‘Foreign lawyers cannot work here, yet’

Subject : Polity

Section: Judiciary

Concept :

The Society of Indian Law Firms (SILF) has submitted a 20-page representation to the Bar Council of India (BCI), demanding the repeal of the rule allowing foreign law firms and lawyers to practise international arbitration in India.
SILF has expressed concern over the timing of the move and cautioned that it went against the Supreme Court’s 2018 judgement.
SILF wants the BCI to reject all the applications received from foreign lawyers or firms seeking registration in India.

Areas of Concern

The Indian legal profession is subject to the overall jurisdiction of the BCI. But if foreign lawyers commit any professional misconduct, the BCI cannot act against them, because they will be governed by the rules of their home jurisdiction.
Another area of concern is that Indian law firms can’t have more than 20 partners. But in other countries, particularly the UK, rest of Europe, and the US one can even have big corporations. Now, how can one face this sort of competition, which is creating an unequal playing field.
Moreover, the law must first be amended.
The SC says only Indian citizens can practise law in the country and the practice includes not just litigation but all corporate work, transactional work. The SC judgement has been totally ignored in the bar council’s regulations.

About the new rules

According to the Advocates Act, advocates enrolled with the Bar Council alone are entitled to practise law in India.
All others, such as a litigant, can appear only with the permission of the court, authority or person before whom the proceedings are pending.
Foreign lawyers and law firms can practice in India:
The notification essentially allows foreign lawyers and law firms to register with BCI to practise in India if they are entitled to practise law in their home countries.
However, the foreign lawyers or foreign Law Firms have not been permitted to appear before any courts, tribunals or other statutory or regulatory authorities.
They are allowed to practise transactional work /corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts and other related matters on a reciprocal basis.
Same restrictions for Indian lawyers working with foreign law firms :
Indian lawyers working with foreign law firms will also be subject to the same restriction of engaging only in non-litigious practice.

Significance

According to BCI the move would mutually benefit lawyers from India and abroad and the legal fraternity in India would not experience any disadvantage.
Further, the latest move is expected to address the concerns over the flow of Foreign Direct Investment (FDI) into the country and would help make India a hub for international commercial arbitration.

Bar Council of India

The Bar Council of India is a statutory body created by Parliament under the Advocates Act, 1961 to regulate and represent the Indian bar.
It performs the regulatory function by prescribing standards of professional conduct and etiquette and by exercising disciplinary jurisdiction over the bar.
It also sets standards for legal education and grants recognition to Universities whose degree in law will serve as qualification for enrolment as an advocate.
In addition, it performs certain representative functions by protecting the rights, privileges and interests of advocates and through the creation of funds for providing financial assistance to organise welfare schemes for them.
It consists of members elected from each state bar council, and the Attorney General of India and Solicitor General of India who are ex-officio members of the bar council.
The members from the state bar council are elected for a period of five years.
The Act provided for the constitution of Bar Council of India, State Bar Councils, their powers, enrolment, qualification, disqualification of Advocates etc.

State Bar Councils

The State Bar Councils are statutory bodies established under Section 3 of the Advocates Act, 1961.
These were set up as different councils for the states and union territories of India.
They act as regulatory bodies, making rules for the legal profession and education in their respective states and also act as the representatives of the advocates of that state, thereby acting in their interests.
The main functions of the State Bar Councils as specified under Section 6 of the Advocates Act are to act in the interest of the advocates, to bring in legal reform, to regulate the conduct of advocates, to establish funds and to oversee the Legal Education in the respective states among others.
They work in coordination with and under the supervision of the Bar Council of India, which is a national body established under Section 4 of the Advocates Act, 1961.