Bar Council of India permits foreign lawyers and law firms to practice in India

Although appearing in courts is prohibited, foreign law firms can set up offices in India to practise transactional and corporate work on reciprocal basis.

“A foreign lawyer registered under rules shall be entitled to practise law in India in non-litigious matters only,” the rules stated.

“The foreign lawyers or foreign law firms shall not be permitted to appear before any courts, tribunals or other statutory or regulatory authorities. They shall be allowed to practise on transactional work/corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts and other related matters on reciprocal basis,” the notification stated.

“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 with the rule of law in a manner consistent with the best interests of this fast growing class of clients in India,” the Objects and Reasons of the notification stated.

For a lawyer with a foreign law degree to be eligible to practise in India, he or she must be entitled to practise in his or her country and will also be required to register with the BCI.

The reciprocity rule, however, will not apply if the foreign lawyer or law firm works on ‘fly in and fly out’ basis to advise Indian clients on foreign law.

In 2015, the Supreme Court had interpreted the Advocates Act to allow ‘fly in and fly out’ practice by foreign lawyers. This meant that foreign lawyers could be engaged as counsel in international commercial arbitration on cases involving foreign law. Significantly, the restrictions on foreign lawyers and law firms will also apply to Indian lawyers working with foreign law firms.

The rules also stated that the areas of law practice by a foreign lawyer or foreign law firm shall be laid down by the BCI and “if need be, the Bar Council of India may consult the Govt. of India, Ministry of Law and Justice in this regard”.

Significantly, under the rules, the BCI may also refuse to register any foreign lawyer or 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 practise law in the corresponding foreign country”.

Nishith Desai, Founder, Nishith Desai Associates, told The Indian Express: “We welcome this development as we feel that their entry will create opportunities for Indian law firms to be exposed to global best practices and encourage healthy competition. However, it is important to recall that one of the biggest concerns of most Indian law firms is whether foreign law firms would indirectly or in a surrogate manner practise Indian laws. This is where stricter oversight would be required.”