Shedding its opposition, the Bar Council of India (BCI) on Wednesday took a significant decision to permit foreign lawyers and law firms to practise in areas such as foreign law, international legal issues and arbitration matters, saying that the legal fraternity here may be left behind if it sleeps over the matter.
The decision to notify the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, has evoked mixed reactions from bar leaders and eminent lawyers.
While the Supreme Court Bar Association (SCBA) president and senior advocate Vikas Singh termed the BCI rules allowing foreign Lawyers and law firms as a ”non-starter” for being ”cumbersome”, senior lawyer Rakesh Dwivedi hailed the decision saying Indian lawyers ”must raise” the standards and out-compete their foreign counterparts.
”I think the (BCI) rules are a non-starter. Because, if you see the conditions for grant of permission, they are so cumbersome that I don't think that anybody will meet the requirements and, secondly, even if they get the permission they will still not have the right to practise law,” the SCBA president told PTI.
”And lastly, the most disturbing part is that no disciplinary action can be taken against them (foreign lawyers, firms). Lawyers in India are subject to disciplinary action,” he said.
The only action which can be take against them is to withdraw the certificate and that is not a sufficient safeguard to ensure a level playing field for Indian advocates, he added.
Dwivedi, on the other hand, said,”I welcome the decision of BCI to allow foreign firms to practise in certain areas, on a reciprocal basis. We lawyers have nothing to fear. We must compete with them here in India as well as in reciprocal countries. We must raise our standards and out-compete them.”
Another senior advocate Vikas Pahwa termed the BCI decision as a ”propitious” change in Indian justice delivery system.
”Allowing foreign lawyers and foreign law firms to work in India on reciprocity basis shall be a propitious change in the justice delivery system of our country. However, I feel that the foreign lawyers and law firms may be permitted only to practise corporate law work like advising the clients on international and commercial laws, assisting in joint ventures, merger & acquisitions and other contractual legal works,” Pahwa said.
The litigation should be confined only to the Indian lawyers as foreigners may not be aware of the local laws and the ground realities regarding the complex nature of litigation in our country, he added.
The BCI, which was initially opposed to the entry of foreign lawyers and foreign law firms in India in any form, took the decision keeping in mind the changed circumstances and the best interests of Indian lawyers.
”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 the legal profession/domain grow in India to the benefit of lawyers in India too,” the notification said.
The standards of Indian lawyers in proficiency in law is comparable with the international standards and the legal fraternity here 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”, it said.
The notification said the rules will also help address the concerns expressed about flow of Foreign Direct Investment and making the country 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. Let us ensure that an opportunity for creating development and growth for the legal profession and in the legal sphere in India is not lost,” the BCI said.
Many countries have already allowed foreign lawyers to practise foreign law and diverse international legal issues and arbitration matters in restricted fields with specific and prescribed conditions, it said.
”Taking an all-inclusive view, the Bar Council of India resolves to implement these rules enabling 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,” the notification said.
