What is going to change in the practice of lawyers after the coming of this law?

A major decision has been taken regarding the legal profession. The apex body Bar Council of India ie BCI has allowed foreign lawyers and law firms to practice in India. According to this decision, foreign lawyers cannot appear in court, they can only act in connection with corporate transactions or advise their clients on foreign law. 

What is the BCI decision?

On March 13, the BCI gave an official notification. In the information, BCI said that both Indian and foreign lawyers will benefit from this. Foreign lawyers and law firms will be able to work in India. For this a rule has been made for Foreign Law Registration and Regulation-2022. 

BCI has clearly said that with some restrictions, this decision will be ensured that it is in the interest of India and foreign lawyers. BCI is a statutory body established under the Advocates Act, 1961, and it oversees legal practice and legal education in India.  

After this decision, BCI has argued that its move will end the concerns about foreign direct investment in the country. This will make India a hub for international commercial arbitration.  These rules will provide legal clarity to foreign law firms who currently operate in India in a very limited manner. 

BCI in its statement said that this rule will work towards streamlining the practice of international arbitration cases in India with foreign law and different international law. 

What is going to change in the profession of lawyers?

The Bar Council has been opposing any proposal for the entry of foreign lawyers in the country. In 2018, the Supreme Court also agreed with his point that foreign lawyers cannot be allowed to practice in India under the existing law.

Now with the new decision in the country  More professionalism will be seen in the entry of foreign lawyers.  Large market will be available for foreign lawyers even in a limited range, as a large number of foreign companies are working in the country and many more companies are going to invest. 

As per the new rule, foreign lawyers and law firms have been allowed to register with BCI to practice in India. Under this he will be entitled to practice the law of his country, he cannot practice Indian law. 

Furthermore foreign lawyers or foreign law firms will not be allowed to appear in any court, tribunal or before any statutory or regulatory authorities. 

 Know the Terms

• As per the new rule, foreign lawyers and law firms will be able to practice only in non-litigation cases.
•  Foreign lawyers or firms will have to register with the BCI to practice in the country . 
• The registration charge for a foreign lawyer is $25,000 while for a law firm it is $50,000. This registration will be valid only for five years.
• The foreign lawyer or law firm needs to apply for renewal in Form-B within 6 months.
• Foreign lawyers Joint ventures, mergers and acquisitions, matters relating to intellectual property, drafting of contracts, etc. will be allowed to practice   
• One or more foreign lawyers or foreign law firms registered in India Can also partner with. 

How were foreign law firms operating till now?

The issue of foreign law firms entering the Indian market was brought before the Bombay High Court in 2009. The Bombay High Court in the case ‘Lawyers’ Collective v. Union of India’ essentially held that only Indians possessing an Indian law degree can practice law in India.

As per Section 29 of the Advocates Act in the High Court, only advocates enrolled with the BCI can practice law. The High Court also said that ‘practice’ would include both litigious and non-litigative practice.

That’s why foreign companies could neither advise their clients in India nor appear in court. In 2012, this issue came up before the Madras High Court in the case ‘AK Balaji vs Union of India’.

In 2015, the Supreme Court in a judgment gave some recognition to the practice of foreign law firms. The Madras High Court in the case ‘AK Balaji vs Union of India’ also held that foreign companies cannot practice on the litigation or non-litigation side unless they fulfill the Advocates Act and BCCI regulations.

In the new judgment it was said that foreign lawyers can take Indian clients only on a temporary basis i.e. ‘fly in and fly out’ Can advise on mods. It has also been said in the judgment  That nothing shall prevent foreign lawyers from coming to India to conduct arbitration proceedings in respect of contractual disputes relating to international commercial arbitration.

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Further, keeping in view the objectives of international commercial arbitration as introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers shall not be debarred from coming to India and conducting arbitration proceedings in contractual disputes relating to international commercial arbitration.

Business Process Outsourcing (BPO) already in the legal profession  Firms like, Legal Process Outsourcing (LPO) have made rules for lawyers. It was said that earlier they were working in an uncertain legal framework and the Supreme Court had to intervene on the issue.

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What was the SC verdict?

The case of AK Balaji vs Union of India was challenged by the Madras and Bombay High Courts in the Supreme Court in 2018 by the BCI and Lawyers Collective. In 2018, the Supreme Court upheld both High Court rulings refusing to allow foreign law firms and lawyers, with some modifications, to allow foreign lawyers in some cases "fly in and fly out" Means could come to India to advise his client.

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In the new decision, the bench of Supreme Court Justices Adarsh ​​Kumar Goel and Rohington Nariman partially upheld the 2012 Madras High Court decision. This case was of ‘AK Balaji vs Union of India’. 

Now foreign law firms can come to India for some time and give advice. Apart from this, there is no objection to foreign lawyers coming to India for international arbitration cases. The only condition is that the rules of the Indian Legal Code will apply to them as well.

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The Supreme Court has also changed the provisions of the Advocate Act 1961. Under this provision, there was a complete ban on foreign lawyers in international business matters.

 

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