Accessing India’s Equity Markets Reform, Perform and Transform February 2018 Contributors: Disclaimer The information and opinion commentary in this ASIFMA – Accessing India’s Equity Markets Paper (Paper) was prepared by the Asia Securities Industry and Financial Markets Association (ASIFMA) to reflect the views of our members. ASIFMA believes that the information in the Paper, which has been obtained from multiple sources believed to be reliable, is reliable as of the date of publication. The data provided in the paper is the data available as of the date of publication, unless otherwise specified. As estimates by individual sources may differ from one another, estimates for similar types of data could vary within the Paper. In no event, however, does ASIFMA make any representation as to the accuracy or completeness of such information. ASIFMA has no obligation to update, modify or amend the information in this Paper or to otherwise notify readers if any information in the Paper becomes outdated or inaccurate. ASIFMA will make every effort to include updated information as it becomes available and in subsequent Papers. 2 ASIFMA is an independent, regional trade association with over 100 member firms comprising a diverse range of leading financial institutions from both the buy and sell side including banks, asset managers, law firms and market infrastructure service providers. Together, we harness the shared interests of the financial industry to promote the development of liquid, deep and broad capital markets in Asia. ASIFMA advocates stable, innovative and competitive Asian capital markets that are necessary to support the region’s economic growth. We drive consensus, advocate solutions and effect change around key issues through the collective strength and clarity of one industry voice. Our many initiatives include consultations with regulators and exchanges, development of uniform industry standards, advocacy for enhanced markets through policy papers, and lowering the cost of doing business in the region. Through the GFMA alliance with SIFMA in the US and AFME in Europe, ASIFMA also provides insights on global best practices and standards to benefit the region. 3 TABLE OF CONTENTS A. Executive Summary 7 B. Importance of the Capital Markets 9 1. Importance of capital markets supported by institutional investors 9 2. Country growth 10 3. Industry/corporate growth 11 4. Primary market 12 5. Funds 14 6. Secondary market 15 C. Capital Markets in Asia-Pacific 17 1. Capital market in India, 2012-2016 17 2. Comparison of capital markets in the APAC region 17 D. Accessing India’s Capita Markets 23 1. Growth potential of India’s capital markets 23 2. Overall tax and regulatory environment needs improvement 23 3. Directly accessing the Indian capital markets onshore – Types of foreign investors 23 4. Accessing the Indian capital markets from offshore: Access products (swaps, 24 P-notes, cash, stock futures) 5. Comparison with access programs in other Asian jurisdictions 28 E. Taxation 31 1. Background and overview 31 2. Overview of taxability in India 31 3. Tax administration and compliance 32 4. Types of tax 32 5. Short-term and long-term capital gains and tax rates 33 6. Tax treaty re-negotiations: India’s DTAA with Mauritius, Singapore and Cyprus 35 7. Measures to curb tax avoidance 35 8. International Financial Services Centre and other tax incentives 36 F. Recommendations for Development of the Indian Equity Markets 38 PRIMARY MARKET 1. Issue of third party warrants 38 SECONDARY MARKET 1. Facilitate securities lending and borrowing 38 2. Algorithmic trading 39 3. Block trading 43 4. Extension of the trading hours 44 5. Reported Indian derivatives trading volumes are inflated 46 FOREIGN ACCESS 1. FPI registration 47 2. Foreign accounts or foreign currency denominated Indian bank accounts 50 3. Lack of clarity on depository receipts 51 OPERATIONAL 4 1. Account structure transparency versus operational efficiency 52 2. KYC/AML challenges 54 3. List of restricted stocks for FPIs 54 REGULATORY 1. Regulatory processes and the need for market consultations 55 2. Consolidation of all disclosures under different regulations 55 TAXATION 1. Differentiated Securities Transaction Tax on FPIs in lieu of capital gains tax on 56 listed securities 2. Multi-lateral instrument and GAAR 57 3. Providing exemption from indirect transfer provisions to Category III FPIs 58 4. International Financial Services Centre units 59 5. Fund management activity in India 59 6. Long-term capital gains tax exemption to be extended to Category III FPIs 60 7. Taxation of GDRs issued against securities 60 ANNEX A: Types of Access Products ANNEX B: Taxability of capital gains arising to non-resident investors under various DTAA’s signed by India ANNEX C: Algo trading 5 ASIFMA would like to extend its gratitude to Cyril Amarchand Mangaldas, EY, JurisCorp, and PwC, and all of the individuals and member firms who contributed to the development of this paper. Chapters drafted entirely by a specific firm are denoted with the firm logo. 6 A. Executive Summary Ever since India started its economic reforms in the early nineties, there has been a metamorphosis in the Indian capital markets. Whilst India has historically been a challenging destination for foreign investors, the administration of current Prime Minister Modi has launched a raft of reforms to encourage investment driven by its commitment to improve India’s ranking in the World Bank’s ‘ease of doing business’ index. These structural reforms included tax and regulatory changes and the recent efforts to ease direct access for Foreign Portfolio Investors (FPIs) following restrictions on the Offshore Derivatives Instruments (ODI) markets. India’s economic performance continues to attract international investors. Despite a temporary slowdown to a 3-year low of 5.7% following the introduction of the Goods and Services Tax (GST) and demonetization in 2016, the International Monetary Fund (IMF) forecasts 7.4% growth for India in 2018. In fact, India looks set to leapfrog Britain and France next year to become the world’s fifth-largest economy in dollar terms, according to the Centre for Economics and Business Research consultancy’s 2018 World Economic League Table. It is one of the major G-20 economies with an average growth rate of around 7% over the last two decades and continues to be an important contributor to the pace of global growth. India first lifted restrictions on foreign investors and allowed them to invest directly in listed companies in late 2011. This was followed by the introduction of FPI regulations that considerably eased the entry norms for FPIs to access India’s capital markets. Nevertheless, due to the remaining frictions and certain tax and legal advantages, many foreign investors preferred to gain exposure to India through ODIs. With the Securities & Exchange Board (SEBI)’s increasingly stringent restrictions on ODIs, it is key for India to further smoothen the FPI registration and ongoing compliance process, as well as focus on reducing investment frictions in order to attract foreign investors into its capital markets, both debt and equity. Equity markets are a vital part of the capital markets, delivering the share capital that every company needs at the core of its balance sheet. India needs healthy equity markets to provide Indian companies with long-term capital for growth, leading to higher levels of economic activity, greater wealth and more jobs. Equity capital is particularly important for funding companies in high-growth sectors such as technology, communications and energy. Despite some moves in the right direction, more can be done to ease access for foreign institutional investors in India’s (equity) markets. In this paper, we will outline the importance of capital markets (both debt and equity) and specifically capital markets supported by institutional investors due to their size and the stability they add to the market. We then look into capital markets in the Asia-Pacific region and India’s position compared to other markets. In the next chapters, we describe how India’s markets are accessed currently and provide an overview of the tax framework that applies to foreign investors in the Indian equity markets. In the last chapter, we outline the areas in which Indian equity markets could benefit from structural changes and make recommendations for the future evolution of the Indian equity markets that are based on our members’ collective input. 7 The first sections of this paper cover both the debt and equities markets for illustration purposes and to outline the importance of capital markets in general. Our recommendations however only cover the equities markets. This paper should therefore be read in conjunction with ASIFMA’s July 2017 paper “India’s Debt Markets: The Way Forward, which is a comprehensive analysis on the current state of and the outlook for India’s debt markets and provides detailed recommendations on how to enable India’s continued strong growth. India needs to further reform its financial market regulations and policies, reduce investment frictions and improve ease of access to encourage more foreign investors to register as FPIs and directly invest onshore. Offshore trading continues to grow on the Singapore Exchange (SGX) and Dubai Gold Commodity Exchange (DGCX), with the SGX having just launched Indian single stock futures in January 2018 as a complement to its Nifty 50 index futures, which already enjoys a higher market share than its counterpart