In a watershed development for India’s legal profession, the Bar Council of India (BCI) has notified the ‘Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India 2022’ (Rules). With the objective of opening-up the practice of law in India to foreign lawyers, the BCI has resolved to implement these Rules so as to enable foreign lawyers and law firms to practice certain fields of law in India in a well-defined, regulated and controlled manner.

In terms of Chapter II of the Rules, any foreign lawyer or law firm desirous of practicing law in India shall be amenable to registration and be regulated by the BCI in accordance with these Rules. However, the Rules shall not apply to foreign lawyers or law firms in cases where advice is being rendered on a “Fly-in and Fly-out basis” where their services have been engaged by a client situated in a foreign country and where the period of practice in India does not, in aggregate, exceed 60 days in any period of 12 months.

It shall be mandatory for foreign lawyers and law firms desirous of practicing in India to apply for registration in accordance with Rule 4. The application shall be accompanied with a registration fee and a deposit/guarantee amount in accordance with the Schedule annexed with the Rules. The principle of reciprocity has been emphasized as one of the prime objectives behind promulgating these Rules. Consequently, along with other documentation required to be submitted with the application for registration, it shall be mandatory for a foreign lawyer/law firm to procure a certificate form the government of the ‘foreign country of primary qualification’ (country in which the foreign lawyer is entitled to practice as per the law of that country), certifying that advocates enrolled in India under the Advocates Act are permitted to practice law in that country. Once granted, the registration would be valid for period of five years after which the foreign lawyer/law firm would be required to renew the same in accordance with Rule 5 of the BCI Rules.

The discretion with regard to granting or refusing applications for registration shall vest with the BCI. That being said, the BCI may hold consultation with the Government of India and may also seek the opinion of the Hon’ble Chief Justice of India and/or any sitting Judge of the Supreme Court, Senior Advocate or Jurist on any issue relating to the registration or cancellation of any foreign lawyer or law firm. The Government of India shall also have right of recommending cancellation of the ground of national security or in the event the registration or renewal is against India’s national interest.

Upon grant of registration, a foreign lawyer/law firm shall be entitled to practice law in India in non-litigious matters subject to such exceptions and conditions as are laid down in the Rules. The BCI has made it clear that foreign lawyers/law firms shall not be permitted to appear before any courts, tribunals or other statutory regulatory authorities. Their areas of practice shall be restricted to transactional/corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts and other related matters.

The BCI Rules have also permitted foreign lawyers/law firms to open office(s) in India for carrying out the practice of law. The Rules also permit them to engage and procure the legal expertise of Indian advocates enrolled under the Advocates Act.

This breakthrough is being largely seen as a step in the right direction. The mushrooming of cross-border trade, e-commerce and international commercial arbitration has made the practice of law a global profession and can no longer be insulated within the confines of a single jurisdiction. The inflow of FDI in the legal services sector is not only going to boost India’s economy but shall also provide growth and employment opportunities for our young lawyers who are often starved of the same, especially during their initial years in practice. The Rules are likely to discourage the practice of shadow foreign law offices which have been existing in India over the last two decades.

These are exciting times for our profession and we look forward to welcoming the global community to our shores.

By - Arush Khanna