Background Material-FDI in Financial Services
Background Material-FDI in Financial Services
Background Material-FDI in Financial Services
Financial Services
BY CA. Sudha G. Bhushan
This Document provides an overview pertaining to regulatory framework of Financial Services sector in India and the Foreign Direct Investment Policy pertaining to same
12/18/2010
Contents
Overview of Foreign Exchange Management Act, 1999 Foreign Direct Investment Policy About Financial Services Components of Financial Services FDI in Financial Services Indian financial Service Sector Growth and opportunity
(iii) FEMA 24/2000-RB pertaining to investment in a firm or a proprietary concern in India. The definition section of each Notification makes it clear that the words and expressions used therein, but not defined in that particular Notification, shall have the same meanings respectively assigned to them in the Act. Therefore, wherever a particular term is defined in the Notification, the meaning to be assigned is unique to that Notification and mostly cannot be applied to another. Thus, interpretation and application of FEMA provisions and Notifications require utmost care. FEMA is applicable to the whole of India. The expression whole of India would indicate that the provisions of the Act are applicable to all transactions taking place in India. Thus, any person who is present in India at the time of transaction has to comply with provisions of FEMA. FEMA is applicable to all branches, offices and agencies outside India owned or controlled by a person resident in India. Thus, FEMA has retained its extraterritorial application, as under FERA. The Enforcement of FEMA is done through Reserve Bank of India and Central Government. The power has been given to Central Government [section 46] and RBI [Section 47] to lay down detailed rules and regulations to carry out the various provisions of the Act. Where under Section 47 the reserve bank of India can make regulations governing procedural and administrative aspects of FEMA the central government have been given the power to make rules governing enforcement of FEMA.The Central Government has established a Directorate of Enforcement for the purpose of enforcement of Act [section 36]. Officers under Directorate of enforcement are known as officers of Enforcement. These officers can investigate the contraventions of FEMA.
Master circulars
Regulatory Framework
Circulars Rules- Central Goverment
Notifications
It is the policy of the Government of India to attract and promote productive FDI in activities which significantly contribute to industrialization and socio-economic development. FDI supplements domestic capital and technology.
FDI EQUITY INFLOWS (MONTH-WISE) DURING THE FINANCIAL YEAR 2010-11: Financial Year 2010-11 ( April-March ) April 2010 May 2010 June 2010 July 2010 August 2010 Amount of FDI inflows (In Rs. Crore) 9,697 10,135 6,429 8,359 6,196 Amount of FDI inflows (In US$ mn) 2,179 2,213 1,380 1,785 1,330
9,754 50,570
2,118 11005
# Figures are provisional, subject to reconciliation with RBI, Mumbai. Soruce : www.dipp.nic.in For detailed statistics on FDI follow: http://www.dipp.nic.in/fdi_statistics/indian_FDI_September2010.pdf
SECTORS ATTRACTING HIGHEST FDI EQUITY INFLOWS Amount Rupees in crores (US$ in million) RANKS SECTOR 2008-09 (AprilMarch) 2009-10 (AprilMarch) 2010-11 ( AprilSep)
1.
2.
3.
11,727 (2,558)
4.
12,621 (2,801)
5.
CONSTRUCTION ACTIVITIES
8,792 (2,028)
6.
POWER
4,382 (985)
7.
AUTOMOBILE INDUSTRY
5,212 (1,152)
Financial Services
Banking Public Sector
Commodity Exchanges
Insurance
SARFAESI Act was famed with the purpose to regulate securitization and reconstruction of financial assets and enforcement of security interest and for matters connected therewith or incidental thereto. As defined in the Act "asset reconstruction" means acquisition by any securitisation company or reconstruction company of any right or interest of any bank or financial institution in any financial assistance for the purpose of realisation of such financial assistance; Presently 49% of FDI is allowed in ARC under Government Route subject to following conditions as mentioned below: (i) Persons resident outside India, other than Foreign Institutional Investors (FIIs), can invest in the capital of Asset Reconstruction Companies (ARCs) registered with Reserve Bank only under the Government Route. Such investments have to be strictly in the nature of FDI. Investments by FIIs are not permitted in the equity capital of ARCs. (ii) However, FIIs registered with SEBI can invest in the Security Receipts (SRs) issued by ARCs registered with Reserve Bank. FIIs can invest upto 49 per cent of each tranche of scheme of SRs, subject to the condition that investment by a single FII in each tranche of SRs shall not exceed 10 per cent of the issue. (iii)Any individual investment of more than 10% would be subject to provisions of section 3(3) (f) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Key Players in Market: - Arcil etc
A whollyowned subsidiary
Branches
(4) The permissible limits under portfolio investment schemes through stock exchanges for FIIs and NRIs will be as follows: In case of FIIs In the case of FIIs, individual FII holding is restricted to 10 per cent of the total paid-up capital, aggregate limit for all FIIs cannot exceed 24 per cent of the total paid-up capital, which can be raised to 49 per cent of the total paid -up capital by the bank concerned through a resolution by its Board of Directors followed by a special resolution to that effect by its General Body.FII investment limit is 49 per cent of the total paid-up capital. In the case of NRIs Individual holding is restricted to 5 per cent of the total paid-up capital both on repatriation and non repatriation basis and aggregate limit cannot exceed 10 per cent of the total paidup capital both on repatriation and non-repatriation basis. However, NRI holding can be allowed up to 24 per cent of the total paid-up capital both on repatriation and nonrepatriation basis provided the banking company passes a special resolution to that effect in the General Body. Private Bank with JV with Insurance sector Applications for foreign direct investment (FDI route) in private banks having joint venture/subsidiary in insurance sector may be addressed to the Reserve Bank of India (RBI) for consideration in consultation with the Insurance Regulatory and Development Authority (IRDA) in order to ensure that the 26 per cent limit of foreign shareholding applicable for the insurance sector is not being breached. Other conditions: a) Transfer of shares under FDI from residents to non-residents will continue to require approval of RBI and Government as applicable. b) The policies and procedures prescribed from time to time by RBI and other institutions such as SEBI, Department of Company Affairs and IRDA on these matters will apply as applicable. c) RBI guidelines relating to acquisition by purchase or otherwise of shares of a private bank, if such acquisition results in any person owning or controlling 5 per cent or more of the paid up capital of the private bank will apply to non-resident investors as well.
Setting up of a subsidiary by foreign banks (a) Foreign banks will be permitted to either have branches or subsidiaries but not both. (b) Foreign banks regulated by banking supervisory authority in the home country and meeting Reserve Banks licensing criteria will be allowed to hold 100 per cent paid up capital to enable them to set up a wholly-owned subsidiary in India. (c) A foreign bank may operate in India through only one of the three channels viz., (i) branches (ii) a wholly-owned subsidiary and (iii) a subsidiary with aggregate foreign investment up to a maximum of 74 per cent in a private bank. (d) A foreign bank will be permitted to establish a wholly-owned subsidiary either through conversion of existing branches into a subsidiary or through a fresh banking license. A foreign bank will be permitted to establish a subsidiary through acquisition of shares of an existing private sector bank provided at least 26 per cent of the paid capital of the private sector bank is held by residents at all times. (e) A subsidiary of a foreign bank will be subject to the licensing requirements and conditions broadly consistent with those for new private sector banks. (f)Guidelines for setting up a wholly-owned subsidiary of a foreign bank to be issued separately by RBI. (g) All applications by a foreign bank for setting up a subsidiary or for conversion of their existing branches to subsidiary in India will have to be made to the RBI. At present there is a limit of ten per cent on voting rights in respect of banking companies, and this should be noted by potential investor. Key Foreign Banks in India: - ABN AMRO, Bank of America, HSBC, Deutsche Bank, Citibank India, Barclays Bank etc
Credit information means any information relating to (i) the amounts and the nature of loans or advances, amounts outstanding under credit cards and other credit facilities granted or to be granted, by a credit institution to any borrower; (ii) the nature of security taken or proposed to be taken by a credit institution from any borrower for credit facilities granted or proposed to be granted to him; (iii) the guarantee furnished or any other non-fund based facility granted or proposed to be granted by a credit institution for any of its borrowers; (iv) the creditworthiness of any borrower of a credit institution; (v) any other matter which the Reserve Bank may, consider necessary for inclusion in the credit information to be collected and maintained by credit information companies, and, specify, by notification, in this behalf; Foreign Investment in allowed till 49% under approval route. Following are further conditions: 1. Foreign investment is permitted under the Government route, subject to regulatory clearance from RBI. 2. Investment by a registered FII under the Portfolio Investment Scheme would be permitted up to 24% only in the CICs listed at the Stock Exchanges, within the overall limit of 49% for foreign investment. Such FII investment would be permitted subject to the conditions that: (a) No single entity should directly or indirectly hold more than 10% equity. (b) Any acquisition in excess of 1% will have to be reported to RBI as a mandatory requirement; and (c) FIIs investing in CICs shall not seek a representation on the Board of Directors based upon their shareholding. Players:(a) Credit Information Bureau of India Ltd (CIBIL) (b) Equifax Credit Information Services [backed by Crisil and Tata Capital] (c) Experian Credit Information Company of India [US based] (d) Highmark Credit Information Services
(G) Insurance
The Insurance sector in India is regulated by INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY ACT, 1999. The objective of act is to provide for the establishment of an Authority to protect the interests of holders of insurance policies, to regulate, promote and ensure orderly growth of the insurance industry and for matters connected therewith or incidental thereto and further to amended the Insurance Act, 1938, the Life Insurance Corporation Act, 1956 and the General Insurance Business(Nationalisation) Act, 1972.There have been lot of changes in the sector since it has opened for private participation in 2000 following the recommendations of the Malhotra Committee report. Presently FDI upto 26% is allowed under automatic route. Other conditions are as follow: (1) FDI in the Insurance sector, as prescribed in the Insurance Act, 1999, is allowed under the automatic route. (2) This will be subject to the condition that Companies bringing in FDI shall obtain necessary license from the Insurance Regulatory & Development Authority for undertaking insurance activities.
26
Prudential
26 26
25.99 26
Cardiff
List of Private Companies in General Insurance Name of the Private General Insurance Company Royal Sundaram Alliance Insurance Co. Ltd ICICI Lombard General Insurance Co. Ltd IFFCO-Tokio General Insurance Co. Ltd Tata-AIG General Insurance Co. Ltd % of Foreign Equity 26 Name of the Foreign partner Royal Sun Alliance
26
Lombard
26
Tokio Marine
26
AIG
100% foreign owned NBFCs with a minimum capitalisation of US$ 50 million can set up step down subsidiaries for specific NBFC activities, without any restriction on the number of operating subsidiaries and without bringing in additional capital. Joint Venture operating NBFCs that have 75% or less than 75% foreign investment can also set up subsidiaries for undertaking other NBFC activities, subject to the subsidiaries also complying with the applicable minimum capitalisation norm mentioned above. Minimum capitalization norms for Non Fund based Activities FDI Limit For all permitted nonfund based NBFCs irrespective of the level of foreign investment Minimum capitalization requirement US $0.5 million Capital Infusion upfront
NBFC with Non- Fund based activities would not be permissible for such a company to set up any subsidiary for any other activity, nor it can participate in any equity of an NBFC holding/operating company. (vii) This will be subject to compliance with the guidelines of RBI.
Financial Consultancy
Forex Broking
(2) Venture Capital Fund (VCF) A Foreign Venture Capital Investor (FVCI) may contribute up to 100% of the capital of an Indian Venture Capital Undertaking and may also set up a domestic asset management company to manage the fund. All such investments can be made under automatic route in terms of Schedule 6 to Notification No. FEMA 20. A SEBI registered FVCI can also invest in domestic venture capital fund registered under the SEBI (Venture Capital Fund) Regulations, 1996. Such investments would also be subject to RBI regulations and FDI policy. However, in case the entity undertaking venture capital fund activity is a Trust registered under the Indian Trust Act, 1882, FDI would be permitted under the Government route. FVCIs are also allowed to invest in other companies subject to FDI Regulations.
DISCLAIMER The analysis/views in this booklet do not purport to be and should not be treated as legal opinion. ****
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