The Bar Council of India (BCI) has recently amended its rules, allowing foreign lawyers and law firms to practice foreign law in India on a non-litigation basis. This change, notified on May 13, 2023, is aimed at regulating international law practice in India without affecting traditional litigation handled by Indian advocates.
According to the notification, the BCI has amended the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022. These changes took effect immediately upon publication in the Official Gazette. The amendment is based on the principle of reciprocity under Section 47 of the Advocates Act, 1961. This means that foreign lawyers can practice in India only if their home countries allow Indian lawyers to practice there under similar conditions.
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The amended rules also permit foreign lawyers and law firms to participate in International Commercial Arbitration in India, provided it involves an element of foreign or international law.
The BCI emphasized the positive impact of this decision, stating:
"The Bar Council of India believes that opening up the legal profession in India to foreign lawyers, limited to the practice of foreign law, handling diverse international legal issues in non-litigious matters, and participating in international arbitration cases will meaningfully contribute to the growth of the legal domain in India, ultimately benefiting Indian lawyers as well."
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The BCI further clarified that this move aims to maintain the proficiency and standards of Indian lawyers, which are already comparable to international levels. This controlled approach ensures mutual benefits for both Indian and foreign lawyers.
It is important to note that the Supreme Court, in the case of BCI v. AK Balaji, had ruled that foreign lawyers or law firms cannot practice law in India either in litigation or non-litigation areas. They can only offer advice on a "fly-in, fly-out" basis for a short duration.
The rules specify that a foreign lawyer or law firm must register with the BCI to practice in India. The registration allows them to provide legal advice on foreign law, their home country's law, and other international legal issues. However, this practice is strictly non-litigious, meaning they cannot appear before Indian courts or tribunals.
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Foreign lawyers and law firms can engage in:
- Providing legal advice on foreign law, international law, and diverse international legal issues.
- Representing clients in international commercial arbitration.
- Handling corporate legal matters like joint ventures, mergers, and acquisitions.
However, they are restricted from:
- Practicing before Indian courts or tribunals.
- Drafting legal documents for proceedings in Indian courts.
- Engaging in property conveyancing or title investigation.
The BCI’s decision is expected to encourage Foreign Direct Investment (FDI) in India and establish the country as a hub for International Commercial Arbitration. The council stated:
"These rules will also address concerns about encouraging Foreign Direct Investment (FDI) in India and positioning the country as a hub for International Commercial Arbitration."
