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Benchmark decision by Bar Council of India: Foreign lawyers and Law Firms can now practice foreign law in India | The Law Reporters

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Staff Writer, TLR

Published on July 14, 2023, 17:41:00

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In light of global advancements in the legal arena, the demand for the mutual exchange of resources calls for action. With the inevitable growth of international trade and businesses, it is essential to broaden the spectrum. Permitting the entry of foreign lawyers and Law Firms to practice in India will augment the legal profession in India.

The Bar Council of India (BCI) has made a benchmark decision to grant permission for foreign lawyers and Law Firms to practice foreign law in India with mutual benefits for each other.

The practice areas for the lawyers and Law Firms are put together by the BCI and the Ministry of Law. They can practice foreign law, Diverse International Law, and International Arbitration Matters in India. This pioneering move will go a long way and will enrich the legal profession in India as well as foreign countries.

However, the practice will be regulated under strict rules to ensure mutual benefits for lawyers in India and abroad. These regulations will voice the concerns of Foreign Direct Investments in the country and make India the hub of International Commercial Arbitration.

According to the regulatory body, the engagement of foreign lawyers and Law Firms will create new opportunities in India’s legal sphere.

It is important to address that Supreme Court, BCI v. AK Balaji, held that foreign lawyers, Law Firms, or corporations were not permitted to practice law in India, either in the area of litigation or in the area of non-litigation. It was stated that they could only temporarily offer to advise Indian clients on a "fly in and fly out" basis. Court had also ruled that foreign lawyers cannot be prevented from traveling to India to conduct arbitration proceedings involving issues resulting from a contract relating to international commercial arbitration.

According to the BCI notification, "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."

However, the UK claims to have permitted Indian lawyers and Law Firms to practice and establish in England and Wales. But the reciprocity needs to be verified.

Sunil Ambalavelil, Senior Partner at NYK Law Firm told The Law Reporters, “We welcome the Bar Council of India's decision, as it strengthens the bond between Indian and foreign lawyers. Also, this will increase opportunities for exposure to international standards.”

With more than 20 years of legal expertise, Sunil believes this possibility will allow legal firms in India and abroad to broaden the scope of the legal profession with mutual benefits.

Practice areas for foreign lawyers and Law Firms

The practice of transactional or corporate work, which includes joint ventures, mergers and acquisitions, intellectual property matters, contract drafting, and related areas, is open to Foreign Lawyers and/or Foreign Law Firms. However, they are not authorized to engage in any activities related to property conveyancing, title investigation, or similar work.

Foreign lawyers or foreign Law Firms are not allowed to appear before any courts, tribunals, or other statutory or regulatory authorities.

According to the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 the practice areas of foreign lawyers and Law Firms are as follows:

(i) doing work, transacting business, giving advice and opinion concerning the laws of the country of the primary qualification;

(ii) providing legal expertise/advise and appearing as a lawyer for a person, firm, company, corporation, trust, society, etc. who/which is having an address or principal office or head office in a foreign country in any international arbitration case which is conducted in India and such arbitration case "foreign law may or may not be involved;

(iii) providing legal expertise/advise and appearing as a lawyer for a person, firm, company, corporation, trust, society, etc. who/which is having an address or principal office or head office in the foreign country of the primary qualification in proceedings before bodies other than 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) 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.

(v) 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 non-litigious matters and can advise on issues relating to countries other than the Indian Laws only. Such a Lawyer shall have no advantage/right of his being an Advocate enrolled in India.

The registration process and fee structure

Foreign lawyers or Law Firms can only practice in India if they are registered with the Bar Council of India. But this does not apply to a foreign lawyer or law firm who practices on a ‘fly in and fly out basis’, which does not exceed 60 days in 12 months.

Foreign lawyers and Law Firms may apply for registration with the Secretary, Bar Council of India in 'FORM A appended to the Rules with a registration fee and non-refundable process charges.

 

Registration Fee Security Deposit
Foreign Lawyer (Individual) USD 25,000 USD 15,000
Foreign Law Firm, private limited partnership, company, Limited Liability Partnership (LLP), USD 50,000 USD 40,000

 

The registration to practice in India is valid for five years only. The foreign lawyer and/or Law Firm is required to renew it by filing an application for renewal in Form B within six months before the validity expires.

The Bar Council has the authority to refer the matter to the Disciplinary authority of the concerned country if they find any misconduct or any violations by any of the foreign lawyers or law firms while practicing in India. If the misconduct is huge, the council can suspend the registration.

For any enquiries or information, contact ask@tlr.ae or call us on +971526443004

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