Foreign lawyers and firms: the concluding push of the global village in India

Abstract

A lawyer is person who has a degree or has been certified by government of educational institutes who work in legal field whereas an advocate is someone who has a license to practice law in front of court of law to represent their client. The advocate may appear as defendant or prosecutor on behalf of their client. Every independent country has its own set of laws and regulation for its citizens or for them who are living in their country and to enroll as a legal practitioner an individual has to become eligible to those defined terms and conditions. If a citizen has to practice other country’s laws in court of law has to get familiar with those laws and have to abide with the eligibility criteria. This paper is attempting to explain the recent development in India in the field of law that international advocate and lawyers can practice in court of law in India and Indian advocates can practice outside India but this shall be allowed in a restrictive manner and on reciprocal basis.

Keywords

Lawyer, advocate, advocates act, bar council of India

Introduction

In [1]India for the enrollment of [2]advocates, advocates act, 1961 is followed which contains rules and laws required to be followed by a legal practitioner. This act was the recommendations of the all-India bar committee supported by law commission’s 14th report, 1955. Under this act advocates are permitted to represent their client before court of law and to the other subordinated throughout the jurisdiction of India and outlines obligations and rights and all India bar council exam.

[3]Qualifications and requirements for the registration of a lawyer in bar council of India:

  1. The person should be citizen of India and should have a law graduate.
  2. The person should be of 21 years of age minimum.
  3. The person should have a degree of law from a law college registered and recognized by bar council of India or can have foreign qualification in law which is acknowledged by the bar council of India to get accepted as a lawyer and registered under bar council of India.

Cooperate law is about maintaining the company by abiding the laws and which company has to follow while working in a particular country. It basically involves formation and maintaining relates with other company through law.

Litigation is a practice by advocate which involve handling case, giving legal advices to their clients and guiding them with the laws of the country. This practice basically involves advocates to present themselves in front of court representing client’s accusations and defends.

This paper presents a critical analysis on how globalization of advocates can benefit a country and what objective can a country obtain through this and how advocates and judiciary will get benefit through the practice of lawyers in other countries.

Research Methodology

This research paper is of descriptive nature and research performed and written in this paper is of secondary source. This paper contains deep analysis of government decision on allowing foreign lawyers and foreign law firms to practice in India. Secondary sources of information consist of newspaper, journals, and websites, etc.

Literature review

[4]Nishith Desai the founder of Nishith Desai association expressed that the globalization of law field in allowing foreign lawyers and law firms will create opportunities for Indian law firms to get exposed at global stage and get global best practices and which will create an environment of healthy competition. The former chief justice has suggested that the basis of reciprocity is the solution to the problem of allowing foreign law firms and lawyers in India. India is a leading developing country with most pollution in the world which is resulting in attracting companies to invest in all the field available in India.

Bar council of Indian on entry of foreign lawyers and law firms

[5]Lalit Bhasin the president of society of Indian law firms stated that foreign law firms will be allowed to enter Indian legal sector in four phases:

  1. Phase one, Indian lawyers will be allowed to make their websites and broches.
  2. Phase two, foreign law firms will be only permitted to give advice to their Indian clients on foreign laws. For example, businessman who are trying to expand their business in foreign countries and allowing foreign lawyers to give advice to the Indian clients will help them to create trust and to help Indian business man to comply with the laws of particular country which they are approaching.
  3. Third phase, they will be allowed to give collaborative advices.
  4. Fourth phase, they will be allowed to practice domestic laws with certain exceptions

On 13 March, the [6]bar council of India informed and notified in the official gazette that foreign lawyers and foreign law firms will be able to practice foreign laws in [7]India but with rule, restrictions, regulations and in controlled manner such rules and regulation will be formed by bar council of India and if required bar council can consult the government of India, foreign ministry, ministry of law and justice. This came in existence with the ruling of case law i.e.  [8]bar council of India vs a.k.balaji and others(2018), in this case it was held that foreign lawyers cannot practice profession of law in India and had directed bar council of India to frame rules in regarding foreign lawyers coming to India on a “fly in and fly out” basis to give legal advice in matters related to foreign law and for conducting international commercial arbitrations. The concept of [9]“fly in and fly out” states a rule that the foreign lawyers and firms can practice without registration that do not have an office or do not spent more than 60 days in a period of 12 months. Respectfully, these restrictions shall also apply to the Indian lawyer who are working with foreign law firms. Foreign lawyers and law firms are only allowed to perform non- litigious work such as joint ventures, mergers, and acquisitions, intellectual property, drafting of contracts and on other matters on reciprocity basis but shall not be entitled to practice in property or titled investigation matters. [10]on 2022 bar council of India presented the rules and regulations for the registration and foreign lawyers and foreign law firms in India. It was stated that regardless of foreign lawyers and law firm appearance in courts is [11]prohibited, foreign law firms can set up offices in India to perform and practice cooperate and transactional work on reciprocal basis. The rules especially states that “the foreign lawyers or law firms registered in India under rules shall only be entitled to perform non litigious work or matters”. These rules will help India to set up a stage where government can address the concerns expressed about flow of foreign direct investigation in the country and will create India as hub of international commercial arbitration. The registration of Indian lawyer was established under advocates act, 1961 and in Bombay high court in [12]lawyers collective vs union of India it was stated that according to section 29 of advocates act, those who are enrolled with the bar council of India can only practice litigation in India with regards to this the foreign lawyers and law firms must be registered with bar council of India but this rule certainly does not apply in case of fly in and fly out practices  however it is to be noted that this practice can only apply if it does not exceed 60 days in ant period of 12 months. The registration shall be made with the secretary of bar council of India under form A. A lawyer possessing a foreign law degree shall be eligible to practice in India but is required to register with bar council of India and the layer shall also be permitted to practice in his or her country as well. The reciprocity rule shall not apply to the foreign lawyers and law firms who work on fly in fly out basis. Bar council of India have also stated that the registration can be refused of foreign lawyers and law firms if the council is in opinion that the number of foreign lawyer and law firms are disproportionate in their country with regard to the number of Indian lawyers and law firms registered to practice law in corresponding foreign country.[13] Bar council have further stated that the registration might get cancelled or suspended if BCI have received a submission of a receipt of a complaint against the foreign lawyer or law firm, it will be reason to believe for BCI for creating misconduct with regard to the law practice in India and shall also create a reason that foreign practitioner has violated rules. On the receival of complaint receipt the lawyer or the law firm will be directed to the disciplinary authority.

Foreign laws would be considered under the section 29, 30, 33 of advocates act, 1961

Foreign lawyers or law firms coming to India impacting Indian law student’s career and legal sector

[14]The entry of foreign lawyers and law firms will be creating a great impact and is a long awaited by law students in India as this will expand the development of legal market in India. Formation of foreign law firms in India will increase the concept of forming and working in law firms in India and this will help in increasing employment, mentality of working together, and to access new opportunities. Opening of Indian legal sector will not only be beneficial for Indian law graduates in India but as well in global level and it will also help Indian legal sector including judiciary to understand foreign laws at grassroot level and enhancing them through [15]amendment or imposing or creating new laws for enhancement of Indian laws and for amending India’s foreign laws to encourage business opportunities in India as this will encourage business mans or companies to establish and deal with the law of India through their preferrable firms or lawyers.

[16]Several countries have already established as a hub for international law firms such as UK, Hong Kong, Singapore and in 2022 India have also started to welcome foreign lawyer and law firms. For example, if more contracts are involved with Indian parties with English or US laws as the governing law of the document, the need for qualified legal advice on the jurisdiction to the law related to that particular country will increase and which will also lead to increase involvement of international law firms.

Opening legal sector will also help in harboring a strong business and political network with international presentence as this will encourage cross boarder business and work opportunities. This shall also encourage a behavior of improving work quality of work, talent, and systems of employment.

Opening legal sector is a great decision taken by the government as it will help students to get access to internships and would also help then in getting highly paid packages in return of their knowledge and hard work. If we see the present condition of legal sector the students of first generation in law field get deprived by the lawyers as they do not have great connection with the lawyer and this results in exploitation of student as they have to work in low wages and student mostly are not offered with stipends during their internship period. The students with well establish law background of their family starts their career with guidance of their parents or knowns which results in boost in their career.

Memorandum of understanding

[17]Bar council of India and bar council of England and Wales have signed memorandum of understanding and with law society of England and Wales for exchanging programme of lawyers and law students for exchanging mutual exchange of training and learning on each other’s jurisdiction. It was signed by chairman of bar council of India i.e., Mr. Manan Kumar Mishra and the president of bar council of England and Wales along with president of law society of England and Wales. Ts memorandum is made on reciprocity bases.

Memorandum of understanding have authorized bar council of India to recommend young lawyers in the law society and bar council of England and Wales to provide opportunities of training in international law firms, law offices and English law courts but the lawyers recommended will not have any right to practice in UK under memorandum of understanding. The memorandum of understanding is only to encouraging opportunity of learning and gaining experience in both the jurisdictions. The selected students shall be recommended by bar council of India in a manner for internship to the bar bodies of UK.

[18]Foreign lawyers in England and Wales are permitted to practice any kind of law under English and Welsh law without any requalification but except for the exercise of a right to audience in the courts and certain tribunals, the conduct of litigation, reserved instrument activities, probate activities, notarial activities and administration of oaths.

Memorandum of understanding have further stated that the trainee solicitors and barristers shall not be permitted to practice in India and only ninety days programme would be confined for training and learning only.

Case laws

  1. [19]HDT BIO CORP vs Emcure pharmaceuticals LTD

Dr. Abhinav Chandrachud have stated the foreign lawyers can practice in India with the adherence of the gazette notification published by the bar council of India publishing the rules and regulation for foreign lawyers and law firms on 13 March, 2023. It has further stated that the prohibition shall not apply to the foreign law firms or the lawyers in case of fly in and fly out for the purpose of giving legal advice to the clients in India. 

  • [20]A Korean national DaeYoung Jung presented a plea before Delhi high court to get permit for getting enroll under bar council of India as an advocate. Jung also stated that the [21]students who studies law in Korea are allowed be enroll as advocate in South Korea so as reciprocity he should also be allowed for getting enrolled. He studied law in India from national law university of Hyderabad. This case was under Justice Yashwant Varma jurisdiction, he directed that daeyoung jung shall be permitted to enroll in bar council of Delhi as an advocate. The right of foreign nationals is made contingent upon the state bar.

The bar council of India refused to enroll him as an advocate in India stating that if he gets involved in misconduct of law, he can leave the Indian territory and this would result in action against him.

Conclusion

Indian colleges and universities of laws should also go beyond teaching Indian law to the students as it will help students to understand foreign laws and would increase the ability to understand laws beyond one perspective. India is making initiatives to attract foreign law firms, student to work with them need to understand particular countries laws beyond learning Indian laws as this will give them a plus point in employment and in gaining experience.

[22]Bar council should explain or define law firms in more precise way as Indian laws or advocates law firms are not defined properly. This will help in making more clear understanding of the rules and regulations as foreign lawyer mostly operates in law firms rather than operating individually. The Indian advocates act restricts Indian law firms to partnership or LLP but on the other hand foreign law firms are allowed to do so. The number lawyers allowed in Indian law firms are 20 but on the other hand looking at foreign law firms they are permitted to operate with any number of lawyers.

There is also need for explaining the concept or the basis of fly out and fly in as this will create a hindrance in the regulation of members of foreign law firms in entry and exit in country.

Bar council of India and judiciary should also work on opening more fields of law in India for foreign law firms or lawyers as it will create more employment and would also help in creating legal sector in organized manner. This would also help first generation lawyer who are registered or have pursued their law degrees from India as it will decrease the pressure of having a lawyer in family background in India as it is considered to give a boost to the law career of a student.

 Allowing foreign law firms and lawyer also leaves us with a question that the member or partner in law firm who belong to China and Pakistan will they be allowed to practice India? As they are part of most established law firms across the world.

Opening of foreign law firms will create a new impression on cooperate law and will create a great outburst in the sector of cooperate law.

            Deepanshi garg

Amity university, uttar Pradesh

Year 3

Ba.llb.(H)


[1]INDIA CONST. art. 368

[2] The Advocates act, 1961 section 17

[3] The Advocates act, 1961 section 24

[4] Apurva Vishwanath’, bar council of India permits foreign lawyer and law firms to practice in India, Indian express (march 16,2023)

https://indianexpress.com/article/india/bar-council-india-permits-foreign-lawyers-law-firms-practice-in-india-8498685/

[5] Saaransh, entry of foreign law firms India: boon or bane, legal service Indian e-journal

https://www.legalserivceindia.com/legal/article-6713-entry-of-foriegn-law-firms-in-india-boon-or-bane.html

[6] the advocate act, 1961 section 7

[7] Bar council of India rules for registration and regulation for foreign lawyers and law firms in india,2022

[8] Bar council of India vs A.K.Balaii, 2018 AIR, 5 SCC 379

[9] Ishita Roy’, how foreign lawyers will be able to work in India, India times(march 29, 2023)

https://www.indiatimes.com/explainers/news/explained-how-foreign-lawyers-will-be-able-to-work-in-india-596323.html#Registration

[10] Bhadra Sinha’, bar council finally allows entry of foreign lawyers and firms in India, but these conditions apply, the print(march 15, 2023)

https://theprint.in/india/bci-finally-allows-entry-of-foreign-lawyers-and-firms-in-india-but-these-conditions-apply/1445354/?amp

[11] INDIA CONST. art.32 and 226

[12] Lawyers’ collective vs union of Indian, 2020 AIR, writ petition no. 729 of 2017

 

[14] Ankit Majumdar’, how will foreign law firms coming to India impact the career of Indian law students, India times(April 21,2023)

https://timesofindia.indiatimes.com/blogs/voices/how-will-foreign-law-firms-coming-to-india-impact-the-careers-of-indian-law-students/

[15] INDIA CONST. art 368

[16] Satya muley’, opening doors to foreign law firms: how will the move impact the Indian legal sector, financial express (march 20, 2023)

https://www.financialexpress.com/india-news/opening-doors-to-foreign-law-firms-how-will-the-move-impact-the-indian-legal-sector/3015822/lite/

[17] LI Network, BCI sign’s MOU with Bar Council of England and Wales for mutual exchange programs for lawyers and law students, law Insider India (June 7,2023)

https://www.lawinsider.in/trending/bci-signs-mou-with-bar-council-of-england-wales-for-mutual-exchange-programs-for-lawyers-law-students?amp

[18] Bar and bench, what are the conditions for Indian lawyers to practice in UK? BCI, Bar Council, Law society of England and Wales MOU clarifies, bar and bench (June 6, 2023)

http://www.barandbench.com/news/what-conditions-indian-lawyers-practice-uk-bci-bar-council-law-society-of-england-and-wales-mou-clarifies

[19] HDT Bio Corp vs Emcure pharmaceuticals LTD, 2023 C22-0334JLR

[20] IANS’, Delhi high court allows Korean citizen who studied law in India to enroll with bar council of Delhi, economic times(updated on May 30, 2023) https://legal.economictimes.indiatimes.com/news/litigation/delhi-hc-allows-korean-citizen-who-studied-law-in-india-to-enrol-with-bcd/100629744

[21] the advocates act,1961 section 24

[22] Aarush Khanna’, foreign lawyers and firms in India: its time the profession was globalized- but it has to be done right, Indian express (march 29, 2023)https://indianexpress.com/article/opinion/columns/foreign-lawyers-firms-in-india-its-time-profession-was-globalised-8525767/