In an unprecedented and a welcome move, the Bar Council of India (“BCI”), which is the statutory body governing legal profession in India, has issued a notification dated March 10, 2023, notifying the “Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022” (“Rules”).
The Rules permit entry of foreign lawyers and foreign law firms in India on reciprocity basis, subject to terms and conditions prescribed therein.
Under the reason and objects in the Rules, it states ,
“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. 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. Many countries have already allowed the 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.”
What is permitted and what is not…
A foreign lawyer registered under rules shall be entitled to practice law in India in non-litigious matters only subject to such exceptions, conditions and limitations as are laid down under these Rules.
The areas of practice of law by a foreign lawyer or Foreign Law Firm shall be laid down by Bar Council of India And if need be, the BCI may consult the Government of India, Ministry of Law and Justice in this regard.
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.
- to open law office or offices in India for carrying on law practice in India subject to the condition that BCI shall be kept informed of the particulars of such office/offices viz. postal address, name of the owner/lessee of the property in which the office/offices are located and the documents enabling and entitling him/it to occupy it.
- providing legal expertise/advise concerning the laws of the Country of primary qualification and on diverse international legal issues, provided that such legal expertise/advise, unless otherwise provided for in these Rules, shall not include representation or the preparation of documents regarding procedures before an Indian Court of Law, Tribunal or any other Authority competent to record evidence on oath or preparation of any documents, petitions etc. to be submitted to any such forum regarding such procedures.
- Provided that an Advocate enrolled with any State Bar Council in India and is a partner or Associate in any Foreign Law Firm registered in India under these rules and regulations, can take up only the non-litigious matters and can advise on issues relating to countries other than the Indian Laws only.
The foreign lawyers or foreign Law Firms shall not be permitted to appear before any courts, tribunals or other statutory or regulatory authorities.
They shall not be involved or permitted to do any work pertaining to conveyancing of property, Title investigation or other similar works.
Incidental matters.
The registered Foreign Lawyer or Foreign Law Firm shall be entitled to do the following incidental activities in connection with the practice of law in India: –
- to open law office or offices in India for carrying on law practice in India subject to the condition that BCI shall be kept informed of the particulars of such office/offices viz. postal address, name of the owner/lessee of the property in which the office/offices are located and the documents enabling and entitling him/it to occupy it.
- to engage and procure legal expertise/advise of one or more Indian Advocates Registered as foreign lawyers,
- to procure the legal expertise/advise of any Advocate enrolled with any State Bar Council in India on any subject relating to Indian Laws. But such registered foreign lawyer or foreign Law Firm shall not be entitled to appear before any Indian Court, Tribunal or any other statutory forum except for the maters mentioned under provision of Rule 8 of these Rules.
- to enter into Partnership with one or more Foreign Lawyers or Foreign Law Firm registered in India under these rules.
Registration of Foreign Lawyer or Foreign Law Firm
A Foreign Lawyer or Foreign Law Firm is required is be registered with the BCI to practice law in. However, this requirement in not applicable 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, provided their practice cannot exceed 60 days in any period of 12 months.
The registration is for a period of 5 years and term can be renewed thereafter as well, in terms of the Rules. The registration fee for a foreign lawyer is US $25,000 (renewal fee of US $10,000) and for a foreign law firm, the fee is US $50,000 ((renewal fee of US $20,000). Additional at the time of registration a refundable fee of US $15,000 and US $40,000 is payable by the foreign lawyers and a foreign law firm respectively.
The registration application should be accompanied with the following documents :
- A certificate from the Government of India, (Ministry of Law & Justice and Ministry of External Affairs and Trade) or such other authority or officer as Union Government may authorize in this behalf 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.)
- 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;
- A certificate from the Government of the foreign country of primary qualification or from a competent Authority thereof certifying 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;
- 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;
- 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;
- 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;
- ‘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.
- 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);
- A declaration on affidavit that the applicant has no objection and consents to the making of enquiries and investigation by the BCI 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;
- 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;
- 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;
- 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.
‘Competent Authority of the foreign country’ as referred to above means the government or a Court of law or a statutory authority or Bar Council or Legally authorized Association or any other legally recognized and constituted body by whatever name called or described, which is competent to grant license to practice law.
The Rules also provide for the actions including on disciplinary grounds that the BCI can take against the Foreign Lawyers and the Foreign Law Firms on account of misrepresentations, complaints against them etc.
