Title: India, and Investment Potential in India
1India, and Investment Potential in India
- for
- The Center For American and International Law
- By
- Gautam Mahajan
- President - Inter-Link Services Pvt. Ltd.
- June 13, 2006
Inter-Link Services Pvt. Ltd. Tel 011-26922006,
26831226 Fax 011-26929055 E-mail
inter_link_at_vsnl.com / mahajan_at_interlinkindia.net
Website www.interlinkindia.net
2DISCUSSION POINTS
- 1. General Business Tips
- 2. India, and Investment Potential in
- India
- 3. Foreign Lawyers and Legal Services in
India Frequently Asked Questions
3DISCUSSION POINTS
- General Business Tips
- General Business Tips
- American Companies in India
- Legal Opportunities
- 2. India, and Investment Potential in
- India
- 3. Foreign Lawyers and Legal Services in
India Frequently Asked Questions
4General Business Tips
- From the American Business Experience in India
Lessons from successful American companies - Know the rules and the law and follow them
- Conduct rigid due diligence
- Do not get guided by quick methods or
short-cuts - Avoid un-ethical practices
- Hire a good knowledgeable consultant on India
5American Companies in India
- Top 5 American employers in India 2 years ago
- General Electric 17,800 employeesHewlett-Pack
ard 11,000 employeesIBM 6,000
employeesAmerican Express 4,000
employeesDell 3,800 employees (today
10,000, growing to 20,000) - General Electric (GE) with 80 Million invested
in India employs 16,000 staff, 1,600 RD staff
who are qualified with PhDs and Masters
degrees. - The number of patents filed in USA by the Indian
entities of some of the MNCs (upto September,
2002) are as follows Texas Instruments - 225,
Intel - 125, Cisco Systems - 120, IBM - 120,
Phillips - 102, GE - 95. - Staff at the offices of Intel (India) has gone
up from 10 to 1,000 in 4 years,
and will reach 2000 staff
by 2006. - GE's RD centre in Bangalore is the company's
largest research outfit outside the United
States. The centre also devotes 20 of its
resources on 5 to 10 year fundamental research in
areas such as nanotechnology, hydrogen energy,
photonics, and advanced propulsion. - It is estimated that there are 150,000 IT
professionals in Bangalore as against 120,000 in
Silicon Valley.
6Legal Opportunities
- Help Indian companies wishing to enter USA, China
etc. - Help Indian companies and lawyers in
collaborative projects with American companies
outside India - Buy legal and paralegal services from India at
low rates.. Example is GE - Send lawyers to India acceptable to the Indian
bar rules or willing to pass the Indian bar exam
7"There are lots of opportunities to use foreign
lawyers in place of outside counsel or other
lawyers at a lower cost structure," says Suzanne
Hawkins, senior counsel at General Electric Co.
For two GE businesses -- GE Plastics and GE
Consumer Finance -- savings from those lower
rates are adding up. GE began adding lawyers and
paralegals to its office in Gurgaon, India, in
late 2001. It now has eight lawyers and nine
paralegals there and has saved more than 2
million in legal fees that would otherwise have
been spent on outside counsel, according to
Hawkins. Jennifer FriedThe RecorderAugust 25,
2004
8DISCUSSION POINTS
- 1. General Business Tips
- 2. India, and Investment Potential in
- India
- Foreign Direct Investment in India
- An overview of Indian Economy
- Investing in India Entry Routes
- Foreign Direct Investment Policy
- Indias Competitive Advantage
- Investment Opportunities
- 3. Foreign Lawyers and Legal Services in
India Frequently Asked Questions
9Foreign Direct Investment in India
Largest democracy political stability
consensus on reforms
Fourth largest Economy (PPP) - A safe place to
do business
Liberal transparent investment policies
Largest reservoir of skilled manpower
Long-term sustainable Competitive advantage -
High growth rate economy
10An overview of Indian Economy
- Economic Performance
- Foreign Trade
- Investment
- Mature Capital Markets
- A well developed banking system
11An overview of Indian Economy
- Economic Performance
- Sustained economic growth
- Average last 10 years 6.5
- 2004-05 6.9
- Forecast up to 2006-07 gt7.0
- Forecast till 2050 Goldman Sachs 5 p.a.
- Services share in GDP over 50 (52.4 share in
GDP in 2004-05) - Manufacturing sector grew at 8.8 in 2004-05
(17.4 share in GDP in 2004-05)
12An overview of Indian Economy
- Foreign Trade
- Merchandise exports grew by 25 in 2004-05, now
US80 billion - Imports grew by 36, now US106 billion
- Investment
- Foreign Investment over US14 billion in
2004-05 (FDI US5.5 billion, FII US8.9 billion) - Mature Capital Markets
- NSE third largest, BSE fifth largest in terms of
number of trades
13Goldman Sachs Report of 1 October, 2003
"Dreaming with BRICs The path to 2050" India's
GDP will reach 1 trillion by 2011, 2
trillion by 2020, 3 trillion by 2025, 6
trillion by 2032, 10 trillion by 2038, and
27 trillion by 2050, becoming the 3rd largest
economy after USA and China. In terms of GDP,
India will overtake Italy by the year 2016,
France by 2019, UK by 2022, Germany by 2023, and
Japan by 2032.
14Economic Reforms - Fiscal
- Rationalization of tax structure both direct
and indirect -
- Progressive reduction in peak rates
- Peak Customs duty reduced to 15
- Corporate Tax reduced to 30
- Customs duties to be aligned with ASEAN levels
- Value Added Tax introduced from 1st April 2005-
- only 6 states left
- Fiscal Responsibility Budget Management Act,
2003 - Revenue deficit to be brought to zero by 2008
15Economic Reforms - Liberalisation of Investment
Trade Policies
- Industrial Licensing
- Progressive movement towards delicensing and
deregulation - Licensing limited to only 5 sectors (security,
public health safety considerations) - Foreign Investment
- Progressive opening of economy to FDI
- Portfolio investment regime liberalised
- Liberal policy on technology collaboration
- Trade Policy
- Most items on Open General License, Quantitative
Restrictions lifted - Foreign Trade Policy seeks to double Indias
share in global merchandise trade in 5 years
16Economic Reforms - Exchange Control Taxation
- Exchange Control
- All investments are on repatriation basis
- Original investment, profits and dividend can be
freely repatriated - Foreign investor can acquire immovable property
incidental to or required for their activity - Rupee made fully convertible on current account
- Taxation
- Companies incorporated in India treated as Indian
companies for taxation - Convention on Avoidance of Double Taxation with
65 countries
17Manufacturing Competitiveness Made in India
- Second most attractive destination for
manufacturing - AT Kearneys FDI Confidence Index 2004
- Indian industry globally competitive in a wide
range of manufacturing skill-intensive products - Apparels, electrical and electronics components
speciality chemicals pharmaceuticals etc. - Automotive components Major MNCs their OEMs
sourcing high-quality components from India - Volvo, GM, GE, Chrysler, Ford, Toyota, Unilever,
Cliariant, Cummins, Delphi - Indian companies now having manufacturing
presence in many countries - Over 55 of approved outward investment by India
companies in manufacturing activities
18Evolution of FDI Policy
More sectors opened Equity caps raised in many
other sectors Procedures simplified
2000-05
Up to 100 under Automatic Route in all sectors
except a small negative list
2000
Up to 74/51/50 in 112 sectors under
the Automatic Route 100 in some sectors
1997
FDI up to 51 allowed under the Automatic route
in 35 Priority sectors
1991
Pre 1991
Allowed selectively up to 40
FDI Policy Liberalization
19Investing in India Entry Routes
Investing in India
Automatic Route
Prior Permission (FIPB)
General Rule No prior permission required Inform
Reserve Bank within 30 days of inflow/issue of
shares
By Exception Prior Government Approval
needed. Decision generally within 4-6 weeks
20FDI Policy Initiatives 2000-2004
- New sectors opened to FDI
- to 26 divestment in 5 years Defence production,
Insurance, print media - up to 26 - Development of integrated townships up to 100
- e-commerce, ISP with out gateway, voice mail,
electronic mail, tea plantation -100 subject - FDI equity limits raised
- Private sector banks raised from 49 to 74
- Drugs and pharmaceuticals from 74 to 100
- Advertising from 74 to 100
- Private sector refineries, Petroleum product
marketing, exploration , petroleum product
pipelines 74 to 100 - Procedural simplification
- Issue of shares against royalty payable allowed
21Recent Initiatives June 2004 onward
- FDI in domestic airlines increased from 40 to
49. Automatic route allowed - FDI up to 100 allowed under the automatic route
in development of townships, housing, built up
infrastructure and construction development
projects - Foreign investment limit in Telecom services
increased to 74 - FDI and portfolio investment up to 20 allowed in
FM Broadcasting. Hitherto only Portfolio
investment was allowed. - Transfer of shares allowed on automatic route in
most cases - Fresh guidelines for investment with previous
joint ventures - A WTO (TRIPs) IPR regime compliant in position
since 2005 Patents Act amended to provide for
product patent in pharma and agro-chemicals
also.
22Policy on FDI
- FDI up to 100 allowed under the Automatic
Route in all activities except for - Sectors attracting compulsory licensing
- Transfer of shares to non-residents (foreign
investors) - In Financial Services, or
- Where the SEBI Takeovers Regulation is attracted
- Investor having existing venture in same field
- Sector specific equity/route limit prescribed
under sectoral policy - Investments made by foreign investors are given
treatment similar to domestic investors
23Main Sectors with FDI Equity/Route Limit
- FDI equity limit-Automatic route
- Insurance 26
- Domestic airlines 49
- Telecom services- Foreign equity 74
- Private sector banks- 74
- Mining of diamonds and precious stones- 74
- Exploration and mining of coal and lignite for
captive consumption- 74
- FDI requiring prior approval
- Defence production 26
- FM Broadcasting - foreign equity 20
- News and current affairs- 26
- Broadcasting- cable, DTH, up-linking foreign
equity 49 - Trading- wholesale cash and carry, export
trading, etc., 100 - Tea plantation 100
- Development of airports- 100
- Courier services- 100
Corrected as of December 05
24Foreign Technology Collaboration Policy
- Foreign technology agreements also allowed under
Automatic route - Lump-sum fees not exceeding US2 Million
- Royalty _at_ 5 on domestic sales and 8 on exports,
net of taxes - Royalty up to 2 on exports and 1 also permitted
for use of Trade Marks and Brand name, without
any technology transfer - Wholly owned subsidiaries can also pay royalty
to their parent company - Payment of royalty without any restriction on the
duration allowed.
25India FDI Outlook
- 2nd most attractive investment destination among
the Transnational Corporations (TNCs) - UNCTADs
World Investment Report, 2005 - 3rd most attractive investment destination AT
Kearney Business Confidence Index, 2004 - Up from 6th most attractive destination in 2003
and 15th in 2002 - 2nd Most attractive destination for
manufacturing - Among the top 3 investment hot spots for the
next 4 years - UNCTAD Corporate Location April 2004
- Most preferred destination for services - AT
Kearneys 2005 Global Services Location Index
(previously Offshore Location Attractiveness
Index)
26Indias Competitive AdvantageHuman Capital
- Indias competitive edge - its highly-skilled
manpower and entrepreneurial expertise - Over 380 universities (11,200 colleges)
- 1500 research institutions
- Over 200,000 engineering graduates
- Over 300,000 post graduates from non-engineering
colleges - 2,100,000 other graduates
- Around 9,000 PhDs
- Knowledge workers in software industry increased
from 56,000 in 1990-91 to over 1 million by
2004-05 - 54 of Indias population under 25 years of age
- India would continue to be surplus in working
population for a long-time - Would contribute 25 to the additional working
population globally over the next 5 years.
27Indias Competitive StrengthsHRD Contd.
- Rank out of 102 countries
- Availability of scientist and engineers 3
- Quality of management schools 8
- Quality of scientific research institutions 20
- Quality of educational system 36
28IT Advantages
- IT ITES Industry
- Exports US17.2 billion in 2004-05, growth of 34
over previous year - 2008 exports target US60 billion, to be 35 of
Indias total exports - High quality standards
- 76 SEI/CMM level 5 companies, two third of
worlds total, are Indian - Over 250 of the Fortune 500 companies are clients
of Indian firms - RD base of over 100 FORTUNE 500 companies
- Investment Opportunities
- Collaborative ICT research
- Joint Software development in a variety of
applications
29Recent Infrastructure Initiatives
- National Highway Development Programme to develop
over 24,000 km of highways - Golden Quadrilateral
- NSEW Corridor
- Links to ports and State capitals
- Modernisation of airports
- Metro and other airports
- Development of ports with private sector
- The Electricity Act, 2003 provides the framework
for development of power sector - Bharat Nirman Programme to develop rural
infrastructure at an estimated cost of Rs.
1,74,000 crore (US40 billion) - Jawhar Lal Nehru Urban Renewal Mission Rs.
100,000 crore (US22 billion) - Country wide rural connectivity programme to
link all unconnected village having population of
500 with fair weather road undertaken
30Telecommunications
- Among the fastest growing telecom markets
- 550,000 km of optical fibre cable laid
- 2 million Cellular phones added every month
- Among the lowest mobile tariff in the world
- Share of private sector 50
- Tele-density of 10.66, expected to be 20 in next
three years - New Broad Band Policy announced
- 690,000 connections since April 2005
- Internet subscribers 6 million (March 05)
- Investment Opportunities
- Setting up manufacturing facilities
- Supply of hand sets and equipments
- Telecom Value added service.
31Roads
- Policy
- FDI up to 100 is permitted for construction and
maintenance of roads, highways, vehicular
bridges, toll roads, vehicular tunnels - Ten year tax holiday for road and highway
projects - Recent Initiatives
- Existing road network of 3.3 million kilometers
- 24,000 km of Highways being developed under
National Highway Development Programme - billion envisaged Golden Quadrilateral 5846
kms- 5000 kms completed - NSEW Corridor 7300 kms 784 kms completed, 3691
kms under implementation - Investment US20 billion
- Investment Opportunities
- Projects for 12,000 km would be on offer
- Many more opportunities in the States
32Power
- Policy Incentive
- FDI up to 100 is permitted on the automatic
route in all segments except atomic power - Ten-year tax holiday for generation and
distribution or transmission and distribution of
power - Institutional Reforms
- The Electricity Act 2003 allows trading in power
and provides for further deregulation - Independent Regulator in most states
- Investment Opportunities
- Additional capacity required 100,000 MW till 2012
- Investment US120 billion needed
- Financial closure of over 6000 MW capacity
achieved in last one year
33Ports
- Policy Incentives
- FDI up to 100 permitted for construction and
maintenance of ports and harbors. - Ten year tax holiday
- Public-private partnership
- 12 major ports, 185 minor ports
- 14 private/ captive projects with investment of
US 600 million completed - 24 projects with investment of US1.6 billion
under implementation/award - Investment requirement of US22 billion to
develop maritime sector - Ports Shipping
- Inland waterways
34Special Economic Zones
New Law on SEZ enacted
- Policy
- Duty free zones, deemed foreign territories
- FDI up to 100 permitted in almost all
manufacturing activities - Transfer of goods from DTA to SEZ treated as
exports, - Units to be net foreign exchange earner within 5
years. No export commitments - No limits on DTA sales
- Can be set up in the public, private or joint
sector - Single Window Clearance
- Incentives
- For developer Income tax exemption for a block
of 10 years in 15 years - For units 100 Income Tax exemption for first 5
years, 50 for next 5 years and 50 of the
ploughed back export profits for next 5 years - Exemption from indirect taxes excise, sales,
services tax, etc. - Freedom to raise ECB with out any maturity
restrictions
Cont
35Special Economic Zones
- 11 Special Economic Zones are functional
- SEEPZ Mumbai, Kandla, Cochin, Chennai,
Visakhapatnam, Falta, NOIDA, Surat, Salt Lake,
Indore and Jaipur - Over 800 functional units employing over 100,000
persons - Exports of US4 billion in 2004-05
- 42 new Special Economic Zones have been approved
and are under establishment - Many have participation with State Governments
and Private Sector - Major Industries in Special Economic Zones
- Gems Jewellery, Electronics Hardware,
Software, Textile Garment, Engineering Goods,
Sports Goods, Leather Products, Chemicals
Allied Products
36Public Private Partnership
- Infrastructure projects might not be financially
viable on their own - Public Private Partnership to bring in private
sector resources and techno-managerial
capabilities - Viability Gap Funding for
- Roads, railways, seaports, airports
- Power
- Water supply, sewerage, solid waste disposal in
urban areas - International convention centres.
- Funding in the form of capital grant, Operation
Management support, interest subsidy, etc. - Support linked with predefined milestones.
37Food Processing
- Third largest producer of food items
- Largest milk producer
- Largest livestock population
- 2nd largest in fruits vegetables
- Opportunities in food processing sector
- 50 of household income spent on food items
- With increasing income levels and urbanisation
fast growth in demand of processed food expected
over 250 million strong middle class - Low levels of value addition in food sector only
7 - New Integrated Food Law being enacted
- Investment of US 28 billion required to raise
food processing from 2 to 8-10. - Investment opportunities in
- Processing of fruit vegetable, meat, fish
poultry, milk products, packaged food drinks. - Establishing infrastructure, cold chain, etc.
38Incentives for the Development of Industrially
Backward Areas
- A special package of incentives to promote
industrialization of industrially backward
regions - North Eastern states, Skim, Jammu Kashmir,
Uttaranchal and Himachal Pradesh - Incentives
- 100 Income Tax Exemptions for 10 years
- Excise Duty Exemptions for 10 years
- Transport Subsidy for transportation of raw
material and finished products, - Investment Subsidy (50-90)
39Governance and Regulatory System
- Central, State and Local levels of Government
with their specified powers and responsibilities
seen as complicated in regulatory administration
by investors - 11.9 of Senior Managements time spent in
dealing with Government agencies - (Source World Banks Report - India Investment
Climate Assessment, 2004) - World Banks Report Doing Business in 2006
- 71 days required to set up a Company and start
business Incorporation of Company and PAN/TAN
allotment taking most time - Paying taxes 59 transactions taking 264 hours
in a year - Closing a business time taken 10 years
40Governance - Initiatives
- Major e-governance initiatives undertaken at
Central and State level - National e-Governance Action Plan
- Projects being taken up in Mission mode at
Central and State level. - Integrated services projects for services across
Departments. - MCA-21 - Ministry of Company Affairs, to cover
all Registrar of Companies by June 2006 - e-Biz project being taken up by the Department of
IPP - To set up a web enabled portal to provide for the
services at the Central, State and Local level
during the entire life cycle of business - To begin with a pilot project covering 25
services in four states - Project capable of rapid upscaling to cover other
services and extend to other areas - Right to Information Act for greater transparency
in public administration
41Investment Opportunities
- Development and management of infrastructure
- Food processing, including logistic and support
services, development of cold chain - Manufacturing relocation into India
- RD leveraging on abundant skilled manpower
- IT ITES, Software as well as hardware
42DISCUSSION POINTS
- 1. General Business Tips
- India, and Investment Potential in
- India
- Foreign Lawyers and Legal Services in India
- Frequently Asked Questions
- Judgment of Bombay High Court
43Foreign Lawyers and Legal Services in India
Frequently Asked Questions
- 1.Can I give advice on USA legal issues to Indian
companies?No. (see below) - 2.Can I give advice to Indian companies in India
on Indian issues?No. Please refer to the
attached extract of a Bombay High Court Judgment
attached - 3.If I have an associate law firm in India, what
can my partners do or not do when they come to
India? - They can only provide inputs to the Indian firm.
They can be employed by an Indian firm. They can
(if qualified) enroll but that is a difficult
process requiring eligibility, qualifications and
reciprocity.
Cont
44Foreign Lawyers and Legal Services in India
Frequently Asked Questions
- 4. Can I set up a rep. office in India? If yes,
What am I allowed to do and not do? - Yes, but not much at all. Liaison and no
commercial business (same judgment). - 5. Is my legal degree recognised in India?
- No. In most cases of US degrees. Some may be
recognised (like Oxford degree) but youll need
to check with the Bar Council of Delhi which ones
are covered (if any) from the U.S. - 6. What do I have to do be a solicitor in India?
- This is a complex question. Probably not
allowed.
Cont
45Foreign Lawyers and Legal Services in India
Frequently Asked Questions
- What do I have to do if I wish to appear in an
Indian court? - Enroll as an advocate.
- How is the law on the above likely to change and
when? - Some change and a minor easing is likely in this
year or over the next years but it is likely to
be cosmetic.
46Extract of a Bombay High Court Judgment
- IN THE HIGH COURT OF JUDICATURE AT BOMBAY
- ORIGINAL SIDE
- WRIT PETITION NO. 1526 OF 1995
- Lawyers Collective Petitioner
- Versus
- Bar Council of India Ors.
- OCTOBER 4 9, 1995
- "In our view, considering the aforesaid
quotations from the New York Judiciary - Law and Halsburys Laws of England, it is
apparent that the phrase to practicethe
profession of law would be wide enough which
would include not only appearance before the
Court but also to carry on such activities which
are specifically provided in the aforesaid
paragraphs which provide for restrictions on
unqualified persons against drawing or preparing
any instrument, agreement, power of attorney or
such other things. If that was not so, there was
no necessity of restricting it by specific
regulations."
Cont
47Extract of a Bombay High Court Judgment
- The Court quoted with approval
- "As there is no direct decision on the question
involved, the learned Counsel appearing for the
Petitioner has brought to our notice a decision
rendered by the Court of Appeals of New York. In
the Matter of New York County Lawyers Association
v. Lorenzo J. Roel, (165 N. Y. S. 2d 31, page
14,) wherein the Court has interpreted Section
270 of the Penal Law which, inter alia, provides
as under- -
- It shall be unlawful for any natural person to
practice as an attorney-at-law or to hold
himself out to the public as being entitled to
practice law as aforesaid, or in any other
manner, or advertise the title of lawyer in
such manner or advertise the title of lawyer
in such manner as to convey the impression that
he conducts or maintains a law office without
having first been duly and regularly licensed and
admitted to practice law in the courts of record
of this state, and without having taken the
constitutional oath.
Cont
48Extract of a Bombay High Court Judgment
- In that case it was contended by the appellant
that his practice is restricted to Mexican law
and he does not practice law in New York since he
only gives advice and prepares instruments based
on Mexican law and Mexican law is not law in
New York. Therefore he is not covered by Section
270 of the Penal Law. The Court negatived the
said contention by holding that whether a person
gives advice as to New York law. Federal law,
the law of a sister State, or the law of a
foreign country, he is giving legal advice. It
was further held that when legal documents are
prepared for a layman by a person in the business
of preparing such documents, that person is
practicing law whether the documents be prepared
in conformity with the law of New York or any
other law. The Court further observed that to
hold otherwise would be to state that a member of
the New York Bar only practices law when he deals
with local law. It was further observed A
foreign lawyer who is familiar with the law of
the country in which he is a lawyer is in a
similar position. He is a specialist in a
particular field of the law, but is nevertheless
a layman in this state when he is not a member of
the Bar here. The Court held that protection of
the members of the lay public of State, when they
seek legal advice and that was what defendant
purported to furnish was the basis of the
requirements of licensing of attorneys by the
State.
Cont
49Extract of a Bombay High Court Judgment
- From the aforesaid discussion, the submissions
made before this Court and the affidavit in reply
filed on behalf of Respondent Nos. 12, 13 and 14,
prima facie, it appears that the activities
mentioned above carried on by Respondent Nos. 12
to 14 would amount to practising the profession
of law. As stated above, Respondent Nos. 12 to
14 have established liaison offices in this
country they are carrying on work of drafting
documents, reviewing and providing comments on
documents, conducting negotiations and advising
clients on international standards and customary
practice relating to clients transactions
gathering information from prospective clients in
India and conducting market research to assess
the feasibility of providing legal services in
India. - If, therefore, the said activities are held to
be not covered by the phrase to practice the
profession of law, then the whole objects of the
Advocates Act would be frustrated, in the sense
that there would not be any disciplinary control
nor these activities can be controlled by any
method. - " End of quote
50-
- We gratefully acknowledge the help given by the
- Department of Industrial Policy and Promotion -
Ministry of Commerce, Government of India, New
Delhi
51THANK YOU
For further Information, Contact Gautam
Mahajan President - Inter-Link Services Pvt.
Ltd. K-185 Sarai Jullena New Delhi, India
110025 Tel 91-11-26922006, 26831226 Fax
91-11-26929055 E-mail inter_link_at_vsnl.com /
mahajan_at_interlinkindia.net Website
www.interlinkindia.net