India Opens Its Doors to Foreign Lawyers with New BCI Decision
Mar 19, 2023
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Context
Probable Question
About the New BCI Decision
Significance of the BCO Decision
About the new rules
Eligibility
Permitted to practice
Exception
Traditional way of operating foreign law firms
Frequently Asked Questions
Context
Recently, the Bar Council of India (BCI) has allowed foreign lawyers and law firms to practice in India.
- It is done with an exception for them to appear in court, while they can advise clients on foreign law and work on corporate transactions.
Probable Question
State the new rules by the Bar Council of India (BCI) to allow foreign lawyers in India. (150 words, 10 marks)
About the New BCI Decision
- The Bar Council of India (BCI) notified its new decision to allow foreign lawyers in the official gazette of the Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022.
- In a lengthy Statement of Objects and Reasons, the BCI said it “resolves to implement these Rules enabling the foreign lawyers and Foreign Law Firms to practice foreign law and diverse international law and international arbitration matters in India on the principle of reciprocity in a well defined, regulated and controlled manner.”
| Note: The Bar Council of India (BCI) The Bar Council of India is a statutory body created by Parliament to regulate and represent the Indian bar. The Bar Council of India was established by Parliament under the Advocates Act, 1961. The objective of BCI: To perform the regulatory function by prescribing standards of professional conduct and etiquette and by exercising disciplinary jurisdiction over the bar. To set standards for legal education and grant recognition to Universities whose degrees in law will serve as qualifications for enrolment as an advocate. To perform certain representative functions by protecting the rights, privileges, and interests of advocates and through the creation of funds for providing financial assistance to organize welfare schemes for them. |
Significance of the BCO Decision
- The move will address concerns about the flow of Foreign Direct Investment in the country.
- It will make India a hub of International Commercial Arbitration.
- The rules bring legal clarity to foreign law firms that currently operate in a very limited way in India.
- Overall the move is expected to potentially change the landscape of legal practice in the country.
Also read: Indian Constitution: Why and How? - NCERT Notes UPSC
About the new rules
Eligibility
- According to the Advocates Act, advocates enrolled with the Bar Council alone are entitled to practice law in India.
- All others, such as a litigant, can appear only with the permission of the court, authority or person before whom the proceedings are pending.
- The notification essentially allows foreign lawyers and law firms to register with BCI to practice in India if they are entitled to practice law in their home countries.
Permitted to practice
- They shall be allowed to practice transactional work /corporate work such as joint ventures, mergers, and acquisitions, intellectual property matters, drafting of contracts and other related matters on a reciprocal basis.
Exception
- Foreign lawyers cannot practice Indian law.
- 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 the conveyancing of property, Title investigation or other similar works, the notification states.
- Indian lawyers working with foreign law firms will also be subject to the same restriction of engaging only in “non-litigious practice.”
Traditional way of operating foreign law firms
- As per Section 29 of the Advocates Act, only advocates enrolled with BCI can practice law.
- The ‘practice’ would include both litigious and non-litigious practice, so foreign firms can neither advise their clients in India nor appear in court.
- In ‘AK Balaji v Government of India’, the Madras High Court held that foreign firms cannot practice either on the litigation or non-litigation side unless they meet the requirements and rules laid down by the Advocates Act and the BCI rules.
- However, the Madras High Court created an exception. It said that there would be no ban on temporary visits or advising clients on a “fly in and fly out” basis.
- Moreover, having regard to the aim and object of the International Commercial Arbitration introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration,” the HC held.
- By 2012, Business Process Outsourcing (BPOs) had arrived in India on a big scale and did backend work for US-based companies. In the legal profession, these firms, Legal Process Outsourcing (LPOs), carried support operations for lawyers. They operated in uncertain legal frameworks and the Supreme Court had to intervene to settle the law on the issue.
Also read: Fundamental Rights in the Indian Constitution- NCERT Notes UPSC
News Source: The Indian Express
Frequently Asked Questions
Can foreigners practice law in India?
The Bar Council of India (BCI) notified its new decision to allow foreign lawyers in the official gazette of the Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022. It is done to implement these rules, enabling foreign lawyers and foreign law firms to practice foreign law and diverse international law and international arbitration matters in India on the principle of reciprocity in a well-defined, regulated, and controlled manner.
Can a foreign lawyer fight a case in India?
Foreign lawyers and law firms can practice in India. It is done with an exception for them to appear in court, while they can advise clients on foreign law and work on corporate transactions.
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