BREAKING: Bar Council of India allows entry of foreign lawyers and law firms (Details)

In a significant development in the legal arena, the Bar Council of India (BCI) has allowed foreign lawyers and law firms to practice foreign law in India on a reciprocity basis..The BCI has come out with the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 to enable international lawyers and arbitration practitioners to advise in India..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 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.".The BCI has further stated that India is not likely to suffer any disadvantage if law practice is opened up to foreign lawyers in a restricted, well-controlled and regulated manner."...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...Let us ensure than an opportunity for creating development and growth for legal profession and in the legal sphere in India is not lost," it added..Below is an overview of the Rules..Registration of foreign lawyers.The Rules make it clear that a foreign lawyer or law firm shall not be entitled to practice law in India without registration with the BCI. This prohibition will not apply to law practice by a foreign lawyer or foreign law firm on a ‘fly in and fly out basis’ for the purpose of giving legal advice to a client in India on foreign law or international legal issues. However, in this case, the lawyer/firm cannot have an office in India, and their practice cannot exceed 60 days in any period of 12 months..The registration fee for a foreign lawyer is $25,000 and for a law firm, the fee is $50,000..An application for registration of foreign lawyers/law firms must be accompanied with the following documents:.(i) A certificate from the Government of India, (Ministry of Law & Justice and Ministry of External Affairs and Trade) that an effective legal system exists in concerned foreign country of the primary qualification and that it has no objection in case the applicant is registered under these Rules and practices law in India; (However the Bar Council of India may seek any information from any departments/Ministries of any foreign Countries, if it thinks necessary and/or it may contact any. Foreign Government/Department in case if any information required.) (ii) A certificate from the Competent Authority of the concerned foreign country of primary qualification certifying that the applicant is entitled to practice law in that Country; (iii) A certificate from the Government of the foreign country of primary qualification that advocates enrolled under the Advocates Act, 1961 are permitted to practice law in that country in the manner and to the extent which is comparable to the law practice permitted under these Rules along with copies of the relevant Laws and Rules; (iv) A certificate from the Competent Authority of the concerned country of primary qualification or any other competent authority/ies, Courts, Bar Association, Bar Council etc. that the applicant has been in practice in that country; (v) A certificate of the competent authority of the concerned foreign country of primary qualification that no proceedings of professional or other misconduct are pending either before it or before any other authority competent to entertain and decide such proceedings; (vi) A certificate of the competent authority of the concerned foreign country of primary qualification giving details of the fee structure and other amounts chargeable from an advocate enrolled under the Act for enabling him to practice law in that country along with relevant Rules and Laws; (vii) ‘No objection Certificate' of the competent authority of the concerned foreign country of primary qualification that it has no objection in case the applicant starts law practice in India and that the applicant enjoys a good standing in the Bar. (viii) A declaration on affidavit that the applicant has not been convicted of any offence and has not suffered any adverse order in any disciplinary matter. (In case he has suffered relevant attested any conviction/adverse order, copies of the order of conviction/adverse order and other related documents about the matter like appeal and stay, if any, or sentence/fine suffered/paid etc. are to be annexed); (ix) A declaration on affidavit that the applicant has no objection and consents to the making of enquiries and investigation by the Bar Council of India on its own or through such government or non-government investigating agency, as it may deem fit, to verify the veracity of the particulars disclosed by the applicant in the application and genuineness of the documents annexed therewith; (x) An undertaking on oath that he/it shall not practice Indian law in any form or before any court of Law, Tribunal, Board or any other Authority legally entitled to record evidence on oath; (xi) A declaration on oath that he/it shall not be entitled to and shall not claim any interest on the guarantee amount deposited by him/it with Bar Council of India at the time of registration under these Rules and that the Bar Council shall be entitled to adjust and apply this guarantee amount to the penalty and cost amounts that may be awarded by the Bar Council of India under the provisions of these Rules; (xii) A declaration on oath that the applicant fully understands and appreciates the fact that on registration under rule 7 of these Rules, the Advocates Act, 1961 and Rules made there under, mutatis mutandis, apply to him/it in respect of law practice by him/it in India and that he/it is subject to the jurisdiction of Courts of Law in India and to the jurisdiction of Bar Council of India in relation to such practice.The Rules also state that the right to practice law in the concerned foreign country of primary qualification shall be the primary qualification for practicing law in India.Registration shall be valid for a period of 5 years. Foreign lawyers/firms are required to renew it by filing an application within 6 months before the date on which such validity expires.BCI may not reject an application for registration/renewal unless a reasonable opportunity of being heard has been afforded to the applicant. The Council shall be the final authority in all these matters.The Central government shall have the right to recommend cancellation of registration or renewal at any time on the ground of national security, or if it is of the opinion that such registration or renewal is against the national interest, "or for any other valid ground"..What work are foreign lawyers and firms allowed to do?.As per the Rules, foreign lawyers and firms shall be entitled to practice law in India in non-litigious matters. The areas of practice of law they are allowed to do shall be laid down by the BCI, in consultation with the Union Ministry of Law and Justice. Further:Foreign lawyers and firms shall not be permitted to appear before any courts, tribunals or other statutory or regulatory authorities. They shall be allowed to practice on transactional work/corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts and other related matters on reciprocal basis. They shall not be involved or permitted to do any work pertaining to conveyancing of property, title investigation or other similar work. They may do work, transact business, give advice and opinions concerning the laws of the country of primary qualification. They may provide legal advice and appear as a lawyer for a person, firm, company, corporation, trust, society etc which has an address in a foreign country in any international arbitration case which is conducted in India and in such arbitration case where foreign law may or may not be involved. They may provide legal advice and appear as a lawyer before bodies other than courts, tribunals, boards, statutory authorities which are not legally entitled to take evidence on oath, in cases in which knowledge of foreign law of the country of primary qualification is essential. They may provide legal advice concerning the laws of the country of primary qualification and on diverse international legal issues. This shall not include representation or the preparation of documents regarding procedures before an Indian court, tribunal or any other authority competent to record evidence on oath.It is also made clear that an advocate enrolled with any State Bar Council in India and who is a partner or associate in any foreign law firm can only take up non-litigious matters and advise on laws of countries other than India. "Such Lawyer shall have no advantage/right of his being an Advocate enrolled in India," the Rules state..Registered foreign law firms and lawyers can also:Open up law offices. Engage and procure legal expertise of one or more Indian advocates registered as foreign lawyers. Procure the legal expertise of any advocate enrolled with any State Bar Council in India on any subject relating to Indian laws. Enter into a partnership with one or more foreign lawyers or foreign law firms registered in India under these Rules..The Rules also provide for disciplinary action in case registration is obtained through misrepresentation. Penalties include reprimanding the foreign lawyer/law Firm, suspending the registration, imposition of penalties etc..[Read Rules]