ARTICLE
28 August 2024

Ministry Of Finance Amended Foreign Exchange Rules

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The Central Government announced key amendments to Foreign Exchange Management (Non-debt Instruments) Rules, 2019, which will come into effect from 16 August 2024.
India Government, Public Sector

The Central Government announced key amendments to Foreign Exchange Management (Non-debt Instruments) Rules, 2019, which will come into effect from 16 August 2024 . The principal objective of the Amendment Rules is to simplify cross-border equity share swaps and provide for the issue/transfer of equity instruments of Indian companies in exchange for the equity instruments of foreign companies. Other changes under the purview of the Amendment Rules include amending the definitions of 'start-ups' and 'control' to align them with the definitions under other laws and permitting 100% FDI through the automatic route in White Label ATM operations.

Highlights of the notification

The key aspects of this amendment to Foreign Exchange Management (Non-debt Instruments) Rules, 2019 are mentioned below:

Harmonization of definitions

The definition of 'control' has been standardized to align it with the definition under the Companies Act, 2013, and the definition of 'start-up company' has been harmonized with the Government of India's notification G.S.R. 127 (E), which was issued by the Department for Promotion of Industry and Internal Trade.

Government approval for equity transfers

Previously, government approval was required for prescribed sectoral caps. It is now mandatory that all transfers of equity instruments involving non-residents, whether buying, selling, or swapping equity, must follow the prescribed approval procedures whenever government approval is applicable.

Swap of equity instruments and equity capital

The introduction of Rule 9A enables the transfer of equity instruments of an Indian company between a person resident in India and a person resident outside India through swap arrangements. This provision allows for the exchange of equity instruments between an Indian company and a foreign entity in compliance with the rules prescribed by the Central Government and the Reserve Bank of India (RBI).

The new Rule 9A also provides for the transfer of equity instruments by way of a swap of equity capital of a foreign company in compliance with the Foreign Exchange Management (Overseas Investment) Rules, 2022. Similar amendments have been made to Schedule 1 of the NDI Rules to allow for the facilitation of the swap of equity instruments and equity capital against the issue of securities by an Indian company to a person resident outside India.

Clarifying downstream investments by OCI-owned entities

The Amendment Rules address a long-standing ambiguity in the regulatory framework concerning investments made by Overseas Citizen of India (OCI) entities; it clarifies that investments made by OCI-owned entities on a non-repatriation basis will not be considered for determining the total amount of indirect foreign investment. It ensures that OCI-owned entities are treated at par with NRI-owned entities.

Facilitation of FDI in White Label ATMs

White Label ATMs sector allowed with 100% FDI under Automatic Route to boost financial inclusion nationwide subject to compliance with specified conditions, minimum capitalization norms and specific criteria and guidelines issued by the Reserve Bank of India under the Payment and Settlement System Act, 2007.

Our Comments

This is in continuation to the recent Union Budget announcement made by Finance Minister Ms. Nirmala Sitharaman on 23 July 2024, which stated that "The rules and regulations for Foreign Direct Investment and Overseas Investments will be simplified to (1) facilitate foreign direct investments, (2) nudge prioritization, and (3) promote opportunities for using Indian Rupee as a currency for overseas investments."

One of the most notable changes introduced by the Amendment Rules is the introduction of a provision allowing Indian companies to issue or transfer equity instruments in exchange for foreign company equity. This amendment aligns with the government's vision to create a more investor-friendly environment and enhance India's appeal as a global investment hub. This amendment will also boost foreign investment in India, as well as cross-border mergers and acquisitions.

Also, harmonizing the definitions of control and start-ups with the Companies Act and DPIIT notification promotes consistency and clarity. Also, investments made by NRIs and OCIs in India on a non-repatriable basis, including through companies, partnerships, or trusts, will no longer be considered indirect foreign investment. This aligns with the existing treatment of direct non-repatriable investments by NRIs and OCIs, which are already excluded from indirect foreign investment.

The Amendment Rules will facilitate global expansion for Indian businesses and create a more streamlined, transparent, and investor-friendly environment, promoting the government's economic growth and global competitiveness.

The official notification can be accessed here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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