Alternative Dispute Resolution Mechanism – NCA, Lok Adalats, etc.

Foreign lawyers, firms can operate in India: Bar Council

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Bar Council

Mains level : Foreign legal professionals in India

bar

 

Central Idea: The Bar Council of India (BCI) has opened up law practice in India to foreign lawyers and law firms. It has framed the ‘Bar Council of India Rules for Registration of Foreign Lawyers and Foreign Law Firms in India, 2021’.

About Bar Council of India (BCI)

  • The BCI is a statutory body established under the section 4 of Advocates Act 1961 that regulates the legal practice and legal education in India.
  • Its members are elected from amongst the lawyers in India and as such represents the Indian bar.
  • It prescribes standards of professional conduct, etiquettes and exercises disciplinary jurisdiction over the bar.
  • It also sets standards for legal education and grants recognition to universities whose degree in law will serve as a qualification for students to enroll themselves as advocates upon graduation.

History

  • In March 1953, the ‘All India Bar Committee’, headed by S. R. Das, submitted a report which proposed the creation of a bar council for each state and an all India bar council as an apex body.
  • It was suggested that the all-India bar council would regulate the legal profession and set the standard of legal education.
  • The Law Commission of India was assigned the job of assembling a report on judicial administration reforms and helps India to reform justice and equity to whole country.
  • In 1961, the Advocates Act was introduced to implement the recommendations made by the ‘All India Bar Committee’ and ‘Law Commission’.

Functions

The functions of the Bar Council are to:

  1. Lay down standards of professional conduct and etiquette for advocates.
  2. Lay down procedure to be followed by disciplinary committees
  3. Safeguard the rights, privileges and interests of advocates
  4. Promote and support law reform
  5. Deal with and dispose of any matter which may be referred by a State Bar Council
  6. Promote legal education and lay down standards of legal education.
  7. Determine universities whose degree in law shall be a qualification for enrollment as an advocate.
  8. Conduct seminars on legal topics by eminent jurists and publish journals and papers of legal interest.
  9. Organise and provide legal aid to the poor.
  10. Recognise foreign qualifications in law obtained outside India for admission as an advocate.
  11. Manage and invest funds of the Bar Council.
  12. Provide for the election of its members who shall run the Bar Councils.

Constitution

  • As per the Advocates Act, the BCI consists of members elected from each state bar council, and the Attorney General of India and the Solicitor General of India who are ex officio members.
  • The council elects its own chairman and vice-chairman for a period of two years from among its members.
  • Assisted by the various committees of the council, the chairman acts as the chief executive and director of the council.

Why such move?  

  • The BCI notification also stated that the Rules would help to address the concerns expressed about the flow of Foreign Direct Investment into the country.
  • The Rules would also help make India a hub for international commercial arbitration.

Move to benefit Indian lawyers

  • The rules enable foreign lawyers and law firms to “practice foreign law, diverse international law and international arbitration matters in India on the principle of reciprocity in a well-defined, regulated and controlled manner”.
  • The BCI said that the move would benefit Indian lawyers, whose standards of proficiency in law are comparable with international standards.
  • The legal fraternity in India is not likely to suffer any disadvantage since the move would be mutually beneficial for lawyers from India and abroad.

How foreign lawyers can begin operating in India?

  • The Rules prescribe that foreign lawyers and firms would not be entitled to practice law in India without registration with the BCI.
  • Foreign lawyers and law firms are not allowed to practice Indian law in any form or before any court of law, tribunal, board or any other authority legally entitled to record evidence on oath.
  • However, the restriction does not apply to law practice by a foreign lawyer or foreign law firm on a ‘fly in and fly out basis’ for the purpose of giving legal advice to a client in India on foreign law or international legal issues.
  • In such a case, the lawyer or firm cannot have an office in India, and their practice cannot exceed 60 days in any 12-month period.

Requirements for foreign lawyers and firms

A primary qualification required from foreign lawyers and firms is-

  1. Certificate from the competent authority of their country that they are entitled to practice law in that country.
  2. Undertaking that they shall not practice Indian law in any form or before any court of law, tribunal, board or any other authority legally entitled to record evidence on oath.

 

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