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Change in FDI Norms

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Authors: Navya Bhandari and Ayush Mehta*

Recently, Donald Trump was heard accusing China of “spreading” the Novel Coronavirus. Of late, there are sources which show that China initially hid information about the virus, which strengthen the claim that it’s a Chinese virus. COVID-19 has changed all dimensions of business, making it all the more uncertain. With crashing markets, stagnant growth, and job layoffs, the global economy is hard hit. Among such business uncertainties, it seems that China has emerged as the winner. The strength of this statement lies at the fact that while nations all over the world are at an all-time low, the Chinese economy has started to recover and so much that 96.6% of China’s large and medium sized firms have resumed operation.

In such a scenario, the Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India, with a view to curb “opportunistic takeovers/acquisitions of Indian companies due to the current COVID-19 pandemic,” took a strong step and recently amended paragraph 3.1.1of the Consolidated FDI Policy, 2017. This article analyzes the said change in law and its repercussions thereof.

What strained the government to take this step?

On 12th April, the Chinese Central Bank increased its stake in HDFC bank by 1%. This led to widespread uproar among the Indian investors and public, and the Indian government was driven to the realization that Chinese firms may take advantage of India’s fragile economic condition and undertake similar actions. Taking hands on approach, the government, forced by the fears of hostile takeovers, decided to change the existing norms related to Foreign Direct Investments to protect investor interest.

Since a lot of sectors in India are open to 100% foreign investment, it compelled the government to act preemptively. Though the change has been made for investments from all land neighbours of India, it mainly hints at hijacks by Chinese firms.

Changes in the Legal Position Regarding FDI Norms

The government via a Press Note, introduced strategic changes in the FDI policy to curb takeovers and acquisitions of Indian companies in light of the falling stock prices on account of the COVID – 19 pandemic. However, this amendment in norms, though in action, is yet to be confirmed by the Reserve Bank of India (RBI) under the Foreign Exchange Management Non-Debt Instruments Rules, 2019 (Non-Debt Rules) which govern foreign investments in India. It is pertinent to note that under the FEMA Rules, 2019, only RBI has been vested with the power to make regulations. Therefore, because the aforesaid notification was given out by the Ministry of Commerce, it is yet to be confirmed by the RBI.

FDI Policy in India

As per the FDI Policy in India, foreign investments can be done via two routes:

  1. Automatic route – Under the automatic route, the threshold for investments has been capped as per different sectors and it can be done without prior government approval.
  2. Government route – Under the government route for foreign investment, governmental approval is required.

Non-resident entities can invest in India, subject to the FDI Policy except in those sectors/activities which are prohibited. However, a citizen of Bangladesh or an entity incorporated in Bangladesh can invest only under the Government route. Similar restrictions are also placed on Pakistani entities and individuals.

Revised Policy

The revised policy is designed taking cue from other European nations like France, Italy and the United Kingdom. Under the revised policy the government has narrowed the scope of investment, by placing it under strict governmental scrutiny in order to protect Indian interests.

Under Para 3.1.1 (a), “A non-resident entity can invest in India, subject to the FDI Policy, except in those sectors which are prohibited.” The change in the policy now brings investment from all those countries which share land borders with India or where the beneficial owner of an investment is situated in any such country or is a resident, under the government route.

 Government approval is required not just for the future investments but also for the transfer of ownership of existing FDIs.

Paragraph 3.1.1 (b) reads, “In event of transfer of ownership of any existing or future FDI in an entity in India, directly or indirectly, which results in beneficial ownership falling within the restriction of clause (a), such subsequent change shall also require prior government approval.

Additionally, the use of the word ‘or’ between ‘directly’ and ‘indirectly’ in the norm makes the amendment inclusive and covers all modes through which any investment may be made.

While this decision will help India monitor hostile and opportunistic takeover of Indian companies, the fear of such takeovers is not just from neighbouring countries but from the world at large. The change in policy, which is narrowly focused on China, still leaves room for such actions from other parts of the world, though they are highly unlikely. 

Analysis of the Amendment – Is it foolproof?

It is pertinent that the above changes have been made to FDI, and not to Foreign Portfolio Investment (FPI). To the contrary, the recent HDFC bank stake increase was made through the FPI route.

In October, 2019, the Securities and Exchange Board of India (SEBI), had reclassified FDI and FPI with a view to widen the scope of regulation. The new rules state that any investment below 10% stake through any route will be classified as FPI. This means, even direct investments below 10% stake will be classified as FPI, thus escaping the change in paragraph 3.1.1, which is only for FDI.

Moreover, there are certain aspects in which the norms are unsettled. The norms do not define what “beneficial ownership” means. Neither is the term defined in the FEMA or the Companies Act, 2013. Adding on, the regulation does not list the countries in particular. This leads to ambiguity regarding the fact that, whether investments from Hong-Kong will be treated differently or same as the investments from mainland China. Foreign Exchange Management (Establishment in India of a branch office or a liaison office or a project office or any other place of business) Regulations, 2016 treat the two differently.

After the dissolution of the Foreign Investment Promotion Board, it is also unclear as to who will be responsible for granting the required permission for foreign investments.

Impact of the amendment on the economy

These pre-emptive changes have been made to take care of round – tripping of investment. However, there will be other significant impacts of the decision, especially on startups.

While the move to prevent China from taking advantage of the economic predicament is welcomed, it may have far-reaching implications on Indian startups, for whom Chinese investment has been paramount. Chinese investment is the stimulus for the impressive growth of Indian startups and of late Chinese venture capital funds and giants like Alibaba and Tencent have ramped up their investment in this sector to an extent that without their investment the future of Indian startups looks bleak. Currently at least 18/23 Indian unicorns, such as Paytm, Snapdeal, OYO, Ola are backed by Chinese investors.

The notification can be an impediment to growth. The new policy would force companies who depend on investments from China, to find new investors in this time when there would be none. The flow of capital from Europe and the US would also dry up due to their own economies heading towards a recession. The change in policy will not only affect the growth-stage startups but also unicorns who depend on such investment to keep the cash flowing.

While we agree that some measures are necessary to prevent India’s advantage being taken, a sectoral implementation of the policy would have been better. Given the plight of the Start-up industry in India, a liberal approach for this sector of the economy would have been more beneficial.

The restriction on investments will also impact the Make in India plan, as it had been luring Chinese manufacturers to set their units in the country and reducing imports to reduce the balance of trade deficit. However, as there are no exemptions mandated by the government in this regulation, it could very well dampen such initiatives.

China and WTO: The new conundrum

A Chinese spokesperson claimed that the barriers India has set, violate WTO’s principles of non-discrimination and are in contravention with the general trend of liberalization and facilitation of trade and investment.

However, China’s claims can be refuted by the fact that there is no denial of permission to invest, rather a change in the approval process. The policy does not result in any restriction of Chinese investment and hence cannot be considered as an impediment to facilitation of trade.

Way Ahead: Suggestions and Conclusion

It is the government’s duty to take every possible step to protect the interest of Indian companies. While the prompt actions of the Indian government are appreciated, it is expected that another notification by the government clears the ambiguity in relation to the list of countries, who a beneficial owner is and specifying the authority for granting permissions.

Another aspect that has to be taken care of is the booming startup industry in India, which is heavily dependent on Chinese firms for funding. In the already collapsing economy, smaller startups who are not financially strong need more capital injection to stay afloat. Whilst altering rules for FDI and FPI, the government should lay a clear roadmap and provide some relief or alternate measures.

The government should also consider excluding sectors which have prospects to create a huge number of jobs and companies with existing 100% Chinese ownership. An exemption of investments by ‘pooled companies,’ in which Chinese companies do not have controlling capacities would also be beneficial.

India being an attractive investment destination for Chinese investors, is vulnerable to hostile takeovers at this point. Therefore, although this decision hinders and is an impediment for all such investments, it surely will go a long way to protect hostile takeovers. In toto, the regulation is a welcomed move.

*Navya Bhandari and Ayush Mehta are pursuing 5 year law from National Law Universiry Jodhpur. 

Economy

Pandemic Recovery Creates a 50-50 Future

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Suddenly, the world changed; 50% in one-way and 50% the other way. It makes no difference where you stand or sit, because the changes are right across the world. It makes no difference if they are good or bad, because some are laden with heavy losses and some flying high with extraordinary opportunities. What is most critical is to recognize their hidden patterns and acquire special skills to respond quickly to avoid any serious fall or optimize a real potential in real time. As many times before, during centuries past, the world is morphing into something astonishing that we may not be able to recognize from where we stand today. Hyper-accelerated-future forcing change; 50% up and 50% down, therefore, we have to select your own paths. It is sink or swim time, again. One-hour study of cataloging major shifts during the last few centuries drastically transforming human behavior for good will do the trick.

The political offices: there are some 100 new national elections across the world within the next 500 days. In most cases, the economy will be the deciding factors over pandemic recovery. Outside the developed nations, death is a common place amongst struggling nations. Nevertheless, indices on suffering and pain are very high, the voice of the public highly audible, damages to the economy highly noticeable and the level of incompetence of leadership increasingly highly visible. The new visible challenges are the lack of speed on upskilling and transformation to manage mobilization of entrepreneurialism at grassroots level. Bureaucracies will not turn economies around. Most of the leaderships are ‘campaign’ trained and not ‘pandemic’ trained. The new races may topple 50% of incumbent leaderships in serious upsets.

The voting: Despite all the technological advances, there is no room in the world for some Social Media or Tik-Tok to decide a national election. The millennia old voting systems stand in line; make a cross by hand and drop it in a voting box will remain as most desired by the populace.  The challenges are not to fall over technology and human-programmed-AI to decide a winning team, stay credible, and follow safe procedures. Any deviation from these traditional models may result in outright rejections of 50% of the coming elections.

The workforces: There are billion displaced workers, due to pandemic, an additional billion already  replaced due to technological advances and a billion further misplaced where their real talents never recognized, considered as out of the box thinking and now working in miss-matched jobs. Challenges are to create globally accepted “Remote-Working-Protocols’ a Charter of Rights for Remote Workforce and make such ideas respectable and rewarding. The restless citizens are ready to march, 50% of the regions of the world are neither prepared nor have any solid solutions for such calamites.

The offices: The world has moved to remote, the vaccine-waiting years will carve permanence to new remote protocols and routines.  This is a new tsunami but it has far too many positive sides embedded. Books on ‘rise and fall’ of downtown are not published yet; hidden fears of massive downtown real estate collapse preclude any serious dialogue on global podiums. Challenges are to create intense citywide live and open debates on city planning based on new realities and not real estate. Nevertheless, Remote Work will have the most dramatic life altering impact on the global workforce and may force 50% of office towers empty and downtowns go dim.

The travelling: The silence of tourism is a global calamity impacting small medium and big businesses servicing such sectors. The global public will not be ready until vaccination reaches in many billions, a multi-year task. This will create vacuums and major shifts will occur. The challenges are to create a new post vaccine, sanitized, destination travel-world. Overall 50% locations, routes, and services may not survive.

The trade-events: The local-national-global conferences and trade shows were always the bloodstreams of commerce now replaced by live streaming the old-event-industry gasping for oxygen. The high cost of travel and lack of bold contents were always the lingering challenges, unless there are new discussion formats and real value offerings the event industry is sinking. Despite the new powers of virtualization, real content management will decide the winners and create new trends before some 50% may give up entirely.

The education: While the new generations need free education, the post vaccination worldneeds lesser education and more special skills; pragmatic, productive and profitable.  The digital platforms ensure instant access to maxi-mini-micro-upskilling and reskilling and eliminating multi-year of memorizing irrelevancy needs lingering since last century. The brand new models of ‘education-delivery’ with direct and measured return on value are where the future parked. The challenges are to bring real and proven entrepreneurialism into colleges and universities and unless taught by decade plus hard-core raw business experiences, business education is becoming an expensive liability.  The colleges and universities of the past could further stay in denials, but going forward new paths 50% may not survive.

The economies: The future of the world is digital; therefore, digitized economies of the post vaccination world will thrive; paper-based economies will end up in waste-paper-baskets. Tragically, paper-pushing economies had all options, often at little or no cost but bureaucracies strongholds kept them in the darkness. The challenges are to convert denials into positive mobilization of small medium business economies across a nation. Maybe, the only way left for them to start on a new page. The global rate of accelerated performance after full vaccination will crush 50% of the paper-based economies.

The groups and societies: Across the world, for the first time in 100 years the big and small societies of the world are forced into isolation, long enough to think hard, ponder and posture, altering lifestyle mode and testing their psyche about their immediate and far-away surroundings. Extreme boredom took each one many times over to their private caves of silent spaces where like finishing a forty-day and forty-night minimum requirement for deeper thinking of sorts became a valuable gift of global age understanding, provided under forced isolation by Covid-19.

Historians will recognize this as a global mind shift era of this century, affecting the five billion connected alpha dreamers who will change the world because they a little bit more connected to diversity, tolerance, and see global issues clearly. The cruelty of Covid measured in millions of body bags and treacherous loss of life remembered in eternity; the survivors from trenches, drenched in waist-high filth for years during the First World War crawled out as philosophers of time on peace and harmonious living.  There will be dramatic and noticeable changes in all big and small societies and cultural groups around the world and 50% may completely change their thinking but more in a humankind way and for common good.

A new dawn emerges, discovering hidden and untapped entrepreneurialism of some 500 million small medium enterprises of the world and a billion new entrepreneurs on the march.  Where are you standing, on what fronts, with what abundance and voids, what options and what possible moves and most importantly, what you need? Economic revolution demands revolutionary action on productive-performances.

Relentless in pursuit and authoritative with action, Expothon is tabling a very special and bold agenda and starting a high-level global series of virtual events starting early 2021. Going forward, the virtualization of the national economies will boost vertical sectors to new heights, globalization creates new links to global exportability, therefore, grassroots prosperity and upskilled performance must adjust to absorb the new loads.

The big change, the new reset, these are not easy tasks, but a good dialogue will start the wheels in the right direction. Open your hidden talents, help mobilize local midsize business economies, identify the missing links and raise collaborative awareness, the rest is easy. 

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Economy

The Economy Against the Tide

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The world evidently grappled with the effects of the Covid pandemic in 2020 and continues to wedge forward against the odds to survive and stay afloat. The major economies contracted as the global boards pinned records after records in economic depreciation, monetary devaluation and corporate deterioration. However, whilst the pandemic pushed the metaphorical brake over the developed and developing economies alike, and simultaneously nudged the least developed into desperation, China posted surprisingly positive growth figures as it bid adios to the yesteryear. While anything remotely lucrative seems like a farce nowadays and although the relatively booming Chinese economy seems superficial at the first glance, a detailed analysis dissects the tenets of the trade that have set the People’s Republic apart from the struggling world.

China stands as the figurative ‘Ground Zero’ of the Coronavirus pandemic; reporting the earliest emergence of the virus in the ultimate month of 2019.  China later went on to have a gloomy start to the new year; struggling to deal with the strange occurrences, rising death toll and having no answer to the surging uncertainty. The new year celebrations were cancelled, holidays extended and even corporate giants like Toyota and Apple were resorted to immediate closure across the Mainland. The year expected to be of expansion turned polar as the world started to isolate the country to contain the virus; turning exports to the lowest levels over decades of preceding economic flourish.

However, while many global experts predicted the downfall of China; extrapolated by the dismal figures of the first few months of 2020, China quickly recovered and surpassed expectations in both containing the virus within the country and stabilising the tattering economy. The main contender and outright rival of China, however, faced the music in the most ironic way possible. Whilst the United States pillared on the trade war between the two since before the Covid pandemic, Mr. Trump left no stones unturned in maligning China for spreading the virus around the globe; deliberately and in an attempt to exponentiate its accession to power over US. The US economy faced the brunt of the pandemic rather expectantly since the time was wasted on hurling accusations instead of proactively adopting protective measures beforehand. While US is currently the worst affected country around the globe, its economy is no different than the mounding death toll on charts each day.

The US economy contracted on record levels and even itsworld-renowned indexes like DJI and S&P500 posted negative rallies; first since the Great Depression of 1929. Although the economic damage to the US has been cushioned, now twice, by heavily strategized monitory polices of the FED and colossal fiscal stimulus, the world superpower is showing signs of weakness as it deals with over 250,000 fresh cases each day yet can’t function to facilitate the 14 million and counting Americans facing unemployment for months and seeking benefits, taking the national bill to unprecedented heights.

Even compared to the regional counterparts, China stands out in much more than just the economic stability. Europe currently deals with a detrimental surge of the virus-variants while simultaneously accommodating the challenging deals across the borders in the wake of Brexit. The United Kingdom faces contradictions over new trade policies and procedures; not just with EU but with its very own states like Northern Ireland. The monetary rates now touch zero with a possibility of further plunge into the negative territory as London shivers with fatal blows of the highly infectious variant of Covid and the nation facing the second country-wide lockdown as hospitals run at full capacity.

Meanwhile, EU falters with the economic fiasco even under the improving financial conditions and finally grabbing an agreement on the year-in-year-out negotiations of the Silk Road Initiative. The distinction, however, is clear as while Germany, Europe’s most powerful economy, wrestles with a catastrophic recession, China completely avoided recession throughout the year 2020. While Germany looms into negative growth rates, China posted a steep 6.5% growth in the last quarter (Oct-Dec); a cumulative growth of 2.3% in 2020. A stark opposite of the slump caused by Covid restrictions that initially pulled China’s economy down by 6.8% in the first quarter compared to 2019.

While China has been gauged as “The only major economy to quickly recover from the pandemic and find the normal course of business operation”, the recovery has been uneven over multiple sectors of the domestic industry. The boom in the economy has been celebrated and attributed to the growing optimism of Chinese investors in the relentless recovery of the economy. The Shanghai stock market was recently pulled up by 1% even under the rippling conditions of the global economy. However, while the consumer electronics sector has enjoyed the waves pushed by the ‘stay at home’ mottos under the lockdown, service businesses like hotels and restaurants have faced a crunch which has eventually carried forward to the blue-collar workers in China. While the factories in the Mainland have turned into an overdrive to fill in the boom of exports since many countries face a manufacturing break, the exporters to the poor countries are dealing with the devastation alike to their clients. While magnates like Jack Ma have made a fortune, the recent graduates are struggling to find new jobs.

Now, with the resurgence of the virus, the fear in lacing the country again. The recent tally has jumped up to 769 new cases whilst reporting first death in over six months. However, the health officials have deemed the sporadic spread as ‘very, very small’. Ultimately, China came about to be a tough nut to crack, analytically due to its effective centralised strategies in dealing with the pandemic followed by aggressive policy making; focusing on the advanced manufacturing industries to stay proximate to core competencies whilst simultaneously maintaining a free market structure in other areas of the economy, setting a path for a predicted average 5.7% growth until 2025. Thus, paving China’s way to attain the coveted title of ‘World Superpower’ and surpassing US by 2028.

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Economy

Indian Farmers Protest Against the Parliament’s Encroaching Bills

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The new agricultural reforms in India aim to permit farmers to offer their produce to private purchasers beyond a state-run discount or wholesale markets, where farmers are guaranteed a minimum cost for their yields.

However, the farmers state that the laws would undermine their livelihoods and will solely be profitable to large companies, leaving producers helpless under the heel of a free market. Such patters can be gauged from the Modi government’s corporation-oriented policies. For instance, the current corporate tax rate – 30 percent – has been considerably reduced: 22 percent for existing companies and 15 percent for those established after 1st October, 2019. 

Farmers regard these bills with suspicion, for they feel threatened by the corporatization of their agricultural domain and the dismissal of the MSP regime. Introduced in 1966-67, the MSP regime promises the sale of specific crops at a fixed price thus assuring the farmers of a regular income in spite of escalating input costs and unstable prices.

Primary leaders of farmers’ associations have called for protests, even willing to observe fasts during the protest in order to challenge the new farmer laws. With almost 250 million protesters, to protest is being called the largest protest in human history

This is the second time in the previous two weeks that the farmers have called for country-wide protests, requesting all the people to organize sit-ins outside the district organizations across the state. The protests are being led by a large number of farmers sitting outside the capital, New Delhi, obstructing main highways heading towards the city.

Chief Minister of Delhi, Arvind Kejriwal, and his party ‘Aam Aadmi Party’ have supported the sit-ins by fasting with them. Kejriwal encouraged his party workers and members to join the campaign and asked Modi’s Bharatiya Janta Party to set aside arrogance and fulfill the demands of the farmers.

The agriculture sector contributes almost fifteen percent to India’s $2.9 trillion economy and enrolls the greater part of the nation’s 1.4 billion individuals. In recent years, this sector has been facing setbacks and driving a huge number of indebted farmers to take their lives.

Modi said the enactment was required to support the agricultural sector, and that the new laws would profit the farmers and “free” them from the oppression of middlemen. Farmers, generally from Haryana and Punjab and considered the “grain bowl” of India, have denounced the laws as “hostile to farmers”.

The farmers have demanded revocation of the new laws and assurance of the Minimum Support Price for their yields.“It’s been months now since the farmers began protesting. We have sent a few written messages to the Prime Minister, Agricultural Minister is demonstrating our hatred to the hostile laws but the BJP government is careless on this issue,” said the farmers’ leader.

One elderly woman, aged 75, said that “unless and until Narendra Modi withdraws these laws, we will not go back. This government should know about the strength and determination of the Punjabi people.”

The Indian Supreme Court has received many petitions regarding a ban on the protest, but the top court has declined such calls and ordered the government and unions to form a committee in which the experts would mediate between the concerned parties.

On the birth anniversary of Sikh leader, Guru Nanak, Canadian Prime Minister Justin Trudeau said in a Zoom meeting that Canada would always defend the right of peaceful protest.

Federal Minister Fawad Chaudhry termed Indian behavior with farmers as “shameful”. He stated that the Indian government’s policies were the biggest threat to regional peace. United Nations Secretary-General António Guterres called on the Indian government to allow protests, asserting the right to raise a voice and show opposition to the government.

The vociferous calls have certainly proven to be a feather in the farmers’ cap, as India’s Supreme Court has recently ordered for the suspension of these farming bills.

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