Entry Of Foreign Lawyers And Firms In Indian Legal Market To Be Notified By BCI By End Of July
Entry Of Foreign Lawyers And Firms In Indian Legal Market To Be Notified By BCI By End Of July
The Bar Council of India (BCI) is expected to announce and enforce amended regulations governing the entry of foreign lawyers and law firms by the end of July.
Currently, the Indian legal market will be accessible exclusively to lawyers and law firms from the United Kingdom (UK). This decision follows a meeting held at the Law Society's Hall in London, where discussions were conducted in collaboration with the Law Society and the Bar Council of England and Wales.
Efforts to liberalize India's legal market gained momentum last March when the BCI introduced the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022. Subsequently, a press release on March 19, 2023, announced that foreign law firms would be permitted to establish offices in India solely for advising their foreign clients on foreign laws.
However, implementation of these rules was delayed due to objections raised by the Society of Indian Law Firms (SILF), as well as requests from the Law Society and Bar Council of England and Wales for further clarification. Additionally, a legal challenge was filed in the Delhi High Court contesting the rules.
During a recent meeting at the Law Society, various issues related to the amended regulations were deliberated.
The session commenced with opening remarks from Law Society President Nick Emmerson, who stated that "In light of the regulations passed last year, we are keen to understand how we can work more closely with you (BCI) on the rules and their implementation. India is an immensely important jurisdiction for us, and it is a pleasure to host the Bar Council of India to further reaffirm our shared interests."
BCI Chairman Manan Kumar Mishra explained why the 2023 Rules are yet to be implemented. He said that the BCI has come with an open heart to open the Indian legal market to the UK.
However, concerns remain about international law firms based in London entering India. Currently, the BCI intends to limit market access to British lawyers and firms, excluding others who can operate on a 'fly-in, fly-out' basis.
During the meeting, several key issues were discussed:
1. The first issue addressed was Rule 8(2)(v): which restricts advocates enrolled with any State Bar Council in India and affiliated with foreign law firms to handling non-litigious matters and advising on non-Indian laws.
"Such Lawyer shall have no advantage/right of his being an Advocate enrolled in India," the Rules state.
The Law Society advocated for fewer or no restrictions on Indian lawyers employed by foreign firms. Mickael Laurans, Head of International at the Law Society, emphasized the need to enhance opportunities for Indian lawyers.
"It is also a question for you (BCI) to decide what you want for Indian lawyers in terms of opportunities to be able to join international law firms and what work they can do as part of that. There may be particular sensitivities around litigation but our preference would be fewer restrictions," he said.
Emmerson also noted that UK lawyers have little interest in litigation in India.
BCI agreed to examine this specific rule and make necessary amendments. However, it also underscored the importance of treating Indian lawyers in the UK with equal reciprocity.
2. Definition of Foreign Law: During the meeting, the debate centred around the definition of foreign law. As per the current Rules, foreign law pertains to laws effective in the lawyer's country of primary qualification.
Laurans proposed expanding their legal services to include English and international work, potentially in collaboration with Indian lawyers handling Indian legal matters.
The Bar Council of India (BCI) expressed interest in examining this technicality further.
3. Definition of Foreign Client: the discussion turned to defining foreign client, which currently refers to individuals from foreign nations or firms with offices abroad and operations in India.
The Law Society argued that establishing offices in India solely for advising foreign clients would be redundant when such services could be effectively provided from foreign jurisdictions.
In response, the Bar Council of India (BCI) concurred with this viewpoint and committed to revising the definition to encompass Indian clients as well.
4. Fly-in Fly-out Period: Another issue discussed was the duration for fly-in and fly-out visits. Currently set at 60 days, both the Law Society and the Bar Council of England and Wales proposed extending it to 90 days.
The Bar Council of India (BCI) agreed to review this proposal in accordance with the Supreme Court's AK Balaji judgment and make appropriate amendments as necessary.
5. Cost of Registering Individual Lawyers: UK counterparts raised concerns; BCI agreed to review the costs.
6. Disciplinary Jurisdiction: The next topic addressed was disciplinary jurisdiction. The Bar Council of India (BCI) noted concerns raised by stakeholders regarding disciplinary jurisdiction, advocating that it should remain under the purview of the BCI.
7. International Commercial Arbitration: BCI agreed to establish a Code of Conduct for the legal profession in accordance with the Supreme Court's AK Balaji judgment, specifically to regulate foreign lawyers involved in international disputes.
As the meeting concluded, Emmerson said,
"Everyone here today shares an ambition to strengthen the bonds of friendship between English, Welsh and Indian lawyers and to further the cooperation between our two jurisdictions. As both our countries go through historic general elections this year, and the UK-India free trade agreement negotiations continue, our close ties are as important now as they’ve ever been, adding weight to the importance of today’s meetings and tonight’s reception.
In the last couple of years, India has seen rapid growth, becoming the world’s fifth largest economy and aiming to be the third largest by 2028. An important part of continuing this trend is ensuring a strong legal sector. Here at the Law Society of England and Wales, we have extensive experience in the legal services sector and regulating an open jurisdiction.
We would like to continue our excellent engagement with the Bar Council of India and stand ready to share our learnings and expertise."
BCI Chairman Mishra, concluding his remarks, described the meeting as highly productive.
"We hope all these issues are resolved once we are back in Delhi," he said while announcing that the fresh regulations framed by BCI will most probably be implemented by the end of July. He added,
"We respect the sentiment of our government as per the free trade agreement (FTA) and will make the necessary amendments in our Rules that will suit you (UK) and suit our law firms and lawyers. With your cooperation, the Regulations will be implemented by the end of July."
Chairperson of the Bar Council of England and Wales, Sam Townend KC, said
"We had a really productive discussion with the Bar Council of India. There seems to be a good recognition of the different position of the self-employed Bar, which is interested in Fly In Fly Out for single arbitrations and not establishment of offices in India. I look forward to my further visit in October this year."
