SILF COVER NOTE
1. The deliberation on “opening up” of the legal services sector is a step in the right
direction.SILF appreciates the opportunity given to participate in these
deliberations.SILF further appreciates and lauds that the stakeholders - the profession;
the regulator and the Government – are on a common platform to deliberate on issues
of far reaching consequences for the country and the profession. Undoubtedly, such
dialogue, collaborative and participative approach would bring about better
appreciation of viewpoints. It would a critical success factor as we move forward not
only to create the framework but also for smooth implementation of legal services
reform in a context larger than just “opening up”.
2. Going back to the history of these deliberations which began in late 2014 in the Inter
Ministerial Group – the holistic subject matter titled “Roadmap for Legal Services
Reforms in India” may be recalled.
3. Such deliberations must not be held in isolation from the critical, fundamental and
holistic conversation about the future of the Indian profession: “what should be the
place for the Indian legal profession under the sun?” This is not just about “foreign
lawyers and foreign law firms”. The issue at hand isjustone piece of the larger mosaic the “Roadmap” or the blue print for “Legal Services Reforms”. We would go one step
further to say that if truly the objective is for this sector to keep pace with global trends
and opportunities then the need of the hour is immediate deliberations on outdated
regulations that are holding back Indian profession, regulatory reforms and other steps
required to build and sustain the competitiveness of the Indian profession, whether or
not opening up takes place.
4. Objects and reasons section of BCI draft rules has several general statements – some
are illustrated below:
o The legal profession in India has to rise to the occasion to meet the international
challenges posed by such globalization of business and also by migration of people
from one country to the other on such a large scale that had not been witnessed in
earlier times. The world is becoming a global village.
o The demand for an open,responsive and receptive legal services dispensation
mechanism' in India from the consumers of legal services who operate in
international business and cross-country international trade and services is
becoming severeday by day.
o Growth in international legal services, globalization of legal practice and
internationalization of the law is increasingly becoming relevant to the growth of
the legal services and practices in India.
o 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 services grow in India to the benefit of lawyers both
from India and abroad.
1

 o It is noteworthy that the standards of Indian lawyers in proficiency in law is
comparable with the international standards and the legal fraternity in India is not
"likely to suffer any disadvantage in case law practice in India is opened up to
foreign lawyers in a well-controlled and regulated manner …..
o In case, we sleep over the matter, the legal fraternity of India may be left behind in
providing legal services to this fast growing class of service seekers in the field of
law in India. Let us ensure that - the opportunity for creating a hub for such legal
services in India is not lost.
5. Given the broad and far reaching “rationale” set out in the “objects and reasons”
section, it would appear that the draft rules in hand are intended to be part of an overall
amorphous objective, amongst others, of “helping legal services grow in India to the
benefit of lawyers both from India and abroad; providing legal services to “this”
(though undefined when the sentence is read) fast growing class of service seekers in
the field of law in India”.
6. We will need more than generalities and motherhood statements. An articulated
“vision” for the Indian profession – particularly in the context of globalization is the
need of the hour. If we do not have the idea of where we as a profession should head,
there cannot be any “roadmap” with embedded actions and milestones. That cannot be
wished away by expecting the Indian profession to suddenly “rise” to “meet”
international challenges and to grab the opportunities for creating a hub “for such legal
services”.
7. To think about “reform” of a sector, one has to first understand its construct. What is
the market? How large is it? Who are the consumers? Who are the providers? What is
the stage of its development? What are the services needed? Are the needed services
being offered and provided? How is the legal services market segmented – on the
demand side and the supply side? What is the state of competition in each segment?
What have been and are the constraints under which the profession and more
particularly law firms have operated and evolved and are presently operating? Is there
adequate supply – including fresh entrants – in the profession? What are the
competence levels in the profession and how can these be improved? How efficient,
effective and economical is the service delivery? Is the profession responsible and
accountable to the consumers of legal services? And the overarching and ultimate
question: Are the legal services sector and the judicial system delivering for the
consumers and the nation?
8. There are no credible data points available on several of the questions raised above.
9. However, the thinness of advisory, corporate and commercial law domestic market in
India is well known. The top thin layer is over serviced by lawyers and domestic firms
whilst a vast segment of micro small and medium size businesses and most of the
unorganized sector – which may be described as India UnInc (as distinct from the large
and organized sector described usually as “India Inc”) - generally does not access
lawyers but is typically served by Chartered Accountants. The demand itself is small
because of general disenchantment with slow moving judicial system. Smaller
businesses would rather not get involved with enforcement of contractual or other legal
rights. Breach of contract or commercial obligations is just taken as a cost of doing
business. This does not bode well for a market economy which rests on the assumption
2

 that legal obligations will be fulfilled and that there is rule of law which effectively and
expeditiously enforce legal rights. Thus, widening and deepening the domestic market
for commercial, corporate and advisory legal work is critical as is enabling access to
justice for India UnInc. Addressing such issues should be part of the “Roadmap” – for
the Reform of Legal Services Sector.
10. The relationship or connect between opening up practice of “foreign law” at this stage
to the eventual goal of “not being left behind” in developing the profession for seeking
and grabbing global opportunities needs to be understood. How do we use this step as
a stepping stone to an articulated future?How do we build capacity and capability in
India – of our Indian lawyers and Indian law firms – to get ready for the future which
awaits us?
11. The approach has to be long term. Ad-hoc and one off decisions on a random basis
without keeping our eye on the future is not the answer. The reform process must
address the requirements of the profession and its growth over decades. Short termism
will be an inadequate and inappropriate response. Irrespective of whether this
profession is opened to foreign lawyers and foreign firms or not, there are inherent
weaknesses and regulatory gaps that need to be addressed in the long-term interests of
the sector. They are needed for the overall growth and competitiveness of the sector
and to prepare it for emerging challenges and opportunities in the future.
12. When we see the history of the process for “opening up” of the legal sector while each
country may be driven by its own circumstances and stage of development of its
profession but one common theme is that each country has followed (or is following) a
gradual and phased program– lasting two decades or more. The question arises: why
this phased approach? The answer is that these jurisdictions have acted in a long term
context.
13. “Opening up” (and definitions can vary), has not been suddenly brought about in any
jurisdiction. Generally, “opening up” has been seen to involve following three phases.
An assessment is done after each phase and if required the going forward plan may be
suitable modified and appropriate short term and mid-term actions are taken.
a. Phase I: review and reform the domestic sector to get to “level playing field”;
o Phase II: foreign lawyers (usually titled as “Foreign Legal Consultants” (FLC))
and foreign law firms staffed by FLCs are permitted to have presence in the
host country India solely to provide advice on foreign law under controlled
conditions (including restrictions on hiring or other relationship with local bar
other than referral relationships; and no surrogacy);
o Phase III: foreign law firms/lawyers to be permitted to undertake practice in
certain areas of law of the host country – commencing with joint ventures with
local bar under controlled conditions; then over a period of time their own
offices with limitations on number of licenses to be granted; moving on
eventually to open licensing.
14. And there is a rationale for this phased approach. Take Phase I: If the sector has to be
prepared to become more global and to face emerging challenges as well as reap the
benefits from emerging opportunities, then constraints which currently hurt its growth
3

 prospects have to be dealt with. In conjunction with that several measures have to be
taken to build capacity and build competitiveness – that is to say “prepare” the
domestic profession for the upcoming phases of “opening up”.
15. A very broad statement has been made that standard of Indian lawyers “in proficiency
in law is comparable with the international standards and the legal fraternity in India
is not "likely to suffer any disadvantage in case law practice in India is opened up to
foreign lawyers…”. We appreciate the reference to “proficiency” of Indian lawyers.
But do not gloss over the fact that practice of corporate law in a law firm environment
is of relatively recent origin in India. Our so called national large firms are still of a
miniscule size compared to law firms in most developed jurisdictions. Do not ignore
the size and reach of the large firms with 4000+ lawyers and billions of dollars of toplines.
It would indeed be a wonderful thing to see that the interests of Indian legal fraternity
do not suffer any disadvantage” premised on “well controlled and regulated manner”
opening up. It will be equally wonderful to see India becoming a “hub” for
international “service seekers”. Those are words. How will that be achieved requires a
thought through and well executed “blue print” for the profession. It will not happen by
just “opening up” the market.
16. As a further illustration, during Phase I and certainly during Phase II – several
proactive and sustained steps will have to be taken to unshackle the domestic firms
from restrictions of the 19th century and to continue building capacity and capability of
the profession and the domestic firms. These would extend, amongst others, to:
a. Regulatory and administrative reform: there are several matters that need
attention in Phase I including:


Recognition and removal of difficulties for practice in LLP format
o Bar Council of India (BCI) Clarification that practice of law in LLP
format is permissible– so long as all partners are Advocates (request
pending since 2010)
o Income Tax Clarification (request made to CBDT in 2010)


conversion of partnership firm to a LLP is not a taxable event;



changes – entry and exit of partners – post conversion permitted;
and



change in assets and liabilities post conversion permitted;



Recognition and registration of law firms by BCI



BCI Rules to be amended to permit
o Firm brochures;
4

 o Firm Web-sites without the restrictions placed on content by BCI a
couple of years back;
o Directory listings;
o Sponsorship of events;
o Other means of market development and information dissemination of
firm information including credentials presentations; and
o Participation in bid out tenders for legal services and submission of
Requests for Proposals (RFP)


Ceasing of all “surrogate practice” of Indian law in India by foreign law firms
through various devices and structures;



Ceasing of practice of Indian law outside of India by foreign lawyers and
foreign firms [websites of several leading foreign firms unabashedly claim
“India practice” conducted from the overseas offices];



Ability of Indian law firms to engage foreign lawyers – a measure towards
building capacity, familiarization with best practices, training of local talent
and filling capability gaps



Any other items that emerge in consultation with the profession and BCI.

b. Legal education reforms: Reference may be made to the Vision Statement 2010
—2012 of the Chairman of the BCI launched in June 2010 which identified two
main weaknesses in the Indian legal education system:
i. the inadequate quality of legal education and infrastructure
ii. the lack of relevant skills training to meet changing requirements.
The Statement noted that Indian legal education must not only aim at creating
value for the "top of the pyramid law graduates but must have stringent
minimum standards for all law students..." with the objective of putting in place
required measures from the 2011—2012 academic year). The steps identified in
this statement include:
(i)
(ii)

(iii)
(iv)

creating clear quality standards for legal education;
a common entry level standard for admission to law schools nationwide,
which would be made possible through a combination of institutional
reforms aimed at quality control, benchmarking and accreditation
processes;
changes in the content and structure through revisions in the curriculum
and more practical orientation; and
improvements in pedagogy through the use of new technologies and
mediums, faculty upgrading and incentives, among other measures.
5

 This may be a good time to review the levels of implementation of the Vision
and an impact assessment.
c.

Development of competence: Indian professionals (and thus for the
competitive benefit of Indian law firms) to undertake continuing legal
education (CLE), continuing professional development (CPD), mechanisms for
periodic evaluation, renewal of license to practice through an examination
process every few years; establishment of training centres to facilitate CLE and
CPD; use of technology for training to enable part time, online, weekend
training programs; training to extend to development of specialized skill sets
and domain expertise and on practical training and train the trainer initiative for
a multiplier effect.

d. Indian law firms: The domestic firms too will have to take several steps to build
culture and to become more global and professional in their outlook;
investmore in technology, training, talent management, information systems,
and emerging areas of specialization so as to improve their standards to prepare
themselves for competition and for taking advantage of emerging opportunities
in the domestic and global markets.
In summary, reforms at diverse levels would have to be implemented. The immediate focus
should be on removing those restrictions and obstacles which are not serving the cause of
building and strengthening capabilities and capacity in tandem with focused efforts to
positively influence skilling, training, enhancement of efficiency and specialization.
17. During the earlier meetings, there was an agreement on a phased gradual sequential
approach to the “opening up”. It may also be recalled that the presentation made the
Department of Commerce in the Inter Ministerial Group meetings in December 2014
and January 2015 contemplates a similar three phase approach. Though questions and
details have obviously to be discussed, such as: definition of each phase; the conditions
for each phase; the duration (it being recognized that it can’t be several decades like in
other jurisdictions) and the trigger points for moving from one phase to the next.
Specifically, in the immediate context, it may need to be considered to what extent
Phase I can be expedited and/or some elements thereof can run in tandem with
commencement of Phase II.
18. The proposed BCI Rules (including the objects and reasons) do not indicate anything
about Phase I and its accomplishment. On the other hand there appears to be a
misunderstanding and confusion in the approach – particularly, the proposed Rules
9(ii) and ((iv), which refer to relationship of foreign lawyers with Advocates in practice
of Indian law which in any situation would be elements of Phase III. These sub-rules
enable practice of Indian law, directly and indirectly from the very first day.
19. There are significant structural and operational weaknesses in how the profession has
evolved and is organized today which hugely overshadow and offset the pockets of
strengths. If the intended policy outcome is indeed enabling Indian profession to
compete and seize global opportunities, it can only be achieved if time is well spent in
Phase I and Phase II to prepare for Phase III and beyond. Some suggestions have been
made in Paragraph 16 above. All these steps are necessary for orderly and gradual
preparation of the legal market for “opening up” – Phase III and beyond. The phases
6

 cannot be addressed piecemeal without an overall understanding of where the process
will head and what would be the expectations in each phase; an ongoing impact
assessment in each phase and maturing in one phase to go on to the next phase. This is
not an overnight process.
20. In recent times it has been mentioned that “opening up” is an important element of
another desired outcome of making India an international arbitration hub. Realistically,
there is no instant magic wand that can get us there. It can be achieved with a sustained
effort over a period of time. A credible track record of enabling environment for
domestic arbitration and recognition of foreign awards has to be demonstrated to the
international audience. For example, it does not help if there is strong perception that
Indian courts interfere negatively; that Indian judicial system is too slow; that the
physical infrastructure is not up to the mark. Such perceptions have to be dealt with on
the ground if we wish to create an “international arbitration hub” or a hub for any legal
services. Is there an opportunity – yes, indeed there is. But it can only be grabbed with
consistent and well directed efforts.
21. Singapore is a classic example of carefully crafted and implemented program for
opening up of its legal market and achievement of a “hub” status.
o They started in the early 1980’s; passing through stages of only “foreign law”;
joint ventures with local firms for laws other than local law; and finally in
2009 reaching the goal of permitting limited number of foreign firms to
practice not only foreign law but also Singapore law.
o Creation of capacity in the profession and domestic firms led to the associated
development of Singapore International Arbitration Centre (SIAC) and
significant efficiencies and improvement in the judicial system. These were
well planned and synchronised efforts. It was creation of a vibrant eco-system
conducive to the perception and reality of Singapore becoming an arbitration
and legal services hub.
o

Singapore has aspirations beyond that - promoting adoption of “Singapore
Law” as a preferred governing law for international transactions which could
enable them to garner a larger share of regional and international market –
being a shipping, trading, financial and regional business centre.

o And it is most interesting that through this process, local Singapore firms had
the enabling environment to grow and get ready for international competition.
Today not only are local firms doing well and successfully meeting the
competition but several have established their offices in neighbouring countries
like Vietnam, Cambodia, Hong Kong and even China.
22. Thus, the path chosen by us should not only be “well defined, regulated and
controlled” it also has to be “gradual and phased” and grounded in the reality of the
current stage of development of domestic firms. There has to be adequate time and
opportunity for the Indian profession to prepare itself. That period is not for
procrastination and to bury heads in sand but to be productively and constructively
deployed for implementing a number of identified and well planned initiatives for long
term improvement of the capability and capacity of the domestic profession and
7

 widening and deepening of the domestic market for legal services. One would expect
that to be an obvious intended policy outcome – if the overarching goal is to enable the
Indian profession to grow and to compete globally in the non-litigious space identified
as the high potential and global growth area.
23. It would be relevant to note that Peoples Republic of China commenced “opening up”
in January 2002 and after 14 years it is still in its Phase II – foreign firms are permitted
to open “representative office”; practice of only foreign law; no practice of PRC law
and no relationship with local bar other than referral. They have safeguards to prevent
surrogate practice of PRC law. The extant rules and regulations in the PRC are
attached.
24. As is evident, “opening up” does not mean deregulation of the sector. Opening up
should mean ensuring well-regulated foreign competition in the domestic market while
also safeguarding the interests of domestic profession which must be nurtured and
given an opportunity to effectively and meaningfully compete to find its place under
the sun.
25. We have carefully studied the draft rules on the premise that these rules deal with
Phase II – that is practice of foreign law in India by foreign lawyers and foreign law
firm to the exclusion of Indian law. We have followed this principle and made our
suggestions. We also noticed that the draft rules are somewhat lacking as concerns
registration of foreign law firms. The proposed rules include firms, LLP, corporations
as part of definition of “foreign lawyers” – which is unconventional. Further, it is not
even workable under the terms of the proposed rules themselves (See Rule 4 for
instance - where all of the required certificates and eligibility criterion can apply only
to an individual). Therefore, we have proposed a clear framework specific to foreign
law firms as distinct from individual lawyers who will be registered as “foreign legal
consultants”. We have expressed concerns on the ambit of the license to “practice law
in India”. The license must be restricted to “practice of foreign law”. We have
expressed deep reservations on foreign lawyers being “deemed as Advocates”. There
are concerns on Rule 8 which describes what foreign lawyers can do. And lastly, there
are critical elements of Rule 9 concerning relationship with the local bar which we
believe have no place in Phase II architecture.
26. Then there is the overarching issue of “reciprocity”. That is a complex word/concept in
this area. Reciprocity in its simplistic sense means equivalence of rights and privileges
and conditions which are made available by each side. However, it is a difficult and
unwieldy concept when drilled down a bit as described in the attached note. A couple
of key points are:


Reciprocity – real and meaningful: Technicalities and discriminatory practices
like immigration rules and work permits can make mockery of reciprocity.
BCI draft rules mention about “migration of people from one country to the
other on such a large scale that had not been witnessed in earlier times”.
Indeed real and meaningful reciprocity, not lip service, would demand free
movement of professionals across borders. But in fact such free movement of
professionals across borders has not occurred. Brexit and the discourse in the
US presidential election are indications of contrarian restrictive
trends.Thus,there is indeed the larger practical question of what “reciprocity”
8

 really means in the context of professionals – be it lawyers or other
professionals.


Reciprocity: Association of Persons:There will be legal and practical issues to
be dealt with in applying principle of “reciprocity” in case of association of
persons – such as a law firm. For example, a global firm with offices in 40
countries but reciprocity is available only in 20 of those. Or, an international
firm based in London has offices in and partners from all over the world
including China and Pakistan, who may be non-reciprocating territories. Or,
international firms with complex structures – operating under the same name
with external projection of one identity – but with separate legal entities in
different jurisdictions. Or, take the case of the United States – the most
developed legal market in the world – where even now only about 33 state
jurisdictions permit “foreign legal consultants” while 17 other states do not.
There could be cases where a US based firm has partners who are from one or
more of these 17 states.

27. We would also draw attention to provisions of WTO, GATS and Most Favoured
Nation treatment thereunder. As a WTO Member, India is subject to General
Agreement on Trade in Services (GATS).


Under GATS. A Member has to provide Market Access Commitments under
Article XVI and any MFN Exemptions under Article II. India has not
undertaken any commitment to grant market access to legal services under
Article XVI and thus it is not entitled to provide any Exemptions under
Article II in respect to such services.



Article II mandates a WTO member to accord immediately and
unconditionally to services and service suppliers of any other Member
treatment no less favourable than that it accords to like services and service
suppliers of any other country. This MFN treatment obligation applies to all
service sectors, unless a Member has registered MFN exemptions in the
Annex on Article II Exemptions, as provided in Article 11:2 of the GATS.



The possible implication of the above is that irrespective of the reciprocity
provisions in BCI Rules, to the extent India grants access to legal service
suppliers of any WTO Member country, a treatment no less favourable than
that shall have to be granted to every other WTO Member country. For
instance, if legal service providers of Germany are allowed to practice their
home country law in India, no less favourable treatment, has to be provided
say to a legal service provider from Japan, whether or not Japan qualifies
under the reciprocity principle under the BCI rules. WTO provisions will
override any other law or regulation that may be made in this situation.

28. It would be critical that the framework to be established going forward is legally
sound. SILF has examined at some depth the question of viresof the rule making
powers under the Advocates Act. A note in that behalf is attached. It is responsibility of
all stakeholdersthat this historic process is handled smoothly and avoidable difficulties
do not arise in the implementation of the framework. Disruptions in the process would
not be a desirable outcome more as international audience is involved. In this context
9

 the implications of the pending litigation in the Supreme Court and the Bombay High
Court would also need to be considered.
LIST OF ATTACHMENTS
1. Regulations on Administration of Foreign Law Firms' Representative Offices in
China [Adopted at the 51st Executive Meeting of the State Council on December 19,
2001, promulgated by the Decree No. 338 of the State Council of the People's
Republic of China on December 22, 2001, and effective as of January 1, 2002]
2. Provisions of the Ministry of Justice on the Execution of the Regulations on the
Administration of Foreign Law Firms’ Representative Offices in China [Order of the
Ministry of Justice of the People's Republic of China,No. 73 dated July 4, 2002]
3. Reciprocity Note
4. Vires Note
[END OF DOCUMENT]

10

 SILF COMMENTS ON THE DRAFT RULES
Text of the draft of the Bar Council of India Rules for
registration and regulation of foreign lawyers in
India, 2016

Text of Draft Rules proposed by
Society of Indian Law Firms

Comments,
observations and
rationale

"The Bar Council of India (Registration and
Regulation of Foreign Legal Consultants and
Registered Foreign Law Firms in India) Rules,
2016"
CHAPTER I
PRELIMINARY

CHAPTER I
PRELIMINARY

1.

Short title, extent and commencement. -

(a)

These Rules shall be called as the Bar Council
(a)(a) These Rules shall be called as the Bar Council of
of India Rules for registration and regulation of
India (Registration and regulation of foreign legal
foreign lawyers in Indu .
consultants and Registered Foreign Law Firms in
These Rules shall come into force in whole of
India) Rules, 2016
India as soon as notified in the official Gazette.
(b) These Rules shall come into force in whole of India as
soon as notified in the official Gazette.
Definitions. 2.
Definitions. -

(b)

2.
(i)
(ii)

(iii)

1. Short title, extent and commencement. -

'Act' means The Advocates Act, 1961 as
amended from time to time.
The definitions of different terms as given in the
Act shall apply to these Rules as well.

(i)
'Act' means The Advocates Act, 1961 as
amended from time to time.

(ii) Words and expressions used but not defined in
these rules shall have the meanings respectively
assigned to them in the Act.

This is the standard form in
which definitions are stated in
the Rules

'Foreign lawyer' means a person, including a
law firm, limited liability partnership, company
or a corporation, by whatever name called or
described, who/which is entitled to practice law
in a foreign country.

(iii)(a) 'Foreign lawyer' means a person, who is
licensed, by the Competent Authority of a foreign
country to practice the concerned foreign law.
(iii)(b)"Foreign legal consultant" means a foreign
lawyer who has been registered by the Bar Council of

? Around the world, it is the
individual - a natural person who is enrolled to practice
law. Such enrolled lawyers can

1

India under these Rules.
(iii)(c)"Foreign law firm" means a partnership of
foreign lawyers engaged solely and exclusively in the
practice of law other than Indian Law
(iii)(d)"Registered Foreign Law Firm" means a
foreign law firm which has been registered by the Bar
Council of India under these Rules.
?

?

?

?

2

then
form
partnerships.
Defining
"corporate
or
artificial persons" as lawyers
is not the norm. For example,
under the Advocates Act, only
individuals can be enrolled.
And an advocate may practice
individually or in partnership
with other advocates.
Even under the draft Rules
(see Rule 4), as drafted, the
eligibility criterion and the
procedure can apply only to
an individual.
Rule 4, as
drafted, cannot apply to a firm
and much less to a company
or corporation.
As will become clear in our
subsequent comments, there
is a need to have four
separate definitions: foreign
lawyer;
foreign
legal
consultant; foreign law firm;
and registered foreign law
firm.
Multidisciplinary practice is
not recognized or permitted
by the Bar Council of India.
Thus the foreign law firms
must be solely and exclusively
engaged in practice of law
other than Indian Law.
Foreign Law Firms: While

the draft rules refer to "firms"
and other entities in the
definition of foreign lawyer
but the rest of the rules do
not support the entry of a
foreign firms as all the
qualification and certification
provisions, as drafted, have
relevance only to individuals.
To bring about clarity and
certainty for foreign law firms
and
to
provide
for
a
framework for them, it would
be necessary to specifically
provide for "foreign law firms"
registering
in
India
for
conducting
foreign
law
activities. Failing that the
objectives set out by BCI will
not be achievable. Such a
foreign firm is described as
"Registered Foreign Law
Firm".
(iv)

(v)

Foreign Country' means a foreign country,
which is recognized as such by the Government
of India and it includes a constituent State
thereof in case such as a foreign country has a
federal structure of governance and such
constituent State has its own justice -delivery
system and a separate class of persons entitled
to practice law.
Country of the primary qualification' means a
foreign country in which, the foreign lawyer is

(iv)

(v)

Foreign Country' means a foreign country, which
is recognized as such by the Government of
India and it includes a constituent State thereof
in case such as a foreign country has a federal
structure of governance and such constituent
State has its own justice -delivery system and a
separate class of persons entitled to practice
law.
Country of the primary qualification' means a
foreign country in which, the foreign lawyer is

3

We have detailed comments on
issue of "reciprocity". Please see
Annexure A hereto.

(vi)
(vii)

(ix)

entitled to practice law as per law of that
country.
'Foreign law' means law, which is or was
effective, in the country of primary
qualification.
'Competent Authority of the foreign country'
means the government or a Court of law or a
statutory authority or Bar Council or Legally
authorized Association or any other legally
recognized and constituted body by whatever
name called or described, which is competent to
grant license to practice law.
"International arbitration case" means an
arbitration case concerning a commercial or
monetary matter which is conducted in India in
which all or any of the parties are persons who
have an address or principal office or head
office in a foreign country.

licensed to practice law, not being Indian Law,
as per law of that country.
(vi) 'Foreign law' means law, which is or was effective, in
the country of primary qualification not being
Indian Law.
(vii)
'Competent Authority of the foreign country'
means the government or a Court of law or a
statutory authority or Bar Council or Legally
authorized Association or any other legally
recognized and constituted body by whatever
name called or described, which is competent
to grant license to practice law.
(ix) "International arbitration case" means an
arbitration case concerning a cross border commercial
or monetary dispute which is conducted in India and in
which at least one of the contesting parties is from a
country other than India and the dispute is governed by
foreign law.
(x) "Indian Law" means any statute, law, regulation,
ordinance, rule, judgment, notification, rule of common
law, Governmental Order, Governmental Authorization
that has the force of law in India;
"Governmental Authority" means any government, any
state or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government,
or any other government authority, agency, department,
board, commission or instrumentality or any political
subdivision thereof, and any court, tribunal or
arbitrator(s) of competent jurisdiction, and, any
governmental or non-governmental self-regulatory
organization, agency or authority in India;

4

Our proposed definition is simplified
version of the definition under the
Arbitration & Conciliation Act with
the addition that the dispute is
governed by "foreign law".
There is need to define "Indian
Law" as distinct from "foreign
law". Foreign Legal Consultants
and Foreign Law Firms are to
practice foreign law and not
Indian Law.

"Governmental Order" means any order, writ, judgment,
injunction, decree, bye-law, directive, guideline,
requirement or other restriction , stipulation,
determination or award or any similar form of decision
of, or determination by, or any interpretation, policy or
administrative matter entered, rendered, issued or made
by any Governmental Authority.

CHAPTER II
REGISTRATION OF FOREIGN LAWYERS AND
THE EXTENT AND CONDITIONS SUBJECT TO
WHICH THEY CAN PRACTICE LAW IN INDIA
3.
Registration of foreign lawyers and eligibility
criteria therefor: (1)
(1)
A foreign lawyer shall not be entitled to practice
law in India unless he/it is registered with the Bar
Council of India under these Rules:
(2)
Provided that this prohibition will not apply to
law practice by a foreign lawyer in case such practice is
done on a fly in and fly out basis' for the purpose of
giving legal advice to the client in India regarding
foreign law and on diverse international legal issues and
provided further that services of such a foreign lawyer
had been procured in a foreign country and he/it does
not maintain an office in India for the purpose of such
practice and lastly such practice in India for one or more

"Governmental
Authorization"
means
any
authorizations, consents, waivers, orders constituting
approvals and other approvals of any Governmental
Authority including the expiration of any applicable
waiting periods associated therewith.
CHAPTER II
REGISTRATION OF FOREIGN LEGAL
CONSULTANTS AND REGISTERED FOREIGN
LAW FIRMS
3. Registration of foreign legal consultants and
eligibility criteria therefor: (1). No foreign lawyer shall practice or conduct any
activity in India without being registered as a foreign
legal consultant under these Rules.
(2) The Bar Council of India may register a foreign
lawyer as a "foreign legal consultant" under these
Rules. To qualify for a registration as a foreign legal
consultant, the applicant shall be a person who:
(a) has been admitted to practice in a foreign country as
an attorney, counselor at law, or the equivalent for a
period of not less than [ 7 ] years immediately preceding
the application for registration under these Rules;

5

Conceptually,
it
is
not
"practice of law" that a
foreign lawyer would be
entitled to but would be
practice of "foreign law in
India" that would be granted
as a privilege to a foreign
lawyer who registers. Please
see our further comments at
Rule 8.
The
more
appropriate
and
conventional way is to start with
"registration" or licensing of a

periods does not, in aggregate, exceed 60 days in any
period of 12 months.

(b) has been consistently and solely engaged in the
practice of law of such foreign country for a period of
not less than [3] of the [5] years immediately preceding
the application for registration under the Rules and has
remained in good standing in such practice throughout
said period;
(c) is admitted to practice in a foreign country whose
professional disciplinary system for lawyers established
by the Competent Authority is generally consistent with
that of an Advocate under the rules of the Bar Council of
India;
(d) has not been disciplined for professional misconduct
by the bar or courts of any jurisdiction and is not the
subject of any such disciplinary proceeding or
investigation pending at the date of application for
registration under these Rules;
(e) has submitted, pursuant to requirements of these
Rules, an application for registration and paid the
appropriates fees;

foreign lawyer as a "foreign legal
consultant" (FLC) and thereafter
proceed to define what a FLC can
or can't do. This is how it is
generally done - including in the
US jurisdictions which permit
licensing
of
foreign
legal
consultants.
ELGIBILITY CRITERIA: Without
exception rules for foreign legal
consultants
require
"good
standing" - a length of bar
admission in the home country
and
period
of
continuous
practice.
The intended saving for "fly in fly
out" (or temporary presence -
has been provided in Rule 11A
below.

(f) agrees to abide by the applicable rules regulating the
Bar Council of India and submit to the jurisdiction of
courts of India for disciplinary purposes; and

(2)
Right to practice law' in the concerned foreign
country of the primary qualification' shall be the primary
qualification for practicing law in India under these
rules.

(h) undertakes to comply with applicable
immigration laws of India.
(2)Right to practice law' in the concerned foreign
country of the primary qualification' shall be the primary
qualification for registration as a foreign legal
consultant under these rules.

6

There is no "practice of law in
India" license - that is exclusive
for Advocates under the Act.
Under these Rules, it is limited to
registration as a foreign legal

consultant to practice "foreign
law".
(3) Foreign legal consultant shall not practice
Indian Law.
3A. Registration of a Foreign Law Firm
and eligibility criteria therefor:(1) No foreign law firm shall practice or conduct any
activity in India without being registered as a
registered foreign law firm under these rules.
(2) The Bar Council of India may register a foreign
law firm as a "registered foreign law firm" under
these Rules.
(3) The registered foreign law firm shall not practice
Indian Law.
CHAPTER III
APPLICATIONS
FOR REGISTRATION,
RENEWAL OF REGISTRATION AND
MATTERS CONNECTED WITH LAW
PRACTICE IN INDIA
4.
Application for registration. - (1) A foreign
lawyer may apply for registration -under these rules in
'FORM A' appended to these Rules along with
registration fee and guarantee amount either in person or
through registered Post. This application and fee may
also be submitted on-line.

CHAPTER III
APPLICATIONS
FOR REGISTRATION,
RENEWAL OF REGISTRATION AND
MATTERS CONNECTED WITH FOREIGN
LEGAL CONSULTANTS AND REGISTERED
FOREIGN LAW FIRMS
4. Application for registration:- (1) A foreign lawyer
may apply for registration as a foreign legal
consultant under these rules in 'FORM A'
appended to these Rules along with registration
fee and guarantee amount either in person or
through registered Post. This application and fee
may also be submitted on-line.

7

Limitation not to practice "Indian
Law" - the stated policy objective
being practice of foreign law in
India,
As said the BCI Rules do not have
any provision for registration of
foreign law firms. This new
provision seeks to fill that gap.
Self-explanatory
Self-explanatory
Limitation not to practice
"Indian Law" - the stated
policy objective being practice
of foreign law in India,
Registration is not for practice of
law
but
as
foreign
legal
consultant or registered foreign
law firm to practice foreign law.
No comments

Such an application shall also be accompanied by nonrefundable Process charges of such an amount as may be
fixed by Bar Council of India from time to time.
This application shall be addressed to the Secretary, Bar
Council of India and shall be accompanied by the
following documents:
(i)

(ii)

(iii)

(iv)

A certificate from the Government of India,
(Ministry of Law & Justice and Ministry of
Commerce and Trade) or such other authority or
officer as Union Government may authorize in
this behalf that an effective legal system exists
in concerned foreign country of the primary
qualification and that it has no objection in case
the applicant is registered under these Rules and
practices law in India;
A certificate from the Competent Authority of
the concerned foreign country of primary
qualification certifying that the applicant is
entitled to practice law in that Country;

Such an application shall also be accompanied by nonrefundable Process charges of such an amount as may be
fixed by Bar Council of India from time to time.
This application shall be addressed to the Secretary, Bar
Council of India and shall be accompanied by the
following documents:
(i)
A certificate from the Government of India,
(Ministry of Law & Justice and Ministry of
Commerce and Industry) or such other authority
or officer as Union Government may authorize
in this behalf that an effective legal system exists
in concerned foreign country of the primary
qualification and that it has no objection in case
the applicant is registered under these Rules as a
foreign legal consultant;
(ii)
A certificate from the Competent Authority of the
concerned foreign country of primary
qualification certifying the date from which the
applicant is entitled to practice law in that
Country;

A certificate from the Government of the
foreign country of primary qualification or from
a competent Authority thereof citifying that
advocates enrolled under the Advocates Act,
1961 are permitted to practice law in that
country in the manner and to the extent which is
comparable to the law practice permitted under
these Rules along with copies of the relevant
Laws and Rules.

(iii)

A certificate from the Competent Authority of

(iv)

A certificate from the Government of the
foreign country of primary qualification or from
a competent Authority thereof certifying that
advocates enrolled under the Advocates Act,
1961 are permitted to practice Indian law in that
country in the manner and to the extent which is
comparable to the practice of foreign law by a
foreign legal consultant permitted under these
Rules along with copies of the relevant Laws and
Rules;
A certificate from the Competent Authority of the

8

As said, registration is not for
"practice of law" but to practice
foreign law. Further it is Ministry
of Commerce & Industry and not
Ministry of Commerce and Trade.
On elements of reciprocity,
please see our detailed note.
The eligibility criterion should
include good standing at the bar
for a period. Thus the need to
include the "date from which"
the applicant has been enrolled
in the foreign jurisdiction.
Please see a detailed separate
note on "Reciprocity".
Further, it would be even handed
to say that Advocates should be
permitted to practice "Indian
Law" in the foreign jurisdiction as
"foreign legal consultants" would
be permitted to practice only
"foreign law' in India.
The eligibility criterion should

the concerned country of primary qualification
or any other competent authority/ies, Courts,
Bar Association, Bar Council etc. that the
applicant has been in active practice in that
country;

(v)

A certificate of the competent authority
of the concerned foreign country of primary
qualification that no proceedings of professional
or other misconduct are pending either before it
or before any ether authority competent to
entertain and decide such proceedings;

(vi)

A certificate of the competent authority of the
concerned foreign country of primary
qualification giving details of the fee structure
and other amounts chargeable from an advocate
enrolled under the Act for enabling him to
practice law in that country along with relevant
Rules and Laws;
"No objection Certificate of the competent
authority of the
concerned
foreign
country of primary qualification that it has
no objection in case the applicant starts law
practice in India and that the applicant enjoys a
good standing in the Bar.
A declaration on affidavit that the applicant has
not been convicted of any offence and has not

(vii)

(viii)

concerned country of primary qualification or
any other competent authority/ies, Courts, Bar
Association, Bar Council etc. that the applicant
solely engaged in active legal practice in that
country for a period of not less than [3] of the
[5] years immediately preceding the application
for registration under the Rules and has
remained in good standing in such practice
throughout said period;
(v)
A certificate of the competent authority of
the concerned foreign country of primary
qualification that no proceedings of professional
or other misconduct are pending either before it
or before any ether authority competent to
entertain and decide such proceedings and that
such competent authority will honour any
disciplinary action against registered foreign
legal consultant that may be taken by the Bar
Council of India.
(vi) A certificate of the competent authority of the
concerned
foreign
country
of
primary
qualification giving details of the fee structure
and other amounts would be payable by an
advocate enrolled under the Act for enabling him
to practice Indian Law in that foreign country
along with relevant Rules and Laws;
(vii)"No objection Certificate of the competent authority
of the
concerned
foreign
country
of
primary qualification that it has no objection in
case the applicant is granted a registration as
foreign legal consultant in India.
(viii)

A declaration on affidavit that the applicant has
not been convicted of any offence and has not

9

include good standing at the bar
for a period. Thus the
requirement of continuous
practice for a duration.

Formal undertaking from
competent authority that it will
honour and respect the
disciplinary action of the BCI
against the FLC is a must.

The text appears not to be very
clear. Does the redraft convey
the intent correctly?

FLC and not "starts law practice
in India"

No comment.

(ix)

(x)

(xi)

(xii)

suffered any adverse order in any disciplinary
matter. (In case he has suffered any
conviction/adverse order, relevant attested
copies of the order of conviction/adverse order
and other related documents about the matter
like appeal and stay, if any, or sentence/tine
suffered/paid etc. are to be annexed);
A declaration on affidavit that the applicant has
no objection and consents to the making of
enquiries and investigation by the Bar Council
of India on its own or through such government
or non-government investigating agency, as it
may deem fit, to verify the veracity of the
particulars disclosed by the applicant in the
application and genuineness of the documents
annexed therewith;
An undertaking on oath that he/it 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;
A declaration on oath that he/it shall not be
entitled to and shall not claim any interest on the
guarantee amount deposited by him/it with
Bar Council of India at the time of registration
under these Rules and that the Bar Council shall
be entitled to adjust and apply this guarantee
amount to the penalty and cost amounts that
may be awarded by the Bar Council of India
under rules 9 and 10;
A declaration on oath that the applicant fully
understands and appreciates the fact that on
registration under rule 7 of these Rules, the
Advocates Act, 1961 and Rules made there

(ix)

(x)

(xi)

(xii)

suffered any adverse order in any disciplinary
matter. (In case he has suffered any
conviction/adverse order, relevant attested
copies of the order of conviction/adverse order
and other related documents about the matter
like appeal and stay, if any, or sentence/tine
suffered/paid etc. are to be annexed);
A declaration on affidavit that the applicant has
no objection and consents to the making of
enquiries and investigation by the Bar Council
of India on its own or through such government
or non-government investigating agency, as it
may deem fit, to verify the veracity of the
particulars disclosed by the applicant in the
application and genuineness of the documents
annexed therewith;
An undertaking on oath that he/it shall not
practice Indian law;

A declaration on oath that he/it shall not be
entitled to and shall not claim any interest on the
guarantee amount deposited by him/it with
Bar Council of India at the time of registration
under these Rules and that the Bar Council shall
be entitled to adjust and apply this guarantee
amount to the penalty and cost amounts that may
be awarded by the Bar Council of India under
rules 10 and 11;
A declaration on oath that the applicant fully
understands and appreciates the fact that on
registration under rule 7 of these Rules, the
Advocates Act, 1961 and Rules made there

10

No comment.

The objective is to permit
practice of foreign law. Therefore,
it should be clear that any
practice
of
Indian
Law
whatsoever is prohibited.
The correct cross reference is to
Rules 11 and not Rule 9.
Corrected.

It is practice of "foreign law" and
not "practice of law". Corrected.

under, mutatis mutandis, apply to him/it in
respect of law practice by him/ it in India and
that he/it is subject to the jurisdiction of Courts
of Law in India and to the jurisdiction of Bar
Council of India in relation to such practice.

under, mutatis mutandis, apply to him/it in
respect of practice of foreign law by him/ it in
India and that he/it is subject to the jurisdiction
of Courts of Law in India and to the jurisdiction
of Bar Council of India in relation to such
practice.
Registration of a foreign law firm

(2).A foreign law firm may apply for registration as a
registered foreign law firm under these rules in 'FORM
A-1' appended to these Rules along with registration fee
and guarantee amount either in person or through
registered Post. This application and fee may also be
submitted on-line.

As said above, the rules do not
accommodate registration of a
foreign law firm. These should
be specifically provided.
Framework for registration of a
registered foreign law firm which
is missing in the draft rules.

Such an application shall also be accompanied by nonrefundable Process charges of such an amount as may be
fixed by Bar Council of India from time to time.
This application shall be addressed to the Secretary,
Bar Council of India and shall be accompanied by the
following documents:
(i)
A certificate from the Government of India,
(Ministry of Law & Justice and Ministry of Commerce
and Industry) or such other authority or officer as the
Union Government may authorize in this behalf that (a)
an effective legal system exists in each foreign country
where the foreign law firm carries on its practice; and
(b) it has no objection in case the foreign law firm is
registered under these Rules as a registered foreign law
firm;;
(ii)
A certificate from the Government of each

11

Eligibility Criteria. Reciprocity for
each country where the foreign
firm practices.

Eligibility Criteria. Reciprocity for

foreign country where the foreign law firm carries on its
practice or from a competent authority thereof certifying
that advocates enrolled under the Advocates Act, 1961 or
firms of such advocates are permitted to practice
[Indian] law in that country in the manner and to the
extent which is comparable to the practice of foreign
law by a foreign law firm permitted under these Rules
along with copies of the relevant Laws and Rules;
(iii)
A certificate from the Competent Authority or
Courts, Bar Association, Bar Council of each country in
which the foreign law firm carries on its practice that the
foreign law firm has been solely and exclusively engaged
in practice of law in each of those countries for a period
of not less than [3] years immediately preceding the
application for registration under these Rules.
(iv) A certificate of the competent authority of the each
of the foreign countries in which the foreign law firm
carries on its practice giving details of the fee structure
and other amounts that would be payable by an
advocate enrolled under the Act or a firm of such
advocates for enabling him / them to practice Indian
law in that foreign country along with copies of the
relevant Rules and Laws;
(v) A declaration on an affidavit by the Managing
Partner (or equivalent) of the foreign law firm that that
foreign law firm has not been found guilty of malpractice
or professional negligence in any of the foreign countries
in which it carries on its practice.
(vi)
A declaration on affidavit by the Managing
Partner (or equivalent) of the foreign law firm that that
foreign law firm has no objection and consents to the
making of enquiries and investigation by the Bar Council
of India on its own or through such government or nongovernment investigating agency, as it may deem fit, to

12

each country where the foreign
firm practices.

Eligibility Criteria. Reciprocity for
each country where the foreign
firm practices.

Eligibility Criteria. Reciprocity for
each country where the foreign
firm practices.

Self-explanatory

Self-explanatory

verify the veracity of the particulars disclosed by the
applicant in the application and genuineness of the
documents annexed therewith;
(vii)
An undertaking on oath by the Managing
Partner (or equivalent) of the foreign law firm that that
the foreign law firm shall not practice Indian law.;
(viii) A declaration on oath by the Managing Partner
(or equivalent) of the foreign law firm that that the
foreign law firm shall not be entitled to and shall not
claim any interest on the guarantee amount deposited
by the foreign law firm with Bar Council of India at the
time of registration under these Rules and that the Bar
Council shall be entitled to adjust and apply this
guarantee amount to the penalty and cost amounts that
may be awarded by the Bar Council of India under rules
10 and 11;
(ix)
A declaration on oath by the Managing Partner
(or equivalent) of the foreign law firm that the foreign
law firm fully understands and appreciates the fact that
on registration under rule 7 of these Rules, it and its
foreign legal consultants shall be subject to the code of
conduct prescribed by the Bar Council of India and the
foreign law firm is subject to the jurisdiction of Courts of
Law in India and to the jurisdiction of Bar Council of
India;
(x) A notarised copy of the formation documents such as
articles of partnership of the foreign law firm and list of
all partners of the foreign law firm (with respective
details of the country of primary qualification) with the
undertaking that any changes in the formation
documents and the list of partners will be notified to and
amended documents filed with the BCI within three
months of any such changes being effected;
(xi) a notarised copy of the Audited Balance sheet and

13

Self-explanatory. Objective is to
permit practice of "foreign law".
Self-explanatory

Self-explanatory

Self-explanatory

Self-explanatory

5.
Validity of registration and renewal of
registration. - (1)

P&L Account for the last [*] years with the undertaking
that upon registration under these Rules, the foreign law
firm will file its latest Audited Balance Sheet and P&L
Account with the BCI within six months of the end of the
firm's accounting year;
(xii) A Declaration by the Managing Partner (or
equivalent) of the foreign law firm that it is in
compliance with Rule 9 (2) of these Rules; and
(xiii) An undertaking on oath by the Managing Partner
(or equivalent) of the Foreign law firm that the foreign
law firm will declare that all income arising out of or
accruing from India will be invoiced and received in
India and be submitted for taxation in India.
5.
Validity of registration and renewal of
registration. - (1)

The registration done under rule 7 shall be valid for a
period of 5 (five) years only and the foreign lawyer
would be required to renew it by filing an application for
renewal in Form B within 5 months before the date on
which such validity expires.

The registration done under rule 7 shall be valid for a
period of 5 (five) years only and the foreign legal
consultant or the registered foreign law firm, as the case
may be, would be required to renew it by filing an
application for renewal in Form B within 5 months
before the date on which such validity expires.

(2)
A foreign lawyer may apply for renewal of
registration under these rules in 'FORM B' appended to
these Rules along with renewal fee either in person or
through registered Post

(2)(1) A foreign legal consultant may apply for renewal
of registration under these rules in 'FORM B' appended
to these Rules.
2(2) A registered foreign law firm may apply for renewal
of registration under these rules in 'FORM B-1'
appended to these Rules.

(3)

This application for renewal shall be addressed

2(3) An application for renewal will be filed along with
renewal fee either in person or through registered Post
(3)
This application for renewal shall be addressed

14

Self-explanatory.
issue.

Compliance

Self-explanatory. To stop
avoidance and tax evasion.

tax

Substitution of FLC for foreign
lawyer and addition of registered
foreign law firm.

Substitution of FLC for foreign
lawyer and addition of registered
foreign law firm

to the Secretary Bar Council of India and shall be
accompanied by the following documents:

to the Secretary Bar Council of India and shall be
accompanied by the following documents:

(i).

A certificate from the government of India or
such other authority or officer as it may
authorize in this behalf that an effective legal
system continues exist in concerned foreign
country of the primary qualification since his/its
registration under rule 7 and that it has no
objection if the registration of the applicant is
renewed under these Rules and he /it continues
to practice law in India;

(i)

Certificate from the Competent Authority of the
concerned foreign country of primary
qualification certifying that the applicant
continues to be entitled to practice law in that
Country since his/its registration under rule 7;

(ii) Certificate from the Competent Authority of the
concerned foreign country of primary qualification
certifying that the applicant continues to be
entitled to practice law in that Country since his/its
registration under rule 7;

A certificate from the government of the foreign
country of primary qualification or from a
competent Authority there of certifying that
advocates enrolled under the Advocates Act,
1961 are continued to be permitted to practice
law in that country in the manner and to the
extent which is comparable to the law practice
permitted under these Rules since his/its
registration under rule 7 along with copies of the
relevant law and Rules.

(iii) A certificate from the Government of the
foreign country of primary qualification or from a
competent Authority thereof
certifying that
advocates enrolled under the Advocates Act, 1961
are permitted to practice Indian law in that country
in the manner and to the extent which is
comparable to the practice of foreign law by a
foreign legal consultant permitted under these
Rules along with copies of the relevant Laws and
Rules;

Certificate of the competent authority of the
concerned foreign
country
of
primary
qualification
that
no proceedings of

(iv) A certificate of the competent authority of
the concerned foreign country of primary
qualification that no proceedings of professional or

(ii)

(iii).

iv).

(A) In case of foreign legal consultant:
A certificate from the Government of India,
(Ministry of Law & Justice and Ministry of
Commerce and Industry) or such other authority or
officer as Union Government may authorize in this
behalf that an effective legal system exists in
concerned foreign country of the primary
qualification and that it has no objection in case
registration of the applicant as foreign legal
consultant under these Rules is renewed;

15

As said, registration is not for
"practice of law" but to practice
foreign law as a foreign legal
consultant.

No comment

Please see a detailed separate
note on "Reciprocity".
Further, it would be even handed
to say that Advocates should be
permitted to practice "Indian
Law" in the foreign jurisdiction
as "foreign legal consultants"
would be permitted to practice
only "foreign law' in India.
No comment.

professional or other misconduct have been filed
either before it or before any other authority
competent to entertain and decide such
proceedings since his /its registration under rule
7;

other misconduct are pending either before it or
before any other authority competent to entertain
and decide such proceedings since his registration
under Rule 7.

(v).

'No objection Certificate' of the competent
authority of the concerned foreign country of
primary qualification that it has no objection in
case the applicant continues to practice law in
India.

(v) No objection Certificate of the competent authority
of the
concerned
foreign
country
of
primary qualification that it has no objection in
case the applicant continues to be registered as
foreign legal consultant in India.

(vi).

A declaration on affidavit that the applicant has
not been convicted of any offence and has not
suffered any adverse order in any disciplinary
matter after registration under rule 7. (In case
it/he has suffered any conviction/adverse order,
relevant attested copies of the order of
conviction /adverse order and other related
documents about the matter like appeal and stay,
if any, or sentence/fine suffered/paid etc. are to
be annexed);

(vi) A declaration on affidavit that the applicant has
not been convicted of any offence and has not
suffered any adverse order in any disciplinary
matter after registration under rule 7. (In case it/he
has suffered any conviction/adverse order, relevant
attested copies of the order of conviction /adverse
order and other related documents about the
matter like appeal and stay, if any, or sentence/fine
suffered/paid etc. are to be annexed);

A declaration on affidavit that the applicant has
no objection and consents to the making of
enquiries and investigation by the Bar Council
of India on its own or through such government
or non-government investigating agency, as it
may deem fit, to verify the veracity of the
particulars disclosed by the applicant in the
application for renewal and genuineness of the
documents annexed therewith.

(vii) A declaration on affidavit that the applicant has no
objection and consents to the making of enquiries
and investigation by the Bar Council of India on its
own or through such government or nongovernment investigating agency, as it may deem
fit, to verify the veracity of the particulars
disclosed by the applicant in the application for
renewal and genuineness of the documents
annexed therewith.

(vii).

FLC registration continuation and
not continuation of "practice of
law" in India.

No comments.

No comments.

(B) In case of registered foreign law firm:

16

Sub-rule
(B)
details
the
documents
required
to
be
submitted
by
a
registered

(i) A certificate from the Government of India, (Ministry
of Law & Justice and Ministry of Commerce and
Industry) or such other authority or officer as the
Union Government may authorize in this behalf that
(a) an effective legal system continues to exist in
each foreign country where the foreign law firm
carries on its practice; and (b) it has no objection in
case the foreign law firm is registered under these
Rules as a registered foreign law firm;
(ii) A certificate from the Competent Authority or Courts,
Bar Association, Bar Council of each country in
which the foreign law firm carries on its practice that
the foreign law firm has continued to be solely and
exclusively engaged in practice of law in each of
those countries since its registration under these
Rules.
(iii)A certificate from the Government of each
foreign country where the foreign law firm carries on
its practice or from a competent authority thereof
certifying that advocates enrolled under the
Advocates Act, 1961 or firms of such advocates are
continued to be permitted to practice [Indian] law in
that country in the manner and to the extent which is
comparable to the practice of foreign law by a
foreign law firm permitted under these Rules along
with copies of the relevant Laws and Rules;
(iv) A declaration on an affidavit by the Managing
Partner (or equivalent) of the foreign law firm that
that foreign law firm has not been found guilty of
malpractice or professional negligence in any of the

17

foreign law firm with its renewal
application.
It
tracks
the
eligibility criterion set out in Rule
4 for a foreign law firm and
reproduces the relevant items
with the necessary modifications
required for a renewal.

foreign countries in which it carries on its practice
since its registration under these Rules;
(v) An undertaking on oath by the Managing Partner (or
equivalent) of the foreign law firm that that the
foreign law firm has not practiced Indian law since
its registration under these Rules;
(vi) A declaration on affidavit by the Managing Partner
(or equivalent) of the foreign law firm that that
foreign law firm has no objection and consents to the
making of enquiries and investigation by the Bar
Council of India on its own or through such
government or non-government investigating agency,
as it may deem fit, to verify the veracity of the
particulars disclosed by the applicant in the
application for renewal and genuineness of the
documents annexed therewith;
(vii)
A declaration on affidavit by the Managing
Partner (or equivalent) of the foreign law firm that it
has in a timely manner notified to and filed amended
documents with the BCI of any changes in its
formation documents such as articles of partnership
of the foreign law firm and list of all partners of the
foreign law firm including any changes in the
country of primary qualification of any such partner;
(viii) A declaration on affidavit by the Managing
Partner (or equivalent) of the foreign law firm that it
has since its registration under these Rules been
compliant with Rule 9 (2) of these Rules.
(ix) A declaration on affidavit by the Managing Partner

18

6.

Registration and fee and guarantee amount. -

(A).
After receipt of such application, the Bar
Council of India or a committee constituted by the
Council in this behalf, shall examine the application ,
hold an enquiry with regard to genuineness of the
contents and the documents attached with the
application. The Council will also examine the truth
about the reciprocity with the concerned foreign country.
And after such examination and enquiry, if the
application is found to be fit for registration, the Council
shall grant a Certificate of Registration with a separate
Registration Number.
(B).
The Council will inform the Government of
India soon after such registration and shall also send a
copy of such Registration certificate.
(C).
In the matter of Registration the Designated
Advocates (or whatever name they are known in the
concerned foreign country) are to be given preference as
the rights and privileges of such senior Advocates are
prescribed under Section 23 of the Advocates Act 1961.

(or equivalent) of the foreign law firm that the
foreign law firm has invoiced and received in India
all income arising out of or accruing from India to
the foreign law firm and such income has been fully
submitted for taxation in India.
6.
Registration , fees and security
deposit

Rule heading amended to replace
"guarantee amount" with "security
deposit"

After receipt of any application for registration or
renewal of registration, the Bar Council of India or a
committee constituted by the Council in this behalf,
shall examine the application as provided in Rule 7 and
after such examination and enquiry, if the application is
found to be fit for registration or renewal, as the case
may be, the Council shall grant a Certificate of
Registration with a separate Registration Number.

Seems there is an overlap
between Rules 6 and 7. Is the
registration/renewal
granted
under Rule 6 or 7? Revised
proposal seeks to reconcile the
position.

The Council will inform the Government of India soon
after such registration and shall also send a copy of
such Registration certificate to [name of the recipient].

Send copy to whom?
Rule 6 (C) suggests that foreign
lawyers will be designated as
Senior Advocates and will be
given preference. This suggests
that they will be entitled to
appear in courts and tribunals.
This does not seem consistent
with the stated objectives that
litigious practice in India is
reserved for Advocates.

delete

19

Also
the
concept
of
"preference" in the matter of
registration
needs
to
be
understood.
(D).
An application for registration/renewal of
registration
shall
be
accompanied
by
registration/renewal fee of such an amount as is
equivalent to the fee and other charges chargeable in the
concerned foreign country of primary qualification from
an advocate enrolled under the Act on account of
registration/permission to practice law there but such fee
shall not be less than fee amount given herein below:
Registration fee in case of a foreign lawyer, if he
is an individual:
USD 25, 000 (USD twenty five
thousand only);
(ii)
Registration fee in case of a foreign lawyer, if it
is a firm, private limited partnership, company,
Limited Liability Partnership (LLP) etc.:
USD 50, 000/- (USD fifty thousand
only);
(iii)
Renewal fee in case of a foreign lawyer:
USD 10, 000/- (USD ten thousand
only);
(iv)
Renewal fee in case of a foreign lawyer, if it is a
firm, private limited partnership, company,
Limited Liability Partnership (LLP) etc.:
USD 20, 000/- (USD twenty thousand
only).

(D).
An application for registration/renewal of
registration
shall
be
accompanied
by
registration/renewal fee of such an amount as is
equivalent to the fee and other charges chargeable in the
concerned foreign country of primary qualification from
an
advocate
enrolled
under
the Act
for
registration/permission to practice Indian law there but
such fee shall not be less than fee amount given herein
below:

(i)

(E). The application for registration shall,
be accompanied by Security Deposit as follows: -

also

(i)

Registration fee in case of a foreign lawyer
applying for registration as a foreign legal
consultant:
USD 25, 000 (USD twenty five thousand

only);
(ii)
Registration fee in case of a foreign law firm
applying for registration as a registered foreign
law firm:
USD 50, 000/- (USD fifty thousand
only);
(iii)
Renewal fee in case of a foreign legal
consultant:
USD 10, 000/- (USD ten thousand only);
(iv)
Renewal fee in case of a registered foreign law
firm
USD 20, 000/- (USD
twenty thousand
(E). The
application
for
registration
shall,
also be accompanied by Security Deposit as follows: -

20

Registration fee for registration
as a foreign legal consultant

Registration fee for registration
of a foreign law firm as a
"registered foreign law firm"

(i)
Security Deposit in case of a foreign lawyer, if
he is an individual:
USD 15, 000/- (USD fifteen thousand only);

(i)
Security Deposit in case of an individual foreign
lawyer applying for registration as a "foreign legal
consultant:
USD 15, 000/- (USD fifteen thousand only);

SD
for
application
registration as FLC

ii)
Guarantee amount in case of a foreign lawyer, if
it is a firm, private limited partnership, company, limited
liability partnership (LLP) etc.:
USD 40, 000/- (USD forty thousand only).

ii)
Security Deposit in case of a foreign law firm
applying for registration as a registered foreign law
firm:
USD 40, 000/- (USD forty thousand only).

Replaced
the
words
"Guarantee amount" with SD
for a foreign law firm applying
for registration as a registered
foreign law firm.

The Security deposit shall be returnable to the foreign
lawyer or the foreign law firm : (a) if the application for
registration is not allowed; (ii) when he/it voluntarily
terminates the registration; (c) when his/its foreign law
registration expires; or (iv) when his/its registration is
cancelled permanently . In any case, the Bar Council of
India shall be entitled to adjust and deduct amounts
equivalent to the penalty and costs imposed by it on ion
the foreign lawyer or the foreign law firm him under rule
10 and 11 from this Security deposit in case it/he omits to
pay.

Clarified that the SD is
returnable if the registration is
not
granted
and
other
situations after the registration
has been granted. Corrected
the cross reference to the Rule
11 instead of Rule 9.

(F)
The Security deposit shall be kept by the Bar
Council of India under a separate Head and interest
accruing thereon shall be used by it for meeting its
expenses for the due implementation and
management of these Rules,
7.
Disposal of applications for registration and
renewal. - The Bar Council of India or a committee
constituted by the Council in this behalf shall examine
the application for registration filed under rule 4 and for
renewal filed under rule 5 for its satisfaction, including

No comment

The Security deposit shall be returnable to the foreign
lawyer when he/it voluntarily terminates foreign law
practice in India or when its/ his registration expires or
when his registration is cancelled permanently but Bar
Council of India shall be entitled to adjust and deduct
amounts equivalent to the penalty and costs imposed by
it on it/him under rule 9 and 10 from this Security
deposit in case it/he omits to pay.

(F)
The Security deposit shall be kept by the Bar
Council of India under a separate Head and interest
accruing thereon shall be used by it for meeting its
expenses for the due implementation and management
of these Rules,
7.
Disposal of applications for registration and
renewal. -The Bar Council of India may allow the
application for registration filed under rule 4 and for
renewal filed under rule 5, if it is satisfied that the
application is supported by all the relevant documents,

21

of

The
consideration
process
consolidated in this Rule by
bringing in relevant provisions of
draft rule 6.

guarantee amount, process charges, fee etc. as required
under these Rules and that the applicant does not suffer
from any criminal or disciplinary proceeding that are
likely to make him/it unsuitable for practicing law in
India under these rules and lastly that the country of the
primary qualification allows advocates enrolled under
the Act to practice law in that country in the manner and
to the extent which is comparable to the law practice
permitted by these Rules.
However, the Bar Council of India shall not reject an
application for registration/renewal unless a reasonable
opportunity of being heard has been afforded to the
applicant. In the event of rejection of application for
registration/renewal, the registration fee/renewal
fee/guarantee amount deposited by the applicant shall be
returned to him after adjusting and deducting such
amounts as are recoverable by the Bar Council of India
under these Rules.
Provided that the Bar Council of India may, at its
absolute discretion hold consultation with the
Government of India and its concerned Ministries, if the
same is deemed necessary in a particular case, to ensure
that the applicant fulfils all the relevant requirements
and conditions as laid down by these Rules.
Provided that the aforesaid registration and
renewal thereof shall not, in any way, entitle the foreign
lawyer to have free and unregulated entry and stay in
India for which it/he remains governed
by
the
Indian Law and lawful /instructions issued by the
Government of India, State Governments,
statutory

holding an enquiry with regard to genuineness of the
contents and the documents attached with the
application and the truth about the reciprocity with the
concerned foreign country. If the Bar Council of India
will further satisfy itself that: (a) the application is
supported by all the relevant documents, security
deposit, process charges, fee etc. as required under these
Rules; (b) the applicant meets each of the eligibility
criterion; (c) suffer from any other disqualification
which make the applicant unsuitable for registration
under these Rules.
However, the Bar Council of India shall not reject an
application for registration/renewal unless a reasonable
opportunity of being heard has been afforded to the
applicant. In the event of rejection of application for
registration/renewal, the registration fee/renewal
fee/security deposit paid by the applicant shall be
returned to him/it after adjusting and deducting such
amounts as are recoverable by the Bar Council of India
under these Rules.
Provided that the Bar Council of India may, at its
absolute discretion hold consultation with the
Government of India and its concerned Ministries, if the
same is deemed necessary in a particular case, to ensure
that the applicant fulfils all the relevant requirements
and conditions as laid down by these Rules.
Provided that the aforesaid registration and
renewal thereof shall not, in any way, entitle the foreign
lawyer to have free and unregulated entry and stay in
India for which it/he remains governed
by
the
Indian Law and lawful /instructions issued by the

22

bodies or any other
India from time to time.

competent authorities in

Provided further that the government of India shall have
the right of recommending cancelling the aforesaid
registration or renewal at any time on the ground of
national security or if it is of the c pinion that such
registration or renewal is against the National interest.
Provided further that the Bar Council of India may seek
information from the Government of India and its
various Ministries about the existence of an effective
legal system in the concerned foreign country and also
about the existence of any unfair discrimination in the
matter of law practice by Indian advocates in that
Country and Bar Council of India may suo moto start
proceedings for cancellation of registration or for
cancellation of renewal of registration in case
government of India certifies, either on its asking or
otherwise, that an effective legal system no longer exists
in the concerned foreign country and that Indian
Lawyers are being subjected to unfair discrimination
there.

Government of India, State Governments,
statutory
bodies or any other competent authorities in
India from time to time.
Provided further that the government of India shall have
the right of recommending cancelling the aforesaid
registration or renewal at any time on the ground of
national security or if it is of the c pinion that such
registration or renewal is against the National interest.
Provided further that the Bar Council of India may seek
information from the Government of India and its
various Ministries about the existence of an effective
legal system in the concerned foreign country and also
about the existence of any unfair discrimination in the
matter of law practice by Indian advocates in that
Country and Bar Council of India may suo moto start
proceedings for cancellation of registration or for
cancellation of renewal of registration in case
government of India certifies, either on its asking or
otherwise, that an effective legal system no longer exists
in the concerned foreign country and that Indian
Lawyers or Indian law firms are being subjected to
unfair discrimination there.

CHAPTER IV
LAW PRACTICE BY FOREIGN LAWYERS

CHAPTER IV
SCOPE OF ACTIVITIES OF FOREIGN LEGAL
CONSULTANTS AND REGISTERED FOREIGN
LAW FIRMS

8. Law practice by a foreign lawyer: nature and
extent thereof:_ (1) A foreign lawyer registered under
rules shall be entitled to practice law in India in nonlitigious matters only subject to such exceptions,

8.Scope of activities of foreign legal consultant and
registered foreign law firm: nature and extent
thereof:_
(1) A foreign legal consultant and registered foreign law

23

To repeat - it is not "practice of
law" by foreign lawyers/foreign
law firms but permission to
undertake
certain
stated
activities.
The construct of entitlement to
"practice law in India" and more
particularly
the
"deemed"
Advocate is impermissible under

conditions and limitations as are laid down under these
Rules and he/it shall be deemed to be an advocate within
the meaning sections 29, 30 and 33 of the Act qua such
acts and deeds as are envisaged to be performed by him
under these Rules as a foreign lawyer.

firm shall be entitled to conduct only those activities
which are set out in Section 8(2) below subject to such
exceptions, conditions and limitations as are laid down
under these Rules.

the Act and would be ultra vires.
See our detailed note on the
vires of the Rules.
It
could
also
have
some
unintended
and
contrarian
consequences.
As an illustration, in Lawyers
Collective vs. Bar Council of
India,1 the Bombay High Court
has held that "practice of law"
would include litigious and nonlitigious matters. In V. Sudeer v.
Bar Council of India,2 the Hon'ble
Supreme Court questioned the
legitimacy
of
regulation
or
monitoring of what an Advocate
can or can't do in practice of law
once he has been enrolled. This
was the "trainee" case in which
under the impugned rules a
"trainee" "advocate" had only
limited
right
to
ask
for
adjournment or mentioning the
case. The Supreme Court struck
down the rule.
Thus a foreign lawyer registered
as a "deemed advocate" could
legitimately ask to be treated as

1
2

2010(112) BLR 32
(1999) 3 SCC 176

24

any other Advocate without any
limitation on the right to practice
of law.

1. Further, it would need to be
considered if by virtue of foreign
lawyers
being
deemed
as
advocates under the Act would
also have voting rights under the
various State Bar Councils as also
right to be elected to an office. If
so, the implications of that would
have to be examined including
ability to influence the decisions
taken by the Bar Councils.
Therefore, the common practice
is not to grant license to
"practice of law" or a deeming
status but to grant a licence as a
"foreign legal consultant" for
"practice of foreign law".
(2)
The practice of law by a foreign lawyer shall
include the following legal services: -

2 The scope of activities of foreign legal consultants and
registered foreign law firms is the following:

(i)

(i)
doing work, transacting business, giving advice
and opinion concerning the laws of the country of the
primary qualification including (a) preparation of
instruments and rendition of legal advice with respect to
investments in and establishment and operation of
business in concerned foreign country by any resident of

doing work, transacting business, giving advice
and opinion concerning the laws of the country
of the primary qualification;

25

As stated objective and purpose
is to enable foreign lawyers and
foreign firms to practice foreign
law, then the Rules should
address that objective by stating
expressly what is permitted and
what is not to provide certainty
to all concerned.

India; and
(b) preparation of documents and rendition of legal
advice with respect to commercial transactions where the
governing law is expressly stated to be the foreign law
and the transaction is a cross border transaction in
which at least one party is from the foreign country.
(ii)

providing legal services and appearing as a
lawyer for a person, firm, company, corporation,
trust, society etc. who/which is having an
address or principal office or head office in a
foreign country in an international arbitration
case which is conducted in India and in such
arbitration case foreign law may or may not be
involved;

(ii) providing legal services and appearing as a
lawyer for a person, firm, company, corporation,
trust, society etc. who/ which is having an address
or principal office or head office in a foreign
country in an international arbitration case which
is conducted in India, which (i) is not governed by
Indian Law; and (ii) arises out of or is reasonably
related to the country of primary qualification of
the foreign legal consultant conducting such
arbitration;

(iii)

providing legal services and appearing as a
lawyer for a person, firm, company, corporation,
trust, society etc. who 'which is having an
address or principal office or head office in the
foreign country of the primary qualification in
proceedings before bodies other than Courts,
Tribunals. Boards, statutory authorities who are
not legally entitled to take evidence on oath, in
which knowledge of foreign law of the country
of the primary qualification is essential;

(iii) providing legal services and appearing as a lawyer
for a resident of India in proceedings before any
Courts, Tribunals. Boards, statutory authorities in the
foreign country in respect of matters concerning foreign
law of the country of the primary qualification;

providing legal services concerning the laws of
the Country of primary qualification and on
diverse international legal issues, provided that
such legal services, unless otherwise provided
for in these Rules, shall not include
representation or the preparation of documents
regarding procedures before a Court of Law,

(iv) providing legal services concerning the laws of the
Country of primary qualification and on diverse
international legal issues (other than concerning Indian
Law), provided that such legal services, unless
otherwise provided for in these Rules, shall not include
representation or the preparation of documents
regarding procedures before a Court of Law, Tribunal or

(iv)

26

These
are
clearly
representational services and
should
be
restricted
to
representing Indian residents in
foreign fora where foreign law is
involved.

The words "diverse international
legal issues" seem to have been
adopted from Paragraph 63(ii) of
the A K Balaji judgement of the
Madras
High
Court.
This

Tribunal or any other Authority competent to
record evidence on oath or preparation of any
documents, petitions etc. to be submitted to any
such forum regarding such procedures.

any Governmental Authority in India.

expression has not been defined.
In any event, it needs to be
clarified that Indian Law is
excluded from the scope.

Additional Provision: Rule 8(3)
No practice of Indian Law
Notwithstanding anything to the contrary contained
herein, a Foreign Legal Consultant or a registered
foreign law firm shall not practice Indian law including
but not limited to:
(i) Appearing as a lawyer on behalf of another person
in any court, tribunal, board or statutory authority
in India;
(ii) Preparing any instrument effecting the transfer or
registration of title to real estate or other tangible
or intangible property located, or the situs of which
is deemed to be, in India;
(iii) Preparing: (i) any will or trust instrument effecting
the disposition on death of any property (tangible or
intangible) located in India; or (ii) any instrument
relating to the administration of a decedent's estate
in India;
(iv) Preparing any instrument in respect to marital or
parental relations, rights or duties of a resident or
citizen of India or the custody or care of the
children of such resident or citizen; or
(v) Rendering advice on Indian Law (whether rendered
incidental to the preparation of legal documentation
or otherwise);
Additional Provision: Rule 8(4)

27

It is common practice in other
jurisdictions that not only is there
a positive description of what the
foreign legal consultant can do,
there is also a negative list of
what he can't do. This is
important for certainty and
clarity.

It is a requirement in almost all

Title and description of practice

(a) Neither a foreign legal consultant nor a
registered foreign law firm shall represent in any
manner whether in India or elsewhere, that he or
it is permitted to practice Indian Law.
(b) A foreign legal consultant shall not use any title
other than "Foreign Legal Consultant, Not
Licensed to Practice Indian Law," although such
person's authorized title and firm name in the
foreign country in which the person is admitted
to practice as an attorney counselor at law, or
the equivalent may be used subject to the
condition that the title, firm name, and the name
of the foreign country are stated together with
the abovementioned designation. Nothing may
be added to title to create the impression that the
Foreign Legal Consultant is licensed or
authorized to practice Indian Law.
(c) A registered foreign law firm shall not use any
title other than "Registered Foreign Law Firm
Not Licensed to Practice Indian Law," although
such firm's description in the foreign country
may be used subject to the condition that the
title, firm name, and the name of the foreign
country are stated together with the

28

jurisdictions that the title of a
foreign legal consultant clearly
and accurately describes the
permitted activities in his or her
title. Similarly for a registered
foreign law firm.

abovementioned designation. Nothing may be
added to title to create the impression that the
registered foreign law firm is licensed or
authorized to practice Indian Laws.
(d) A foreign legal consultant or a registered foreign
firm shall not advertise or solicit anywhere in
the world that he or it or any firm or entity or
organization or any Connected Entity is engaged
in the practice of Indian law; and
Explanation - The term 'Connected Entity' shall
have the same meaning as defined in Rule 9 (2)

9.
Incidental matters as regards opening of law
offices, entering into partnerships, procuring other legal
services etc. in connection with the practice of law in
India. (1) The registered foreign lawyer shall be entitled to do
the following things in connection with the practice of
law in India: -

(e) Neither a foreign legal consultant nor a
registered foreign law firm shall render any
services without utilizing a written retainer
agreement that shall expressly state that the
foreign legal consultant or the registered foreign
law firm, is entitled to neither practice Law in
India nor permitted to advise on Indian Law.
9. Incidental matters in connection with the permitted
activities of foreign legal consultants and registered
foreign law firms (1) A foreign legal consultant or the registered foreign
law firm, as the case may be, shall be entitled to do the
following things in connection with conducting activities
permitted under the registration and these rules:

29

To repeat - it is not "practice of
law" by foreign lawyers/foreign
law firms but permission to
undertake
certain
stated
activities.

(i)

(ii)

to open law office or offices in India for
carrying on law practice in India subject to the
condition that Bar Council of India shall be kept
informed of the particulars of such office/offices
viz. postal address, name of the owner/lessee of
the property in which the office/offices are
located and the documents enabling and
entitling him/it to occupy it.

(i)

to engage and procure the services of one or
more advocate enrolled under the Act, but such
engagement shall not entitle and allow the
foreign lawyer to practice Indian Law,

(ii)

to open an office in India. Provided a registered
foreign law firm may be permitted to open a
second office in India after a period of [*] years
so long as it and its foreign legal consultants are
in compliance with these rules. The foreign legal
consultant / registered foreign law firm shall
keep the Bar Council of India informed of the
particulars of such office viz. postal address,
name of the owner/lessee of the property in
which the office/offices are located and the
documents enabling and entitling him/it to
occupy it.
to introduce Advocates enrolled under the Act or
firms of Advocates to foreign clients for
engagement of such Advocate/firms of Advocates
for any matter concerning Indian Law, but
subject to Rule 9(2) of these Rules.

It would be appropriate to
regulate the number of offices a
FLC or a registered foreign firm
can open in India.

The consequence of the BCI
proposed sub-rule will be that
foreign legal consultants/foreign
law firms can directly/indirectly
practice Indian law through
Advocate/s hired by him/them.
In any phased opening up of the
market, it is critical that the
relationship with the local bar
which results in direct or indirect
participation in practice of local
law is regulated.
Hiring local
lawyers who practice local law is
not a permitted activity in the
phase where only "foreign law"
practice is the norm.
However,
consultants

30

foreign
legal
and
registered

(iii) to engage and procure the services of one or more
Indian-Registered foreign lawyers,

(iii) to engage and procure the services of one or more
foreign legal consultants registered under these
Rules.
(iv) to enter into partnership with one or more
foreign legal consultant/s registered under these
Rules.,

(iv)

to enter into partnership with one or more
Indian registered foreign lawyers and/or
advocates enrolled under the Act,

(v)

to work for an advocate enrolled under the Act
and for any Indian Law firm,

(v)
to work for an advocate enrolled under the Act
and for any firm of Advocate;

(vi)
to work for another Indian-registered foreign
lawyer.

(vi)
to work for another foreign legal consultant
registered under these Rules.

31

foreign law firms should be able
to introduce to their clients
Advocates
and
firms
of
Advocates
for
matters
concerning Indian law. This has
to be with safeguards to avoid
"surrogacy" practices which have
been
observed
in
other
jurisdictions.
No comment. Suggested drafting
change is for purposes of clarity.
The effect of this is that foreign
legal consultants and foreign law
firms can directly/indirectly
conduct practice of Indian law in
partnership with Advocates.
That is not the objective of these
Rules which are for the phase
where foreign legal consultants
and registered foreign law firms
practice only "foreign law". The
extent and manner of
relationship with local bar is to
be determined in the next phase
of opening up and not in this
phase.
Add "firm of Advocates" rather
than Indian Law firm - which is
not defined.
No comment. Suggested drafting
change is for purposes of clarity.

New provision:
9 (2). Restrictions on relationship with Advocates and
firms of Advocates
A foreign legal consultant or a registered foreign law
firm or any other person who is not an Advocate, or any
firm, entity or organization of which such foreign legal
consultant or registered foreign law firm or person is an
owner, partner, consultant, employee, retainer or with
which the foreign legal consultant or registered foreign
law firm is connected in any other similar capacity
(collectively "Connected Entity"), shall not, directly or
indirectly:
(a) (i) partner with; or (ii) participate in the sharing of
revenues or profits or assumption of risks in any joint
venture, arrangement, or association, with an Advocate
or firm of Advocates in the practice of Indian law
irrespective of where such partnership, venture,
association or arrangement is constituted;
(b) establish a joint office with, or assign, depute or
designate any of its partners, associates, employees, or
other personnel to, any Advocate or firm of Advocates to
engage in practice of Indian law;
(c) manage, operate, control or enjoy equity interests in
any firm of Advocates; or
(d) employ an Advocate as a part of registered foreign
lawyer's operations in India or any where in the world,
provided that if an Advocate is so employed, then such
Advocate shall cease to be an enrolled member of the
Bar Council of India and shall not be entitled to practice
Indian Law.

32

One of the problematic areas is
the
issue
of
controlled
relationships or surrogacy -
where so control and influence
equal to ownership or near
ownership - de facto but not de
jure - is known to exist.

This has been highlighted several
times in the past. It needs to be
ensured that the entry of foreign
lawyers and foreign law firms is
for purposes intended in Phase II
and
not
for
backdoor
implementation of Phase III.
Therefore, adequate safeguards
must be in place to ensure that
surrogacy is effectively and in a
meaningful real way prohibited.
It may be noted that the
regulations in China have similar
provisions in Phase II situation.

Explanation:
For the purposes of the above Rule 9(2), any of the
following circumstances shall be regarded as the
employment of an Advocate, where:
(a) an employment has been entered into with an
Advocate by the registered foreign lawyer or any
Connected Entity;
(b) an Advocate or the firm in which such Advocate
is a partner, is wholly or substantially retained
by or is dependent on registered foreign lawyer
or the Connected Entity for referral of matters to
such Advocate or such firm of Advocates;
(c) any agreements for profit and risk sharing, or
for sharing of costs and expenses, or for
participating in management has been entered
into by a registered foreign lawyer or a
Connected Entity with an Advocate or firm of
Advocates concerning the practice of Indian
Law;
(d) remuneration, expenses or business-related
distributions have been paid to an Advocate or a
firm of Advocates; or
(e) an Advocate or a firm of Advocates has been
engaged to conduct business activities for clients
in the name of foreign legal consultant or any
Connected Entity.
CHAPTER V

CHAPTER V
33

DISCIPLINARY ISSUES AND PENALTIES FOR
SECURING REGISTRATION BY
MISREPRESENTATION ETC,
10.
Disciplinary issues. - (1) A foreign lawyer
registered under these rules shall be subject to the same
ethical and practice standards laid down under the
Advocates Act, 1961 and Rules made there under as are
the advocates enrolled under the Act.

(2)
Where on receipt of a complaint or otherwise
the Bar Council of India has reason to believe that any
foreign lawyer registered under these Rules has been
guilty of professional or other misconduct in connection
with law practice in India, it shall refer the case for
disposal to any of its disciplinary committee under
section 36 of the Advocates Act, 1961.
(3)
In disposing of the proceedings under section 36
of the Act and this rule* the disciplinary committee of
the Bar Council of India may make any of the following
orders, namely: (a)
(b)
(c)
(d)
(e)

dismiss the complaint or drop the proceedings;
reprimand the foreign lawyer;
suspend the registration of the foreign lawyer
for such period as it may deem fit;
cancel the registration, permanently;
impose penalty of such an amount as it may

DISCIPLINARY ISSUES AND PENALTIES FOR
SECURING REGISTRATION BY
MISREPRESENTATION ETC,
10.
Compliance: - (1) A foreign legal consultant and
a registered foreign law firm shall comply with the terms
and conditions of the registration granted under these
rules. A foreign legal consultant shall be subject to the
same rules for "Standards of Professional Conduct and
Etiquette" (including but not limited to Rule 36 on
solicitation and advertising) established by the Bar
Council of India under the Advocates Act, 1961 as are
the advocates enrolled under the Act. A registered
foreign law firm shall be responsible for the acts of
commission and omission of any foreign legal consultant
who is a member of such foreign firm.
(2)Where on receipt of a complaint or otherwise the Bar
Council of India has reason to believe that any foreign
legal consultant or a registered foreign law firm has
been guilty of professional or other misconduct in
connection with his activities or has been in violation of
the terms and conditions of registration hereunder, it
shall refer the case for disposal to any of its disciplinary
committee under section 36 of the Advocates Act, 1961.
(3)In disposing of the proceedings under section 36 of
the Act and this rule* the disciplinary committee of the
Bar Council of India may make any of the following
orders, namely: (a)
(b)
(c)

dismiss the complaint or drop the proceedings;
reprimand the foreign legal consultant / the
registered foreign law firm, as the case may bel;
suspend the registration of the foreign legal
consultant / the registered foreign law firm for
such period as it may deem fit;

34

FLC and registered foreign law
firms must comply with the terms
of registration and with the
ethical and practice standards
including rules as to solicitation
and
advertising.
Further
a
registered foreign firm will take
responsibility for FLC who is a
member of such firm.

The disciplinary and regulatory
authority of BCI should also
extend to violation of terms and
conditions of registration apart
from professional misconduct.

deem fit;
(f)
impose costs.

11.
Consequences of securing registration by
misrepresentation, fraud etc.: - (1) The Bar Council of
India may, if satisfied, either on a complaint made to it
or otherwise that any person has secured
registration/renewal of registration as a foreign lawyer
by misrepresentation as to an essential fact or by fraud
or undue influence, it may make, after giving him/it an
opportunity
of
being
heard,
cancel
the
registration/renewal of registration of such a foreign
lawyer with or without penalty of such an amount as it
may deem fit.
However, if such misrepresentation relates to a fact,
which is not essential, it may make any of the following
orders, namely:(a)
(b)
(c)

dismiss the complaint or drop the proceedings;
reprimand the foreign lawyer;
suspend the registration of the foreign lawyer
for such period as it may deem fit;
(d)
impose penalty of such an amount as it may
deem fit;

(d)
(e)

cancel the registration, permanently;
impose penalty of such an amount as it may
deem fit;
(f)
impose costs.
(4) The Bar Council of India shall communicate to the
concerned Competent Authority of the concerned
foreign country of primary qualification the action
taken by the Bar Council of India under these Rules
against a foreign lawyer and against any foreign
law firm with whom a foreign lawyer is associated
with a requisition that such Competent Authority
take such further action as is necessary at its end.
11.Consequences of securing registration by
misrepresentation, fraud etc.: - (1) The Bar Council of
India may, if satisfied, either on a complaint made to it
or otherwise that any person/s has/have secured
registration/renewal of registration as a foreign legal
consultant or registered foreign law firm, as the case
may be, by misrepresentation as to an essential fact or
by fraud or undue influence, it may make, after giving
him/it an opportunity of being heard, cancel such
registration/renewal of such registration with or without
penalty of such an amount as it may deem fit.
However, if such misrepresentation relates to a fact,
which is not essential to the grant or renewal of the
registration, Bar Council of India may make any of the
following orders, namely:(a)
(b)
(c)

dismiss the complaint or drop the proceedings;
reprimand the foreign legal consultant /
registered foreign law firm, as the case may be;
suspend the registration of the foreign legal
consultant / registered foreign law firm for such

35

It is imperative that any action
taken by the BCI is also
communicated to the concerned
competent authority.

Registered foreign law
added in this provision.

firm

(f)

impose costs.

period as it may deem fit;
impose penalty of such an amount as it may
deem fit;
(f)
impose costs.
CHAPTER VI
MISCELLANEOUS
New Provision:
11A. Saving for temporary presence / fly in fly out
(d)

CHAPTER VI
MISCELLANEOUS

Nothing in these rules shall prevent a foreign lawyer
not registered under these rules, to fly in and fly out
for the purpose of giving legal advice to a client in
India on foreign law if:

Covers both foreign lawyers and
foreign law firms.

(i) the foreign lawyer is not present in India for 60
days in any period of 12 months; and
(ii) such foreign lawyer referred to in clause (i)
above is associated with a foreign law firm, then the
cumulative number of days spent in India by all
foreign lawyers associated with such law firm is less
than 180 days in any period of 12 months.
12.
Regulatory authority. - The Bar Council of
India shall have the right of issuing such directions and
regulations from time to time, as are necessary for the
proper implementation and execution of these Rules.
The Bar Council of India may hold deliberations and
consultations with its counterparts i.e. statutory
authorities in management of the legal profession in
different foreign countries in consultations with the
Government of India on the principle of reciprocity so
as to promote and strengthen the legal services in India
to keep pace with the globalization of trade and

12.
Regulatory authority: The Bar Council of
India shall have the right of issuing such directions and
regulations from time to time, as are necessary for the
proper implementation and execution of these Rules.
The Bar Council of India may hold deliberations and
consultations with its counterparts i.e. statutory
authorities in management of the legal profession in
different foreign countries in consultations with the
Government of India on the principle of reciprocity so
as to promote and strengthen the legal services in India
to keep pace with the globalization of trade and

36

We have not suggested any
changes in these provisions
because these are dependent on
the larger issue of reciprocity and
how it will actually operate. We
refer to our detailed note on
Reciprocity.
Law firms operating in multiple
jurisdictions and with partners
from multiple jurisdictions. The

commerce and to provide a vibrant and effective
framework of legal service that can cater to the ever
changing needs of the people, belonging to different
religions, faiths and having different personal laws,
migrating from one country to the other and to promote
international progress, coherence and unity.

commerce and to provide a vibrant and effective
framework of legal service that can cater to the ever
changing needs of the people, belonging to different
religions, faiths and having different personal laws,
migrating from one country to the other and to promote
international progress, coherence and unity.

The Bar Council of India is responsible for
ensuring the reciprocity: The Council can cancel the
registration of any foreign lawyer or law firm if it
comes to the notice of the council through any source
that the Indian lawyers or Indian Law firm are being
discriminated by the concerned counterpart foreign
country. The Council shall cancel such registration after
giving the concerned foreign lawyers/ foreign law firm
or the Government an opportunity to place their views
before the Council.
13.
Removal of Difficulties: In case any doubt or
dispute as to the meaning, interpretation and execution
of these Rules arise the Bar Council of India shall be the
final authority to resolve and settle all such disputes and
its decision thereon shall be final.

The Bar Council of India is responsible for
ensuring the reciprocity: The Council can cancel the
registration of any foreign lawyer or law firm if it
comes to the notice of the council through any source
that the Indian lawyers or Indian Law firm are being
discriminated by the concerned counterpart foreign
country. The Council shall cancel such registration after
giving the concerned foreign lawyers/ foreign law firm
or the Government an opportunity to place their views
before the Council.
13. Removal of Difficulties:
If any difficulty arises in giving effect to any provision of
this Rules, the Bar Council may make such order, not
inconsistent with the provisions of these Rules, as may
appear to it to be necessary to remove the difficulty.

[END OF DOCUMENT]

37

basic understanding of what
"reciprocity" means in that
situation? See our separate note
on "Reciprocity"

This is not a removal of
difficulties clause but a dispute
resolution clause? We have
amended this to read as a
standard difficulties removal
provision.

Privileged & Confidential
Draft for discussions only
Dated July 27, 2016

RECIPROCITY
A situation or relationship in which two people or groups agree to do something similar for
each other, to allow each other to have the same rights, etc.: a reciprocal arrangement or
relationship.
[Merriam-Webster Dictionary]
A mutual or cooperative interchange of favours or privileges; especially the exchange of
rights or privileges of trade between nations.
[Free English Dictionary]
Reciprocity under the Act
1.

Sections 24 and 47 deal with "reciprocity" under the Act and are to be read
conjunctively. Section 24 provides the conditions for a person to be enrolled as an Advocate
and sub-clause (1)(a) says that such person is either a Citizen of India or is a "national of
any other country" if citizens of India "duly qualified" are permitted to "practice law" in
such other country. Section 47 on the other hand enables the Central Government to notify
a country "which prevents citizens of India from practicing the profession of law or subjects
them to unfair discrimination in that country". Section 47 then goes on to say that "no
subject of any such country shall be entitled to practise the profession of law in India".

2.

"Duly qualified" has been understood to mean and as possessing "qualifications
required to practice law" in a country. For example, if an Indian citizen, who has all the
qualifications required to be licensed to practice law in "X" (country) (and these being no
different from or onerous than those that would apply to a citizen of X), then a citizen of X
who has obtained the qualifications required under the Advocates Act, would be eligible for
enrolment as an "Advocate" by a state bar council. This is how the "reciprocity" works in
case of an individual who is an Advocate.
Reciprocity under the proposed Rules

3.

The Rules provide a substantially different framework and construct for establishing
"reciprocity". The proposed Rules, allow registration to a foreign lawyer simply on the
basis of a certificate issued by the government of the foreign country or other competent
authority certifying that advocates enrolled under the Act are entitled to practice law in that
country in the manner and to the extent permissible under the Rules.

4.

Thus registration of a "foreign lawyer" who would be "deemed" Advocate under the
Act is not subject to the rigour of Section 47 - which by its terms involves a finding by the
Central Government that there is no (i) prevention of citizens of India from practicing law
in that country and (ii) imposition of any unfair discriminatory practices on Indian citizens
desirous of practicing the profession of law in that country.

Reciprocity and multi-national (and/or multi-state in case of a country like the US) law
firms
1

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Dated July 27, 2016

5.

In cases of artificial persons it is not clear which country would be considered the
'country of primary qualification' on the basis of which reciprocity and the 'competent
authority' would be determined. For example, a global firm with offices in 40 countries but
reciprocity is available only in 20 of those. For example, an international firm based in
London has offices in and partners from all over the world including China and Pakistan,
who may be non-reciprocating territories. For example, there are international firms with
complex structures - operating under the same name with external projection of one identity
- but with separate legal entities in different markets. Or take the case of the United States -
the most developed legal market in the world - where even now only about 33 state
jurisdictions permit "foreign legal consultants" while 17 other states do not. There could be
cases where a US based firm has partners who are from one or more of these 17 states. How
would the test of reciprocity be applied in such situations?

6.

The current formulation of registering a "foreign firm" would then provide
automatically a back door entry to lawyers who are from non-reciprocating territories.
There is need to examine this aspect with greater degree of diligence than in case of
individual foreign lawyers.
Reciprocity - real and meaningful

7.

While on paper a foreign government or competent authority may acknowledge
reciprocity but technicalities and discriminatory practices like immigration rules and work
permits can make mockery of reciprocity. Free movement of professionals across borders
then has to be permitted on equal basis to establish "real and meaningful" reciprocity
instead of lip service. Therefore, apart from vires under the Act of such rules which seek a
new definition and evidence "reciprocity" there is indeed the larger practical question of
what "reciprocity" really means in the context of professionals - be it lawyers or other
professionals.

2

Privileged & Confidential
Draft for discussions only
Dated July 27, 2016

ANALYSIS OF VIRES OF THE PROPOSED "RULES FOR REGISTRATION AND
REGULATION OF FOREIGN LAWYERS IN INDIA, 2016"
1.

The Bar Council of India Rules for Registration and Regulation of Foreign Lawyers
in India, 2016 ("Rules") proposed by the Bar Council of India ("BCI") are intended to
made under clauses (d), (e), (ic), (l) and (m) of sub-section (1) of Section 7 and clauses (ah),
(ag), (c), (e), (h) of sub-section (1) of section 49 read with sections 24, 29 and 47 and all
other enabling provisions of the Advocates Act, 1961 ('Act').

2.

The Rules are in the nature of delegated legislation. A 'Delegated Legislation' means
the act of making statutory instruments by a body subordinate to the legislature and in
exercise of the power, within specific limits, conferred by the Legislature. The rule making
power under the Act has to be exercised reasonably and in conformity with the express and
implied limitations of the Act.1

3.

As is well known, delegated legislation is maybe declared ultra-vires by a court
particularly on two grounds (i) violation of the Constitution; and (ii) violation of the
enabling Act.2 The second ground includes within itself not only cases of violation of
substantive provisions of the enabling Act, but also cases of violation of the prescribed
mandatory procedures.3

4.

We have looked at the Rules at some depth and some concerns do appear with regard
to their vires.

A.
5.

SOME CONSTITUTIONAL ISSUES
Under the Act, the advocates are a homogenous group. Could that group be and
bifurcated by the Rules in to two groups: advocates (senior and others) and Foreign
Lawyers? There could be a serious doubt that such bifurcation by creating a new class has
any nexus to the object sought to be achieved by the Act. A foreign lawyer "deemed"
admitted as an Indian advocate would consequently have to comply with all the Indian rules
in the same manner as an Indian lawyer. They could not seek exclusivity from applicability
of the Act as it is not within the remit of section 49(e) read with section 49(1)(ah), section
49(1)(ag), section 49(1)(c) and section 49(1)(h) of the Act which are proposed to be relied
upon by the BCI for promulgating the Rules. That could be violative of Article 14 of the
Constitution of India.

1

Percy Jal Pardiwalla v. Bar Council of India, AIR 1987 Bom. 283; Indian Council of Legal Aid & Advice v. Bar
Council of India, (1995) 1 SCC 732
2
Hukumchand v. Union of India, AIR 1972 SC 2427; A.V. Education Society v. Government of Andhra Pradesh,
2002 (2) ALT 576.
3
Boddington v. British Transport Police, (1998) 2 All ER 203; Commissioner of Trade Tax Uttar Pradesh v.
Kartos International, (2011) 6 SCC 705.

1

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Dated July 27, 2016

6.

The limited power granted under the Act is to admit non-citizens as Indian
"advocates". There is no procedure prescribed under the Act permitting creation of a
separate class of advocates in India and any Rules promulgated to register and regulate the
new class would qualify as class legislation which could be impermissible as being violative
of Article 14.

7.

Would the privileges conferred on the foreign lawyers under the Rules be
discriminatory to the extent that similar benefits do not accrue to Indian lawyers or law
firms under the current legal framework? For example, the following:

B.

i.

Under the current legal framework whereby Indian advocates are not permitted to be
enrolled as limited liability partnership or corporation or company. Whilst such forms
of entities are proposed to be admitted to practice of law in India. The class or
category of persons entitled to be enrolled under section 49(1)(ag) has to be
homogenous and non-discriminatory. Different terms and conditions cannot apply to
one class versus another class.

ii.

Whilst Indian advocates have to enrol with the State Bar Council ("SBC"), as per the
Act, the foreign lawyers are required to be enrolled with the BCI.

iii.

Whilst the Indian law firms have severe restriction on hosting websites,
advertisements as well as entering into partnerships with non-lawyers, no such
restrictions have been proposed for application to foreign lawyers.

iv.

Foreign law firms are able to solicit clients openly. Indian law firms are not allowed
do so as we are still a profession and the practice law in India is not viewed as a
business.

v.

Separate disciplinary mechanism has been prescribed for foreign lawyers, even
though they have been deemed to be an advocate under the Act. The rules of
professional conduct and discipline cannot be harsher or softer for one class.
SOME ISSUES OF VIRES UNDER THE ACT

Function of State Bar Council
8.

Section 6 of the Act states the functions of the SBC which includes the duty to enter
persons on its rolls, section 17 of the Act empowers the SBC to enter advocates on its rolls
and section 25 clearly states that an application for enrolment as an advocate shall be made
to the SBC. The BCI has to receive the copies of rolls of advocates from the SBC.4

9.

On a conjoint reading of the above sections, it would be seen that for any person to be
classified as an advocate under the Act and to have the right to practice law, he/she needs to
be registered on the rolls of the SBC. The Rules say that BCI will create a separate roll for
foreign lawyers under Rule 3 of the draft Rules. It is well known that a delegated legislation
cannot travel beyond the object sought to be achieved by the main Act.

4

Section 19 of the Act.

2

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Draft for discussions only
Dated July 27, 2016

10.

The Rules may not be compliant with the entire principle of reciprocity enshrined
within the Act by not requiring the foreign lawyers to register with the SBC under Section
24 of the Act. The proviso to section 24(1)(a) of the Act makes it clear that a national of any
other country may only be admitted on the rolls of a SBC only if citizens of India, duly
qualified, are permitted to practice law in that country.
Classes of Advocates

11.

Section 16 of the Act contemplates only two classes of advocates i.e. senior advocates
and other advocates ("Advocates"). The Rules do seek to create yet another category or
class of advocates, when no such power to create a separate class is vested in it, either
directly or indirectly. That could be ultra-vires the Act.
Person entitled to practice law

12.

The Act does not contemplate two classes of person admitted to practice of law i.e.
Indian advocates and foreign lawyers. Further, on a conjoint reading of section 29 and
Section 33 of the Act, it becomes evident that there is only one class which is allowed to
practice law i.e. Advocates. Thus, the Rules recognizing foreign lawyers as a separate class
would exceed the express and implied mandate of the Act, and would consequently be ultra
vires Act.

13.

The Act contemplates that only natural persons shall be enrolled as advocates. This
interpretation is evident from a conjoint reading of section 6(1) along with section 24(1)(a)
and 24(1)(c) of the Act. However, the draft Rules at rule 2(iii) defines foreign lawyers and
includes within its ambit and allows limited liability partnerships, companies etc. to be
registered as "deemed" advocates.
General power of the Bar Council of India

14.

Section 49(1)(ag) of the Act, vests with the BCI the power to make rules for a class
or category of persons entitled to be enrolled as advocates. The exclusivity sought to be
conferred on foreign lawyers by the Rules is not within the remit of section 49 (e) read with
section 49 (1)(ah), section 49 (1)(ag), section 49 (1) (c) and section 49 (1)(h). Any Rules
framed thereunder are for a homogenous and non-discriminatory class or category entitled
to be enrolled as advocates. Therefore, a foreign lawyer admitted as an Indian advocate
would consequently have to comply with all the rules in the same manner as an Indian
Advocate. Any rules which creates a new class and prescribe different standards would be
discriminatory and exceed the mandate of the said provision.

3