Destination India - A Legal Synopsis
DESTINATION INDIA
A LEGAL SYNOPSIS
By:
Alishan Naqvee
LexCounsel, Law Offices, New Delhi
E-mail: anaqvee@lexcounsel-india.com
CONTENTS
1. Introduction
2. Entry Strategy
2.1 Legal Entity
2.2 Options for Collaboration
3. Regulatory Permissions and Compliances
3.1 Financial Collaboration
3.2 Technology Collaboration & Trademark License
3.3 Post Collaboration Compliances
3.4 Registrations and Licenses
4. Taxes and Tax Benefits
4.1 Tax Structure
4.2 International Taxation
4.3 Transfer Pricing Regulations
4.4 Tax Benefits
5. Return on Investment
5.1 Repatriation of Profits
5.2 Repatriation of Fees and Royalties
6. IP Protection
7. Human Resources and Labour Issues
7.1 Costs
7.2 Key Issues
8. Dispute Resolution
9. Due Diligence
SECTION ONE
1. INTRODUCTION
India, the world's largest democracy, is today one of the most favoured destinations of foreign investors and businesses for various reasons including a rapidly growing economy, educated and skilled workforce, huge market size, increasing purchasing power, low costs and political stability albeit through coalition Governments.
1.1 Geographic Location
India is bounded by the Bay of Bengal on the east, China, Nepal and Bhutan to the north-east, Pakistan and Arabian Sea on the north to west and Indian Ocean on the south. India has a coastline of 7,517 kilometers (4,671 miles). Bangladesh and Myanmar border India in the east.
1.2 Currency
The currency of India is Rupee (symbol "Rs."), often referred to as Indian Rupee in international transactions. As on March 1, 2009:
US Dollar - $ 1 was equal to Rs. 48.77
Great Britain Pound - £ 1 was equal to Rs. 70.63
Euro - € 1 was equal to Rs. 68.18
Japan Yen - ¥ 100 was equal to Rs. 55.06
1.3 India Wins Freedom
India won independence on August 15, 1947 from the British rule under the iconic leadership of Mahatma Gandhi and many other leaders after a long drawn freedom struggle.
Addressing the Indian Constituent Assembly towards midnight on August 14, 1947, the first Prime Minister of India, Pandit Jawahar Lal Nehru in his speech known as "Tryst With Destiny" said "Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom."
1.4 Union of States
With independence, India became a Union of States, as duly envisaged in its Constitution. India currently comprises of 29 states and 6 union territories. New Delhi is the capital, and Mumbai is commonly acknowledged as the financial capital. Other major cities include Kolkata (West Bengal), Chennai (Tamil Nadu), Bangalore (Karnataka), Hyderabad (Andhra Pradesh), Lucknow (Uttar Pradesh) and Chandigarh (Punjab).
1.5 Three Pillars of Democracy
India has a written constitution that clearly envisages three institutional organs of the Indian Government: (1) Legislature for enacting the laws; (2) Executive for implementation of the laws, and (3) Judiciary to interpret laws in administration of justice. The constitutional structure provides India a well balanced social, political, democratic and financial stability.
The Legislature constitutes the Parliament, that enacts laws applicable to the whole of India (subject to exceptions that may be stated therein), and State Legislature that enacts laws applicable to that particular state. The Prime Minister, being the leader of the majority party/coalition in the Parliament, heads the council of ministers. Similarly, the Chief Minister of each state is the head of the council of ministers of that State.
The Executive is headed by the President of India at the Centre level, and by the Governor at the State level. The President and the Governor act in view of the advice of the council of ministers.
The judiciary is headed by the Chief Justice of the Supreme Court of India. Each High Court is headed by a Chief Justice. Below the High Court, there are lower courts at the district and sub-district levels.
1.6 Laws
India follows the common law system, and is governed by a combination of central and state legislation, enacted by the Parliament and the State Legislature respectively. The Constitution of India also prescribes the matters on which the Parliament and the State Legislature can respectively or concurrently legislate.
1.7 Languages
"Hindi" is the mother tongue. In addition, 22 regional languages are currently recognized by the Constitution of India. Due to numerous regional languages and countless dialects, it is common for Indians to be proficient in speaking more than one language and a few dialects.
Though English is not the first official language anywhere in India, the country reportedly has the second largest English speaking population in any country in the world, after only the United States of America .
English is also the language to be used in the Supreme Court and the High Courts of all states of India, and is the authoritative text of all legislation passed by the Parliament and State Legislature.
1.8 Globalization
The so called "globalization" of the Indian economy commenced in 1992. The terms "free trade" and "globalization" were notably the key words of the speech delivered by the then Finance Minister and the current Prime Minister of India, Dr. Manmohan Singh before the Assembly on December 17, 1992.
Since 1992, the Government of India has gradually promoted foreign collaboration and relaxed regulations to promote foreign investment and technology transfer in various sectors of the Indian economy. While globalizing the Indian economy, the Government has been careful to protect the domestic production and business till such time they are able to compete with the financial might and international best practices of the multinational competitors. The results have been clearly pronounced on the global stage, with India now undisputedly being counted as a global power with significant domestic production and exports.
The increasing support for India to become a permanent member of the United Nations Security Council, the Indo-U.S. Civilian Nuclear Agreement, approval of the Safeguards Agreement by the International Atomic Energy Agency ("IAEA") and the waiver by the 45 member Nuclear Supplier Group ("NSG") in 2008 allowing India to access civilian nuclear technology and fuel from other countries are clear evidences of India's recognition as global power and dependable ally. The waiver by the NSG makes India the only known country in the world that possesses non-civilian nuclear capabilities but is still permitted to carry out nuclear commerce with the rest of the world without being a member of the Non Proliferation Treaty.
1.9 Rapid Economic Growth
The Globalization has undisputedly opened doors for rapid economic growth of India. Despite certain problems, including population, poverty, corruption, and regional and religious strife that erupt sometimes, India has demonstrated remarkable economic growth in the past decade. For the year ended March 31, 2009, the Gross Domestic Product ("GDP") is expected to be around 7%, despite global meltdown.
With all its diversities, India remains an attractive destination for foreign investments, with possibilities of remarkable returns on investments. With the population second only to China, India is second largest marketplace in the world in terms of number of consumers and offers enormous scope for success to diligent investors in almost all sectors of the Indian economy.
SECTION TWO
2. ENTRY STRATEGY
2.1 Legal Entity
A foreign entity may establish a business presence in India through:
• opening a liaison office, branch office or project office;
• appointing a distributor or franchisee;
• commencing its own operations in India;
• forming a joint venture with an Indian entity; or
• acquiring an existing business in India.
2.1.1 A liaison office can be established to primarily explore and understand the business opportunities and climate in India for the foreign parent entity. A liaison office is not permitted to earn any income in India by conducting any business or commercial activities in India.
A branch office can carry on the business activities while a project office can be established to execute a specific project. However, since a branch office or a project office would not be considered a legal entity separate from its parent company, the business income generated by them would be taxable at the rate of tax applicable to the foreign companies (40% plus surcharge and cess) which is higher than the rate of tax applicable to companies incorporated in India (30% plus surcharge and cess).
A liaison or branch office can be established in India pursuant to the requisite approval of the Reserve Bank of India ("RBI"). No prior RBI approval is however necessary for banking company that has obtained necessary approval under the Banking Regulation Act, 1949, or for branches/units established in special economic zones, or for project office in compliance with the specific conditions.
In view of restrictions on the activities and tax implications for liaison, branch and project offices, establishment of a wholly owned subsidiary, or strategic alliances through joint ventures, technical collaborations or distributorship arrangements with existing Indian companies by and large remain the preferred options for foreign entities to establish a long term presence in India.
2.1.2 The option of appointing a distributor or franchisee is often utilized by the foreign entities to trade in India their products of established global reputation and goodwill. The products are exported to and/or manufactured in India by the franchisee under strict quality control. In case the arrangement with the Indian partner is on exclusive basis, the Indian partner may be entitled to best (lowest) international prices for the imported products. In addition to payment of cost of products imported, the Indian distributors also often pay a percentage royalty to the foreign entity depending on the turnover of retail sales in India towards trademark license.
The advantages of a distributorship/franchising arrangements to the brand name owner include acquaintance of the franchisee with local environment; local sales and marketing expertise of the franchisee; ready availability of sales and marketing channels; reduced investment; sharing of expenses; negligible government approvals; no requirement to recruit local workforce and consequently lower financial risk. Further, the regulatory restrictions on retail trading by foreign companies are a major factor for boom of master franchising arrangements in India.
India does not have any specific legislation governing franchising arrangements, and consequently there is no statutory obligation on the franchisors to offer disclosures to the Indian franchisee.
2.1.3 Barring a few sectors, as discussed in Section 3.1 below, foreign investors are permitted to establish their wholly owned subsidiaries in India to conduct business in India. These companies being incorporated in India, are considered resident in India and are thus subject to taxation at the rate applicable to Indian residents (referred to in Section 2.1.1 above) even if all their shareholders and directors are based out of India. Subject to sectoral investment restriction and investment caps, the foreign investors also have the option of acquiring any existing company in India and establishing it as a wholly owned subsidiary.
2.1.4 Foreign investors are also permitted to establish joint ventures or collaborations with their Indian partners. While the advantages of a wholly owned business are effective supervision and absolute control, the advantages of joint ventures are support of a local partner to understand the business environment and rules of the game. The options for collaboration with Indian partners are discussed in the following Section.
2.2 Options for Collaboration
Foreign entities may enter into following kinds of collaborations with existing Indian companies:
a. Financial Collaboration: Joint Ventures, by investment in the shares or fully convertible instruments including debentures or preference shares ("securities") of the Indian company together with Indian partner;
b. Technical Collaboration: By licensing technology or patents to the Indian partner; and
c. Trademark/Brand Name License: To the Indian partner with/without technical collaboration.
SECTION THREE
3. REGULATORY PERMISSIONS AND COMPLIANCES
The Foreign Investment Promotion Board ("FIPB") and the Reserve Bank of India ("RBI") are the nodal government authorities to permit and supervise foreign investments in India. In addition, Ministry of Commerce and Industry and various other ministries and departments of the government prescribe sector specific regulatory compliances and approvals.
3.1 Financial Collaboration
Foreign investment upto 100% of the securities of Indian companies is freely permitted in most of the sectors, except a few sectors where FDI beyond prescribed percentages is not permitted without prior government approval, such as insurance, aviation, banking, telecom, real estate, etc., and a few manufacturing sectors requiring industrial license such as alcoholic drinks, tobacco products, defense equipment, hazardous chemicals etc. ("regulated sectors"). Foreign investment is however prohibited in certain sectors including retail trading (except single brand product retailing), atomic energy, lottery, gambling, trading in transferable development rights, etc.
A financial collaboration in these regulated sectors consequently requires presence of an Indian equity partner to hold the remaining equity. Further, the equity may either be held with or without prior government approvals from FIPB, RBI and other applicable ministries, as prescribed by the regulations applicable at the time of investment. The method of calculation of total foreign investment in an Indian company and associated issues have recently been clarified by the Ministry of Commerce and Industry, Government of India in a series of press notes.
The securities of an existing unlisted Indian company in unregulated sectors can be transferred from its holders to the foreign investor without prior government approval.
To meet additional financial needs, a foreign collaborator can also provide loans to the Indian company as per the detailed government guidelines issued in this regard prescribing interest rate, average maturity period, end use and prior approval in certain cases.
3.2 Technology Collaboration & Trademark License
Under these arrangements, foreign entities can provide technical know how and/or license their trademarks to Indian companies against payment of fee and royalty.
For use of foreign technology, Indian companies can remit lump sum fee of upto US$ 2 million and royalty upto 5% of domestic sales and 8% of exports to the technology licensor without any prior government approval. Similarly, for use of trademarks and brand name of the foreign collaborator without technology transfer, payment of royalty upto 2% of exports and 1% of domestic sales is allowed without prior government approval. In case of trademark/brand name license together with technology transfer, the payment for technology transfer subsumes the payment of royalty for use of trademark and brand name of the foreign collaborator.
3.3 Post Collaboration Compliances
In regulated as well as free sectors, an Indian company is required to effect certain one time as well as periodic filings with prescribed government regulatory and tax authorities. These filings include intimation of receipt of foreign investment, letters of acceptance, intimation of issue of securities, annual tax, accounts and returns, etc.
In addition, specific industries need to file periodic reports with the administrative ministry and departments, such as quarterly and annual returns by software technology parks or special economic zones with the concerned officials.
3.4 Incorporation, Registrations and Licenses
Incorporation of a company in India is an administrative process which takes approximately 15 to 20 working days from filing of incorporation related documents. A company incorporated anywhere in India is entitled to carry on business activities throughout India.
In addition, an Indian company would require obtaining various sector and location specific licenses and registrations, including registrations and licenses under the direct and indirect taxes, import-export regulations, labour laws and trade and municipal regulations. These licenses and registrations can ordinarily be obtained within four weeks of filing the requisite documents. The prior investment approvals from the FIPB for investment in unregulated sectors may take upto six weeks.
SECTION FOUR
4. TAXES AND TAX BENEFITS
4.1 Tax Structure
India has a multi tier tax system comprised of direct and indirect taxes. The main taxes are income tax, sales tax/value added tax, excise (levied on manufacturing/value addition), service tax (levied on provision of specified services), customs duty, octroi (on entry of goods in certain areas), stamp duty (on execution of specified documents) and property taxes.
The income tax applicable to Indian companies is 30% plus surcharge and cess. No minimum corporate income tax is payable by Indian companies in absence of profits. Generally all business expenses are deductible from taxable income. Indian companies are also required to withhold income tax from various payments and deposit it with the government.
4.2 International Taxation
India has entered into double taxation avoidance agreements ("DTAA") with approximately 77 countries around the world, including all major countries that may have trade interests with India. Generally, the provisions of DTAA prevail over the domestic tax provisions and offer bilateral relief to residents in both jurisdictions in respect of foreign taxes paid. Foreign investors can consider routing their investments into India through any of the tax heavens having beneficial DTAA with India.
Most of the DTAA's provide that, if a foreign company has a permanent establishment ("PE") in India, its income accruing in India would be taxable in India at the rate applicable to foreign companies (i.e. 40% plus surcharge and cess).
The Supreme Court of India has in the judgment delivered in July 2007 in the case of DIT (Mumbai) Vs. Morgan Stanley & Co. analyzed the possibility of an Indian entity being deemed a PE of its foreign counterpart owing to the presence of employees of the foreign counterpart at the offices of the Indian entity, and the nature of their business operations. Accordingly, deputation of employees of a foreign parent company to the offices of the Indian subsidiary would qualify the Indian entity as a PE of foreign parent entity in India, unless the role of the foreign employees is limited to stewardship activities. The Indian subsidiary would also be a PE of the foreign parent entity if the business activities of the Indian entity are same as the main business activities of the foreign entity, or if the Indian arm exercises the authority to execute, enter into or conclude or implement the contracts on behalf of the foreign arm.
In view of the above determinations, the Indian and the foreign arms of multinational entities are being careful in avoiding the deputation structure, and prefer to transfer the subject employees on the rolls of the Indian company.
Though the judgment is rendered with reference to specific clauses of the Indo-US DTAA, since most of the DTAAs that India has with other countries also contain provisions similar to the Indo-US DTAA (being based on the same model law), the applicability of the judgment may be presumed on transactions arising between Indian and other foreign entities.
4.3 Transfer Pricing Regulations
India has implemented transfer pricing regulations. Generally speaking, these rules govern the minimum profit margin to be maintained by the Indian companies in international transactions with associated enterprises. Arguably, the transfer pricing regulations legitimize provision of services by Indian companies to foreign parent and other entities on a cost plus basis, as per the industry norm and avoid PE implications for the foreign entity in India.
4.4 Tax Benefits
In India, substantial direct and indirect tax benefits/exemptions for the initial few years are provided to units engaged in specific business activities, such as export oriented software and hardware units; specified infrastructure projects; units in backward areas, special economic and free trade zones.
The export oriented software and services units are offered exemption of customs duty on imports, exemption of excise duty and sales tax on domestic purchase of capital goods in addition to exemption of octroi. Due to availability of tax benefits/exemptions and availability of educated workforce, India has established itself as the global hub for software development and business process outsourcing.
The DTAA, transfer pricing regulations and tax benefits provide an opportunity to the foreign investors to arrive at an efficient tax structuring of investments and business in India. Foreign investors can, considering the tax rates in both jurisdictions, ability of the Indian companies to provide services at a cost plus basis and tax exemption available for specific activities, decide the quantum of their investments in India.
SECTION FIVE
5. RETURN ON INVESTMENTS
Foreign investors can repatriate funds out of India through a number of options including dividends, fees for technical and administrative services, royalties, interest, capital appreciation, etc., after payment of applicable taxes. Reportedly, the rate of return on investments in India scores well above 15%.
5.1 Repatriation of Profits
Indian companies can remit their profits to a foreign collaborator by way of dividend subject to dividend distribution tax @ 20% plus surcharge and cess. There is no limit on the rate of dividend that can be distributed or repatriated out of India. However, there are certain conditions with regard to computation of profits and transfer of upto 10% of profits of the company to its reserves before declaring dividend.
Branch offices of foreign companies can also remit business profits to their principals subject to withholding tax @ 40% plus surcharge and cess (unless lower tax rate is prescribed by the DTAA).
5.2 Repatriation of Fees and Royalties
The royalty for transfer and use of technology, trademark and brand name, can be remitted to foreign collaborators subject to withholding tax @10% plus surcharge and cess (unless lower tax rate is prescribed by the DTAA and the royalty is executed on or after June 1, 2005). If the foreign collaborator belongs to a country having DTAA with India, it can avail credit of withholding taxes paid in India. Research and Development Cess @5% is also payable by the Indian importer of technology on payments towards imported technology.
5.3 Capital Gains
In the absence of lesser rate of tax by the DTAA, the capital gains can be repatriated out of India subject to withholding tax between 10% to 20%, depending on their nature, plus surcharge and cess.
SECTION SIX
6. IP PROTECTION
India recognizes the value of intellectual property rights and has well established procedures for protection of patents, trademarks, designs and copyrights. India is a member of the Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPS"), the Doha Declaration, Berne Convention on Copyrights, Geneva Convention for the Protection of Rights of Producers of Phonograms, the Universal Copyright Convention. India is also a member to the World Intellectual Property Organization, Geneva. In view of its commitments under TRIPs, the Doha Declaration and other conventions, India has taken significant steps to align its intellectual property laws to the global standards.
The true and first inventor of a product or process can register it as a patent in India. Trademarks, for services and goods, and designs (industrial designs, excluding functional designs) can also be registered in India by its owner. As far as copyrights are concerned, registration is not compulsory. Copyrights in original literary, dramatic, musical and artistic works, cinematography films and sound recordings can also be registered. The registration of copyright is however not compulsory to initiate a legal action against infringement.
Violation of IP rights is a punishable offence in India. The owners of patents, trademarks, designs and copyrights can institute appropriate legal actions against the infringer and restrain the infringer from using the IP pending conclusion of the legal action.
SECTION SEVEN
7. HUMAN RESOURCES AND LABOUR ISSUES
7.1 Costs
India arguably has the world's largest educated workforce available at salaries that are still substantially below the benchmarks of developed economies. A statute prescribing minimum wages to be paid to different classes of employees is in force in India. However, the minimum wages prescribed under this statute are not only far below the minimum wages payable to similarly qualified and skilled workers in developed economies across the world, they are also much below the salaries ordinarily paid in India to educated workers by reputed employers.
In addition to salary, certain other employee benefits and contributions, such as provident fund and employee state insurance are also payable by the employer (together with the employees). The availability of economical educated workforce facilitates the foreign investors to source international quality services and products at comparatively lower costs.
At the same time the businesses in India are capable of paying salaries competitive to the global standard for specific and special assignments. As a result India has an ever increasing number of foreign employees in Indian companies.
7.2 Key Issues
Due to rapid industrial development and growth of employment opportunities in big cities, the employers in these cities often face problems of attrition. Foreign investors may therefore review the industry salary standards before employing workforce, check the employment history of prospective employees for consistency and sincerity and include adequate protection in the employment documentation to avoid breach of confidentiality and attrition.
Indian labour statutes are employee friendly and discourage hire and fire practices. While the employment of manager and administration level employees is governed by and can be terminated as per their employment contracts, employees at lower levels, called "workman", can be terminated only in accordance with the procedure laid down under law (unless the termination as per the employment contract is more beneficial to the employees).
Export oriented units situated at most of the prominent locations in India are permitted to employ workers in shifts, beyond the regular office hours.
7.3 Engagement of Expatriates
For reasons of taxation, as discussed in Section 4.2 above, deputation of employees of foreign parent companies to their Indian subsidiaries is avoided. However, citizens of any country that India has friendly relationship with, may obtain employment visa to work in India. Persons travelling to India on long term and employment visas need to register themselves with the jurisdictional Foreigners Regional Registration Office within specified time (ordinarily 14 days) of arrival in India. Such employees would also be subject to tax in India on their income earned in India, and may avail credit of the tax paid in India depending on the terms of the DTAA between their home country and India.
SECTION EIGHT
8. DISPUTE RESOLUTION
The judicial structure in India consists of courts and tribunals in defined hierarchy. The apex court in India is the Supreme Court, at New Delhi. Below the Supreme Court, every state has its own High Court and subordinate courts. The courts exercise jurisdiction based on their territorial, pecuniary and statutory limits. In addition, specific disputes, such as consumer and tax disputes are adjudicated by specially constituted tribunals.
Litigation in India is usually long drawn. Further, judgments of only a few foreign courts can be directly executed in India. Consequently, arbitration and conciliation are preferred for resolution of disputes in commercial transactions. A foreign investor and its Indian partner can agree to resolve the disputes arising between them through arbitration conducted in or outside India.
India is signatory to the Geneva Convention of 1927 and the New York Convention of 1958. The Indian Arbitration and Conciliation Act, 1996 is based on Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985 and governs domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as well as law relating to conciliation.
Indian courts however, of late, have been encouraging the litigating parties to resolve the civil disputes through mediation. Few High Courts have even set up mediation cells where the courts refer the parties to attempt amicable resolution.
The contracting parties shall however be careful in opting for the venue of arbitration or exclusive court jurisdiction. "Forum inconvenience" is a common ground, in addition to "public policy" and "contravention of laws of India", that influence assumption of jurisdiction by the territorial courts in India in litigation matters, as well as in matters related to enforcement of or challenge to arbitral awards. The Supreme Court of India has in the case of Venture Global Engineering Vs. Satyam Computer Services Ltd. and Anr. held that not only enforcement, but a foreign award itself can be challenged in India on merits.
SECTION NINE
9. DUE DILIGENCE
We provide below a non-exhaustive list of viability verifications that may be conducted and caution that may be exercised by the foreign investors while establishing business in India through wholly owned subsidiaries or collaborations:
1. Verify the financial position of and possession of assets by the prospective partner;
2. Verify that the sector permits the proposed investment and obtain requisite approvals;
3. Ensure that the business understanding is well documented and is tax efficient;
4. Consider PE implications in India while finalizing the collaboration structuring;
5. Discuss in detail and decide the control and management issues of the Indian venture, including shareholding structure, constitution of its board of directors and committees;
6. Ensure inclusion of provisions concerning control and management of the company in its articles of association and timeline for issue of securities after receipt of investment and procedure for dissolution of the venture;
7. Timelines in India may, sometime, due to unavoidable circumstances extend beyond the time originally expected. The business plans should take this factor into account;
8. Take steps towards IP registration and protection;
9. Verify employment history of the employees; and
10. Adopt alternative dispute resolution mechanisms.
Disclaimer: This Synopsis is not intended to be and should not be construed as legal advice. While adequate care and caution has been exercised by the author in preparing and providing this Synopsis, the business requirements of different foreign investors may differ and require in depth consideration and resolution of crucial legal issues. Before taking any concrete business decisions, readers are advised to obtain specific legal advice from competent counsel in their own judgment. The author and the firm disclaim all liability to any person or entity concerning consequences of anything done or omitted to be done wholly or partly in reliance upon this Synopsis.
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