The authorised practise areas for foreign attorneys and law firms are unclear under the Regulations as they currently stand.
Announcing the Bar Council of India Rules for Registration and Regulation of Foreign Attorneys and Foreign Law Firms in India, 2022 (Rules) on March 10, the Bar Council of India (BCI) opened the door for the entrance of international attorneys and law firms into the Indian legal system.
The Regulations give international attorneys and arbitration professionals the ability to provide foreign and international law advice to clients in India.
To conduct their business in India, such attorneys and law firms must register with the BCI. They are permitted by the Regulations to establish offices in India.
But what sort of job are they capable of?
The Rules as they currently stand give such attorneys and legal firms a wide range of practise areas to choose from.
This article makes an effort to describe the range of work that foreign attorneys and law firms will be permitted to conduct.
Let’s start by examining what they CANNOT accomplish.
Litigation and appearing before tribunals and courts are prohibited.
It is abundantly evident from Rule 8(1) that a foreign lawyer registered in accordance with the Rules may only practise law in India in non-litigious circumstances.
This is further reaffirmed by Rule 8(2), which prohibits foreign attorneys or law firms from testifying in court.
Also, they are not allowed to participate in any job related to property conveyance, title research, or other tasks of a similar nature.
So, the admission of foreign law firms and lawyers will have no effect whatsoever on the litigation environment and will not have any bearing on litigating attorneys or law firms.
So what are they permitted to do?
Rule 8(2) answers this question.
The document indicates that they will be permitted to undertake transactional or corporate work on a reciprocal basis regarding joint ventures, mergers, and acquisitions, issues relating to intellectual property, contract drafting, and other similar concerns.
The Regulation goes into more detail about the kind of legal services that a foreign lawyer or law firm may provide.
- working, conducting business, and expressing opinions and advice regarding national legislation relevant to the core area of expertise of the involved attorney or law firm;
- providing legal counsel and representing clients in international arbitration proceedings held in India where “foreign law may or may not be implicated” on behalf of individuals, businesses, organisations, trusts, societies, etc. with addresses, major offices, or head offices abroad.
- providing legal counsel and making an appearance on behalf of a person, firm, company, corporation, trust, society, etc. with an address, principal office, or head office in the foreign country of the primary qualification in proceedings before bodies other than courts, tribunals, boards, or statutory authorities where knowledge of the foreign law of the foreign country of the primary qualification is necessary;
- offering legal expertise/advice on a variety of international legal issues as well as the laws of the primary qualification country, provided that, unless otherwise specified in these Rules, such legal expertise/advice shall not include representation or the preparation of documents regarding proceedings before an Indian court, tribunal, or any other authority competent to record evidence on oath, or the preparation of any documents, petitions, etc. to be submitted to an Indian authority.
The scope of work is limited to foreign law.
One significant finding from the Rules is that, with the exception of international arbitration cases, a foreign lawyer or law firm may only provide legal advice regarding foreign law.
According to the Rules’ goals and motivations, they are in place to allow foreign attorneys to practise foreign law in India.
According to the statement, “Taking an all-inclusive view, the Bar Council of India resolves to implement these Rules enabling the foreign lawyers and foreign law firms to practise foreign law and diverse international law and international arbitration matters in India on the principle of reciprocity.
This is reiterated in Rule 8 when it specifies that these attorneys and businesses are qualified to handle matters “concerning the laws of the nation of the principal qualification.”
However, Rule 8 specifies that international arbitration “may or may not include foreign law.”
Whom may they provide legal counsel or expertise to?
There seems to be some ambiguity here.
Only a person, firm, company, corporation, trust, society, etc. with an address or major office or head office in a foreign nation may receive such “legal advice” in particular specific circumstances.
For instance, only a person, firm, company, corporation, trust, society, etc. with an address or primary office or head office in a foreign country may provide assistance in international arbitration and for representing clients in proceedings before bodies (other than courts/tribunals etc.).
Some situations, however, do not involve this restriction.
To summarise, the following activities are prohibited:
- legal guidance on Indian law;
- testifying in front of any tribunals, courts, or other statutory or regulatory bodies;
- doing any job related to real estate conveyance, title research, or other comparable work;
- providing guidance, representation, or document preparation for proceedings before Indian courts, tribunals, or other authorities with the authority to record evidence.
Conclusion
The authorised practise areas for foreign attorneys and law firms are unclear under the Regulations as they currently stand.
However, as Rule 8(2) specifies that the BCI may specify the same in detail, additional clarity can be anticipated in this area.
“The Bar Council of India must set forth the areas of law that a foreign attorney or foreign law firm may practise. And if necessary, the Bar Council of India may consult the Ministry of Law and Justice of the Government of India over this “It declares.
