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THE BAR COUNCIL OF INDIA ISSUES CLARIFICATION TO AVOID MISAPPREHENSION AND MISINFORMATION

The Bar Council of India (“BCI”) on 10th March 2023 had issued a notification whereby it allowed foreign lawyers and foreign law firms to practice international law in India on a reciprocity basis. Since then, there has been a lot of confusion and misunderstanding related to the terms of the notification, and therefore, BCI has issued the current press release dated 19th March 2023 as a clarification titled “True facts about BCI’s Rules regarding Entry, Rules and Regulations of Foreign Lawyers and Law Firms in India”.

The BCI has emphasized that the rules are intended to encourage multinational corporations and foreign commercial entities to use India as a venue for arbitration proceedings.

Key considerations discussed in the press release 

The press release issued by the BCI aims to clarify certain points related to the practice and scope of work of foreign lawyers and foreign law firms in India. These points are as follows:

  1. The BCI has framed these rules and regulations in response to the Supreme Court’s direction to regulate the entry and management of foreign lawyers and foreign law firms in India.
  2. Foreign lawyers and foreign law firms can advise their clients on matters related to foreign and international laws only.
  3. The scope of work of foreign lawyers and foreign law firms will be limited to advisory services only.
  4. They can practice international law in the non-litigation area only and thus cannot appear before any court, tribunal, board or any other statutory or regulatory authority or forum except in arbitration cases where the foreign lawyer is permitted to appear for their client in international commercial arbitration.
  5. The entry of foreign lawyers and foreign law firms in India is based on the principle of reciprocity. This means that only foreign lawyers and foreign law firms from those countries in which Indian lawyers are allowed to practice law, can advise in India.
  6. The BCI is committed to protecting the interests and well-being of Indian lawyers and advocates.
  7. The entry of foreign lawyers and foreign law firms will not affect the scope of work or livelihood of Indian lawyers.
  8. The BCI looks to promote India as a venue for International Commercial Arbitration.

It is important to note that the specific terms and conditions of the notification and press release issued by the BCI should be carefully examined for a comprehensive understanding of the matter.

No effect on the Indian legal fraternity

The press release issued by the Bar Council of India emphasizes that the entry of foreign lawyers and foreign law firms in India is not going to have an adverse effect on the Indian legal fraternity. These rules encourage Indian advocates to embrace the rules in the national interest and highlights the importance of India becoming a preferred venue for international arbitration proceedings.

The BCI rules allowing foreign lawyers are limited in scope to advice on foreign law, and such advice can only be given to a person, firm, company, corporation, trust, society, etc., which has an address or principal office or head office in a foreign country.

It is important to note that the specific terms and conditions of the notification and press release issued by the BCI should be carefully examined for a comprehensive understanding of the matter.

Going forward

The notification dated 10th March 2023 and the current clarification issued by BCI elucidates that the rules have been issued in the backdrop of the BCI vs A K Balaji & Ors (Civil Appeal Nos.7875-7879 of 2015) wherein the Supreme Court has urged the government of India or the BCI to frame rules and regulations for the entry of foreign lawyers and foreign law firms in India. Significantly, there has been hesitation from the legal fraternity in accepting these rules, but the BCI has assured that it would no way affect the Indian advocates as the scope of work of the foreign lawyers and foreign law firms is limited to advisory work.

Additionally, the rules also mention that foreign lawyers and foreign law firms will only be able to represent their clients in international commercial arbitration. The rules framed and clarification issued thereafter have asserted on this, as through this, the BCI aims to enable India to be a preferred venue for international arbitration proceedings and thus become a hub for international commercial arbitration. Earlier, foreign parties to an arbitration were not allowed to bring foreign lawyers and foreign law firms from their countries to India which made them prefer other countries as a venue.

The BCI has said the rules were framed after the Supreme Court said in March 2018 that regulations should be put in place for the entry and management of foreign lawyers and foreign law firms. The press release added that the BCI is “dedicated to defending the interests and well-being” of Indian lawyers.

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BAR COUNCIL OF INDIA ISSUES CLARIFICATION TO AVOID MISAPPREHENSION AND MISINFORMATION

The Bar Council of India (“BCI”) on 10th March, 2023 had issued a notification whereby it allowed foreign lawyers and law firms to practice international law in India on a reciprocity basis. Since then, there has been a lot of confusion and misunderstanding related to the terms of the notification, and therefore, BCI has issued the current press release dated 19th March, 2023 as a clarification titled “True facts about BCI’s Rules regarding Entry, Rules and Regulations of Foreign Lawyers and Law Firms in India”.

The Bar Council reiterated that these rules would encourage multinational corporations and foreign commercial entities to use India as a venue for arbitration proceedings. 

Key considerations discussed in the current press release 

Following are the major points regarding which the press release has been issued so as to avoid any misapprehension and misinformation to the advocates and the general public in regards to the practice and scope of work of the foreign lawyers and law firms:

  1. They can advise clients on matters related to the foreign and international laws only;
  2. They can only perform advisory work;
  3. They can practice international law in the non-litigation area only and thus cannot appear before any court, tribunal, board or any other statutory or regulatory authority or forum except in arbitration cases where the foreign lawyer is permitted to appear for their client in international commercial arbitration;
  4. Entry is based on the principle of reciprocity, i.e., foreign lawyers of those country in which Indians can practice, can only advise in India.
  5. BCI looks to promote India as a venue for International Commercial Arbitration.

No effect on the Indian legal fraternity

The press release assures the Indian legal fraternity that the entry of foreign lawyers and law firms in India is not going to have an adverse effect on them and urges the Indian advocates to embrace the rules in the national interest. These rules emphasize on the importance of India becoming a preferred venue for the international arbitration proceedings and encourages that Indian advocates shall avoid resorting to London, Singapore, Paris, etc. as a venue to the arbitration proceedings.

The BCI Rules allowing foreign lawyers is limited in its scope to advice on foreign law and such advice can be given only to a person, firm, company, corporation, trust, society etc. who/which is having an address or principal office or head office in a foreign country.

Going forward

The notification dated 10th March, 2023 and the current clarification issued by BCI explicates that the rules have been issued in the backdrop of the BCI vs A K Balaji & Ors (Civil Appeal Nos.7875-7879 of 2015) wherein the Supreme Court has urged the government of India or the BCI to frame rules and regulations for the entry of foreign lawyers and law firms in India. Significantly, there has been hesitation from the legal fraternity in accepting these rules but the BCI has assured that it would no way affect the Indian advocates as the scope of work of the foreign lawyers and law firms is limited to advisory work.

Additionally, the rules also mention that foreign lawyers and law firms will only be able to represent their clients in international commercial arbitration. The rules framed and clarification issued thereafter have asserted on this, as through this, the BCI aims to enable India to be a preferred venue for international arbitration proceedings and thus become a hub for international commercial arbitration. Earlier, foreign parties to an arbitration were not allowed to bring foreign lawyers and law firms from their countries to India which made them prefer London, Singapore, and the likes as a venue.

The BCI said the rules were framed after the Supreme Court said in March 2018 that regulations should be put in place for the entry and management of foreign lawyers and law firms. The press release added that the BCI is “dedicated to defending the interests and well-being” of Indian lawyers.