The document summarizes India's consolidated FDI policy framework, which integrates all prior FDI regulations into a single document for greater clarity and ease of understanding. Key points include: - The Commerce Minister released the final consolidated FDI policy document. - It rescinds all past press notes and provides a single platform for all FDI policy information. - The document will be updated every 6 months to keep the framework current. - Several issues like FDI in LLPs are still under discussion and will be added later.

1. FDI in INDIA<br />All FDI regulations integrated into one consolidated document<br />Union Commerce & Industry Minister Anand Sharma today released the final document of the Foreign Direct Investment (FDI) Policy Framework, a consolidation of FDI Policy Press Note 2010.<br />Mr Shrma said the exercise had been initiated with the aim of integration of all prior regulations on FDI, contained in the Foreign Exchange Management Act (FEMA), Reserve Bank of India (RBI) circulars and various press notes into one consolidated document so as to reflect the current regulatory framework.<br />He said the exercise was not intended to make changes in the extant guidelines but to deal with them comprehensively so as to make them more comprehensible to all investors and stakeholders over one single platform.<br />“One of the most significant aspects is that all the Press Notes issued in the past will be rescinded with the issue of this Press Note, which would now comprise the single document on FDI policy. As such, this marks the inception of a whole new chapter on FDI policy”, he said.<br />He said the consolidation would ensure that all information on FDI policy was available at one place, which is expected to lead to: simplification of the policy; greater clarity of understanding of foreign investment rules among foreign investors and sectoral regulators, as also predictability of policy.<br />“Having a single policy platform would also ease the regulatory burden for Government. Updation of this document will be carried out after every 6 months. This consolidated Press Note will be superseded by a Press Note to be issued on September 30, 2010 to ensure that the framework document on FDI policy is kept updated,quot;
he said.<br />The draft document was released on December 24, 2009 and was open for comments until January 31, 2010. Mr Sharma said there were a number of issues related to FDI policy that were currently under discussion in the Government, such as foreign investment in Limited Liability Partnerships (LLPs), policy on issuance of partly paid shares/warrants, rescinding Schedule IV of FEMA, clarifications on issues related to Press Notes 2, 3 & 4 of 2009 and on Press Note 2 of 2005, as also certain definitional issues.<br />quot;
When a decision on these is taken, the Government decision would be announced and thereafter incorporated into the Consolidated Press Note subsequently,quot;
he added.<br />Foreign Direct Investment in India (FDI)<br />Introduction – Investment in India - Foreign Direct Investment – Doing Business in India<br />Foreign Direct Investment (FDI) is permited as under the following forms of investments –<br />Through financial collaborations.<br />Through joint ventures and technical collaborations.<br />Through capital markets via Euro issues.<br />Through private placements or preferential allotments.<br />Forbidden Territories –<br />FDI is not permitted in the following industrial sectors:<br />Arms and ammunition.<br />Atomic Energy.<br />Railway Transport.<br />Coal and lignite.<br />Mining of iron, manganese, chrome, gypsum, sulphur, gold, diamonds, copper, zinc.<br />left0Foreign Investment through GDRs (Euro Issues) – Indian companies are allowed to raise equity capital in the international market through the issue of Global Depository Receipt (GDRs). GDR investments are treated as FDI and are designated in dollars and are not subject to any ceilings on investment. An applicant company seeking Government's approval in this regard should have consistent track record for good performance (financial or otherwise) for a minimum period of 3 years. This condition would be relaxed for infrastructure projects such as power generation, telecommunication, petroleum exploration and refining, ports, airports and roads.<br />1. Clearance from FIPB –<br />There is no restriction on the number of Euro-issue to be floated by a company or aright0group of companies in the financial year. A company engaged in the manufacture of items covered under Annex-III of the New Industrial Policy whose direct foreign investment after a proposed Euro issue is likely to exceed 51% or which is implementing a project not contained in Annex-III, would need to obtain prior FIPB clearance before seeking final approval from Ministry of Finance.<br />2. Use of GDRs –<br />The proceeds of the GDRs can be used for financing capital goods imports, capital expenditure including domestic purchase/installation of plant, equipment and building and investment in software development, prepayment or scheduled repayment of earlier external borrowings, and equity investment in JV/WOSs in India.<br />3. Restrictions –<br />However, investment in stock markets and real estate will not be permitted. Companies may retain the proceeds abroad or may remit funds into India in anticiption of the use of funds for approved end uses. Any investment from a foreign firm into India requires the prior approval of the Government of India.<br />Foreign direct investments in India are approved through two routes –<br />1. Automatic approval by RBI –<br />left0The Reserve Bank of India accords automatic approval within a period of two weeks (subject to compliance of norms) to all proposals and permits foreign equity up to 24%; 50%; 51%; 74% and 100% is allowed depending on the category of industries and the sectoral caps applicable. The lists are comprehensive and cover most industries of interest to foreign companies. Investments in high-priority industries or for trading companies primarily engaged in exporting are given almost automatic approval by the RBI.<br />2. The FIPB Route – Processing of non-automatic approval cases –<br />FIPB stands for Foreign Investment Promotion Board which approves all other cases where the parameters of automatic approval are not met. Normal processing time is 4 to 6 weeks. Its approach is liberal for all sectors and all types of proposals, and rejections are few. It is not necessary for foreign investors to have a local partner, even when the foreign investor wishes to hold less than the entire equity of the company. The portion of the equity not proposed to be held by the foreign investor can be offered to the public.<br />FDI – Industry wise Sectoral Caps<br />Sectoral Caps/Limits on Investments by Persons Resident Outside India or Foreign Companies for each Industry<br />S. No.SectorInvestment CapDescription of Activity/Items/Conditions1.Private Sector Banking49%Subject to guidelines issued by RBI from time to time2.Non-Banking Financial Com-panies (NBFC)100%FDI/NRI investments allowed in the following 19 NBFC activities shall be as per the levels indicated below :(a) Activities covered – Merchant Banking; Under Writing; Portfolio Management Services; Investment Advisory Services; Financial Consultancy; Stock-broking; Asset Management; Venture Capital; Custodial Services; Factoring; Credit Reference Agencies; Leasing & Finance; Housing Finance; Forex-broking; Credit Card Business; Money-changing Business; Micro-credit; Rural credit.(b) Minimum Capitalisation norms for fund based (NBFCs) – (i) For FDI upto 51%, US $ 0.5 million to be brought in upfront; (ii) If the FDI is above 51% and upto 75%, US $ 5 million to be brought upfront; (iii) If the FDI is above 75% and upto 100%, US $ 50 million out of which $ 7.5 million to be brought in upfront and the balance in 24 months.(c) Minimum Capitalisation norms for non-fund based activities – Minimum Capitalisation norm of US $ 0.5 million is applicable in respect of non-fund based NBFCs with foreign in¬vestment.(d) Foreign investors can set up 100% operating subsidi¬aries without the condition to disinvest a minimum of 25% of its equity to Indian entities, subject to bringing in US $ 50 million as at (b) (iii) above (without any restriction on number of oper¬ating subsidiaries without bringing in additional capital).(e) Joint Venture Operating NBFCs that have 75% or less than 75% foreign investment will also be allowed to set up sub¬sidiaries for undertaking other NBFC activities, subject to the subsidiaries also complying with the applicable minimum capital inflow i.e., (b)(i) and (b)(ii) above.(f) FDI in the NBFC sector is put on automatic route subject to compliance with guidelines of the Reserve Bank of India. RBI would issue appropriate guidelines in this regard.3.Insurance26%FDI upto 26% in the Insurance sector is allowed on the automatic route subject to obtaining licence from Insurance Regulatory and Development Authority (IRDA)4.Telecom-munications49%(i) In basic, Cellular, Value Added Services, and Global Mobile Personal Communications by Satellite, FDI is limited to 49% subject to licencing and securi¬ty requirements and adherence by the companies (who are investing and the companies in which the investment is being made) to the license conditions for foreign equity cap and lock-in-period for transfer and addition of equity and other license provisions.(ii) ISPs with gateways, radio paging and end-to-end bandwidth, FDI is permitted upto 74% with FDI, beyond 49% requiring Government approval. These services would be subject to licensing and security requirements.(iii) No equity cap is applicable to manufacturing activities(iv) FDI upto 100% is allowed for the following activities in the telecom sector – (a) ISPs not providing gateways (both for satellite and submarine cables); (b) Infrastructure providers providing dark fibre (IP Category I); (c) Electronic Mail, and (d) Voice Mail.The above would be subject to the following conditions –(a) FDI upto 100% is allowed subject to the condition that such companies would divest 26% of their equity in favour of Indian public in 5 years, if these companies are listed in other parts of the world.(b) The above services would be subject to licensing and security requirements, wherever required.(c) Proposal for FDI beyond 49% shall be considered by FIPB on case to case basis.5.(i)] Petroleum Refining (Private Sector)100%FDI permitted upto 100% in case of private Indian companies (ii) Petroleum Product Marketing100%Subject to the existing sectoral policy and regulatory frame-work in the oil marketing sector(iii) Oil Exploration in both small and medium sized fields100%Subject to and under the policy of Government on private partici-pation in –(a) exploration of oil, and(b) the discovered fields of national oil companies (iv) Petroleum Product Pipelines100%Subject to and under the Government Policy and Regulations thereof.]6.Housing and Real Estate100%Only NRIs are al¬lowed to invest upto 100% in the areas listed below – (a) Development of serviced plots and construction of built-up residential premises; (b) Investment in real estate covering construction of residential and commercial premises including business centres and offices; (c) Development of townships; (d) City and regional level urban infrastructure facilities, including both roads and bridges; (e) Investment in manufacture of building materials; (f) Investment in participatory ventures in (a) to (c) above; (g) Investment in Housing Finance Institutions which is also opened to FDI as an NBFC.7.Coal & Lignite***(i) Private Indian companies setting up or operating power projects as well as coal and lig¬nite mines for captive consumption are allowed FDI upto 100%.(ii) 100% FDI is allowed for setting up coal processing plants subject to the condition that the company shall not do coal mining and shall not sell washed coal or sized coal from its coal processing plants in the open market and shall supply the washed or sized coal to those parties who are supplying raw coal to coal processing plants for washing or sizing.(iii) FDI upto 74% is allowed for exploration or mining of coal or lignite for captive consumption.(iv) In all the above cases, FDI is allowed upto 50% under the automatic route subject to the condition that such investment shall not exceed 49% of the equity of a PSU.8.Venture Capital Fund (VCF) and Venture Capital Company (VCC) Offshore Ven¬ture Capital Funds/companies are allowed to invest in domestic venture capital undertaking as well as other companies through the automatic route, sub¬ject only to SEBI regulation and sector specific caps on FDI.9.Trading***Trading is permitted under automatic route with FDI upto 51% provided it is primarily export activi¬ties and the undertaking is an export house/trading house/super trading house/star trading house.However, under the FIPB route –(i) 100% FDI is permitted in case of trading companies for the following activities :(a) exports; (b) bulk imports with export/expanded warehouse sales; (c) cash and carry wholesale trading; (d) other import of goods or services provided at least 75% is for procurement and sale of the same group and not for third party use or onward transfer/distribution/sales.(ii) The following kinds of trading are also permitted, subject to provisions of Exim Policy – (a) Companies for providing after-sales services (that is not trading per se);(b) Domestic trading of products of JVs is permitted at the wholesale level for such trading companies who wish to market manufactured products on behalf of their joint ventures in which they have equity participation in India;(c) Trading of hi-tech items/items requiring specialised after-sales service;(d) Trading of items for social sector;(e) Trading of hi-tech, medical and diagnostic items;(f) Trading of items sourced from the small scale sector under which, based on technology provided and laid down quality specifications, a company can market that item under its brand name;(g) Domestic sourcing of products for exports;(h) Test marketing of such items for which a company has approval for manufacture provided such test marketing facility will be for a period of two years, and investment in setting up manufacturing facilities commence simultaneously with test mar¬keting;(i) FDI upto 100% permitted for e-commerce activities subject to the condition that such companies would divest 26% of their equity in favour of the Indian public in five years, if these companies are listed in other parts of the world. Such companies would engage only in business to business (B2B) e-commerce and not in retail trading.10.Power100%FDI allowed upto 100% in respect of projects relating to electricity generation, transmission and distribution, other than atomic reactor power plants. There is no limit on the project cost and quantum of foreign direct investment.11.Drugs & Pharmaceuticals100%FDI permitted upto 100% for manufacture of drugs and pharmaceuticals provided the activi¬ty does not attract compulsory licensing or involve use of recom¬binant DNA technology and specific cell/tissue targeted formula¬tions. FDI proposal for the manufacture of licensable drugs and pharmaceuticals and bulk drugs produced by recombinant DNA tech¬nology and specific cell/tissue targeted formulations will re¬quire prior Govt. approval.12.Road and highways, Ports and harbours100%In projects for construction and maintenance of roads, highways, vehicular bridges, toll roads, vehicular tunnels, ports and harbours.13.Hotel & Tourism100%The term ‘hotels’ includes res¬taurants, beach resorts and other tourist complexes providing accommodation and/or catering and food facilities to tourists. Tourism related industry include travel agencies, tour operating agencies and tourist transport operating agencies, units provid¬ing 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 Organisations.For foreign technology agreements, automatic approval is granted if –(i) Upto 3% of the capital cost of the project is proposed to be paid for technical and consultancy services including fees for architects design, supervision, etc.;(ii) Upto 3% of the net turnover is payable for franchising and marketing/publicity support fee, and(iii) Upto 10% of gross operating profit is payable for management fee, including incentive fee. 14.Mining74%100%(i) For exploration and mining of diamonds and precious stones FDI is allowed upto 74% under auto¬matic route,(ii) For exploration and mining of gold and silver and minerals other than diamonds and precious stones, metallurgy and processing FDI is allowed upto 100% under automat¬ic route,(iii) Press Note 18 (1998 series) dated 14-12-1998 would not be applicable for setting up 100% owned subsidiaries in so far as the mining sector is concerned, subject to a declaration from the applicant that he has no existing joint venture for the same area and/or the particular mineral.15.Advertising100%Advertising Sector – FDI upto 100% allowed on the automatic route16Films100%Film Sector – (Film production, exhibition and distribution including related services/products)FDI upto 100% allowed on the automatic route with no entry-level condition. 17.Airports74%Govt. approval required beyond 74%18.Mass Rapid Transport Systems100%FDI upto 100% is permit¬ted on the automatic route in mass rapid transport system in all metros including associated real estate development.19.Pollution Control & Management100%In both manufacture of pollu¬tion control equipment and consultancy for integration of pollution control systems is permitted on the automatic route.20.Special Economic Zones100%All manufacturing activi¬ties except –(i) Arms and ammunition, explosives and allied items of defence equipments, defence aircrafts and warships;(ii) Atomic substances, Narcotics and Psychotropic Sub¬stances and Hazardous Chemicals;(iii) Distillation and brewing of Alcoholic drinks, and(iv) Cigarette/cigars and manufactured tobacco substitutes. 21.Any other sector/activity (if not included in Annexure A)100% 22.Air Transport Services (Domestic Airlines)100% for NRIs 49% for othersNo direct or indirect equity participation by foreign airlines is allowed.23Townships, housing, built up infrastructure and construction development projects. The sector would include, but not be restricted to, housing, commercial premises, hotels, resorts, hospitals, educational institutions, recreational facilities, city and regional level infrastructure100%The investment shall be subject to the following guidelines –(a) Minimum area to be developed under each project shall be as under –(i) In case of development of serviced housing plots—10 hectares(ii) In case of construction development project—50,000 sq. mtrs.(iii) In case of combination project, any one of the above two conditions.(b) The investment shall be subject to the following conditions –(i) Minimum capitalization of US $ 10 million for wholly owned subsidiaries and US $ 5 million for joint ventures with Indian partners. The funds would have to be brought in within six months of commencement of business of the company.(ii) Original investment cannot be repatriated before a period of three years from completion of minimum capitalization. However, the investor may be permitted to exit earlier with prior approval of the Government through the FIPB.(c) At least 50% of the project must be developed within a period of five years from the date of obtaining all statutory clearances. The investor shall not be permitted to sell undeveloped plots.(d) The project shall conform to the norms and stand¬ards, as laid down in the applicable building control regulations, bye-laws, rules, and other regulations of the State Gov¬ernment/Municipal/Local Body concerned.(e) The investor shall be responsible for obtaining all necessary approvals, including those of the building/layout plans, developing internal and peripheral areas and other infra¬structure facilities, payment of development, external develop¬ment and other charges and complying with all other requirements as prescribed under applicable rules/bye-laws/regulations of the State Government/Municipal/Local Body concerned.(f) The State Government/Municipal/Local Body con¬cerned, which approves the building/development plans, shall monitor compliance of the above conditions by the developer. Note: For the purpose of these guidelines, “undeveloped plots” will mean where roads, water supply, street lighting, drainage, sewerage, and other conveniences, as applicable under prescribed regulations, have not been made available. It will be necessary that the investor provides this infrastructure and obtains the completion certificate from the concerned local body/service agency before he would be allowed to dispose of serviced housing plots.]<br />http://www.investinginindia.in/sectoral.htm<br />As the fourth-largest economy in the world in PPP terms, India is a preferred destination for foreign direct investments (FDI); India has strengths in telecommunication, information technology and other significant areas such as auto components, chemicals, apparels, pharmaceuticals, and jewellery. Despite a surge in foreign investments, rigid FDI policies resulted in a significant hindrance. However, due to some positive economic reforms aimed at deregulating the economy and stimulating foreign investment, India has positioned itself as one of the front-runners of the rapidly growing Asia Pacific Region. India has a large pool of skilled managerial and technical expertise. The size of the middle-class population stands at 300 million and represents a growing consumer market. <br />During 2000-10, the country attracted $121 billion as FDI. The inordinately high investment from Mauritius is due to routing of international funds through the country given significant capital gains tax advantages; double taxation is avoided due to a tax treaty between India and Mauritius, and Mauriitus is a capital gains tax haven, effectively creating a zero-taxation FDI channel.<br />India's recently liberalized FDI policy (2005) allows up to a 100% FDI stake in ventures. Industrial policy reforms have substantially reduced industrial licensing requirements, removed restrictions on expansion and facilitated easy access to foreign technology and foreign direct investment FDI. The upward moving growth curve of the real-estate sector owes some credit to a booming economy and liberalized FDI regime. In March 2005, the government amended the rules to allow 100 per cent FDI in the construction business. This automatic route has been permitted in townships, housing, built-up infrastructure and construction development projects including housing, commercial premises, hotels, resorts, hospitals, educational institutions, recreational facilities, and city- and regional-level infrastructure.<br />A number of changes were approved on the FDI policy to remove the caps in most sectors. Fields which require relaxation in FDI restrictions include civil aviation, construction development, industrial parks, petroleum and natural gas, commodity exchanges, credit-information services and mining. But this still leaves an unfinished agenda of permitting greater foreign investment in politically sensitive areas such as insurance and retailing. FDI inflows into India reached a record $19.5 billion in fiscal year 2006-07 (April–March), according to the government's Secretariat for Industrial Assistance. This was more than double the total of US$7.8bn in the previous fiscal year. The FDI inflow for 2007-08 has been reported as $24 billion and for 2008-09, it is expected to be above $35 billion. A critical factor in determining India's continued economic growth and realizing the potential to be an economic superpower is going to depend on how the government can create incentives for FDI flow across a large number of sectors in India<br />Share of top five investing countries in FDI inflows. (2000–2010)[122]RankCountryInflows(million USD)Inflows (%)1Mauritius50,16442.002Singapore11,2759.003USA8,9147.004UK6,1585.005Netherlands4,9684.00<br />Investment in Indian Companies by FIIs/NRIs/PIOs<br />Regulations<br />Foreign Institutional Investors (FIIs), Non-Resident Indians (NRIs), and Persons of Indian Origin (PIOs) are allowed to invest in the primary and secondary capital markets in India through the portfolio investment scheme (PIS). Under this scheme, FIIs/NRIs can acquire shares/debentures of Indian companies through the stock exchanges in India.<br />The ceiling for overall investment for FIIs is 24 per cent of the paid up capital of the Indian company and 10 per centfor NRIs/PIOs. The limit is 20 per cent of the paid up capital in the case of public sector banks, including the State Bank of India.<br />The ceiling of 24 per cent for FII investment can be raised up to sectoral cap/statutory ceiling, subject to the approval of the board and the general body of the company passing a special resolution to that effect. And the ceiling of 10 per cent for NRIs/PIOs can be raised to 24 per cent subject to the approval of the general body of the company passing a resolution to that effect.<br />The ceiling for FIIs is independent of the ceiling of 10/24 per cent for NRIs/PIOs.<br />The equity shares and convertible debentures of the companies within the prescribed ceilings are available for purchase under PIS subject to:<br />- the total purchase of all NRIs/PIOs both, on repatriation and non-repatriation basis, being within an overall ceiling limit of (a) 24 per cent of the company's total paid up equity capital and (b) 24 per cent of the total paid up value of each series of convertible debenture; and<br />- the investment made on repatriation basis by any single NRI/PIO in the equity shares and convertible debentures not exceeding five per cent of the paid up equity capital of the company or five per cent of the total paid up value of each series of convertible debentures issued by the company.<br />Monitoring Foreign Investments<br />The Reserve Bank of India monitors the ceilings on FII/NRI/PIO investments in Indian companies on a daily basis. For effective monitoring of foreign investment ceiling limits, the Reserve Bank has fixed cut-off points that are two percentage points lower than the actual ceilings. The cut-off point, for instance, is fixed at 8 per cent for companies in which NRIs/ PIOs can invest up to 10 per cent of the company's paid up capital. The cut-off limit for companies with 24 per cent ceiling is 22 per cent and for companies with 30 per cent ceiling, is 28 per cent and so on. Similarly, the cut-off limit for public sector banks (including State Bank of India) is 18 per cent.<br />Once the aggregate net purchases of equity shares of the company by FIIs/NRIs/PIOs reach the cut-off point, which is 2% below the overall limit, the Reserve Bank cautions all designated bank branches so as not to purchase any more equity shares of the respective company on behalf of FIIs/NRIs/PIOs without prior approval of the Reserve Bank. The link offices are then required to intimate the Reserve Bank about the total number and value of equity shares/convertible debentures of the company they propose to buy on behalf of FIIs/NRIs/PIOs. On receipt of such proposals, the Reserve Bank gives clearances on a first-come-first served basis till such investments in companies reach 10 / 24 / 30 / 40/ 49 per cent limit or the sectoral caps/statutory ceilings as applicable. On reaching the aggregate ceiling limit, the Reserve Bank advises all designated bank branches to stop purchases on behalf of their FIIs/NRIs/PIOs clients. The Reserve Bank also informs the general public about the `caution’ and the `stop purchase’ in these companies through a press release.<br />Policy Developments<br />• Definitely, governments’ policy towards FDI plays an important role in attracting FDI. Now let’s discuss the policy governing FDI in China. In1950s and 1960s, due to the well known political reasons, China was isolated from western countries, logically, China shut up the door to western investors. Since 1978 China has adopted reform and opening up policy. To develop China’s economy, Chinese government encourages FDI. In 1979, China promulgated Sino-China Equity Joint Venture Law; in 1986, China promulgated Foreign Capital Venture Law. In order to attract foreign investment, China gave foreign investors a variety of favorable treatments, such as tax reduction, cheaper land etc. In addition, nearly all local governments set up investment promotion agencies. To compete for foreign investment, many local governments even gave more favorable treatment to foreign investors some of which were illegal. Furthermore, After China joined the WTO in 2001, China reduced or abolished some performance requirements and other restrictions on FDI <br />Emphasis on Quality rather than Quantity<br />Recently, Chinese government is increasingly emphasizing the quality rather than the quantity of inward FDI. China encourages FDI with advanced technology or managerial expertise. At the same time, China increasingly restricts the FDI with high energy consumption and environment-pollution.<br />Why does China alter the policy governing the FDI? In the past three decades, China has witnessed rapid economic growth, however, such growth was on the cost of natural resources and environment pollution, Chinese government realizes such an economic growth model can not last long. Additionally, after 30 years of economic development, especially due to the consecutive trade surplus, China has accumulated astronomical foreign reserves. Unlike 30 years ago, the lack of capital is no longer a problem for the development of Chinese economy.<br />China has a huge market with great potential. China has a population which is more than 1.3 billion, and the middle class has grown quickly after 30 years of development of Chinese economy. China will remain a magnet for FDI, especially for market-seeking FDI. China has ample human resources. Every year, more than 6 million students graduate from universities and colleges. In rural area, there exists a huge pool of potential labor. Such human resources reserve can meet all demands of FDI.<br />