DOING BUSINESS IN INDIA: OPPORTUNITIES AND LEGAL ENVIRONMENT

Transcription

1 DOING BUSINESS IN INDIA: OPPORTUNITIES AND LEGAL ENVIRONMENT 1 Ruchira Gupta, Advocate The Juris Sociis, Advocates and Advisors The Juris Sociis, Bangalore, India

2 AGENDA India, the country political and economic Types of business entities for foreign participation Foreign company Foreign investment Business Registration and regulations Ministry of Corporate Affairs, Reserve Bank of India, Others Taxation direct and indirect Employment PF, ESI, Professional Foreign exchange The Juris Sociis, Bangalore, India 2

3 INDIA-CONSTITUTIONAL PRIVILEGES The Juris Sociis, Bangalore, 3 India

4 THE BASIC FEATURES A sub continent with religious, ethnic and linguistic diversity Federal structure 28 states, 18 languages as per constitution Young country with a median age of 30 years by 2025 Total labour force exceeding 500 million people Multi party polity Elections in every 5 years at Center and States Legislature, Executive and Judiciary the legs of administration wholly independent Division of responsibilities between the Center and States as per Constitution Free, vibrant and strong media The Juris Sociis, Bangalore, India 4

5 ECONOMIC INDICATORS 5 The Juris Sociis,

6 ADVANTAGE INDIA Indian economy will grow 5 fold in next 20 years (McKinsey) "2012 A.T. Kearney Foreign Direct Investment Confidence Index" has ranked India second most attractive destination for FDI Strong pool of scientific and technical pool More than half of Fortune 500 companies getting serviced in India 2 nd largest English language speaking pool India is a member of World Trade Organization (WTO) Robust banking and financial institutions The Juris Sociis, Bangalore, 6 India

7 MARKET ENTRY OPPORTUNITIES Growing Sectors in Indian Economy Engineering Infrastructure Entertainment Energy Transportation Healthcare Ports Consumer goods Automotive Environment The Juris Sociis, Bangalore, India 7

8 TYPES OF BUSINESS ENTITIES FOR FOREIGN PARTICIPATION Proprietorship simplest form of business no registration required No central business registration; Partnership registered partnership deed not mandatory but advisable Registered partnership has event based filing requirement; Limited Liability Partnership limited liability with internal management liberty Central registration required; filing requirements to be complied with Company limited liability company private or public Central registration required, extensive filing requirements to be complied with Joint venture or wholly-owned subsidiary Note: Registration under local laws, business registration and foreign investment laws may apply for all types of business formation 8 The Juris Sociis, Bangalore, India

9 FOREIGN COMPANY S DIRECT PRESENCE Branch office Representing the parent entity and can enter into contract and generate income Is treated as permanent establishment for tax purposes Liaison office Representing the parent entity, acting as a communication channel, gathering information; cannot enter into contracts Expenses to be met from inward remittances Is not treated as permanent establishment for tax purposes Project office Set up for execution of large projects Note: Each can undertake only specified activities 9 The Juris Sociis, Bangalore, India

10 KEY LEGAL ISSUES Whether repatriation of investment and profits allowed? What are the tax incidence on profits and gains? Is it possible to protect one s intellectual property and data? What are the contractual issues related with employment? Are clauses like non-compete, non-solicitation, limitation on liability enforceable? Is choice of law and jurisdiction recognized by courts? What mechanism for dispute resolution available? The Juris Sociis, Bangalore, India 10

11 FOREIGN INVESTMENT Routes for investors to invest in India with repatriation Foreign Direct Investment (FDI) no prior registration but subject to FDI Policy o o o Automatic Route subject to certain limits, if any Approval Route subject to certain limits, if any Prohibited sectors defense, atomic energy, lottery etc. Investment as a Foreign Institutional Investor Registered with SEBI and Reserve Bank Investment as a Foreign Venture Capital Investor Registered with SEBI and Reserve Bank Instruments available for investment Shares (equity or preference) Instruments convertible into shares Redeemable instruments redeemable preference shares or debt securities as per ECB guidelines Pricing guidelines on subscription or secondary acquisition of shares apply The Juris Sociis, Bangalore, India 11

12 REGULATORY REQUIREMENTS The Foreign Exchange Management Act The Customs Act and Import Export Number Industrial license, if applicable Business registration The Income Tax Excise VAT / Central Sales Tax Service Tax Professional Tax The Juris Sociis, Bangalore, India 12

13 INTELLECTUAL PROPERTY Intellectual Property protection for the following available Copyrights, Designs, Patents, Trademarks, Topographies of Integrated Circuits, Geographical Indications, Plant Varieties, Framers Rights. Computer programs, tables and compilations including computer databases Inventions in the field of biotechnology Service marks, trademarks and shape marks Ownership of copyright arising in the course of employment vest with the employer Protection of trade secrets and confidential information in contract law and common law principles Data protection Information Technology Act amended to introduce aspects of data protection Owner of IP entitled to civil remedies in the nature of injunctions, damages or accounts. In certain cases, criminal remedies may also be available. The Juris Sociis, Bangalore, India 13

14 EMPLOYEE RELATED Rights and obligations of employees Industrial Disputes Act The Industrial Employment (Standing Orders) Act The Trade Unions Act Working Conditions like hours of work, leave, condition and maintenance of place of work Factories Act Shop and Establishment Act Remuneration Payment of Wages Act The Minimum Wages Act Payment of Bonus Act Equal Remuneration Act Social Security The Employees Provident Fund Act The Employees State Insurance Act The Payment of Gratuity Act The Juris Sociis, Bangalore, India 14

15 MISCELLANEOUS Non-compete and non-solicitation clause Restrictive covenants and as such void Exception: o o o to protect a party s commercial interest post acquisition of a business with goodwill; reasonable in terms of time and geography During the term of employment and not those after the term of the employment Limitation of liability clause Valid and enforceable except limitation of liability on account of death, personal injury, fraud or gross negligence is not enforceable Liability for claim of damages for breach of contract is limited to actual damages or losses suffered. Indirect or consequential damages not covered even if provided Choice of law and jurisdiction is recognized by courts; exceptions may apply Dispute resolution Indian courts and arbitration Foreign judgments: reciprocating and non-reciprocating territories The Juris Sociis, Bangalore, India 15

16 GOOD TO KNOW Complex and diverse social framework Different market entry strategy as per the region Indian bureaucracy Infrastructure issues Mode of entry function of the business needs Important to have local contact whether operating from or outside India The Juris Sociis, Bangalore, India 16

17 STUMBLING BLOCKS Awareness of the regulatory environment Funding the business enterprise Taxation issues Elaborate and multiple compliance structure Proper and appropriate structuring of business entity The Juris Sociis, Bangalore, India 17

18 THANK YOU Ruchira Gupta The Juris Sociis, Bangalore, India 18