Bar Council Of India Rules For Registration And Regulation Of Foreign Lawyers Or Foreign Law Firms In India
Background
In the opinion of the Bar Council of India (hereinafter called the BCI), the legal profession should delve into more complex dimensions of the legal arena to meet the global standards in the field.
Initially, if we look back to the timeline, BCI in fact opposed the entry of foreign lawyers or foreign firms into the legal practice in India. However, the legal fraternity of India made efforts by holding a joint consultative conference of BCI and the Chairman, Vice-Chairmen and Chairmen of Executive Committees of all the State Bar Councils of India to hold dialogs and interact with the Government of India, the Ministry of Law, and the Law Societies of Foreign Countries to explore the viability of opening the route for the practice of foreign law and various international legal issues predominantly in non-litigious matters.
In the series of various judgments the BCI wide this notification has provided enough reasoning to understand the opinion of the various courts regarding the matter. We can now look at the stand of the courts with respect to the foreign lawyers or foreign law firms practicing foreign law in India.
In the case of Lawyers Collective v. Bar Council of India, the Bombay High Court criticized the decision of the RBI allowing foreign law firms to open liaison offices in India, and the court interpreted that "to practice the profession of law" in section 29 of the Advocates Act, 1961 (herein referred to as the "Act") has a wider meaning that includes litigious and non-litigious matters.
In the case of A.K. Balaji v. the Madras High Court, it was held that foreign lawyers and firms cannot practice in India unless they fulfill the requirements of the Act and the rules of BCI, It was however held that the "fly in and fly out" basis for the motive of providing legal advice can be practiced by them. The court, however, was of the view that the foreign lawyers could not be barred from coming to India and conducting arbitration proceedings.
Both of the above judgments were challenged in the Hon'ble Supreme Court, and the court held that:
Where an advocate has the right to practice, the same comes with the right to practice as well; this view was taken in Pravin Shah v. K.A. Mohd. Ali17.
The court was of the view that law includes not only appearances in courts but also giving of opinions, drafting of instruments, and participation in conferences involving legal discussions, therefore, law practice includes not only litigation matters but non-litigious ones as well. Dismissing the contention, the Act does not deal with companies or firms; the prohibition applies to groups of individuals or juridical persons in the same manner as it applies to an individual.
Therefore, the court upheld the decisions of Madras HC and Bombay HC but added that fly in and fly out basis only covers a casual visit, which would not amount to practicing law. They further added that the foreign lawyers or law firms can only conduct arbitration proceedings in cases where the proceedings arise out of international commercial arbitration in view of sections 32 and 33 of the Act and they will be governed by the code of conduct applicable to the legal profession in India.
Finally, they have determined that B.P.O. companies that provide services such as word processing, secretarial support, transcription services, proofreading services, and so on do not fall under the purview of the Act; however, if the services amount to the practice of law, the provisions of the Act will apply and they will be prohibited from doing so.
BCI's VIEWS ON THE MATTER
BCI with these draft rules, has expressed its interest in the matter, mentioned some discussions and deliberations with the Law Society of England with the Indian Government regarding the reciprocation of the practice of law with respect to Indian law, advice of English law and international law by Indian lawyers/law-firms and law firms, and specified six reserved activities that may not be allowed to be practiced.
As mentioned in these rules, as per the delegates of the UK, the Indian lawyers only need to register as Registered Foreign Lawyers (RFL) in cases where they are in partnership with the Solicitors of England and Wales, and they already have the Solicitor Qualification Examination (SQE), which is a process to requalification exams that Indian lawyers may give in order to practice there, and the BCI proposes that the same shall be verified by the Government of India via the Ministry of Law.
With time changing, BCI has realized the need for opening up law practice in India to foreign lawyers in the field of practice of foreign law and it would not be in any way harmful to the Indian lawyers, who are not likely to suffer any disadvantage by opening up the field to the foreign lawyers in a restricted and well regulated manner and following the principle of reciprocity as it would be mutually beneficial for the lawyers in India. As per BCI, an Indian lawyer's proficiency in law is already comparable to international standards, and there's no reason for BCI to hesitate now.
Based on the aforementioned reasons, the BCI now framed the Bar Council of India Rules for the registration and regulation of foreign lawyers or foreign law firms in India on the principle of reciprocity in a well defined, regulated, and controlled manner under its rule making powers as per the Act.
Bar Council of India Rules for registration and regulation of foreign lawyers or foreign law firms
The Bar Council of India Rules for Registration and Regulation of Foreign Lawyers or Foreign Law Firms (herein referred to as "Rules") has provided all the relevant definitions under Rule 2 in its Chapter I.
Chapter II provides for criteria for registration under rule 3 of these rules, i.e., registration of such foreign lawyer or firm under these rules, provided if such lawyer is practicing for the purpose of giving legal advice on a fly in and fly out basis, then registration under these rules is not required, provided further that in such cases such lawyer or law firm does not maintain any office in India for such practice and such practice of giving advice does not exceed 60 days in any period of 12 months.
Under Chapter III of these rules, application to registration and renewal of registration is prescribed, under which rule 4 provides the requirements for an application for registration in "FORM A" under these rules along with the registration fee prescribed under the Schedules of these rules, i.e., $25,000 USD for registration of a foreign lawyer along with a one-time guarantee amount of $15,000 USD and $50,000 USD for registration of a foreign law firm along with a one-time guarantee amount of $40,000 USD, the applicant may submit the application along with the registration fee and guarantee amount through registered post or in-person or they may submit the same on-line, also the applicant has to comply with the required documents, which are prescribed.
The registration under these rules shall be valid for a period of five years only, and thereafter the registration will expire, for renewal of the registration, the foreign lawyer or law firm shall apply to the Secretary Bar Council of India for the renewal of registration as per "FORM B" appended to these rules within six months before the expiry of such registration. The renewal application shall be accompanied by all the required documents as prescribed under rule 5 sub-clause (3) of these rules, along with the renewal fee, i.e., $10,000 USD for foreign lawyers and $20,000 USD for foreign law firms, as per schedules under these rules.
The BCI has the power to refuse such registration if it is of the opinion that the number of foreign lawyers or foreign law firms of any particular foreign country is likely to become disproportionate with the number of Indian lawyers/ or law firms registered or allowed to practice in that country. BCI has provided the power to limit registration in order to maintain balance, ensure complete reciprocity, or secure the interest of Indian lawyers.
BCI after examining the application, checking the reciprocity rules with the concerned foreign country, and holding an inquiry relating to the genuineness of the application and all the attached documents as prescribed, shall grant a certificate of registration with a unique registration number.
The Indian Government shall be kept in the loop, and the council shall send a copy of such registration certificate granted. These rules have also provided preferences as well as rights and privileges to the Designated Advocates i.e. any superior class of Advocates that any Senior Designated Advocate in India enjoys under section 23 of the Act.
Where the registration of a foreign lawyer or law firm has expired and has not been renewed or cancelled permanently, or in case of voluntary termination, the security deposited by such lawyer or law firm shall be returned without any interest.
Rule 7 of these rules provides for the disposal of applications pertaining to registration and renewal.
The BCI grants the registration once the applicant satisfies the council of these conditions:
It has also been provided that the Government of India (GOI) may be consulted in order to ensure that the applicant fulfills the requirements in any particular case; however, the GOI may recommend the cancellation of any registration or renewal on the ground of national security or if it is hampering the national interest in any way. BCI may also seek the opinion of the Hon'ble Chief Justice of India or any sitting judge of the Supreme Court or Union Minister of Law & Justice or the Union Minister of Foreign Affairs, or any other Senior Advocate or Jurist or the matter may be put before the Advisory Board of BCI if it is necessary. But the last decision shall be vested with BCI in all these matters.
These rules also clarify that the registration of such foreign lawyers or law firms, in any way, does not permit their free and unregulated entry and stay in India; for the same, they shall be regulated by Indian law only.
It is also provided that the registration/renewal may be cancelled in the event that Indian lawyers, in a foreign country where such lawyer or law firm is entitled to practice law, are subjected to unfair discrimination or if there is no effective legal system in that country.
What practice of law is permitted?
Chapter IV of these rules describes the nature and extent of the practice of law by foreign lawyers, under which they have provided certain arenas under which such lawyers shall be allowed to practice in India.
Following is the nature of registration under these rules:
BCI has laid down some areas of practice for the reference:
It also provides that any advocate who is enrolled under any State Bar Council shall and having partnership or association with any foreign law firm registered under these rules can only take up non-litigious matters.
Such advocate shall have no right to or advantage from being an advocate enrolled in India.
The registered foreign lawyers or law firms are entitled to open law offices in India, and BCI shall be informed of all the particulars of such offices, to enter into partnership with one or more foreign lawyers or law firms registered under these rules, and to engage or procure any advice from any Indian Advocate registered under these rules.
Under Chapter V of these rules, the BCI has the authority to initiate any disciplinary action against such foreign lawyer/law firm if they fail to comply with the Act's and rules' ethical and practice standards.
Where BCI has reason to believe that foreign lawyer or law firm has committed any misconduct in connection with the practice of law in India, or has breached or violated any terms and conditions of these rules in any manner, it may refer the case to the concerned country of the foreign lawyer or law firm; if, however, the misconduct is grave and prima-facie apparent to the face of the record, BCI may cancel/suspend the registration of such foreign lawyer or law firm.
In cases where the registration has been obtained by means of misrepresentation or fraud, the Council may provide a reasonable opportunity of being heard to such foreign lawyer or law firm and, after canceling or suspending the registration or renewal of the registration of such foreign lawyer or law firm, along with the penalty of an amount if it deems fit.
However, the Council may also dismiss the complaint if there's no substance to it or reprimand the foreign lawyer or law firm or suspend the registration or impose a penalty of an amount if it deems fit, or impose costs.
The ultimate regulatory authority is BCI under these rules, as it has the power to issue directions and regulations from time to time, as it may feel necessary to, from time to time. In case of any dispute or doubt regarding the interpretation, meaning, and execution of these rules, the BCI shall be the final authority to resolve and settle all such disputes, and its decision shall be the final one.
CONCLUSION
The BCI has finally made these rules and regulations about foreign lawyers and law firms being able to practice law in India, this action was long awaited. This step is the foundational step for the legal fraternity in India to grow towards the goal of becoming a hub for international commercial arbitration.
This will generate new jobs for Indian lawyers as well, as the firms will not be able to function without the proper interference of Indian lawyers.
Written By: Jatin Soni, B.COM LLB (H.), final year student, Amity Law School, Noida
In the opinion of the Bar Council of India (hereinafter called the BCI), the legal profession should delve into more complex dimensions of the legal arena to meet the global standards in the field.
Initially, if we look back to the timeline, BCI in fact opposed the entry of foreign lawyers or foreign firms into the legal practice in India. However, the legal fraternity of India made efforts by holding a joint consultative conference of BCI and the Chairman, Vice-Chairmen and Chairmen of Executive Committees of all the State Bar Councils of India to hold dialogs and interact with the Government of India, the Ministry of Law, and the Law Societies of Foreign Countries to explore the viability of opening the route for the practice of foreign law and various international legal issues predominantly in non-litigious matters.
In the series of various judgments the BCI wide this notification has provided enough reasoning to understand the opinion of the various courts regarding the matter. We can now look at the stand of the courts with respect to the foreign lawyers or foreign law firms practicing foreign law in India.
In the case of Lawyers Collective v. Bar Council of India, the Bombay High Court criticized the decision of the RBI allowing foreign law firms to open liaison offices in India, and the court interpreted that "to practice the profession of law" in section 29 of the Advocates Act, 1961 (herein referred to as the "Act") has a wider meaning that includes litigious and non-litigious matters.
In the case of A.K. Balaji v. the Madras High Court, it was held that foreign lawyers and firms cannot practice in India unless they fulfill the requirements of the Act and the rules of BCI, It was however held that the "fly in and fly out" basis for the motive of providing legal advice can be practiced by them. The court, however, was of the view that the foreign lawyers could not be barred from coming to India and conducting arbitration proceedings.
Both of the above judgments were challenged in the Hon'ble Supreme Court, and the court held that:
Where an advocate has the right to practice, the same comes with the right to practice as well; this view was taken in Pravin Shah v. K.A. Mohd. Ali17.
The court was of the view that law includes not only appearances in courts but also giving of opinions, drafting of instruments, and participation in conferences involving legal discussions, therefore, law practice includes not only litigation matters but non-litigious ones as well. Dismissing the contention, the Act does not deal with companies or firms; the prohibition applies to groups of individuals or juridical persons in the same manner as it applies to an individual.
Therefore, the court upheld the decisions of Madras HC and Bombay HC but added that fly in and fly out basis only covers a casual visit, which would not amount to practicing law. They further added that the foreign lawyers or law firms can only conduct arbitration proceedings in cases where the proceedings arise out of international commercial arbitration in view of sections 32 and 33 of the Act and they will be governed by the code of conduct applicable to the legal profession in India.
Finally, they have determined that B.P.O. companies that provide services such as word processing, secretarial support, transcription services, proofreading services, and so on do not fall under the purview of the Act; however, if the services amount to the practice of law, the provisions of the Act will apply and they will be prohibited from doing so.
BCI's VIEWS ON THE MATTER
BCI with these draft rules, has expressed its interest in the matter, mentioned some discussions and deliberations with the Law Society of England with the Indian Government regarding the reciprocation of the practice of law with respect to Indian law, advice of English law and international law by Indian lawyers/law-firms and law firms, and specified six reserved activities that may not be allowed to be practiced.
As mentioned in these rules, as per the delegates of the UK, the Indian lawyers only need to register as Registered Foreign Lawyers (RFL) in cases where they are in partnership with the Solicitors of England and Wales, and they already have the Solicitor Qualification Examination (SQE), which is a process to requalification exams that Indian lawyers may give in order to practice there, and the BCI proposes that the same shall be verified by the Government of India via the Ministry of Law.
With time changing, BCI has realized the need for opening up law practice in India to foreign lawyers in the field of practice of foreign law and it would not be in any way harmful to the Indian lawyers, who are not likely to suffer any disadvantage by opening up the field to the foreign lawyers in a restricted and well regulated manner and following the principle of reciprocity as it would be mutually beneficial for the lawyers in India. As per BCI, an Indian lawyer's proficiency in law is already comparable to international standards, and there's no reason for BCI to hesitate now.
Based on the aforementioned reasons, the BCI now framed the Bar Council of India Rules for the registration and regulation of foreign lawyers or foreign law firms in India on the principle of reciprocity in a well defined, regulated, and controlled manner under its rule making powers as per the Act.
Bar Council of India Rules for registration and regulation of foreign lawyers or foreign law firms
The Bar Council of India Rules for Registration and Regulation of Foreign Lawyers or Foreign Law Firms (herein referred to as "Rules") has provided all the relevant definitions under Rule 2 in its Chapter I.
Chapter II provides for criteria for registration under rule 3 of these rules, i.e., registration of such foreign lawyer or firm under these rules, provided if such lawyer is practicing for the purpose of giving legal advice on a fly in and fly out basis, then registration under these rules is not required, provided further that in such cases such lawyer or law firm does not maintain any office in India for such practice and such practice of giving advice does not exceed 60 days in any period of 12 months.
Under Chapter III of these rules, application to registration and renewal of registration is prescribed, under which rule 4 provides the requirements for an application for registration in "FORM A" under these rules along with the registration fee prescribed under the Schedules of these rules, i.e., $25,000 USD for registration of a foreign lawyer along with a one-time guarantee amount of $15,000 USD and $50,000 USD for registration of a foreign law firm along with a one-time guarantee amount of $40,000 USD, the applicant may submit the application along with the registration fee and guarantee amount through registered post or in-person or they may submit the same on-line, also the applicant has to comply with the required documents, which are prescribed.
The registration under these rules shall be valid for a period of five years only, and thereafter the registration will expire, for renewal of the registration, the foreign lawyer or law firm shall apply to the Secretary Bar Council of India for the renewal of registration as per "FORM B" appended to these rules within six months before the expiry of such registration. The renewal application shall be accompanied by all the required documents as prescribed under rule 5 sub-clause (3) of these rules, along with the renewal fee, i.e., $10,000 USD for foreign lawyers and $20,000 USD for foreign law firms, as per schedules under these rules.
The BCI has the power to refuse such registration if it is of the opinion that the number of foreign lawyers or foreign law firms of any particular foreign country is likely to become disproportionate with the number of Indian lawyers/ or law firms registered or allowed to practice in that country. BCI has provided the power to limit registration in order to maintain balance, ensure complete reciprocity, or secure the interest of Indian lawyers.
BCI after examining the application, checking the reciprocity rules with the concerned foreign country, and holding an inquiry relating to the genuineness of the application and all the attached documents as prescribed, shall grant a certificate of registration with a unique registration number.
The Indian Government shall be kept in the loop, and the council shall send a copy of such registration certificate granted. These rules have also provided preferences as well as rights and privileges to the Designated Advocates i.e. any superior class of Advocates that any Senior Designated Advocate in India enjoys under section 23 of the Act.
Where the registration of a foreign lawyer or law firm has expired and has not been renewed or cancelled permanently, or in case of voluntary termination, the security deposited by such lawyer or law firm shall be returned without any interest.
Rule 7 of these rules provides for the disposal of applications pertaining to registration and renewal.
The BCI grants the registration once the applicant satisfies the council of these conditions:
- If the applicant has any criminal charges or disciplinary actions that would make him unfit to practice law in India,
- The application is supported by all the relevant documents that are required,
- Lastly, the country of such a foreign lawyer or law firm allows the Indian Advocates enrolled under the Act to practice law there in the same comparable manner as these rules permit such a foreign lawyer to practice in India.
It has also been provided that the Government of India (GOI) may be consulted in order to ensure that the applicant fulfills the requirements in any particular case; however, the GOI may recommend the cancellation of any registration or renewal on the ground of national security or if it is hampering the national interest in any way. BCI may also seek the opinion of the Hon'ble Chief Justice of India or any sitting judge of the Supreme Court or Union Minister of Law & Justice or the Union Minister of Foreign Affairs, or any other Senior Advocate or Jurist or the matter may be put before the Advisory Board of BCI if it is necessary. But the last decision shall be vested with BCI in all these matters.
These rules also clarify that the registration of such foreign lawyers or law firms, in any way, does not permit their free and unregulated entry and stay in India; for the same, they shall be regulated by Indian law only.
It is also provided that the registration/renewal may be cancelled in the event that Indian lawyers, in a foreign country where such lawyer or law firm is entitled to practice law, are subjected to unfair discrimination or if there is no effective legal system in that country.
What practice of law is permitted?
Chapter IV of these rules describes the nature and extent of the practice of law by foreign lawyers, under which they have provided certain arenas under which such lawyers shall be allowed to practice in India.
Following is the nature of registration under these rules:
- A foreign lawyer or law firm shall only be allowed to practice in non-litigious matters.
- When any foreign lawyer or law firm is registered under these rules, he/it shall be deemed to be an advocate within the meaning of sections 29, 30, and 33 of the Act.
- In case of any substantive misconduct, such a foreign lawyer or law firm shall not be subjected to the provisions under Chapter V of the Act; instead, the BCI may cancel the registration of such a foreign lawyer or law firm.
- Foreign lawyers or law firms shall not be allowed to appear before any court, tribunal, or other statutory or regulatory authority.
- They are not allowed to do any work related to the conveyancing of property, title investigation, or any other similar work.
- Such a foreign lawyer or law firm shall be allowed to practice any transactional or corporate work on a reciprocal basis, of course.
BCI has laid down some areas of practice for the reference:
- Doing work, transacting business, and giving advice and opinion concerning the laws of such foreign lawyer's or law firm's country.
- Providing legal expertise or advice to any person, firm, company, corporation, trust, etc. whose head office is in a foreign country in matters of international arbitration, which is conducted in India.
- Providing legal expertise or advice to any person, firm, company, corporation, trust, etc. whose head office is in a foreign country in the proceedings before bodies other than courts, tribunals, etc. who are not legally entitled to take oaths in matters where application and knowledge of the foreign law of the particular foreign country is required.
- Providing legal expertise or advice concerning the laws of the foreign country of such foreign lawyer or law firm and in any matter related to an international legal issue.
It also provides that any advocate who is enrolled under any State Bar Council shall and having partnership or association with any foreign law firm registered under these rules can only take up non-litigious matters.
Such advocate shall have no right to or advantage from being an advocate enrolled in India.
The registered foreign lawyers or law firms are entitled to open law offices in India, and BCI shall be informed of all the particulars of such offices, to enter into partnership with one or more foreign lawyers or law firms registered under these rules, and to engage or procure any advice from any Indian Advocate registered under these rules.
Under Chapter V of these rules, the BCI has the authority to initiate any disciplinary action against such foreign lawyer/law firm if they fail to comply with the Act's and rules' ethical and practice standards.
Where BCI has reason to believe that foreign lawyer or law firm has committed any misconduct in connection with the practice of law in India, or has breached or violated any terms and conditions of these rules in any manner, it may refer the case to the concerned country of the foreign lawyer or law firm; if, however, the misconduct is grave and prima-facie apparent to the face of the record, BCI may cancel/suspend the registration of such foreign lawyer or law firm.
In cases where the registration has been obtained by means of misrepresentation or fraud, the Council may provide a reasonable opportunity of being heard to such foreign lawyer or law firm and, after canceling or suspending the registration or renewal of the registration of such foreign lawyer or law firm, along with the penalty of an amount if it deems fit.
However, the Council may also dismiss the complaint if there's no substance to it or reprimand the foreign lawyer or law firm or suspend the registration or impose a penalty of an amount if it deems fit, or impose costs.
The ultimate regulatory authority is BCI under these rules, as it has the power to issue directions and regulations from time to time, as it may feel necessary to, from time to time. In case of any dispute or doubt regarding the interpretation, meaning, and execution of these rules, the BCI shall be the final authority to resolve and settle all such disputes, and its decision shall be the final one.
CONCLUSION
The BCI has finally made these rules and regulations about foreign lawyers and law firms being able to practice law in India, this action was long awaited. This step is the foundational step for the legal fraternity in India to grow towards the goal of becoming a hub for international commercial arbitration.
This will generate new jobs for Indian lawyers as well, as the firms will not be able to function without the proper interference of Indian lawyers.
Written By: Jatin Soni, B.COM LLB (H.), final year student, Amity Law School, Noida
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