Bar has stated that the legal profession in India has to rise to the occasion to meet the global changes in the Legal Arena caused by the migration of people from one country to another on such a large scale that had not been witnessed in earlier days.
Remarking that world is becoming a global village, the Rules state that International trade and commerce is advancing at a great pace and the demand for an open, responsive and receptive legal professional dispensation mechanism in India from clients/public who operate in international and cross-country business is becoming severe day by day.
"Growth in international legal work sphere and globalization of legal practice and internationalization of the law is increasingly becoming relevant to the growth of the legal profession and practices in India."
It has admitted that initially, it was hesitant to allow the entry of foreign lawyers and foreign law firms in India in any form. The Rules stated that it was however authorized by the legal fraternity of the Country.
"It was authorized by the legal fraternity of the Country in the years 2007-2014 in Joint Consultative Conferences of Bar Council of India and Chairmen, Vice-Chairmen and Chairmen of Executive Committees of all the State Bar Councils in India to hold dialogue and to interact with the Government of India, Ministry of Law and Justice, Ministry of Trade and Commerce and Law Councils/Law Societies of foreign countries to explore the potential and prospects of opening the law practice in India to foreign lawyers in the field of practice of foreign law and diverse international legal issues in non-litigious matters on the principle of reciprocity and it has been doing so."
The Rules mentions Bombay High Court judgement on 16.12.2009 in Lawyers Collective Versus Bar Council of India in which it was held that Reserve Bank of India was not justified in granting permission to the foreign law firms to open liaison offices in India. It was further held that the expression “to practice the profession of law” in Section-29 of the Advocates Act, 1961 is wide enough to cover the persons practicing in litigious matters as well as persons practicing in non-litigious matters, and, therefore, to practice in non-litigious matters in India, the respondents were bound to follow provisions contained in Advocates Act, 1961."
It also mentions the Madras High Court delivered a Judgment on 21.12.2012 in A.K. Balaji Versus Govt. of India whereby it denied entry to Foreign law firms or foreign lawyers but allowed Act or the Rules for the foreign law firms or foreign lawyers to visit India for a temporary period on a "fly in and fly out" basis, for the purpose of giving legal advise to their clients in India regarding foreign law or their own system of law and on diverse international legal issues.
Both the above judgments were challenged in the Supreme Court. While Bar Council of India challenged the Judgment of the Madras High Court, Lawyers Collective challenged the judgment of Bombay High Court.
The Apex Court in Bar Council of India Vs. A.K. Balaji And Ors. disposed of the appeals in both matters.
The BCI has said that it is an appropriate time to "take a call on the issue" and opined that opening up of law practice in India to foreign lawyers in the field of practice of foreign law; diverse international legal issues in nonlitigious matters and in international arbitration cases would go a long way in helping legal profession/domain grow in India to the benefit of lawyers in India too.
"It is noteworthy that the standards of Indian lawyers in proficiency in law is comparable with the international standards and the legal fraternity in India is not likely to suffer any disadvantage in case law practice in India is opened up to foreign lawyers in a restricted and well controlled and regulated manner on the principle of reciprocity as it would be mutually beneficial for lawyers from India and abroad and these Rules are an attempt by Bar Council of India in this direction. These rules will also help to address the concerns expressed about flow of Foreign Direct Investment in the country and making India a hub of International Commercial Arbitration. In case, we sleep over the matter, the legal fraternity of India may be left behind in providing legal/professional expertise in accordance to the rule of law in a manner consistent with the best interests of this fast growing class of clients in India. Let us ensure than an opportunity for creating development and growth for legal profession and in the legal sphere in India is not lost."
Stating that it is taking an all-inclusive view as well, the Bar mentioned any countries have already allowed foreign lawyers to practice foreign law and diverse international legal issues and arbitration matters in their countries in restricted fields with specific and prescribed conditions.
The Objects and Reasons of the Rules state:
"Time has come to take a call on the issue. Bar Council of India is of the view that opening up of law practice in India to foreign lawyers in the field of practice of foreign law; diverse international legal issues in non-litigious matters and in international arbitration cases would go a long way in helping legal profession/domain grow in India to the benefit of lawyers in India too."
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