Editorial     

Published: Apr 30, 2023
Updated: Apr 30, 2023

BCI’s ‘boost’ for foreign lawyers!

Much to the utter surprise and intense chagrin of the Indian legal fraternity, the Bar Council of India (BCI) has decided to give a green signal to foreign law firms to handle international arbitration cases in India. Several prominent lawyers and law firms fear that the opening of the Indian legal sector to foreign lawyers and foreign law firms — with several concessions — will administer a body blow to the domestic legal fraternity and many Indian law firms may even go under.

It is surprising that over a decade ago – in 2012, to be exact — in its judgement, the Madras High Court had said that “foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.” Interestingly, the BCI had then opposed the entry of foreign law firms and foreign lawyers and had challenged the Madras High Court ruling in the Supreme Court.

Eventually in the A.K. Balaji v/s Government of India matter, the Supreme Court had ruled that foreign law firms and foreign lawyers cannot practice in India. It permitted only casual visits by foreign law firms to provide legal counsel to its Indian clients on a fly-in and fly-out basis.

How the mindset of the BCI underwent a dramatic change during the last decade is anybody’s guess. Interestingly, it has showered liberal concessions on foreign firms and lawyers along with the permission to practice in Indian courts, bluntly denying a level playing ground to domestic law firms and domestic lawyers.

For example, the Indian legal profession is subject to the overall jurisdiction of the BCI. But if foreign law firms and lawyers commit any professional misconduct, the BCI cannot take any action against them as they will be governed by the rules of their home jurisdiction.

Again, Indian law firms and lawyers canot advertise their business. What is more, they cannot mention their website as that is considered an advertisement. However, these regulations and restrictions will not apply to foreign law firms and lawyers. In fact, they will be able to put their advertisements about their achievements or specialisations on social media.

Surprisingly, the BCI insists that the move is highly beneficial to India. Maintains the Council, “This move will help the legal profession/domain grow in India to the benefit of lawyers in India too.” The provision of reciprocity will pave the way for Indian law firms to internationalise and Indian lawyers to start a practice in foreign countries. But many legal experts strongly believe that the concept of reciprocity is a myth. In the UK, other European countries and the US, an Indian lawyer must have a work permit to practice. Again in the US, an Indian lawyer would have to pass exams in each of its states to practice in any of them. Besides, it is not economically feasible for an Indian law firm to hire a local lawyer.

Moreover, Indian law firms will not be able to compete with foreign law firms in India as domestic firms are restricted to having not more than 20 partners. However, foreign firms have no such limitation. They can have any number of partners. Asks a leading lawyer, “ If a foreign law firm or a foreign lawyer can straightaway start a practice in India, why should an Indian law firm or lawyer not be allowed to start a practice abroad without any terms and conditions? What is the real meaning of reciprocity?!”

It seems the BCI has taken a decision to open India to foreign law firms and lawyers without properly thinking through the entire implications of the decision. The BCI should have taken the legal community into confidence and arrived at a decision after properly evaluating the new measure and its implications.