Report of the Working Group on Foreign Investment
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Report of the Working Group on Foreign Investment 30 July 2010 Department of Economic Affairs Ministry of Finance New Delhi India Report of the Working Group on Foreign Investment c Ministry of Finance, Government of India, 2010 This work consists of a printed book and release of its contents in Portable Document Format (PDF) on the World Wide Web, and are subject to copyrights are reserved, whether whole or in part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on CD-ROM or in any other way, and storage in data banks. Duplication of this publication or parts therof is permitted only under the provisions of the Indian Copyright Act in its current version, and permission for use must always be obtained from Ministry of Finance. Typeset in PDF TEX by Chirag Anand using the package Pluton created by C.V. Radhakrishnan of River Valley Technologies, Trivandrum, India, http://www.river-valley.com/. 6 REPORT OF THE WORKING GROUP ON FOREIGN INVESTMENT Members Chairman Shri U K Sinha CMD, UTI Asset Management Company Members K. P. Krishnan Joint Secretary (Capital Markets), DEA, Ministry of Finance Ashutosh Dikshit Joint Secretary (Tax Policy and Legislation-1) Central Board of Direct Taxes, Ministry of Finance Gopal Krishna Joint Secretary, Department of Industrial Policy and Promotion Govind Mohan Joint Secretary (Infrastructure & Investment) K. N. Vaidyanathan Executive Director, Securities and Exchange Board of India P. K. Bagga Officer on Special Duty, Capital Markets & Investments, DEA A. M. Bajaj Director (External Markets), Capital Markets Division, DEA C. S. Mohapatra Director (Secondary Markets), Capital Markets Division, DEA C. K. G. Nair Director (Primary Markets), Capital Markets Division, DEA Permanent Invitees Madhu Kannan Managing Director & CEO, Bombay Stock Exchange of India Ltd Ravi Narain Managing Director & CEO, National Stock Exchange of India Ltd Bobby Parikh Managing Partner, BMR Advisors Anand Pathak Managing Partner, P & A Law Offices Ila Patnaik Professor, National Institute of Public Finance and Policy Ajay Shah Professor, National Institute of Public Finance and Policy Somasekhar Sundaresan Partner, J. Sagar Associates Bahram Vakil Senior Partner, AZB & Partners Research Team Bikku Kuruvila Senior Consultant, National Institute of Public Finance and Policy Vimal Balasubramaniam Consultant, National Institute of Public Finance and Policy Radhika Pandey Economist, National Institute of Public Finance and Policy Shubho Roy Consultant, National Institute of Public Finance and Policy Thank you Shefali Dhingra Deputy Director (External Markets), Capital Markets Division, DEA Roshni Shanker Consultant, National Institute of Public Finance and Policy Prateek Shroff Consultant, National Institute of Public Finance and Policy REPORT OF THE WORKING GROUP ON FOREIGN INVESTMENT 15 Foreword It has been an honour to lead, on behalf of the Government of India, a working group on foreign investments in the country. The terms of reference of this working group gave us a wide mandate on matters concerning capital flows (other than foreign direct investment). In the last few years, we have had major committee reports, led by the leading minds in Indian public policy, looking at questions ranging from capital account convertibility to the next generation of financial reforms to bond market regulation etc. The working group, therefore, attempted to have a serious discussion of the law and regulation in the areas of capital flows and also on the structures of governance that would optimise policy performance within whatever framework of capital account may be envisioned by the Government, in the context of that larger policy evolution. This report examines foreign investment law and capital flow management pol- icy as it is manifested in the norms, institutions and processes of law. The Group examined the structure of regulation and the ways in which practices, institutions and procedures inflect and shape these policy decisions. The report also offers, along side an economic policy piece contextualising these flows in relation to the Indian and global economy, close scrutiny of the structures and incentives created by the law in the main areas of our mandate; capital flows management regulations with regard to listed and unlisted equity, corporate and government securities regulation and derivatives trading. The focus of the Group has been to identify procedures and practices which can help avoid uncertainty, delay or unequal treatment and to rec- ommend measures which could simplify the portfolio investment environment; at the same time laying a strong emphasis on KYC norms. Consultation was important to us. This working group held six formal meetings, including an open public hearing, and had many informal discussion sessions. We invited the participation of the Reserve Bank of India. Salim Gangadharan, Chief General Manager-in-Charge and Aditya Gaiha, Deputy General Manager, Foreign Ex- change Department, RBI, participated extensively in one of our formal meetings. We had a session in Mumbai where representatives from 14 organizations came forward with their suggestions. Finally, we had an open comment process. In particular, we posted requests for feedback on the Internet and actively solicited discussion from major institutional stakeholders. The feedback we received was extensive and has enriched both this report as well as the ongoing deliberations of the Ministry of Fi- nance, to whom we have also submitted this material. Finally, I would like to thank all those whose contributions have enriched this report. Members made spirited, generous and innovative contributions to our collec- tive discussions and gave extensively of their time in reviewing the text and findings REPORT OF THE WORKING GROUP ON FOREIGN INVESTMENT 17 FOREWORD of this report. K.P. Krishnan offered clarity and understanding of both legal institu- tions and economic policy. Ashutosh Dikshit anchored our discussions of tax policy and contributed broadly to the report. The time and attention given by Gopal Kr- ishna and Govind Mohan is greatly appreciated. K.N. Vaidyanathan brought deep knowledge of capital markets to our discussions. He also worked with Salim Gan- gadharan to develop our thinking with regards to consumer protection matters and outflows of capital. The directors of the Capital Markets Division, A.M. Bajaj, P.K. Bagga, C.S. Mohapatra and C.K.G. Nair provided close and incisive readings of our report and brought a depth of knowledge about the Foreign Exchange Management Act (“FEMA”) and the institutional history of recent financial sector reforms that has been invaluable. Madhu Kannan helped us think about country comparisons and made important contributions to our thinking on dual listing. Ravi Narain was very generous with his time and helped crystallise the group’s thinking on rupee-denominated debt. Ajay Shah and Ila Patnaik contributed on matters of market functioning, institutional de- sign, and macroeconomics, particularly questions of India’s integration into the global economy. The lawyers and legal specialists who contributed to this document were obvi- ously crucial to our deliberations. Somasekhar Sundaresan, Bahram Vakil, Bobby Parikh and Anand Pathak made vital contributions to our thinking about appellate review, the relationship between FDI policy and portfolio investment, consumer pro- tection standards and on foreign exchange regulation and tax policy. I would also like to thank the Secretariat, the Macro/Finance Group at the Na- tional Institute of Public Finance and Policy (“NIPFP”). Bikku Kuruvila, the leader of this team, Shubho Roy, Vimal Balasubramaniam and Radhika Pandey poured an enormous number of hours into the meetings and preparation of this report. Their background work, drafting, legal analysis and policy research on wide and diverse areas of Indian law, country comparisons and the extent of India’s integration into the global economy provided strong foundations for our deliberations and the final report. Shefali Dhingra of the Ministry of Finance exhibited managerial savvy in keep- ing the group moving forward. Her efforts are very much appreciated. M. Govinda Rao, Director, NIPFP and Kavita Rao, NIPFP, quite generously agreed to brief the working group on the economics of source-based and global residency based taxation. Roshni Shanker and Prateek Shroff, formerly of NIPFP, put in long hours at early stages of the report and helpfully proof-read drafts of the report for us. Both Ravindra Mohan Bathula and Arjun Krishnan provided us with important feedback and insights on large and small questions of legal due process and foreign exchange regulation. We’d like to thank the participants of an August 2009 NIPFP conference titled Next Steps in Policy on Capital Flows, which helped in the preparatory work of this Working Group, which included Vishal Belsare, S. Khasnobis, Jayesh Mehta, Zia Mody and P.R. Suresh. Thanks also to Vishal Agarwal, Varoon Chandra, Manisha Chavan, Ketan Dalal, Devika Das, Supriyo De, Brian Fernandes, Akash Gupt, Jaitra Jani, Madhav Kanhere, Shagoofa Khan, Neha Mohan, Kiran Nisar, Mrugank Paranjape, Ashwath Rau, Abhi- nav Sanghi and Essaji Vahanvati for their gracious assistance and inputs at different stages of the report. U.K. Sinha, July 30, 2010 18 REPORT OF THE WORKING GROUP ON FOREIGN INVESTMENT Contents Members 15 Foreword 18 Contents ...................................... 19 List of Figures