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Foreign Direct Investment in India: Evolution & The Legal Regime Rajiv K. Luthra Managing Partner Luthra and Luthra Law Offices Telephone: 91-11-2335 0633.

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Presentation on theme: "Foreign Direct Investment in India: Evolution & The Legal Regime Rajiv K. Luthra Managing Partner Luthra and Luthra Law Offices Telephone: 91-11-2335 0633."— Presentation transcript:

1 Foreign Direct Investment in India: Evolution & The Legal Regime Rajiv K. Luthra Managing Partner Luthra and Luthra Law Offices Telephone: 91-11-2335 0633 Fax: 91 11 2372 3909 E-mail:

2 Luthra & Luthra Law Offices2 Evolution of Economic Liberalization

3 Luthra & Luthra Law Offices3 Phases of Indian Economy 1947-1980 Command and Control Economy –Allocation of resources by the Government (budgetary grants) –Government took active part in setting priorities for the economy –Self-Reliance was the buzz word –Nationalisation of Banks –Limited scope for private participation

4 Luthra & Luthra Law Offices4 Phases of Indian Economy 1991-2000 Liberalization and Globalization of Indian Economy –Increased emphasis on private sector participation –Limited extent of FDI participation –Gradual improvement in the enabling environment

5 Luthra & Luthra Law Offices5 Phases of Indian Economy post 2000 Political Coalitions have started providing stable governments Government to get out of owning and managing businesses: Disinvestment Policy Gradual relaxation in the FDI Policy

6 Luthra & Luthra Law Offices6 Progressive Liberalisation Pre-1991FDI was allowed selectively up to 40% under FERA This period was dominated by the Congress party 199135 high priority industry groups were placed on the Automatic Route for FDI up to 51% Minority Congress government: Initiated economic reforms in a big way 1997Automatic Route expanded to 111 high priority industry groups up to 100%/ 74%/ 51%/50% United Front Government: Inclusive of left parties, was perceived as traditionally opposed to FDI, but continued with the reforms. 2000All sectors placed on the Automatic Route for FDI except for a small negative list BJP coalition government:(coalition of Left and Right wing parties) was traditionally seen as opposed to FDI, but continued with economic reforms. Post 2000Many new sectors opened to FDI; viz., insurance (26%), integrated townships (100%), mass rapid transit systems (100%), defence industry (26%), tea plantations (100%), print media (26%). Sectoral caps in many other sectors relaxed; BJP coalition government: pursued reforms vigorously and initiated second generation reforms.

7 Luthra & Luthra Law Offices7 Consensus on Economic Liberalisation Change in perception –Indian Business Houses –Government –Legal Framework: shift from a Positive List to a Negative List (FERA FEMA) Gradually all sectors moving to Choice and Competition (Multiple Player Model)

8 Luthra & Luthra Law Offices8 Present Picture India: Fourth largest economy in terms of Purchasing Power Parity Tenth most industrialized economy GDP growth rate of 8.1% - Second highest in the world. Considerable improvement in FDI inflows FII inflows: –For the period, July 2003 – Jan 2004 FII inflow has exceeded USD 7 bn, which is more than the cumulative FII inflow in the last five years. Still a big gap between India and China

9 Luthra & Luthra Law Offices9 Entry Process & Entry Strategies

10 Luthra & Luthra Law Offices10 The Industrial Policy Industrial Licensing All Industrial undertakings exempt from obtaining an industrial license to manufacture, except for: –Industries reserved for the Public Sector –Industries retained under compulsory licensing –Items of manufacture reserved for the Small Scale Sector –If the proposal attracts locational restriction Industrial Entrepreneur Memorandum

11 Luthra & Luthra Law Offices11 The Industrial Policy Industries reserved for the Public Sector: (1) Atomic Energy and (2) Railway Transport Compulsory licensing needed in the following industries: –Distillation and brewing of alcoholic drinks –Cigars and cigarettes and manufactured tobacco substitutes –Electronic aerospace and defence equipment of all types –Industrial explosives including detonating fuses, safety fuses, gun powder, nitrocellulose and matches –Certain hazardous chemicals

12 Luthra & Luthra Law Offices12 The Industrial Policy Locational Policy Industrial undertakings are free to select the location Location to be 25 km away from any city with a million strong population –Exceptions: When located in an area designated as an Industrial Area before the 25 th July, 1991. Electronics, Computer Software and Printing (and any other industry which may be notified in future as non polluting industry).

13 Luthra & Luthra Law Offices13 The Industrial Policy Small Scale Industries Suitable for Foreign Investment? –Cap on Investment in fixed assets (plant and machinery) is Rs. 10 million (approx. SGD 3,70,000) –Not more than 24 per cent of total equity can be held by any industrial undertaking either foreign or domestic –Upon such equity exceeding 24% the SSI status is lost. Carry-on-Business (COB) Licence required. Various items reserved exclusively for SSIs.

14 Luthra & Luthra Law Offices14 The Entry Process. Automatic RoutePrior Permission Investing in India General rule Inform RBI within 30 days of inflow/issue of shares Pricing: FEMA Regulations Unlisted – CCI Listed – SEBI Cap of Rs. 600 Crore (approx SGD 222 million) By exception Approval of Foreign Investment Promotion Board needed. Decision generally within 4-6 weeks

15 Luthra & Luthra Law Offices15 The Entry Process: Automatic Route All items/activities for FDI investment up to 100% fall under the Automatic Route except the following: –All proposals that require an Industrial Licence. –All proposals in which the foreign collaborator has a previous venture/ tie up in India. –All proposals relating to acquisition of existing shares in an existing Indian Company by a foreign investor. –All proposals falling outside notified sectoral policy/ caps or under sectors in which FDI is not permitted.

16 Luthra & Luthra Law Offices16 The Entry Process: Government Approval FIPB Approval For all activities, which are not covered under the Automatic Route Composite approvals involving foreign investment/ foreign technical collaboration Published Transparent Guidelines vs. Earlier Case by Case Approach Downstream Investment

17 Luthra & Luthra Law Offices17 Subsequent Investment in the same or allied field Press Note 18 No Automatic Route for FDI and/or technology collaboration for those who have or had any previous joint venture/technology transfer/ trade mark agreement in the same or allied field. –Same field : Four digit NIC 1987 Code –Allied field : Three digit NIC 1987 Code. IT Sector & International Financial Institutions exempted. New Trend: FIPB examines objections by the earlier partner objectively.

18 Luthra & Luthra Law Offices18 Acquisition of shares in a Listed Company Takeover Code Acquisition of more than specified equity stakes would entail public offer Pricing: Average of 26 weeks or 2 weeks, whichever is higher No takeover of management before completion of Takeover Code formalities

19 Luthra & Luthra Law Offices19 Other modes of Foreign Direct Investment GDR, ADR, FCCB Indian Companies allowed to raise equity capital in the international market through the issue of GDRs/ ADRs/FCCBs. No ceiling on investment

20 Luthra & Luthra Law Offices20 Other modes of Foreign Direct Investment GDR, ADR, FCCB (Contd.) No end-use restrictions on GDR/ ADR/ FCCB issue proceeds –Except Investment in real estate Stock markets. Government clearance required when sectoral cap is exceeded, or for a project not falling under Automatic Route. 25% of the FCCB proceeds can be used for general corporate restructuring.

21 Luthra & Luthra Law Offices21 Foreign Technology Collaboration Foreign technology collaborations are permitted either through the automatic route or by the Government. Policy for Automatic Approval To all industries for foreign technology collaboration agreements, irrespective of the extent of foreign equity in the shareholding, subject to: –The lump sum payments not exceeding US $ 2 Million;

22 Luthra & Luthra Law Offices22 Foreign Technology Collaboration Policy for Automatic approval (contd.) –Royalty payable being limited to 5 per cent for domestic sales and 8 per cent for exports, subject to a total payment of 8 per cent on sales –No restriction on the duration of the royalty payments –The aforesaid royalty limits are net of taxes and are calculated according to standard conditions.

23 Luthra & Luthra Law Offices23 Foreign Technology Collaboration Policy for Automatic approval (contd.) –Payment of royalty up to 2% for exports and 1% for domestic sales is allowed under automatic route on use of trademarks and brand name of the foreign collaborator without technology transfer. –Registration of FC Agreement with RBI.

24 Luthra & Luthra Law Offices24 The Entry Strategy Forms in which Business can be conducted in India Wholly owned subsidiary Joint Venture Company Branch Office Project Office India Presence: Liaison Office

25 Luthra & Luthra Law Offices25 The Entry Strategy: Joint Venture Company Advantages –Limited liability –Market Penetration –Local Partners Expertise and Experience Vital Considerations –Choice of Joint Venture Partner –Due Diligence

26 Luthra & Luthra Law Offices26 The Entry Strategy: Joint Venture Company Vital Considerations (Contd.) –Clearly defined agreement –Terms of the Shareholders Agreement should be reflected in the Articles of the Company. –Share Transfer Restriction in a Public Limited Company –Disproportionate voting Rights: Veto –Non-compete

27 Luthra & Luthra Law Offices27 The Entry Strategy: Joint Venture Company Vital Considerations (Contd.) –Agreement for future issue of share capital –Dispute Resolution –Non-disclosure of confidential information post termination

28 Luthra & Luthra Law Offices28 The Entry Strategy: Branch Office Purpose/Viability of a Branch Office –Represent the business interest of foreign company –For the purpose of execution of the Project Project Office is in the nature of a Branch Office set up for a particular project.

29 Luthra & Luthra Law Offices29 The Entry Strategy: Branch Office Permissible activities for a Branch Office –Export/Import of goods –Professional or Consultancy Services –Carrying out research work in which the parent company is engaged –Promoting technical or financial collaborations between Indian Companies and parent or overseas group companies

30 Luthra & Luthra Law Offices30 The Entry Strategy: Branch Office Permissible activities (Contd.) –Representing the parent company in India and acting as Buying and Selling Agent –Rendering Technical Support to the products supplied by parent/group companies. –Foreign Airlines/ Shipping Companies Issue: Project/ Branch Office – Permanent Establishment

31 Luthra & Luthra Law Offices31 The Entry Strategy: Liaison Office Liaison office for –Promotion of business interest; spreading awareness of companys products; explore opportunities; work as channel of communication etc. –Cannot carry on any commercial, trading or industrial activity or earn any income in India –Is required to maintain itself out of inward remittances received from abroad through normal banking channels.

32 Luthra & Luthra Law Offices32 The Entry Strategy Branch Office/Liaison Office can be set up only with prior RBI approval Profit of the Branch or Surplus of the project after completion can be remitted, after payment of all applicable taxes in India

33 Luthra & Luthra Law Offices33 Exit Issues Transfer of shares from non-resident to non-resident does not require RBI approval for pricing Transfer of shares from non-resident to resident does not require any FIPB Approval, though RBI approval is required for pricing –Pricing as per FEMA – listed and unlisted securities –RBI permission not required if sale through Stock Exchange Mauritius Route: Capital Gain Advantage

34 Luthra & Luthra Law Offices34 Legal Structures facilitating FDI

35 Luthra & Luthra Law Offices35 Facilitating FDI in India Emergence of Independent Regulators: Electricity, Telecom, Insurance, Capital Market and Competition Law Ensuring level playing field vis-à-vis Government Corporations and inter se private players Expertise in the subject matter involved Expeditious resolution of dispute

36 Luthra & Luthra Law Offices36 Facilitating FDI in India Emergence of Independent Regulators (Contd.) Regulators under consideration: Petroleum, Railways, Information and Broadcasting Regulator to curb Anti-Competitive Practices Government Directives

37 Luthra & Luthra Law Offices37 Facilitating FDI in India Labour laws – a more contractual approach. Move towards: hire and fire Progressive use of discretionary executive powers –Permissions granted for closure of unviable units –Inspections only upon workers grievances –Voluntary Retirement Schemes –EPZs, SEZs etc may be exempted from application of certain labour laws –Amendment to Industrial Disputes Act under consideration –Amendment to Contract Labour (Regulation & Abolition) Act, 1970 under consideration.

38 Luthra & Luthra Law Offices38 Investment Incentives

39 Luthra & Luthra Law Offices39 Incentives for investment in Telecom Sector Movement towards technology neutral Unified Licensing Regime Permission for Inter-Circle & Intra-Circle Mergers Exemplary growth in teledensity, subscriber base etc. Companies commencing operations before 31 st March, 2004, would enjoy tax benefits: –100% deduction for first five years –30% deduction for next five years Exemption from tax on interest income and long term capital gains in certain cases Import duty rates have been reduced for various telecom equipment

40 Luthra & Luthra Law Offices40 Investment Incentive for IT Industry Software companies have a ten year tax holiday on their export income In 1998 the Government set up a new Ministry of Information Technology The Information Technology Act, 2000 was passed to tackle cyber crimes and facilitate e- commerce

41 Luthra & Luthra Law Offices41 Incentives for Investment in Power Sector New Legal Regime: Electricity Act, 2003 The Act provides for: Multiple Buyer Model, Independent Regulatory Body, Open Access, Power Trading as an independent business, delicensing of generation 100% FDI Automatic Route in: –Hydro-electric power plants; –Coal/lignite based thermal power plants; –Oil/gas based thermal power plants.

42 Luthra & Luthra Law Offices42 Incentives for Investment in Power Sector Other investment incentives: –New Power Projects eligible for 100% tax holiday in any block of ten years, within first fifteen years of operation. –The Deadline for income tax exemption for new power projects extended from 2006 to 2012. –Various indirect tax incentives: Concessional rate of import duties Special project import scheme Deemed export benefit for certain categories of power projects.

43 Luthra & Luthra Law Offices43 Reforms in Financial Sector FIIs allowed in Capital Market, can invest both in Debt and Equity FDI cap in private sector banks raised to 74% –10% cap on voting rights The Mutual Fund market is also open now to foreign players. Equity issue pricing is market determined

44 Luthra & Luthra Law Offices44 FDI in Real Estate: Policy & Issues Press Note 4 (2002 Series) –100% FDI under Automatic Route PERMITTED FOR Integrated Townships, subject to following conditions: Foreign company to be registered as Indian company under Companies Act, 1956 Core Business - Integrated Township Development with a successful track record. Minimum area of development: 100 acres as per local bylaws/rules. In absence of such by laws/rules, minimum of 2000 dwelling houses for about 10,000 population to be developed by the investor. Conditions post acceptance of FDI proposal Minimum capitalization norms Upfront payment Minimum lock-in period Time bound completion of project

45 Luthra & Luthra Law Offices45 FDI in Hotel and Tourism:Policy and Issues 100% FDI under Automatic Route Hotel includes Restaurant, beach resorts and other tourist complexes providing accommodation and/or Catering Tourism related industries includes travel agencies, tour operating agencies, units providing facilities for cultural, adventure and wild life experience to tourists; surface, air and water transport facilities to tourists; leisure, entertainment, amusement, sports and health units for tourists and Convention/ Seminar units and organizations. Automatic approval for Technical, Consultancy, Marketing, Publicity, Managerial services subject to specified limits.

46 Luthra & Luthra Law Offices46 Conclusion Economics occupies centre stage in 2004 elections Rising expectations; rising prosperity Legal regime: more stable and predictable Bureaucracy: changing with the times The Future beckons

47 Luthra & Luthra Law Offices47 Thank You

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