Lately the Bar Council of India has brought out a notification titled “Rules for Registration and Regulation of Foreign Lawyers and Law Firms in India, 2022” paving way for many law firms and lawyers put up outside India to practice in the country. Regulation has not availed a flexibility so much so that foreign firms appear before the courts tribunals or other statuary authorities where affirmation is mandatory. But this stand taken by the Bar Council is a great shift in comparison to its act of opposing the idea of foreign based establishments to enter India, for over a decade.
The concerns regarding flow of foreign direct investments in the country will be kept on check with the possibility of India becoming a one stop destination for international commercial arbitration. Gates have been opened for promoting the practical aspects of international law and arbitration matters in India but are barred from practicing Indian law.
This is adherence to Advocates Act, 1961 which allows only those who are enrolled in Bar Council of India to be entitled to practice law in contrast to which one can appear as a litigant with the due permission of the court before which the appearance is sought after. Few matters in which these International firms and lawyers can deal with include Intellectual Property Rights, joint ventures, merges and acquisitions, drafting of contracts, etc. However, they should abstain from doing any work related to conveyancing of property, or works related to investigation of title and so on. Lawyers in India collaborating and working with the foreign lawyers will be restricted from practicing litigation-oriented matters but may deal in non-litigious practice.
IMPACT ASSESSMENT
There will be a huge scope for consolidation for firms that deal extensively in mergers and acquisitions. By allowing them to practice here, India’s recognition in the global context will increase in areas of trade and Commerce. With Artificial Intelligence (AI) surfacing largely in the years to come India will enjoy a good pool of talents diversifying the legal domain of India that will be a good assessment of how other nations treat Indian lawyers in their jurisdiction. This is in the background of the case of BCI vs AK Balaji, back in 2018 that restricted foreign law firms, corporations, and attorneys from practicing law with the litigation or non-litigation in India. A term ‘temporary fly in fly out services was introduced to be offered to the Indian clients. In the existence of this case foreign attorneys were permitted to practice commercial arbitration. But the situation in the United Kingdom was different. It authorised Indian lawyers and law forms to established the offices in England and Wales to widen the scope enough to enable them practice Indian law, international law, and bestowing the authority of providing legal advice under matters pertaining to English law. Claims what to be verified an appropriate response was to be provided accordingly. It was in the September 2022, when representatives of the Law Society of England and Wales and the UK Government of International Trade held discussions with the representatives of the Indian law firms to enable them to be a part of the legal service sector post culmination of the United Kingdom-India comprehensive Free Trade Agreement (UK-I-FTA).
In short entering into transaction businesses, and giving legal advice pertaining to laws of the country of primary qualification is one of their core functions;
1. Giving legal advice or acting as an attorney on behalf of the person whose headquarters is in the foreign country of primary qualification, but the exception being arbitration matters that are handled in India irrespective of involvement of foreign matter or otherwise. This may include representation of a person or a firm settled in foreign land of primary qualification. The legal advice in pursuant to such matters shall not include representation before the courts or tribunals but only statutory bodies which are not legally entitled to take oath or affirmation and where knowledge of foreign law is essential;
2. Advice on non-litigious matters shall only be provided by Indian advocates registered under the Advocates Act, 1961. In addition to this one has to be a partner or an associate of a foreign law practice registered in India. No additional benefits shall be accrued on account of being registered in India for the purpose of litigation;
3. For carrying out the above-mentioned activities they have to be registered with the Bar Council of India. There will be no prohibition to practice if it is done by a foreign lawyer or law firm on fly in fly out basis and an aggregate not exceeding 60 days and any 12 months period. Once the foreign firm is registered abiding by the due registration procedure, it shall be valid for a period of 5 years.
CONCERNS AND WAY AHEAD
Inspired from the trend of liberalisation these International firms will progress steadily with a lot of caution and the Indian market. Before settling down a bit they would want some clarity on the terms and conditions of functioning in India. According to the news reports few forms may want to attend the position of first mover advantage for their clients and establish a bit early in contrast to which, the other preference being to watch the space with anticipation before entering the market.