Bar Council of India Allows International Law Firms to Practices in India

(Judicial Quest News Network)

New Delhi [India], March 15: The Bar Council of India (BCI), will have no objection for international law firms and counsel to practice in India, in a strategic and significant move of policy intended to invite more foreign investment.

The BCI has come out with Bar Council of India Rules Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India,2022  to enable international lawyers and arbitration practitioners to advise in India.

In India Legal profession is treated as a noble profession. There is and should be no commercial competition or procurement associated with the Legal Profession. Legal Profession is not treated as a commercial activity or service in India. Law is not a trade, and briefs no merchandise so the leaven of commercial competition or procurement should not vulgarize the legal profession.

Time has come to take a call on the issue. Bar Council of India is of the view that 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.

The BCI has further stated that it is noteworthy that the standards of Indian lawyers in proficiency in law is comparable with the international standards and the legal fraternity in India is not likely to suffer any disadvantage in case law practice in India is opened up to foreign lawyers in a restricted and well controlled and regulated manner on the principle of reciprocity as it would be mutually beneficial for lawyers from India and abroad and these Rules are an attempt by Bar Council of India in this direction.

These rules will also help to address the concerns expressed about flow of Foreign Direct Investment in the country and making India a hub of International Commercial Arbitration. In case, we sleep over the matter, the legal fraternity of India may be left behind in providing legal/professional expertise in accordance to the rule of law in a manner consistent with the best interests of this fast growing class of clients in India. Let us ensure than an opportunity for creating development and growth for legal profession and in the legal sphere in India is not lost.

Taking an all-inclusive view, 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.

Short title, extent and commencement

(a) These Rules shall be called as the Bar Council of India Rules for registration and regulation of foreign lawyers or foreign law firms in India.

(b) These Rules shall come into force in whole of India as soon as notified in the official Gazette. 2. Definitions. : –

(i) ‘Act’ means The Advocates Act, 1961 as amended from time to time. (ii) The definitions of different terms as given in the Act shall apply to these Rules as well.

(iii) ‘Foreign lawyer’ means a person, including a law firm, limited liability partnership, company or a corporation, by whatever name called or described, who/which is entitled to practice law in a foreign country. Indian lawyer’s means an Advocate enrolled on the roll of any of the State Bar Council of India in accordance with the provisions of the Advocate Act, 1961. Indian law firms means as partnership/LLP firm with Indian Lawyers as its partners.

(iv) ‘Foreign Country’ means a country, which is recognized as such by the Government of India and it includes a constituent State thereof in case such as a foreign country has a federal structure of governance and such constituent State has its own justice-delivery system and a separate class of persons entitled to practice law.

(v) ‘Country of the primary qualification’ means a foreign country in which the foreign lawyer is entitled to practice law as per law of that country.

(vi) ‘Foreign law’ means a law, which is or was effective, in the country of primary qualification. (vii) ‘Competent Authority of the foreign country’ means the government or a Court of law or a statutory authority or Bar Council or Legally authorized Association or any other legally recognized and constituted body by whatever name called or described, which is competent to grant license to practice law.

(viii) “International commercial arbitration’ means an alternative method of resolving disputes concerning commercial transactions which is conducted in India in which all or any of the parties are persons/entities who have their registered address or principal office or head office in a foreign country.

(ix) “International arbitration case’ means an arbitration case concerning a commercial or monetary matter which is conducted in India in which all or any of the parties are persons who have an address or principal office or head office in a foreign country.

(x) Foreign client means an individual/s who is/are citizen/s of a foreign nation or a firm/corporation/business entity having its registered office/head office in a foreign country with a branch/regional office or manufacturing unit in India.

CHAPTER-II REGISTRATION OF FOREIGN LAWYERS OR FOREIGN LAW FIRMS AND THE EXTENTAND CONDITIONS SUBJECT TO WHICHTHEY CANPRACTICE LAW IN INDIA

3. Registration of foreign lawyers or foreign law firms and eligibility criteria there for.:–

(1) A foreign lawyer or foreign law firm shall not be entitled to practice law in India unless he/it is registered with the Bar Council of India under these Rules: Provided that this prohibition will not apply to law practice by a foreign lawyer or foreign law firm in case such practice is done on a ‘fly in and fly out basis’ for the purpose of giving legal advice to the client in India regarding foreign law and on diverse international legal issues and provided further that such expertise/advise of such a foreign lawyer or foreign law firm had been procured by the client in a foreign country and foreign lawyer or foreign law firm does not maintain an office in India for the purpose of such practice and lastly such practice in India for one or more periods does not, in aggregate, exceed 60 days in any period of 12 months.

(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.

APPLICATIONS FOR REGISTRATION, RENEWAL OF REGISTRATION AND MATTERS CONNECTED WITH LAW PRACTICE IN INDIA

4. Application for registration.-

(1) A foreign lawyer or foreign law firm may apply for registration under these rules in ‘FORM A’ appended to these Rules along with registration fee and guarantee amount either in person or through registered Post. This application and fee may also be submitted on-line. Such an application shall also be accompanied by non-refundable Process charges of such an amount as may be fixed by Bar Council of India from time to time. This application shall be addressed to the Secretary, Bar Council of India and shall be accompanied by the following documents:

(i) A certificate from the Government of India, (Ministry of Law & Justice and Ministry of External Affairs and Trade) or such other authority or officer as Union Government may authorize in this behalf that an effective legal system exists in concerned foreign country of the primary qualification and that it has no objection in case the applicant is registered under these Rules and practices law in India; (However the Bar Council of India may seek any information from any departments/Ministries of any foreign Countries, if it thinks [भाग III—खण् ड 4] भारत का रािपत्र : असाधारण 19 necessary and/or it may contact any. Foreign Government/Department in case if any information required.)

(ii) A certificate from the Competent Authority of the concerned foreign country of primary qualification certifying that the applicant is entitled to practice law in that Country;

(iii) A certificate from the Government of the foreign country of primary qualification or from a competent Authority thereof certifying that advocates enrolled under the Advocates Act, 1961 are permitted to practice law in that country in the manner and to the extent which is comparable to the law practice permitted under these Rules along with copies of the relevant Laws and Rules;

(iv) A certificate from the Competent Authority of the concerned country of primary qualification or any other competent authority/ies, Courts, Bar Association, Bar Council etc. that the applicant has been in practice in that country;

(v) A certificate of the competent authority of the concerned foreign country of primary qualification that no proceedings of professional or other misconduct are pending either before it or before any other authority competent to entertain and decide such proceedings;

(vi) A certificate of the competent authority of the concerned foreign country of primary qualification giving details of the fee structure and other amounts chargeable from an advocate enrolled under the Act for enabling him to practice law in that country along with relevant Rules and Laws;

(vii) ‘No objection Certificate’ of the competent authority of the concerned foreign country of primary qualification that it has no objection in case the applicant starts law practice in India and that the applicant enjoys a good standing in the Bar.

(viii) A declaration on affidavit that the applicant has not been convicted of any offence and has not suffered any adverse order in any disciplinary matter. (In case he has suffered relevant attested any conviction/adverse order, copies of the order of conviction/adverse order and other related documents about the matter like appeal and stay, if any, or sentence/fine suffered/paid etc. are to be annexed);

(ix) A declaration on affidavit that the applicant has no objection and consents to the making of enquiries and investigation by the Bar Council of India on its own or through such government or non-government investigating agency, as it may deem fit, to verify the veracity of the particulars disclosed by the applicant in the application and genuineness of the documents annexed therewith;

(x) An undertaking on oath that he/it shall not practice Indian law in any form or before any court of Law, Tribunal, Board or any other Authority legally entitled to record evidence on oath;

(xi) A declaration on oath that he/it shall not be entitled to and shall not claim any interest on the guarantee amount deposited by him/it with Bar Council of India at the time of registration under these Rules and that the Bar Council shall be entitled to adjust and apply this guarantee amount to the penalty and cost amounts that may be awarded by the Bar Council of India under the provisions of these Rules;

(xii) A declaration on oath that the applicant fully understands and appreciates the fact that on registration under rule 7 of these Rules, the Advocates Act, 1961 and Rules made there under, mutatis mutandis, apply to him/it in respect of law practice by him/it in India and that he/it is subject to the jurisdiction of Courts of Law in India and to the jurisdiction of Bar Council of India in relation to such practice. 5. Validity of registration and renewal of registration. :–

(1) The registration done under rule 7 shall be valid for a period of 5 (five) years only and the foreign lawyer and/or Law Firm would be required to renew it by filing an application for renewal in Form B within 6 months before the date on which such validity expires.

(2) A foreign lawyer or foreign Law Firm may apply for renewal of registration under these rules in ‘FORM B’ appended to these Rules along with renewal fee either in person or through registered Post.

(3) This application for renewal shall be addressed to the Secretary, Bar Council of India and shall be accompanied by the following documents: (i) A certificate from the government of India or such other authority or officer as it may authorize in this behalf that an effective legal system continues exist in concerned foreign country of the primary qualification since his/its registration under rule 7 and that it has no objection in case the registration of the applicant is renewed under these Rules and he/it continues to practice law in India;

(ii) Certificate from the Competent Authority of the concerned foreign country of primary qualification certifying that the applicant continues to be entitled to practice law in that Country since his/its registration under rule 7;

(iii) A certificate from the government of the foreign country of primary qualification or from a competent Authority there of certifying that advocates enrolled under the Advocates Act, 1961 are continued to be permitted to practice law in that country in the manner and to the extent which is comparable to the law practice permitted under these Rules since his/its registration under rule 7 along with copies of the relevant law and Rules.

(iv) Certificate of the competent authority of the concerned foreign country of primary qualification that no VIEWS proceedings of professional or other misconduct have been filed either before it or before any other authority competent to entertain and decide such proceedings since his/its registration under rule 7;

(v) “No objection Certificate of the competent authority of the concerned foreign country of primary qualification that it has no objection in case the applicant continues to practice law in India.

(vi) A declaration on affidavit that the applicant has not been convicted of any offence and has not suffered any adverse order in any disciplinary matter after registration under rule 7. (In case it/he has suffered any conviction/adverse order, relevant attested copies of the order of conviction/adverse order and other related documents about the matter like appeal and stay, if any, or sentence/fine suffered/paid etc. are to be annexed);

(vii) A declaration on affidavit that the applicant has no objection and consents to the making of enquiries and investigation by the Bar Council of India on its own or through such government or non-government investigating agency, as it may deem fit, to verify the veracity of the particulars disclosed by the applicant in the application for renewal and genuineness of the documents annexed therewith. (4) The Bar Council of India may refuse to register any Foreign Lawyer or Foreign Law Firm, if in the opinion of the Council, the number of Foreign Lawyers or Foreign Law Firms of any particular Foreign country registered in India is likely to become disproportionate to the number of Indian Lawyers or Indian Law Firms registered or allowed to practice law in the corresponding foreign country. Bar Council of India may limit the number of registration of Foreign Lawyers and/or Foreign Law Firm in order to maintain a balance or to ensure complete reciprocity or to protect the interest of Indian Law Firms/Indian Lawyers.