As reported last week, the Bar Council of India has moved to enable international practices, solicitors and arbitrators to advise in the world’s most populous country.  

“[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 legal profession/domain grow in India to the benefit of lawyers in India too,” it said.

Under the new rules, foreign firms and lawyers will only be entitled to practise in the country via registration with the BCI (which will cost $25,000 per lawyer and $50,000 per firm and be valid for five years), while “fly-in, fly-out” practitioners will not be able to operate in the country for more than 60 days within a 12-month period.

“These rules will also help to address the concerns expressed about flow of foreign direct investment in the country and making India a hub of international commercial arbitration ... let us ensure that an opportunity for creating development and growth for the legal profession and in the legal sphere in India is not lost,” the BCI outlined.

The decision, Law Council of Australia (LCA) president Luke Murphy noted, follows the “significant” ruling in Bar Council of India v. A.K. Balaji and Ors. from India’s Supreme Court, back in 2018, which held that foreign practitioners and law firms would not be permitted to practise in India without appropriate rules being made by the Bar Council.

LCA was the first legal professional body, Mr Murphy noted, to sign a memorandum of understanding with the Bar Council of India back in 2010.

“The recent decision is reflective of the further MOU signed by the LCA and BCI in 2015, in which the [latter] agreed to frame regulations to permit the practice of foreign law in India by Australian lawyers and firms on the basis of reciprocity, while reserving to Indian lawyers the right to conduct litigious matters under Indian law,” he detailed.

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“Indian lawyers may already come to Australia and, without registration, practise foreign law on a ‘fly-in, fly-out’ basis for a maximum period of 90 days in any 12-month period. They may also practise foreign law on a more permanent basis by registering as an Australian-registered foreign lawyer. Registration also enables foreign lawyers to establish a commercial presence and enter commercial association with Australian lawyers.”

In the wake of the BCI’s decision, LCA said it would continue to engage with the Department of Foreign Affairs and Trade regarding legal professional service provisions in the Australia-India Comprehensive Economic Cooperation Agreement, which is presently under negotiation.

Mr Murphy said that LCA welcomes the “mutually-beneficial decision” to open India and will continue to engage with the Department of Foreign Affairs and Trade regarding legal professional service provisions in the Australia-India Comprehensive Economic Cooperation Agreement, which is presently under negotiation.

Firm responses

Elsewhere, BigLaw firms, including those with major Australian presences, are responding enthusiastically to the news. 

A spokesperson for Allen & Overy said that the firm is “carefully” reviewing the BCI’s decision.

It is “early days”, the firm’s spokesperson stressed, and A&O will “continue assessing the details and evaluating the options for our clients and our market-leading India practice”.

Other global players, however, were much more forthcoming in their excitement about the development.

Dentons – which last October entered into a “historic combination” with Indian firm link Legal and last week combined with Philippine firm PJS Law — was first out of the gate to note how India is of “enormous economic and strategic importance”, noting that the firm will continue to engage closely with Link Legal to meet the needs of clients on the ground.

Baker McKenzie’s global India group chair Ashok Lalwani said that “the possibilities that this announcement opens up are hugely exciting”, given the firm’s “long history” working on India-related matters.

Herbert Smith Freehills also used the phrase, “hugely exciting”, with a firm spokesperson noting that HSF has been committed to the region for decades and enjoys “longstanding relationships with India’s top law firms”.

Clyde & Co APAC board chair Simon McConnell reflected that India is a growing legal market that will “benefit from the new rules of liberalisation” and said there are “no doubt exciting opportunities ahead” following the opening to foreign entities and individuals.

DLA Piper managing director for the Asia-Pacific, Middle East and African regions Charles Severs said that he is seeing “very significant opportunities” moving forward and that the firm, which already has an Indian-focused practice, will be working with its clients to “evolve our strategy” for the Indian market.

Bakers and Clyde & Co also both noted they would “consider the implications” of the opening.

Looking ahead

It is, of course, too early to know how the world’s biggest firms will respond to the BCI’s decision and whether a bolstered presence on the ground in India can or should form part of global firms’ operations across the world.

Establishing a foothold in the world’s most populous country, and the myriad market opportunities that will come with such expansion, will surely be enticing for BigLaw — least of all in the event that competitors beat them to it.

For the individual lawyers at those global firms, and especially those in Australia-based offices, secondment opportunities in India will be incredibly attractive, in the same vein as overseas placements in the UK, US or the Middle East.

However — depending on whom one speaks with — a global recession may be looming, and in the face of high inflation and rising interest rates, consolidation of key practice groups in existing jurisdictions may be the preferred path (at least in the immediate future).

Prima facie, however, long-term opportunity appears a powerful driver for BigLaw firms, even in the face of immediate market volatility and uncertainty. The gusto with which global practices are responding to the Indian news seems indicative of that.

Last week, Lawyers Weekly also approached Allens, Ashurst, Clifford Chance, K&L Gates, King & Wood Mallesons, Norton Rose Fulbright and Squire Patton Boggs for comment. As of the time of filing this story, it had not heard from these firms.