SBILL Chp 11 Setting Up of Business Outside India and Issues Relating Thereto
SBILL Chp 11 Setting Up of Business Outside India and Issues Relating Thereto
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
LESSON 11: Setting up of Business outside
India and Issues Relating Thereto
LAWS /AUTHORITY GOVERNING SETTING UP OF BUSINESS OUTSIDE INDIA
• The Reserve Bank of India issues regulatory Master Directions on various topics,
consolidating existing regulations and updating them as needed.
• These directions are clarified through FAQs to ensure they are understandable.
• The RBI, under FEMA 1999, regulates permissible capital account transactions and their
foreign exchange limits.
• Recent changes include the consolidation of various older regulations into the new FEMA
(Overseas Investment) Rules and Regulations, 2022.
• This new regime simplifies procedures, reduces the need for specific approvals, and
lowers compliance costs, enhancing operational ease and clarity in overseas investments.
• Key changes in the new regulations include clearer definitions, the introduction of a
"strategic sector," and simplified approval processes for certain investments and financial
actions.
OVERSEAS INVESTMENT
• Prior to August 22, 2022, direct investment outside India was defined differently, excluding
portfolio investments and financial commitments.
• "OI Rules" now integrate these to define "Financial Commitment" and "Overseas Portfolio
Investment" as components of Overseas Investment (OI).
Financial Commitment (FC) is the total investment by an Indian resident through direct
investment and other financial extensions to foreign entities.
• Overseas Portfolio Investment (OPI) involves investing in foreign securities not involving
direct control or major equity shares.
• Investments can follow two routes: Automatic and Approval, guided by OI Rules, OI
Regulations, and OI Directions.
• Conditions for FC by an Indian entity: a. Must be eligible to make ODI. b. Should have
made ODI in the foreign entity. c. Must have control over the foreign entity at or before
financial commitment.
Regulatory Framework:
• OI Rules: Govern the framework for overseas investment including permissions,
conditions, restrictions on ODI, pricing guidelines, and procedures for transfer,
liquidation, and restructuring of ODI.
• OI Regulations: Focus on the operational aspects like conditions for undertaking
FC, considerations in equity transfers of foreign entities, payment modes,
obligations of Indian residents, and reporting requirements.
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.1
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
• Replaces the old Joint Venture (JV) and Wholly Owned Subsidiary (WOS) terms.
• Defined as an entity outside India or in an International Financial Services Centre
(IFSC) within India, with limited liability.
• Limited Liability:
• Structures like limited liability companies or partnerships where Indian residents'
liability is clear and limited.
• If a foreign entity is a regulated investment fund, the Indian investor’s liability is
limited to their interest or contribution, and the trustee must be a non-resident.
NON-APPLICABILITY
• Excludes:
• Investments by financial institutions in an IFSC.
• Investments made from a Resident Foreign Currency Account.
• Investments made with foreign currency resources held outside India by
individuals temporarily employed in India.
• Investments made by individuals who were non-residents at the time of investment
or inherited from a non-resident, according to Section 6(4) of FEMA.
PROHIBITIONS
• Restricted Investments:
• No investments in foreign entities involved in real estate or gambling.
• No dealing in financial products linked to the Indian Rupee without RBI approval.
• Start-ups:
• Investments in start-ups must be from internal accruals of the Indian entity or its
group/associate companies, or from the personal funds of resident individuals.
• Structural Limitations:
• No investment in a foreign entity that invests back into India resulting in more than
two layers of subsidiaries.
• Exceptions apply to certain financial and government institutions as specified in
the Companies Act and other relevant legislations.
AUTOMATIC ROUTE
• Rule 9 of OI Rules, 2022: Specifies general conditions for overseas investments under
the automatic route.
• Investments must be in foreign entities engaged in bona-fide business activities,
directly or through step-down subsidiaries or special-purpose vehicles (SPVs).
• Bona-fide business activities are defined as those permissible under laws in both
India and the host country.
• Step-down Subsidiary:
• A subsidiary where the foreign entity has control.
• Must comply with the structural requirements of a foreign entity, i.e., have limited
liability.
• Changes and Expansions:
• The new rules allow investment into entities through multiple layers of step-down
subsidiaries or SPVs, expanding from the previous limit of one layer.
• The definition of bona-fide activities brings clarity but raises questions about
activities permitted in some jurisdictions but not others, such as gambling.
• The definition's wording leaves ambiguity about whether pure holding companies
qualify as engaging in bona-fide business activities.
• Control Considerations:
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.2
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
• Control involves the right to appoint the majority of directors or to manage policy
decisions.
• Overseas Direct Investment (ODI) can be considered even without capital infusion,
such as in cases where control is acquired through non-monetary means (e.g., gift
of controlling shares).
APPROVAL ROUTE
• Geographic and Sectoral Restrictions:
• Investments into companies in Pakistan or other restricted countries as specified
by the Central Government require prior approval.
• Investments in strategic sectors or specific geographies beyond set limits also
require government approval, processed through RBI.
• Financial Commitments:
• Any Indian entity’s financial commitment exceeding USD 1 billion in a financial year
requires RBI’s prior approval, even if within the permissible limit.
• The rule aligns with previous regulations that also required RBI approval for large
financial commitments.
• Dispensed Approvals:
• Certain requirements for prior approvals have been removed, including for
deferred payment of considerations and investments by entities under
investigation.
• Historical Regulations:
• Previous restrictions against investing in countries identified by the Financial
Action Task Force (FATF) as non-cooperative do not explicitly appear in the new
rules but allow the Central Government to designate restricted investment
territories.
No Objection Certificate
• Rule 10 Requirements:
• Individuals or entities with an NPA account, classified as willful defaulters, or under
investigation (by CBI, ED, SFIO) must obtain a No Objection Certificate (NOC)
from the concerned authorities for making any financial commitments or
divestments under the OI Rules.
• This requirement specifically applies to financial commitments and does not extend
to Overseas Portfolio Investments (OPI).
• Deemed Consent:
• If the NOC is not provided within 60 days of application, it is presumed granted.
This provision of ‘deemed consent’ may raise concerns among lenders and
regulatory bodies.
• Exceptions:
• If an Indian entity has issued a guarantee before being investigated or classified
as an NPA/willful defaulter and is required to honor it later, this does not constitute
a new financial commitment, and thus, no NOC is required.
METHOD OF FUNDING
• Permissible Methods of Payment:
• Remittance through banking channels.
• Funds from accounts compliant with the Act.
• Swap of securities.
• Proceeds from American Depository Receipts (ADRs), Global Depositary Receipts
(GDRs), or external commercial borrowings aligned with Act provisions.
• Restrictions and Provisions:
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.3
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
• Cash investments overseas are not permitted.
• Indian entities can remit funds to their overseas branches only for normal business
operations, not for overseas investments.
• Payments on behalf of a foreign entity must comply with financial commitments as
outlined in the OI Rules/Regulations.
• Investments or financial commitments in Nepal and Bhutan must follow specific
regulations, ensuring repatriation of all dues and proceeds in freely convertible
currencies.
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.4
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
• Importance of location relative to geographical access such as proximity to ports,
airports, and availability of specialized storage (e.g., cold or secure storage).
• Accessibility for transportation of goods, materials, and personnel.
• Significance within the supply chain including raw material sourcing, processing,
and dispatching of finished products.
• Talent pool availability for production, services, and management.
• Risk considerations such as pandemics and natural disasters (earthquakes,
tsunamis).
2. Economic Aspects:
• Ease of doing business: Factors include setting up, restructuring, and closing
businesses; visa availability.
• Cost effectiveness: Analysis of return on investment compared to similar locations.
• Labor laws: Quality and availability of labor, unemployment rates, labor unions,
worker motivation, and turnover.
• Taxation laws: Consideration of investment allowances, subsidies, profit
repatriation, and double-taxation avoidance agreements.
• Incentives: Evaluation of local, regional, or state economic incentives that could
reduce project costs.
3. Political Aspects:
• Relationship status of the host country with India and other neighboring countries,
including Most Favored Nation (MFN) status.
• Stability and predictability of the legislative and regulatory environment.
• Impact of governmental regulations on business operations, including the approval
processes for building plans, environmental permits, and utility connections.
4. Social Aspects:
• Trade relations and interactions between businesses from both countries.
• Expatriate-friendliness for relocating key personnel.
5. Technological Aspects:
• Protection of intellectual property rights: ability to create, maintain, and manage IP
effectively.
• Availability and reliability of essential services such as power, communication, and
telecommunications.
6. Additional Strategic Considerations:
• Consideration of infrastructure, geographical location, political stability, economic
policies, cultural and language barriers.
• Alignment with global value systems and institutions to ensure stakeholder
support.
• Compliance with legal and regulatory requirements in the host country.
• Global tax implications and planning within the legal framework.
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.5
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
• Register a domain name through authorized registrars listed by the Domain Name
Commission.
• Reserve your company name via the Companies Office website, ensuring
uniqueness and reservation for up to 20 working days.
3. Online Application Process:
• Follow the link in the confirmation email after name reservation approval or log into
your account.
• Navigate to ‘My unfinished business’ > ‘My tasks’ > ‘Complete Coy Application’.
• Enter details for Directors, Shareholders, and Tax Registration.
• Review and submit the application along with the application fee.
4. Director and Shareholder Consents:
• Upon submission, consent forms for directors and shareholders are emailed for
signatures.
• Signed forms must be returned within 20 working days to avoid expiration.
• The certificate of incorporation is issued via email after the last consent form is
accepted.
5. IRD Number and GST Registration:
• Apply for an IRD number and register for GST simultaneously with company
incorporation.
• Required details include contact information, the date of commencing
employment, details of employees and contractors, the main business activity,
trading name (if different), and applicable taxes like the Fringe Benefit Tax.
6. New Zealand Business Number (NZBN):
• NZBN is automatically issued to registered companies and links essential business
information like trading name and contact details.
• Sole traders and partnerships can register for an NZBN free of cost online.
7. Trademark and Regulatory Checks:
• Before finalizing the business name, check for trademark issues with the
Intellectual Property Office New Zealand (IPONZ) through a search and
preliminary advice (SPA) report.
• Ensure compliance with specific industry or regional regulations such as fair
trading, consumer guarantees, privacy, health and safety, and food licensing.
Business Reforms in New Zealand (World Bank Doing Business Report 2020)
2019
• Starting a Business: Reduction in fees for name search and company incorporation
made starting a business less expensive.
2018
• Paying Taxes: Introduction of an improved online portal for filing and paying general sales
tax simplified the tax payment process.
• Enforcing Contracts: Temporarily suspended the filing of new commercial cases in the
High Court's Commercial List during the setup of a new Commercial Panel, making
enforcing contracts more challenging temporarily.
2017
• Paying Taxes:
• Abolition of the cheque levy eased the process.
• Decrease in the accident compensation levy rate paid by employers reduced costs.
• Increase in property tax and road user levy rates made paying taxes more
expensive.
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.6
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
2016
• Getting Electricity: Improved payment monitoring and confirmation processes for
connection works reduced the time required to get an electricity connection.
2015
• Getting Credit: Started distributing both positive and negative credit information,
improving access to credit data.
2014
• Enforcing Contracts: Improved case management system to ensure quicker and less
costly adjudication of cases.
2013
• Getting Credit: Allowed credit bureaus to collect positive information on individuals,
improving access to credit.
2012
• Paying Taxes: Lowered corporate income tax rate and fringe benefit tax rate.
2011
• Enforcing Contracts: Enacted new district court rules to make the contract enforcement
process more user-friendly.
2010
• Dealing with Construction Permits: Increased fees made dealing with construction
permits more costly.
2009
• Starting a Business: Simplified the start-up process to a one-day online registration,
making it easier to start a business.
• Paying Taxes: Reduced corporate income tax rate, lowering tax costs for companies.
• Resolving Insolvency: Introduced a reorganization procedure aimed at providing an
alternative to liquidation and receivership, enhancing the chances of a company
continuing as a going concern.
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.7
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
There are 7 types of companies which can be incorporated in Singapore. On submitting the
company name application, the relevant company type must be specified. The available options
are:
1. Exempt private company
2. Private company limited by shares
3. Public company limited by shares
4. Public company limited by guarantee
5. Unlimited private company
6. Unlimited exempt private company
7. Unlimited public company
The private limited company is governed by the Singapore Companies Act and must comply with
its laws under ACRA and the Inland Revenue Authority of Singapore (IRAS). Designations include:
• Company name – Must be approved by the ACRA.
• Shareholders – Minimum of one.
• Directors – At least one director must reside in Singapore.
• Company Secretary – Also must be a Singapore resident.
• Paid-up capital – At least S$1
• Registered address – A physical office address is required
Initiatives in Singapore for Setting Up of Business (World Bank Doing Business Report
2020):
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.8
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
2020:
• Dealing with Construction Permits: Enhanced risk-based approach to inspections,
improved public access to soil information, and streamlined processes for obtaining
construction permits.
2019:
• Starting a Business: Eliminated the requirement for corporate seals, simplifying the start-
up process.
• Enforcing Contracts: Introduced consolidated laws on voluntary mediation, facilitating
smoother contract enforcement.
2018:
• Trading Across Borders: Enhanced port infrastructure and electronic equipment, making
exporting and importing processes more efficient.
• Resolving Insolvency: Introduced a new scheme of arrangement procedure with debtor-
in-possession reorganization features and provisions for prepackaged restructurings.
2017:
• Dealing with Construction Permits: Streamlined procedures and enhanced online one-
stop shop services.
• Registering Property: Introduced an independent mechanism for reporting errors on
titles and maps, simplifying property transfers.
• Paying Taxes: Improved online systems for filing corporate income tax and VAT returns,
although social security contributions by employers increased, and a vehicle tax rebate
expired.
2015:
• Enforcing Contracts: Launched a new electronic litigation system that streamlines
proceedings.
2014:
• Registering Property: Made transferring property easier with an online procedure.
• Getting Credit: Guaranteed borrowers' right by law to inspect their own credit data.
2011:
• Getting Credit: Enhanced credit information systems by collecting and distributing
information on firms.
2010:
• Starting a Business: Integrated tax registration with business registration into a single
online form.
• Dealing with Construction Permits: Introduced new safety regulations allowing online
document submission for low-risk industries.
• Registering Property: Upgraded electronic systems and streamlined administrative
procedures in government agencies.
2009:
• Starting a Business: Reduced the time and procedures needed to start a business by
simplifying the online start-up process.
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.9
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
• Dealing with Construction Permits: Improved internal data management and
processing at agencies involved in the permitting process.
Mandatory Registrations:
• Following incorporation, the company will automatically be registered for tax purposes with
the Inland Revenue Department.
• Employee’s Compensation Insurance and Mandatory Provident Fund (MPF) schemes are
necessary:
• Employee's Compensation Insurance covers liabilities for employee injuries or
fatalities under the Employees’ Compensation Ordinance.
• Employers must enroll eligible employees in an MPF scheme, managing
contributions for retirement funds.
Business Reforms in Hong Kong SAR (World Bank Doing Business Report 2020):
2020:
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.10
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
• Dealing with Construction Permits: Enhanced risk-based inspections and improved
access to soil information simplified the permit acquisition process.
2019:
• Getting Electricity: A specialized task force was established to manage trenching and
excavation for faster electricity connections.
2018:
• Starting a Business: Business tax fees were reintroduced, increasing the cost.
• Registering Property: Improved land administration systems and introduced a
complaints mechanism.
2017:
• Starting a Business: Reduced business registration fees.
• Getting Electricity: Streamlined application reviews and reduced time for excavation
permits.
2016:
• Starting a Business: Removed the requirement for a company seal.
• Getting Electricity: Streamlined connection and meter installation processes.
• Getting Credit: Introduced a modern collateral registry.
• Paying Taxes: Simplified compliance for mandatory provident fund obligations and
adjusted tax allowances.
2015:
• Starting a Business: Increased the registration fee, making it more difficult.
• Protecting Minority Investors: Enhanced disclosures of conflicts of interest.
2014:
• Starting a Business: Abolished capital duty on local companies.
• Registering Property: Increased stamp duty costs.
2012-2010:
• Multiple reforms to make starting a business easier, improve the efficiency of getting
electricity and registering property, and streamline construction permit processes.
2009:
• Dealing with Construction Permits: The "Be the Smart Regulator" Program simplified
building inspections and approvals.
• Resolving Insolvency: Granted more powers to trustees, enhancing the efficiency of the
liquidation process.
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.11
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.12
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
• Paying Taxes: Introduction of a new payroll tax affecting companies in the New York City
metropolitan commuter transportation district.
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.13
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
Setting up of a Business in Canada
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.14
SBILL
CS Praveen Choudhary
Prof Abhijeet C. Jaiswal
• Penalty: GBP 2,500 per day for non-compliance.
• Display: Proof of insurance must be displayed at the workplace or electronically.
Business Reforms in the United Kingdom (World Bank Doing Business Report 2020):
2020 Reforms
• Paying Taxes: Introduction of a new pension scheme increased the financial burden on
employers.
2019 Reforms
• Getting Electricity: Expedited external connection works to streamline new electricity
connections.
Recent Years' Highlights
• Enforcing Contracts and Paying Taxes: Various reforms aimed at reducing costs and
simplifying processes, including the reduction of the corporate income tax rate and
modernization of court procedures.
• Starting a Business: Enhanced efficiency through online services for tax registration and
model articles.
• Registering Property: Introduction of electronic lodgment for property transfers to
streamline the process.
“A person who never made a mistake never tried anything new.” — Albert Einstein 11.15