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Opportunity or risk? Alison Hook looks behind the headlines and investigates what the latest gesture on liberalising the Indian legal sector really means for the Bar
No hesitation, deviation or repetition – the three pillars of Just a Minute (JAM). Not simply a Radio 4 institution but the basis on which law students hone their advocacy skills across India. Anyone who has stepped into a courtroom from Calcutta to Chennai will soon recognise the frenetic pace of speechmaking and the deft attempts to avoid judicial interruption.
But JAM rules appear to apply in reverse when it comes to the opening up of the Indian legal market. The more hesitation, deviation or repetition the better!
Headlines were made in the legal press in March 2023 by the unexpected publication in the Gazette of India of Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022. While there was a ripple of excitement around Whitehall about what this might mean for the much-anticipated India-UK Free Trade Agreement, and licking of lips in the City of London about deals to be done, veterans of 30 years of India’s legal opening saga were ready with fingers on buzzers.
First, hesitation; the radical reforms of the early 1990s, borne from economic and political crisis, have created a false impression of how quickly the Indian elephant can be manoeuvred. Indian businesses can be globally competitive and nimble when they come from technology or innovation-based sectors with no Licence Raj heritage, or where they are run by corporate moguls with Succession-like powers of command. But waiting for every interest group that has an influence to have its say, leads to very slow decision-making in other areas of economic life. I heard at least two Indian Ministers of Law and Justice between 2007-2010 announce publicly their intention to open up to foreign law firms, and declare that they would instruct the Bar Council of India (BCI) to engage with its foreign counterparts. The BCI may now, more than a decade down the road, have reached the end of its internal consultations, but this is by no means the end of the story. The Indian legal world is a kaleidoscope of interests and alliances. One of the most influential of these, the Society of Indian Law Firms (SILF), reacted to the Gazette of India announcement with customary negativity and will certainly challenge these new rules. SILF has long held that opening up should be done sequentially, with major reforms first undertaken to the Advocates Act 1961 before any thought is given to foreign lawyers. And while it is hard not to have great sympathy with this point of view, a legislative route to liberalisation of the Indian legal market offers the prospect of a 20-year trajectory to reform, at best.
Which brings us to deviation. The regulation of the Indian legal sector is notoriously litigation prone, with cases running continuously since 1995 in the High Court of Bombay, later in the High Court of Madras and finally in the Supreme Court. There always seems to be some new issue for litigants to explore and little ever seems to be settled with finality. Litigation as a delaying tactic is hard wired into regulatory change for the legal profession in India and so the first reaction to the BCI’s shock announcement in March was probably celebratory among the senior counsel who might line up for briefs on either side. Certainly there is much to litigate. The ‘Rules’ as published are vague and contradictory, and not helped by subsequent BCI ‘guidance’ which further muddied the waters. So a deviation into the courts looks to be on the cards.
And finally, repetition. The requirement in the new rules that the establishment of a law office in India is contingent on reciprocity in the foreign lawyer’s home jurisdiction is not unusual, even if it is not very enlightened way of building up a legal hub. The fact that the rules themselves state the BCI feels it needs to verify claims that access is offered to Indian lawyers in the UK before any UK lawyer could benefit from the new rules in India is an illustration that you cannot repeat a message too often. For at least the last 20 years, this message has been delivered in India, at conferences, seminars and in court affidavits, in publications, study visits and impact assessments. The message is heard politely but not believed. This is in part because the metrics that the BCI is looking at as a measure for reciprocity are very different to our own. They are likely to care more about the number of work visas issued to Indian lawyers, the number of Indian lawyers actually working in UK law firms or chambers and not just the theoretical possibility that they could do so. So proving reciprocity on Indian terms will be harder than it first appears.
The longstanding joke, that the liberalisation of the Indian legal sector is two years away, and has been two years away for 20 years, still holds true. Optimists argue that the BCI’s new rules represent a step forward, even if not perfect, and they ‘should be banked’ with further improvements to be worked upon in future. The less optimistic among us see an unending source of hesitation, deviation and repetition, presenting the risk to the UK legal profession and its professional and regulatory arms, of getting locked into a lengthy, resource intensive but ultimately unproductive debate about foreign lawyer presence in India for another couple of decades.
Most obviously, the new rules and all of the hoo-ha that surrounds them, has somewhat diverted attention from the fact that there is almost nothing in all of this that adds value for barristers in England and Wales. English and Welsh barristers can already fly-in and fly-out to offer consultancy services in India for 60 days in any calendar year. They can also carry out international commercial arbitration without any need to register, since the Supreme Court of India’s declared assumption is that the ‘practice of law’ and thus the need to register, only emerges after a foreign lawyer has been present in the country for two months.
So the new rules create more of a risk for the English and Welsh Bar, rather than an opportunity. They raise the prospect that the ‘helpful’ detail offered by the BCI in its rules ends up narrowing the current understanding of how foreign arbitrators can act in India, or increasing the bureaucracy around demonstrating how one’s expertise was procured or the nature of the matter on which a barrister is offering consultancy.
UK PLC’s strategy in relation to the BCI’s Rules for the Registration and Regulation of Foreign Lawyers and Law Firms in India would thus be better devoted to protecting and expanding the footholds that already exist for international practice in India through international arbitration and fly-in fly-out work. Not only is the groundwork in place, with a Supreme Court ruling on the key issues, but there is a shared interest in doing this, as India has long held a strategic objective to build its arbitration capacity. More flexibility around the terms and conditions governing international arbitration and a greater number of permitted days of fly-in fly-out presence would be a start and look like achievable goals in the short term, in comparison to foreign law firm establishment.
Alison Hook is a director and co-founder of legal market consultancy Hook Tangaza. A former diplomat and EU trade official, she spent nine years negotiating on Indian legal market opening as Head of International at the Law Society of England and Wales
No hesitation, deviation or repetition – the three pillars of Just a Minute (JAM). Not simply a Radio 4 institution but the basis on which law students hone their advocacy skills across India. Anyone who has stepped into a courtroom from Calcutta to Chennai will soon recognise the frenetic pace of speechmaking and the deft attempts to avoid judicial interruption.
But JAM rules appear to apply in reverse when it comes to the opening up of the Indian legal market. The more hesitation, deviation or repetition the better!
Headlines were made in the legal press in March 2023 by the unexpected publication in the Gazette of India of Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022. While there was a ripple of excitement around Whitehall about what this might mean for the much-anticipated India-UK Free Trade Agreement, and licking of lips in the City of London about deals to be done, veterans of 30 years of India’s legal opening saga were ready with fingers on buzzers.
First, hesitation; the radical reforms of the early 1990s, borne from economic and political crisis, have created a false impression of how quickly the Indian elephant can be manoeuvred. Indian businesses can be globally competitive and nimble when they come from technology or innovation-based sectors with no Licence Raj heritage, or where they are run by corporate moguls with Succession-like powers of command. But waiting for every interest group that has an influence to have its say, leads to very slow decision-making in other areas of economic life. I heard at least two Indian Ministers of Law and Justice between 2007-2010 announce publicly their intention to open up to foreign law firms, and declare that they would instruct the Bar Council of India (BCI) to engage with its foreign counterparts. The BCI may now, more than a decade down the road, have reached the end of its internal consultations, but this is by no means the end of the story. The Indian legal world is a kaleidoscope of interests and alliances. One of the most influential of these, the Society of Indian Law Firms (SILF), reacted to the Gazette of India announcement with customary negativity and will certainly challenge these new rules. SILF has long held that opening up should be done sequentially, with major reforms first undertaken to the Advocates Act 1961 before any thought is given to foreign lawyers. And while it is hard not to have great sympathy with this point of view, a legislative route to liberalisation of the Indian legal market offers the prospect of a 20-year trajectory to reform, at best.
Which brings us to deviation. The regulation of the Indian legal sector is notoriously litigation prone, with cases running continuously since 1995 in the High Court of Bombay, later in the High Court of Madras and finally in the Supreme Court. There always seems to be some new issue for litigants to explore and little ever seems to be settled with finality. Litigation as a delaying tactic is hard wired into regulatory change for the legal profession in India and so the first reaction to the BCI’s shock announcement in March was probably celebratory among the senior counsel who might line up for briefs on either side. Certainly there is much to litigate. The ‘Rules’ as published are vague and contradictory, and not helped by subsequent BCI ‘guidance’ which further muddied the waters. So a deviation into the courts looks to be on the cards.
And finally, repetition. The requirement in the new rules that the establishment of a law office in India is contingent on reciprocity in the foreign lawyer’s home jurisdiction is not unusual, even if it is not very enlightened way of building up a legal hub. The fact that the rules themselves state the BCI feels it needs to verify claims that access is offered to Indian lawyers in the UK before any UK lawyer could benefit from the new rules in India is an illustration that you cannot repeat a message too often. For at least the last 20 years, this message has been delivered in India, at conferences, seminars and in court affidavits, in publications, study visits and impact assessments. The message is heard politely but not believed. This is in part because the metrics that the BCI is looking at as a measure for reciprocity are very different to our own. They are likely to care more about the number of work visas issued to Indian lawyers, the number of Indian lawyers actually working in UK law firms or chambers and not just the theoretical possibility that they could do so. So proving reciprocity on Indian terms will be harder than it first appears.
The longstanding joke, that the liberalisation of the Indian legal sector is two years away, and has been two years away for 20 years, still holds true. Optimists argue that the BCI’s new rules represent a step forward, even if not perfect, and they ‘should be banked’ with further improvements to be worked upon in future. The less optimistic among us see an unending source of hesitation, deviation and repetition, presenting the risk to the UK legal profession and its professional and regulatory arms, of getting locked into a lengthy, resource intensive but ultimately unproductive debate about foreign lawyer presence in India for another couple of decades.
Most obviously, the new rules and all of the hoo-ha that surrounds them, has somewhat diverted attention from the fact that there is almost nothing in all of this that adds value for barristers in England and Wales. English and Welsh barristers can already fly-in and fly-out to offer consultancy services in India for 60 days in any calendar year. They can also carry out international commercial arbitration without any need to register, since the Supreme Court of India’s declared assumption is that the ‘practice of law’ and thus the need to register, only emerges after a foreign lawyer has been present in the country for two months.
So the new rules create more of a risk for the English and Welsh Bar, rather than an opportunity. They raise the prospect that the ‘helpful’ detail offered by the BCI in its rules ends up narrowing the current understanding of how foreign arbitrators can act in India, or increasing the bureaucracy around demonstrating how one’s expertise was procured or the nature of the matter on which a barrister is offering consultancy.
UK PLC’s strategy in relation to the BCI’s Rules for the Registration and Regulation of Foreign Lawyers and Law Firms in India would thus be better devoted to protecting and expanding the footholds that already exist for international practice in India through international arbitration and fly-in fly-out work. Not only is the groundwork in place, with a Supreme Court ruling on the key issues, but there is a shared interest in doing this, as India has long held a strategic objective to build its arbitration capacity. More flexibility around the terms and conditions governing international arbitration and a greater number of permitted days of fly-in fly-out presence would be a start and look like achievable goals in the short term, in comparison to foreign law firm establishment.
Opportunity or risk? Alison Hook looks behind the headlines and investigates what the latest gesture on liberalising the Indian legal sector really means for the Bar
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