Foreign Law Firms In India: Delhi HC Issues Notice To Bar Council Of India
Here are all the issues raised against the BCI’s decision in the hearing on Friday.
The Delhi High Court has acknowledged a petition challenging the Bar Council of India's decision, which permitted foreign law firms to operate in India.
The court, consisting of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora, issued notices to both BCI and central government. The court has scheduled a hearing for April 24, seeking responses from the BCI in response to the filed petition.
Here are all the issues raised against the BCI’s decision in the hearing on Friday:
Decision Against Supreme Court Ruling
The Delhi High Court questioned BCI on how it could proceed with such a notification, despite the AK Balaji ruling of the apex court.
In 2018, a writ petition was filed by Balaji, an advocate enrolled with the Bar Council of Tamil Nadu, challenging the Bar Council of India's decision to allow foreign law firms in India.
The Supreme Court agreed with the Madras High Court that foreign law firms or lawyers cannot practice law in India, either in litigation or non-litigation.
However, it modified the Madras High Court's direction, allowing foreign lawyers to visit India temporarily for "fly in and fly out", to provide legal advice on foreign law or international issues.
The term "fly in and fly out" covers casual visits and not practice. The court stated that disputes on this matter can be determined by the Bar Council of India.
The court also allowed foreign lawyers to conduct arbitration proceedings in India for international commercial disputes, modifying the previous direction.
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Advocates Act
According to the plea, the BCI notification permits foreign lawyers to be registered and practice non-litigious law matters in India.
However, the plea argues that the BCI lacks the authority or power under the Advocates Act of 1961 to grant such permission, as only advocates enrolled with the BCI are allowed to practice law in India, according to the Advocates Act.
Reciprocity
It was argued that BCI's decision violates the principle of reciprocity, given the absence of mutual arrangements between India and other countries whose law firms will be permitted to operate in India.
In September 2022, representatives from the Law Society of England and Wales and the U.K. government's international trade department engaged in discussions with Indian law firm representatives.
The objective was to facilitate the opening up of the legal services sector by removing restrictions on foreign lawyers practicing in India, as indicated by the BCI notification.
The BCI notification specifies that foreign lawyers and law firms can practice foreign law in India based on reciprocity, according to the "BCI Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022."
Background Of BCI Notification
The BCI issued rules on March 10, 2023, allowing foreign lawyers and law firms to practice foreign law, international law, and international arbitration matters in India under the principle of reciprocity.
The rules outline the nature and extent of law practice by foreign lawyers and law firms, specifying that they can advise on foreign and international laws, engage in advisory work, and operate in non-litigious areas.
However, they are not permitted to appear in Indian courts or regulatory authorities. Entry for foreign lawyers is on a reciprocal basis, with permission limited to countries where Indian lawyers are allowed to practice.
