BCI Rule requiring information on clients will deter those who want to arbitrate in India: Barbara Mills KC

Barbara Mills KC is Chair of the Bar Council of England and Wales, the first black woman to hold the position in the 131-year history of the organisation that represents barristers in England and Wales.

Mills chairs an all-female senior team with Kirsty Brimelow as Vice-Chair and Lucinda Orr as Treasurer. She is also the first family law specialist to hold the Chair in the last 35 years.

Bar & Bench's Pallavi Saluja caught up with Mills during her recent visit to India. In this interview, Mills spoke about the opening of the Indian legal market, the BCI Rules governing the same, international commercial arbitration and more.

[Watch Interview]

Edited excerpts follow.

Pallavi Saluja (PS): How has your India trip been so far? Who have you been meeting - the Government, BCI, law firms, lawyers?

Barbara Mills (BM): The Bar Council of England and Wales has got a strong relationship with lawyers in India and the Bar Council of India itself and every year the Chair has come to India to visit. What brings me here is to strengthen the relationship we've had over the last two decades, in terms of strengthening our respective jurisdictions with knowledge sharing. So we've had advocacy courses and the like. As a Chair with a background in family law, it's been really interesting to speak with and meet colleagues here who practice family law.

One of the things that we did was a symposium where English barristers joined with Indian colleagues to talk about some of the challenges that our clients face, especially our British Indian clients face, in terms of child custody issues and enforcement of financial remedies as a result of family breakdown. I also spoke at the Delhi High Court regarding family issues.

The other one is the liberalisation issues between our two countries, and I'm very much looking forward to speaking to the Bar Council of India.

PS: Interestingly, the UK Prime Minister was in Mumbai recently. Were you also part of that delegation?

BM: I wasn't part of the delegation, and we thought it was interesting timing for the Prime Minister to be here at the same time as us. As you know the legal services fell out of the free trade agreement (FTA), but we are not terribly troubled by that because every part of the trade agreement will require legal services to underpin it and bring it to fruition.

PS: As you know, the Bar Council of India has opened the Indian legal market. What are your thoughts on the Bar Council of India Rules?

BM: We've been working with the Bar Council of India on all sorts of issues and when the Rules were first brought into place in 2023, we had very useful dialogue with the Bar Council of India before and since then, and we were very pleased to see the Rules revised this year. The aspects that are particularly concerning to English barristers, which is to fly into India to do arbitration and give advice in certain areas and fly out at the end of it - we have no interest in setting up shop here - have been set out. There are a number of issues that we are looking forward to ironing out with the Bar Council of India when I meet with them later.

PS: What are your main concerns? What are the issues with the Rules that you want BCI to address?

BM: As you know, the UK is the second largest legal sector across the globe. One of our real strengths is the way in which we are open to others to ply their legal services in our jurisdiction. We're interested in that sort of reciprocity. At the moment, an Indian lawyer can come into England or Wales - whether self-employed or employed by a firm or in any other way - and they can provide legal advice and also practice arbitration. So we're looking for that reciprocity. That means that things like how somebody can come into the jurisdiction and practice is very important.

At the moment, the BCI Rules require there to be registration of information about the arbitration - the client as well as the subject matter. That is likely to breach one of the key parts of arbitration, which is the clients' privacy and confidentiality. We're looking with the Bar Council of India to see how we might be able to satisfy their need to have some information, but without breaching the client confidentiality, because without that, it will be a deterrent for those who would want to come into India, to use India as a seat in their arbitration.

PS: How do you see lawyers in the UK benefitting from the opening up of the Indian market?

BM: As I said before, it's about reciprocity. It's about opening up so that arbitration as a means of resolving disputes globally is water-tight and beneficial for all. So in terms of English lawyers coming here, we will only be a part of the arbitration as co-counsel. We're not taking away from any Indian lawyers. We have no particular interest in giving advice in or exercising Indian law. That is, of course, the domain and has to remain the domain of Indian lawyers. We're interested in calling witnesses, cross-examining witnesses, areas that we have particular strengths in. What that does is it shares knowledge and improves both our skillset as well as that of our Indian counterparts, because we'll be working together. So there's no question of taking away from or one party benefiting more than the other. And as I said earlier, our market is already open to Indian lawyers.

PS: Indian lawyers are worried that they will be passed over for foreign lawyers. Do you have any suggestions on how to make it a more level playing field?

BM: As a Bar leader, I understand why there is a need for people to protect their market. What I have discovered since I've been here is that so many of my Indian colleagues do not appreciate that our market, that is the English and Welsh market, is already open to them to practice, to give advice and to appear in arbitrations without the need to re-qualify or register. They can do that in a self-employed way or employed way. That is one of our strengths as a jurisdiction.

As for taking away, I think this feeling which comes with this issue is an unfounded one. Our interest is to fly in, do cases and fly out again. We see ourselves advising on foreign law. We see ourselves working in partnership with Indian lawyers. We see ourselves doing certain parts of arbitration such as calling witnesses, handling and cross-examining both expert and lay witnesses.

It is really important as India wants to establish itself as an arbitration hub, to attract business across the globe. That is achievable only if you give clients, from the very beginning, the choice of counsel. You need to be able to say to clients that they can choose their English lawyer, their German lawyer to add to the team because they bring a special skillset in their laws, if its a part of the issue at hand.

It is a fundamental part for the growth of India PLC, because as you grow and attract more business, that element of being able to give clients a choice, an efficient effective way of resolving disputes when they arrive and the confidentiality that I spoke of before - those are the key ingredients. I very much hope that people can begin to see that we're adding to the offering that India has to make globally, as opposed to taking away.

PS: Do you see India becoming a hub for international commercial arbitration in the near future? What needs to change for this to become a reality?

BM: I'm not here to preach or tell anyone how to do anything. One of the things that I'm really interested in as somebody who arbitrates, albeit in family law rather than in commercial law, is to strengthen arbitration as a way of resolving disputes across the globe. One of the advantages that we have as an established jurisdiction is to look at one that is burgeoning and work together to see how we can best strengthen it.

One of the key components for arbitration is that you need to have a court system that shores up the arbitral process. You need a court system that respects and recognises arbitration awards so that you don't have a situation where a party says I don't quite like what the arbitrator does so I'm going to appeal it, and the court entertains it. Efficiency, effectiveness and speed of the court system shoring up arbitration is really key.

We need to work together to ensure that when arbitrators are selected, we can be sure that they've been selected for the right reason because across the globe, there are some real issues about corruption and bribery. It's the sort of area that we can work together and work across the globe to ensure that arbitration is fit for purpose wherever it appears.

Can India do it? Of course it can. I wouldn't be sitting here talking to you if I had any doubt. India can and will of course be an arbitration hub. We need to talk about how we make it strong and how we make ourselves strong as well.

PS: There are a number of Indian qualified lawyers working in the UK. What has been your experience working with Indian lawyers?

BM: I've found that Indian lawyers, without registering or re-qualifying, as long as they're qualified here, are able to work in the arbitration space, they're able to give advice. I've found that in our chamber system, we've had an increasing number of Indian lawyers registering, transferring to be able to practice in our courts and registering as door tenants. So my experience is that the presence of Indian lawyers at the Bar in England and Wales is increasing. We've always had a very good relationship between the two jurisdictions, but it is increasing in number in England and Wales.

PS: You are the first black woman to hold the office of Chair and you also lead an all-female team of office holders. How has your journey been and how much of that responsibility do you feel in this office?

BM: Being first of anything carries with it a huge burden, because you're never quite sure whether the world believes that you can do it. I mean it's taken a long time for someone of colour to be in the Chair. It is a huge privilege to be able to lead the Bar of England and Wales. I often say to people that not everybody who has a dream realises the dream. My dream was to be able to do this and I'm doing it.

To lead an all-female team of officers is also a huge thing because it feels like it signifies a real change and a real break in the otherwise male-dominated sphere. My presence as Chair means a lot to a lot of people who look like me because they say that you can't be what you can't see. So I'm very, very pleased to be able to do it and I'm very pleased to be able to represent all the 18,000 barristers of England and Wales.

PS: During your term as Chair, what initiatives are you looking to address for women barristers and ethnic minority barristers and how important is a diverse Bar in your view?

BM: A diverse Bar is everything. It's really important that we do our very best to look like the society around us. Those who come to seek advice need to have the understanding and sense that it is a profession that welcomes them and understands them.

I am continuing the good work the Bar Council has been doing for a number of years in relation to diversity. We have a a rich history of doing great work for women and the Bar Council has done a lot of work in relation to black and ethnic minority barristers. I was the co-chair of a race working group from 2020 till 2024 and that group continues to do its fine work. What the Bar Council is able to do with the help of data and evidence is to look at where the gaps are and what are the some of the reasons why women come into the profession but don't stay long enough often to progress to become judges and silks and so on. And equally why black and ethnic minority barristers often can't access the profession and when they do, they too don't do as well as they could. So we're looking very carefully at the data. We have data that shows very clearly that there's a disparity in the earnings between men and women still. To put it in summary form, the best earners are white men and the worst earners are black women.

So we're challenging that data and we're able to provide information to those barristers to say this is how you might get better work, this is how you press your clerks to say why aren't I getting the right work and so on. Everything that we're doing at the Bar Council is steeped in the data, which is the thing that directs us to pull the levers we need to do to make a difference in the profession. My presence as Chair is something to be celebrated in the diversity debate, but it isn't everything.

I'm pleased to say that England and Wales is divided into six geographical areas which we call circuits and this year, two of those six circuits are led by men of colour. So in terms of leadership, for sure we're making progress, but we cannot afford to be complacent. We have work to do and I'm very pleased that despite the toxic noise of this issue in and around us, the Bar Council is determined to continue its work on diversity based on data and evidence.