The Gazette wrote last year that monitoring the liberalisation of legal services in India has proved akin to waiting for Godot. Just last week, indeed, the Law Society declared its disappointment that legal services was excluded from the free trade agreement announced between the UK and India.
Suddenly, however, the optimists have been at least partly vindicated. The Bar Council of India (BCI) yesterday announced amendments to its regulations that will, for the first time, permit foreign lawyers and law firms to practise in India under specific conditions.
Those conditions are significant, according to the Bar Council’s statement. Foreign lawyers and law firms are ‘categorically prohibited from practising Indian law, and appearing before Indian courts, tribunals, or statutory authorities’. The scope of permitted practice for foreign lawyers 'is strictly confined to non-litigious areas involving foreign law, international law, and arbitration matters, particularly concerning cross-border transactions and international disputes'. Foreign lawyers seeking temporary entry for legal advice under ‘Fly-In, Fly-Out' provisions must limit their stay to 60 days a year.
The BCI has further determined that foreign lawyers may participate in international commercial arbitration conducted in India, ‘provided such arbitration involves foreign law or international law, thereby promoting India as a viable destination for international arbitration without compromising the rights of Indian legal professionals’.
The announcement is couched in terms of prioritising ‘the rights and interests of Indian legal professionals’, but will still be greeted as a significant landmark. Indian advocates and law firms may register as foreign lawyers or foreign law firms, ‘allowing them to expand their practice to foreign law and international law consultancy without relinquishing their rights to practice Indian law in domestic forums’. This dual registration ‘provides Indian lawyers with an opportunity to broaden their professional horizons while maintaining their status as advocates under Indian law’.
BCI published draft rules on the admittance of foreign lawyers and firms in early 2023, but the rules were never implemented, partly because the Society of Indian Law Firms raised objections. A further impediment emerged when a legal challenge seeking to block the reforms was filed in the Delhi High Court.
'This is an important development for our two professions,' commented Law Society president Richard Atkinson. 'The Society has been engaging with the BCI as well as the Indian Ministry of Law and Justice for more than two decades working on the opening up of the Indian legal sector. Our constructive dialogue and efforts have helped bring this significant development to fruition.
'We are reviewing the new regulations and considering how they will work in practice and we look forward to working closely with the BCI to make these work for the benefit of our members and the wider legal fraternity. This decision should create huge opportunities for solicitors and Indian advocates in both countries. We share the BCI’s view that opening up the legal profession in India to foreign lawyers will also benefit Indian lawyers.'
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