BCI Amends Rules Allowing Foreign Law Firms & Lawyers To Practice Non-Litigious Matters In India

The Bar Council of India (BCI) has notified amendments to rules allowing foreign lawyers and law firms to practice foreign law (non-litigation) in India on the basis of reciprocity. 

The recent notification of May 13 by BCI states that the amendment to the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 intends to regulate the practice of international law in India without causing any harm to the traditional litigation by Indian advocates. 

The notification states that the BCI "resolves to amend the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, earlier gazetted on 10th March, 2023." 

It further enforces the amended rules which "shall come into effect immediately upon publication in the Official Gazette". 

Notably, 'reciprocity basis' finds its roots under S. 47 of the Advocates Act 1961, as per which foreign lawyers can practise in India only if their respective home countries allow lawyers from India to practise there upon similar conditions. 

As per the recent development, BCI states that Indian lawyers and firms can register as 'foreign lawyers or foreign law firms' in other countries to expand their global practice without giving up their domestic practice. 

The notification also clarifies that foreign firms or foreign lawyers will be allowed to take part in International Commercial Arbitrations happening in India as long as it involves an element of foreign law/ international law.

The relevant portions of the notification state : 

"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."

"It is noteworthy that the proficiency and standards of Indian lawyers are comparable to international standards, and the legal fraternity in India will be in advantage if law practice in India is opened to foreign lawyers in a restricted, controlled, and regulated manner based on the principle of reciprocity. Such an approach would be mutually beneficial for both Indian and foreign lawyers, and these rules represent a step by the Bar Council of India in this direction."

"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."

Notably, the BCI in 2023 decided to permit foreign lawyers and law firms to practice foreign law in India on a reciprocity basis. The areas of practice of law by a foreign lawyer or a Foreign Law Firm shall be laid down by the Bar Council of India, in consultation with the Law Ministry, if need be. 

It had in 2023 notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022. The Objects and Reasons of the Rules state: 

"The Bar Council of India 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...opening up of law practice in India to foreign lawyers in the field of practice of foreign law; diverse international legal issues in non-litigious matters and in international arbitration cases would go a long way in helping legal profession/domain grow in India to the benefit of lawyers in India too."

It said this opening up will be restricted, well-controlled and regulated to ensure that it is mutually beneficial for lawyers from India and abroad.

It is significant to note that the Supreme Court had, in BCI v. AK Balaji, held that foreign law firms/companies or foreign lawyers cannot practice the profession of law in India either in the litigation or in the non-litigation side. It said that they can only give advice to Indian clients on a 'fly in and fly out' basis in a temporary basis. It had also held that foreign lawyers cannot be debarred from coming to India to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.

What Is The Eligibility Criteria And Registration Process For The Foreign Firms/Lawyers? 

Rule 3 specifies the following : 

(1) A foreign lawyer or foreign law firm shall not be permitted to practice law in India unless registered with the Bar Council of India under these Rules. This applies to Indian Advocates and Indian Law Firms seeking registration as Foreign Lawyer and Foreign Law Firm as per applicable rules hereinunder

Provided that this prohibition shall not apply to the practice of law by a foreign lawyer or foreign law firm conducted on a "fly-in, fly-out" basis, subject to the following conditions.

(a) Such practice is strictly limited to providing legal advice to clients in India concerning foreign law, the foreign lawyer's own legal system, or diverse international legal issues, and must not amount to "practice" as defined under Indian law.

(b) The engagement or expertise of the foreign lawyer or foreign law firm must be procured by the client either in a foreign country or in India.

(c) The foreign lawyer or foreign law firm must not establish, operate, or maintain any office, infrastructure, or regular presence in India for the purpose of such legal practice.

(d) The total duration of such practice in India shall not exceed 60 days in aggregate within any 12-month period, with the calculation starting from the first day of arrival in India. All subsequent days of presence within the 12-month period shall be counted consecutively, regardless of any interim departure and re-entry into India.

(e) In case of any dispute regarding whether the foreign lawyer's activities qualify as permissible "fly-in, fly-out" practice or constitute prohibited "practice" under Indian law, the matter shall be determined by the Bar Council of India.

(f) All rules and regulations that apply to registered foreign lawyers and registered foreign law firms to govern their activities including extending the applicability of the Code of Ethics to foreign lawyers and foreign law firms shall also apply to foreign lawyers and foreign law firms engaging in "fly-in, fly-out" practice except where explicitly exempted under these rules.

(2) Right to practice law in the concerned 'foreign country of the primary qualification' shall be the primary qualification for practicing law in India under these rules. Furthermore, if the foreign lawyer or foreign law firm (including Indian Lawyer or Indian-Foreign Law Firm seeking registration/registered as Foreign Lawyer or Foreign Law Firm) seeks to practice the foreign law of other jurisdictions and/or international law, they must possess the requisite qualifications and authorization to practice in those respective jurisdiction and areas of law. 

What Would Be Practice Areas For Foreign Lawyers/Firms? 

Rule 8 of the amended Rules outlines the scope and nature of practice by foreign law firms in India. The relevant portion states as follows : 

(1) A foreign lawyer or Law firm registered under rules shall be entitled to practice law in India in non-litigious matters only, subject to such exceptions, conditions and limitations as are laid down under these Rules. Such a lawyer shall be deemed to be an advocate within the meaning sections 29, 30 and 33 of the Act qua such acts and deeds as are envisaged or permitted to be performed by him under these Rules as a foreign lawyer. However, a foreign Lawyer or Foreign Law Firm shall not be subject to proceedings under Chapter V of the Advocates Act; rather in case of any substantive misconduct, the Bar Council of India may cancel the registration of such Foreign Lawyer or Foreign Law Firm as the case may be.

(2) (a) The areas of practice for foreign lawyers and foreign law firms in India shall be determined and laid down by the Bar Council of India. If deemed necessary, the Bar Council of India may consult the Government of India, Ministry of Law and Justice in this regard.

(b) Foreign lawyers and foreign law firms are strictly prohibited from appearing before Indian courts, tribunals, or other statutory or regulatory authorities unless explicitly permitted by the Bar Council of India or as provided under these Rules.

(c)Foreign lawyers and foreign law firms are prohibited from performing the following activities

i.Conveyancing of property, title investigation, or similar work.

ii. Drafting, preparing, or filing documents for proceedings before Indian courts, tribunals, or other authorities empowered to record evidence on oath.  

(d) Prohibited activities listed under these Rules shall be enforceable through penalties, including suspension or cancellation of registration, as prescribed under Rule 10. 

(e) The practice of law by a foreign lawyer or foreign law firm in India shall be limited to non-litigious areas involving foreign law and/or international law. Permissible areas of practice include

(I) Engaging in corporate legal matters such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts, and other related transactional work, provided such work is on a reciprocal basis.

(II) Representing clients in both institutional and ad hoc international arbitration cases conducted in India provided such representation does not contravene the provisions of these Rules or the Advocates Act, 1961. Such clients may include individuals, firms, companies, corporations, trusts, or societies with their principal office or address in a foreign country. These arbitration cases may involve foreign law, international law, or the laws of jurisdictions other than the lawyer's home country.

(III) Providing legal advice and opinions concerning the laws of their country of primary qualification, international law, and the foreign laws of jurisdictions other than the country of primary qualification. 

(IV) The practice of law by foreign lawyers or foreign law firms in India shall further include the following specific areas

(a) Providing legal advice, conducting transactions, and giving opinions on the laws of their country of primary qualification, international law, and the foreign laws of other jurisdictions.

(b) Representing clients in international arbitration cases conducted in India. Such clients may include individuals, firms, companies, corporations, trusts, or societies with their principal office or address in a foreign country. These arbitration cases may involve foreign law, international law, or a combination thereof.

(c) Providing legal expertise and advice, and appearing as a lawyer for : (I) Entities having a principal office or address in the foreign country of their primary qualification or any other foreign country; (II) Entities or individuals seeking advice or assistance related to foreign law of any country and/or international law, in proceedings before bodies other than courts, tribunals, boards, or statutory authorities that are not legally empowered to record evidence on oath. Such work must involve essential knowledge of foreign law of the country of primary qualification, as well as international law and the foreign laws of other jurisdictions involved.

The Notification can be read here.