The Society of Indian Law Firms (SILF) has submitted a 20-page representation to the Bar Council of India (BCI), demanding the repeal of the rule allowing foreign law firms and lawyers to practise international arbitration in India. SILF has expressed concern over the timing of the move and cautioned that it went against the Supreme Court’s 2018 judgement. SILF wants the BCI to reject all the applications received from foreign lawyers or firms seeking registration in India.
Lalit Bhasin, President, SILF, discussed with businessline the society’s stand on the matter and its next course of action. Edited excerpts from the interview.
How will the BCI’s notification affect domestic law firms?
We do not oppose the entry of foreign lawyers, provided it is in a phased manner. However, the doors have been opened abruptly, without proper application of mind.
The Indian legal profession is subject to the overall jurisdiction of the BCI. But if foreign lawyers commit any professional misconduct, the BCI cannot act against them, because they will be governed by the rules of their home jurisdiction. For example, we cannot mention our websites or any other entries in the law directories because that is considered as advertising or soliciting for work. Whereas foreign law firms will not be governed by such regulations and, particularly on social media, they can put up any advertisement about their achievements or specialisations.
Another area of concern is that we can’t have more than 20 partners. But in other countries, particularly the UK, rest of Europe, and the US you can even have big corporations. Now, how can one face this sort of competition, which is creating an unequal playing field.
Moreover, the law must first be amended. The SC says only Indian citizens can practise law in the country and the practice includes not just litigation but all corporate work, transactional work. The SC judgement has been totally ignored in the bar council’s regulations.
The BCI notification talks about ‘reciprocity’. Will the new notification pave the way for Indian law firms to internationalise?
Reciprocity means that when a lawyer from a certain jurisdiction comes here, that jurisdiction should also allow Indian lawyers to practise there. Now what is happening is that, for instance, in the UK we are allowed to open offices but, in practical terms, the work permits or visas are not given.
Will amending the Advocates Act, 1961, help usher in the changes envisaged by the notification?
The notification will remain on paper because it goes against the categorical decision of our apex court. Unless you amend the existing law to give foreigners the right to practise law in India, the regulations cannot be implemented.
What are your views on the worry that the regulation may allow undesirable elements to practise law in India?
I would not like to comment on whether anyone can misuse this, because law firms, whether in India or overseas, are not expected to indulge in any such activities. At the same time, one cannot deny that there could be some surrogate law practice by foreign firms.
Our legal system is strong, and we have an effective system of administration of justice. Therefore, any illegal activity can be countered by the authorities; but monitoring is the difficult part, and this could lead to surrogate law practice.
Why did the SIFL approach the BCI instead of the Supreme Court?
We don’t want to get into litigation with our regulator BCI. Therefore, we have to talk to them about our concerns. Also, it will be an embarrassment for BCI if someone goes to court to get a stay order on this. Therefore, we want to have a discussion with the BCI on the need to amend certain provisions.
So, hopefully, they will give us an opportunity to discuss the issue with them.
If the BCI does not respond favourably, will you approach the Supreme Court?
We’ll cross that bridge when we come to it. Our members will collectively decide the future course of action based on the BCI’s response.
After the BCI’s notification, India and the UK are closer to signing a free trade agreement (FTA). Would the BCI be likely to repeal the rule at this point?
FTAs are, no doubt, very important, very significant. And whatever decisions are taken by the government of India and the Ministry of Commerce, that would be in the larger interest of the country. But, at the same time, we must factor in the concerns that confront not only the Indian legal profession, but also the foreign law firm that come to India. I’m not very sure that many foreign laws firms would like to come to India, given the ambiguity, the weakness, and the apparent anomalies and inconsistencies in these new rules.
So, overall, we need more clarification now. And above that, we need amendment of the law.