Editorial     

Published: September 15, 2023
Updated: September 15, 2023

How fair is BCI’s ‘foreign’ tilt?

Much to the utter astonishment and intense chargin of the Indian legal fraternity, the Bar Council of India (BCI) has, in a path-breaking development, allowed foreign lawyers and law firms to practise foreign law in India.

“The time has come to take a call on the issue. The Bar Council of India is of the view that opening up of law practice in India to foreign lawyers in the field of practice of foreign law, diverse international legal issues in non-litigious matters, and in international arbitration cases would go a long way in helping the legal profession/domain grow in India to the benefit of lawyers in India too,” it has stated.

Though some members of the Indian legal fraternity have welcomed the historic move by terming it a significant and positive step — hoping for opportunities for collaboration and tieups and making the domestic sector more competitive — several others, including prominent lawyers and law firms, have expressed fears that the opening of the Indian legal sector to foreign lawyers and law firms, that too with several concessions, will administer a body blow to the domestic legal fraternity and many Indian law firms may even have to roll down their shutters.

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 AK Balaji v/s Government of India matter, the Supreme Court had ruled that foreign law firms and foreign lawyers cannot practise in India. It permitted only casual visits by foreign law firms to provide legal counsel to their Indian clients on a fly-in, 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 practise 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 cannot 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.

Allowing foreign firms to practise in India is like taking a leap of faith. Perhaps this could inject new blood into the legal system and bring in new ideas, new practices and new opportunities. But when you open the door to global competition, you also need to create a level playing field in the homeland. Indian law firms and lawyers are less than none in the world in terms of knowledge and acumen. But do they have the same opportunities, rights and access to resources and markets as their foreign counterparts? Isn’t it worthwhile to consider removing barriers or restrictions on their web presence and active business development to ensure fair competition between Indian and foreign lawyers?

According to several Indian lawyers, 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.