1. Introduction

• On and with effect from March 13, 2023, the Bar Council of India (“BCI”) notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India (“Rules”). The intent of the Rules is evident from its recitals where the BCI recognized that many countries have already allowed foreign lawyers and foreign law firms (collectively, “Foreign Lawyers”) to practice foreign law[1] and diverse international legal issues and arbitration matters.

• The BCI has been empowered to list out a Foreign Lawyer’s[2] permitted area of practice, and if required, do so after consulting with the Ministry of Law and Justice of the Government of India. The Rules currently provide that Foreign Lawyers can practice in non-litigious matters (this includes practice on transactional work, corporate work such as joint ventures, mergers and acquisitions, intellectual property rights, drafting of contracts and other related matters, each on a reciprocal basis)[3] and diverse international legal issues. However, Foreign Lawyers will not be allowed to (a) appear before courts, tribunals or other statutory or regulatory authorities; or (b) be involved in any work pertaining to the conveyancing of property, title investigation or similar work.

• The key principles under the Rules are that (a) Foreign Lawyers that propose to practice law in India are required to obtain prior registration from the BCI under these Rules; and (b) the primary qualification for Foreign Lawyers to apply for registration in India is that they have the ‘right to practice law’ in their foreign country of primary qualification. However, the Rules have one exception where Foreign Lawyers do not need to register with the BCI. This is if Foreign Lawyers practice law on a ‘fly in and fly out basis’ and: (a) provide legal advice to Indian clients on foreign law and on diverse international legal issues, (b) the Indian client procured such advice from a foreign country, (c) the Foreign Lawyer does not maintain an office in India for the purpose of such practice, and (d) such practice in India does not exceed 60 days in any period of 12 months (whether in one visit or multiple visits to India).

2. Permitted Law Practice by Foreign Lawyers and Foreign Law Firms

The Rules provide the following inclusive list of what constitutes the practice of law in India for a Foreign Lawyer:

• Foreign Law: doing work, transaction business, giving advice and opinions concerning the laws of the country of their primary qualification (i.e., foreign laws) and on diverse international legal issues – however, such advice cannot include representation or preparation of documents (including petitions, etc.) relating to procedures before an Indian court, tribunal or any other authority which is competent to record evidence on oath;

• International arbitration conducted in India which may involve foreign law: as regards any international arbitration case conducted in India in which foreign law may or may not be involved, a Foreign Lawyer can provide legal expertise/ advice and appear as a lawyer for a person/ firm/ company/ corporation/ trust/ society, etc. which has an address, head office or principal office in a foreign country (“Foreign Client”);

• Appearing before bodies that cannot take evidence for foreign law: provide legal expertise/ advice and appear as a lawyer for a Foreign Client in proceedings before bodies in India (which are not courts, tribunals, boards or statutory authorities) which are not legally entitled to take evidence on oath, and which require knowledge of foreign law of the country of the primary qualification of the Foreign Lawyer;

• Limits on Indian lawyers at Foreign law firms in India: an Advocate registered with an Indian State Bar Council who is a partner or associate at a foreign law firm registered with the BCI under these Rules, will only be permitted to practice non-litigious matters and can only advise on issues relating to countries other than India.

3. Registration Application and Registration Fee

• Registration under the Rules is granted for 5 years, and any application for renewal should be submitted to the BCI 6 months before the expiry of the existing license. A Foreign Lawyer’s application (in the prescribed form) is required to be supported by various confirmations, including an NoC from its regulator in the foreign country, an NoC from the Indian Government and confirmations of their practice of law outside India and of no professional misconduct abroad.

• Successful applicants are required to pay a registration fee equivalent to the enrollment fee in their home foreign country, but the minimum fee should at least be USD 25,000 with a security deposit of USD 15,000 for an individual foreign lawyer (with the renewal fee being USD 10,000), USD 50,000 with a security deposit/ guarantee amount of USD 40,000 for a foreign law firm (whether as a firm, private limited partnership, limited liability partnership, company or otherwise), with the renewal fee being USD 20,000.

• A key determining factor for such applications is the principle of reciprocity. The BCI has the discretion to refuse registration of a foreign lawyer/law firm if it believes that the number of foreign lawyers/ law firms from a particular foreign country will become disproportionate to the number of Indian lawyers or Indian law firms allowed to practice in a such foreign country, to protect the interest of Indian law firms / Indian lawyers.

[1] Rule 2(vi) defines ‘foreign law’ as a law, which is or was effective, in the country of primary qualification. The latter term is defined under Rule 2(v) as a foreign country in which the foreign lawyer is entitled to practice law as per the law of that country.

[2] Rule 2(iii) defines a ‘foreign lawyer’ as a person, including a law firm, limited liability partnership, company or corporation, by whatever name called or described, who/which is entitled to practice law in a foreign country.

[3] Rule 8(2) of the Rules.