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The Bar Council of India on Wednesday allowed foreign lawyers and law firms to practise foreign law in India, offering a limited opening to a sector that has remained shut to foreign entities so far.

According to experts, this will help address concerns about the flow of foreign direct investment into the country and make India a hub of international commercial arbitration. The Bar Council of India is a statutory body that regulates and represents the Indian bar.

“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 legal profession/domain grow in India to the benefit of lawyers in India too," a gazette notification by the council said.

It added that the Indian legal community is unlikely to experience any disadvantage when the country opens up law practice to foreign attorneys in a limited, well-regulated manner based on the principle of reciprocity.

So far, foreign law firms or foreign lawyers were not allowed to practise law in India either on the litigation or non-litigation side unless they fulfilled the requirement of the Advocates Act, 1961 and the Bar Council of India Rules. However, neither the Act nor the Rules restrict foreign law firms or foreign lawyers from travelling to India temporarily on a “fly-in and fly-out" basis to provide legal advice to their Indian clients regarding foreign law or their home country’s legal system, as well as various international legal issues.

Many countries have already allowed foreign lawyers to practise foreign law, diverse international legal issues, and arbitration matters in their countries with some riders.

“It is good to see a definite direction in place now. However, I do not see any knee-jerk impact or overnight mushrooming of foreign law firms or foreign lawyers in the country," said Rohit Jain, managing partner at law firm Singhania and Co.

One fine print in the regulations is that permission is subject to reciprocity which means that the council will first examine the relevant rules to ascertain reciprocity with the foreign country concerned, Jain said.

“Effectively, this may require amendment in the rules of the corresponding foreign country also for these regulations to be implemented. In the long run, maybe we might witness consolidation or acquisition of mid-size and smaller firms," Jain said.

According to Jain, foreign law firms will have to retain Indian lawyers to advise on Indian law. Regulation 8 of Bar Council rules indicates that the intent is to allow foreign lawyers to advise on matters in which the laws of their respective countries are involved or in international arbitration.

Essentially, the rules make it clear that a foreign lawyer or law firm will not be allowed to practise law in India without first registering with the Bar Council of India.

Sameer Jain, managing partner at PSL Advocates and Solicitors, believes the problem area appears to be Rule 8(2)(v) of Bar Council rules which prohibits an India-qualified lawyer working as a partner or otherwise in an India-registered foreign law firm from undertaking contentious court litigation.

“Essentially, the same restrictions will apply to them as is applicable to foreign lawyers. The intent appears to be parity, and I see some logic in it," said Jain of PSL Advocates.

While international arbitration practices have been allowed for India-seated international commercial arbitrations, foreign lawyers and firms can only represent foreign companies and, possibly, Indian companies with an office in a foreign country, Jain added.

Priyanka Gawande
Priyanka Gawande is a senior legal correspondent at Mint. She has worked as legal reporter for four years with both television and digital mediums. Based in Mumbai, she reports on disputes across sectors including banking, corporates and finance. This also includes insolvency and bankruptcy cases and intellectual property rights (IPR) litigation. Her focus also comprises tracking capital markets and disputes relating to securities law. Previously, Priyanka worked with Informist Media for 2.5 years covering major insolvency and bankruptcy cases and corporate developments. She started her career in journalism with Business Television India (BTVi) where she reported on primary markets, banking, finance and insurance companies.
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