Explained: How Foreign Lawyers Will Be Able To Work In India

On March 13, the Bar Council of India (BCI) notified in the official gazette that it has allowed foreign lawyers and foreign law firms to practice foreign laws in India. The rules will be handed down in consultation with the Law Ministry.

Judgments on Foreign Lawyers¡¯ Practice in India

Unsplash/Representational Image

The Supreme Court, in the BCI v. AK Balaji case, has handed down a judgment that foreign lawyers could not practice litigation or non-litigation matters in India. They could only advise clients on a ¡°fly in and fly out¡± basis. The ¡°fly in and fly out¡± basis was handed down by the Madras High Court on a judgment related to the foreign lawyers¡¯ practice in India. However, the Supreme Court permitted arbitration matters related to international commercial cases.

Reciprocity Basis

The UK has claimed to permit Indian lawyers and law firms to establish in England and Wales. Indian lawyers and law firms can also practice Indian and international law and provide English law advice. BCI, on the claims, has commented on verifying and reciprocating on the same. It is to be noted that these foreign lawyers and law firms will only be allowed to practice on a reciprocity basis.

Unsplash/Representational Image

What Changes and What Doesn¡¯t?

The foreign lawyers and law firms are allowed to practice in transactional and corporate work sectors, including joint ventures. The order also permits them to practice intellectual property matters, drafting contracts, and other matters on a reciprocity basis.

However, there are certain limitations to the practice.

Foreign lawyers and law firms are not allowed to practice in property or title investigation matters. They are also prohibited from appearing before courts or statutory or regulatory bodies. The foreign lawyers or foreign Law Firms shall not be permitted to appear before any courts, tribunals or other statutory or regulatory authorities,¡± stated the BCI.

Registration

The BCI was established under the Advocates Act 1961. In 2009, the Bombay High Court in the Lawyers Collective v. Union of India said that under Section 29 of the Advocates Act, those enrolled with the BCI could only practice litigation in India.

Unsplash/Representational Image

Upholding the same, the registration rules for foreign lawyers and firms remain the same. They must be registered with the BCI. This, however, does not apply in the ¡°fly in and fly out¡± practice. However, it is to be noted that the ¡°fly in and fly out¡± practice could only be permitted if it does not exceed 60 days in any period of 12 months.

The registration is said to be made with the Secretary of BCI under Form A.

BCI¡¯s Jurisdiction over Foreign Lawyers

The BCI has stated that in case of submission of a receipt of a complaint, it will be a reason for the BCI to believe in misconduct with regard to the law practice in India. It will also be reasoned that foreign practitioners have violated rules. Once the complaint receipt is received, the firm or the lawyer will be referred to the disciplinary authority, in severe cases, they might be suspended.