There have been several attempts to allow foreign lawyers and law firms to set up office in India. In the past all such attempts failed and the hope to liberalise legal services in India were diminished since the same was vehemently opposed by the Bar Council of India (BCI). It came as a huge surprise that BCI issued regulations permitting foreign lawyers and law firms to register in India. After a period of 8 years, the Government issued a new foreign trade policy replacing the 2015 one, which had been extended for 3 years in 2020 due to several factors including Covid 19 pandemic.
Foreign Trade Policy – The Central Government notified the Foreign Trade Policy 2023 (FTP 2023) on March 31, 2023 to come into effect from April 1, 2023. This has replaced the earlier foreign trade policy 2015-20 which was extended due to COVID pandemic and volatile geopolitical scenario till March 31, 2023. Union Minister of Commerce and Industry, Consumer Affairs, Food and Public Distribution and Textiles, Shri Piyush Goyal launched the FTP 2023 saying that it is dynamic and has been kept open ended to accommodate the emerging needs of the time. He stated that the policy had been under discussion for a long time and has been formulated after multiple stakeholder consultations. India’s overall exports, including services and merchandise exports, has already crossed US$ 750 Billion and is expected to cross US$ 760 Billion this year, he said.
Some of the highlights of FTP 2023 are as follows:
- Automatic approval of various permissions under Foreign Trade Policy based on process simplification and technology implementation.
- Rupee Payment to be accepted under FTP Schemes Effective step towards internationalisation of Rupee FTP benefits extended for rupee realisations through special Vostro accounts setup as per RBI circular issued on 11 July 2022.
- These 4 new towns of export excellence (TEE) are in addition to the already existing 39 towns of export excellence. This scheme gives thrust to cluster based economic development. TEEs are industrial clusters that are recognized based on their export performance Recognition to these industrial clusters is granted with a view to maximize their potential and enable them to move up the value chain and to tap new markets. Benefits under TEE Scheme are:
- Helps in getting recognition/credibility attached to industrial units of the region/town while exploring/expanding into newer markets.
- Puts such industrial units/town on the global stage.
- Designated E-commerce export hubs with warehousing facility to be notified, to help e-commerce aggregators for easy stocking, customs clearance and returns processing. Processing facility to be allowed for last mile activities such as labelling, testing, repackaging etc.
- Special one-time amnesty scheme for default in export obligations:
- Government is strongly committed to reducing litigation and fostering trust-based relationships to help alleviate issues faced by exporters.
- In line with the “Vivaad se Vishwaas” initiative, which sought to settle tax disputes amicably, Government is introducing a special one-time Amnesty Scheme to address non-compliance in Export Obligations by Advance Authorization and EPCG authorization holders.
- All pending cases of default in Export Obligation (EO) of authorizations mentioned can be regularized by the authorization holder on payment of all customs duties exempted in proportion to unfulfilled Export Obligation and maximum interest is capped at 100% of such duties exempted. No interest is payable on the portion of additional customs duty and special additional customs Duty.
- Amnesty scheme shall be available for a limited period, up to 30.09.2023. Cases under investigation for fraud and diversion are not eligible for this scheme.
Entry of Foreign Lawyers and Law Firms – The Bar Council of India (“BCI”) issued the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 (“Rules”) vide Notification dated March 10, 2023 which was published in the Official Gazette.
In the last few years, several attempts have been made in this respect including drafting of similar rules by the BCI in 2016, which was covered by Asia Law Portal and its subsequent withdrawal which was also covered by Asia Law Portal. There was a lot of excitement initially when the Rules were notified. Subsequently a few clarifications were provided by BCI through a press release – some of the key points are listed below:
- Foreign lawyers are law firms shall be allowed to advise their clients about foreign laws and international laws only
- They would render advisory work about such laws for their foreign clients only.
- Foreign lawyers and law firms shall be allowed to function in non-litigation areas only.
- Foreign lawyers shall not be allowed to appear any court, tribunal, board, before any statutory or regulatory authority
- Entry of law firms would be on reciprocal basis only i.e. lawyers of only those countries be permitted in India, where Indian lawyers are also permitted to practice.
- Foreign lawyers would be allowed to appear for their clients in international commercial arbitration.