Understanding Overseas Direct Investment (ODI) and Latest RBI Guidelines for Indian Investors

by Deepak Madan | Sep 10, 2024 | Blog

Investing in companies or assets outside of India is known as overseas direct investment. Overseas Direct Investment (ODI) allows Indian residents, including individuals, firms, and companies, to invest in foreign businesses or projects. What is the limit of ODI investment? Indian entities can invest up to 400% of their net worth abroad, as per RBI regulations.
Who is eligible for ODI? Resident individuals, partnership firms, limited liability partnerships, and companies can undertake ODI, provided they meet the requirements.
What is overseas direct investment? It is a means for Indian entities to expand globally, establish a lasting interest, and tap into international markets.

The following three categories of investments make up an ODI:

1. Purchasing equity in any unlisted firm or subscribing to a foreign entity’s memorandum of association.
2. An investment of 10% or more of a stated foreign company’s paid-up equity capital.
3.  An investment that represents less than 10% of a stated foreign company’s paid-up equity capital shall be controlled.

Who is eligible to make ODI?

Investments in entirely owned subsidiaries or joint ventures can be made by public and private limited corporations, partnership companies registered under the Indian Partnership Act of 1932, and limited liability partnerships registered under the LLP Act of 2008. Additionally, residents are able to invest abroad. The LRS allows for investments in mutual funds, foreign securities, real estate, and other assets totaling up to USD 250,000 every fiscal year. The investment must abide by the RBI’s reporting guidelines, which include submitting the appropriate paperwork to the RBI and authorized dealers.

Please note that Sole proprietorship and unregistered partnership entities are not eligible to make ODI in WOS or JVs under automatic route.

Mode of ODI payment?

1. Payment mode: The remittance for overseas investments should be made through an Authorized Dealer (AD) bank, which is a bank authorized by the RBI to deal in foreign exchange transactions.
2. Purchase of foreign currency: The foreign currency required for overseas investments must be purchased from the AD bank at the prevailing market rate.
3. Escrow accounts: The RBI may permit the use of escrow accounts or special accounts in specific cases, subject to certain conditions and safeguards.
4. Routing transactions: All transactions related to overseas investments must be routed through the same AD bank, ensuring compliance with the guidelines issued by the RBI.
5. ODI in the form of cash is not permitted.
6. Indian entities may make remittances to their office or branch abroad only for normal business operations. Hence, No ODI is permitted for investment into the branch offices abroad

Knowledge of the Automatic Route

Any monetary commitment up to USD 1 billion in a financial year does not require prior RBI clearance if the Indian party’s entire commitment falls within the acceptable limit under the Automatic Route (i.e., falls within 400% of net worth as per the most recent audited balance sheet).

The Role of Authorized Dealer Category – I Banks

All transactions related to overseas investments must be routed through the same AD bank, ensuring compliance with the guidelines issued by the RBI.

Components of Financial Commitments

Financial commitments in overseas JVs/WOS consist of equity shares, Compulsorily Convertible Preference Shares (CCPS), other preference shares, loans, guarantees (excluding performance guarantees), and bank guarantees (backed by a counter guarantee/collateral by the Indian party).

1. 100% of the number of equity shares and/ or Compulsorily Convertible Preference Shares (CCPS);
2. 100% of the number of other preference shares;
3. 100% of the amount of the loan;
4. 100% of the amount of guarantee (other than performance guarantee) issued by the Indian Party;
5. 100% of the amount of the bank guarantee issued by a resident bank on behalf of the Indian Party’s JV or WOS, provided that the bank guarantee is supported by a counter-guarantee or collateral.
6. 50% of the amount of the performance guarantee issued by the Indian Party, with the condition that prior Reserve Bank approval must be obtained before sending money beyond the financial commitment’s limit if the outflow resulting from the performance guarantee’s invocation causes it to go over.

Conditions for Investments and Financial Commitments under automatic route

Investments and financial commitments in overseas JVs/WOS must adhere to specific conditions:

1. The Indian party/entity may extend loans/guarantees only to overseas JVs/WOS in which it has equity participation. Proposals for financial commitments without equity contributions may be considered by the RBI under the approval route.
2. Indian parties should not be on the RBI’s caution list, defaulters list, or under investigation by any investigation/enforcement agency or regulatory body.
3. Share valuation must be performed by a Category I Merchant Banker registered with SEBI or an Investment Banker/Merchant Banker outside of India registered with the relevant regulatory authority in the host country for investments exceeding USD 5 million in partial or complete acquisitions.
4. When an investment is made through a share swap, the valuation of the shares must be performed by a Category I Merchant Banker registered with SEBI or an investment banker outside of India registered with the relevant regulatory body in the host country.
5. In cases where a registered partnership firm invests in an overseas JV/WOS, individual partners may hold shares on behalf of the firm if the host country’s regulations or operational requirements warrant such holdings.
6. Indian parties may acquire shares of a foreign company in exchange for ADRs/GDRs, subject to specific conditions.
7. Investments in Nepal are permitted only in Indian Rupees. Investments in Bhutan can be made in Indian Rupees or freely convertible currencies. All dues receivable on investments and their sale/winding-up proceeds must be repatriated in freely convertible currencies.
8. Investments in countries identified by the Financial Action Task Force (FATF) as “non-cooperative countries and territories” are not permitted. Investments in Pakistan are permissible under the approval route.

Methods of funding for overseas direct investment include:

1. Drawing foreign exchange from an AD bank in India
2. Capitalizing exports
3. Swapping shares
4. Utilizing proceeds from External Commercial Borrowings (ECBs) or Foreign Currency Convertible Bonds (FCCBs)
5. Exchanging ADRs/GDRs issued by the relevant schemes and guidelines
6. Using balances held in the EEFC account of the Indian Party
7. Proceeds from foreign currency funds raised through ADR/GDR issues.

The obligation of Indian parties (IP) and resident individuals (RI) after making an overseas direct investment:

1. Receive share certificates or other evidence of investment within six months (or a period permitted by the Reserve Bank) from the date of remittance, capitalization, or permission for capitalization.
2. Repatriate all dues from the foreign entity, such as dividends, royalties, and technical fees, within 60 days of falling due (or a period permitted by the Reserve Bank).
3. Submit an Annual Performance Report (APR) in Part II of Form ODI for each JV/WOS outside India by December 31 every year, based on the audited accounts from the preceding year, along with any other prescribed reports or documents.

Additional points to note:

a. The designated AD bank must monitor the receipt of documents and ensure their authenticity.

b. Certification of APRs by a Statutory Auditor or Chartered Accountant is not required for resident individuals; self-certification is acceptable.

c. If multiple IPs/RIs have invested in the same overseas JV/WOS, the one with the maximum stake is responsible for submitting the APR. Alternatively, stakeholders can mutually agree to assign this responsibility to a designated entity.

d. Reporting requirements, including submission of APR, also apply to investors in unincorporated entities in the oil sector.

e. If the host country’s law does not mandate auditing of JV/WOS books, the APR may be submitted based on un-audited accounts if certain conditions are met (e.g., certification by the Indian Party’s Statutory Auditors, adoption and ratification of accounts by the Indian Party’s Board, and not being located in a country under FATF observation or requiring enhanced due diligence).

f. All Indian businesses that have received or made Foreign Direct Investment (FDI) in the past two years must submit an annual report on foreign liabilities and assets (FLA) to the Reserve Bank of India. Every year, the FLA return has to be emailed by July 15.

Overseas Direct Investment (ODI) by Approval Route:

1. Prior approval from the Reserve Bank of India (RBI) is required for all cases of direct investment or financial commitment abroad that do not fall under the automatic route. To seek approval, applicants must submit Form ODI along with necessary documents through their Authorized Dealer Category – I bank.
2. When evaluating such applications, the Reserve Bank takes into account a number of factors, such as:

• The overseas JV/WOS’s viability;

• The contribution to international trade and benefits to India;

• The financial situation and business history of the Indian Party and the foreign entity;

• The Indian Party’s expertise and experience in the same or a closely related field as the JV/WOS.

3. Investments in energy and natural resources sectors exceeding the prescribed limit of financial commitment will be considered by the RBI. Applications must be forwarded by the AD Category-I – I bank as per the established procedure.

4. Proprietorship concerns, unregistered partnership firms, registered trusts, and societies engaged in manufacturing, education, or hospital sectors may make investments in a JV/WOS outside India with prior approval from the RBI. They must meet specific eligibility criteria and submit an application in Form ODI through the AD Category-I – I bank.

• Proprietorship concerns and unregistered partnership firms must be classified as ‘Status Holders’ as per the Foreign Trade Policy, have a proven track record, and comply with KYC requirements.
• Registered trusts should be established under the Indian Trust Act, of 1882, and have their trust deed permitting the proposed investment.
• Societies must be registered under the Societies Registration Act, of 1860, and have their Memorandum of Association and rules allowing the proposed investment.

5. Through an AD Category-I bank, applications should be forwarded to the Chief General Manager of the Reserve Bank of India’s Foreign Exchange Department and Overseas Investment Division. Before sending the application, together with their feedback and ideas, for consideration, the bank must make certain that the terms and criteria are met.

FAQs:

Q.) What documents are required by banks for making ODI?

1. Form FC as prescribed by RBI
2. Form A2 for trade outward remittance as prescribed by RBI
3. Net worth certificate issued by Chartered Accountant
4. Application for making ODI on the letterhead of the applicant (Format provided by the bank)
5. Board Resolution authorizing proposed overseas direct investment
6. Valuation certificate of the overseas party working by an Indian Chartered accountant or A-class investment banker
7. The latest Audited balance sheet of the Indian Entity
8. Memorandum of Association of Indian Entity (Partnership deed in case of partnership firm) and that of overseas Company confirming the object of establishment
9. PAN of the Indian entity
10. Share sale/purchase agreement (SPA)

Q.) Can proprietorship firms and unregistered partnership firms make ODI under an automatic route?

No, proprietorship and unregistered partnership firms cannot make ODI under automatic route but Proprietorship concerns, unregistered partnership firms, registered trusts, and societies engaged in manufacturing, education, or hospital sectors may make investments in a JV/WOS outside India with prior approval from the RBI.

Q.) What is the difference between a joint venture and a wholly owned subsidiary in the context of ODI?

“Joint Venture (JV)” signifies a foreign body constituted, documented, or incorporated in compliance with the legislation and rules of the host nation wherein the Indian Party invests directly. Whereas “Wholly Owned Subsidiary (WOS)” represents a foreign entity created, registered, or incorporated following the laws and regulations of the host nation, with the Indian Party owning its full capital. So the main difference between the both is that in a Joint venture Indian party do not own 100% shares but in WOS Indian party owns 100% share.

Q.) What does Net Worth Include with context to Overseas Direct Investment (ODI)?

For companies, net worth consists of paid-up capital and free reserves and for partnership firms, it includes Partner’s capital.

Q.) What is the maximum permitted amount for making ODI under the automatic route?

The maximum permitted amount for Overseas Direct Investment (ODI) under the automatic route is up to 400% of the net worth of the Indian entity subject to the maximum amount of USD 1 billion.

Q.) Can we invest in installments for ODI?

No, for ODI investment should be made in a single shot but if it is written in the share sale/purchase agreement that the investment can be made in two or three tranches, then it can be made in installments provided that all installments are made within 180 days of making the first installment.

Q.) What is the time limit for submission of proof/share certificate after making an ODI?

Indian investors must receive share certificates or any other valid documentary evidence of investment in the foreign entity as an eligible form of proof. The time limit for submitting this proof to the bank is within six months from the date of remittance.

Q.) What is the highest amount that a person may invest abroad?

According to the LRS’s maximum authorized limit, a resident individual may invest up to USD 250 000 in the equity shares and mandatory convertible preferred shares of a joint venture (JV) or wholly owned subsidiary (WOS) outside of India.

Q.) Is hedging permitted for overseas direct investment?

Yes, Indian entities are permitted to hedge the risk arising out of currency fluctuation through forwards and options contracts.

Q.) What are the prohibited sectors where ODI is not permitted under automatic route?

1. Real estate: Investments in real estate or the purchase of immovable property, except to carry out business operations or establish a legal presence abroad.
2. Banking: Investments in foreign entities that are engaged in banking or financial services, without meeting the specific regulatory requirements.
3. Sectors subject to international sanctions: Investments in countries or sectors that are subject to international sanctions or embargoes, as imposed by the United Nations, the Indian government, or other relevant authorities.
4. Sectors prohibited by Indian law: Investments in sectors that are explicitly prohibited by Indian law, such as gambling and betting, lottery businesses, chit funds, or Nidhi companies.

Q.) What is the time limit for submission of the Annual Performance Report (APR)?

Indian entities that have made an overseas direct investment must submit an Annual Performance Report (APR) to the RBI, through their Authorized Dealer (AD) bank. The APR provides details about the financial performance of the overseas entity and should be submitted within 6 months from the end of each financial year of the overseas entity.

Q.) Should the Indian entity repatriate the profits and dividends earned from their Overseas Direct Investment?

1. Profits and dividends must be repatriated to India within a reasonable time, as per RBI guidelines. The Indian entity should not delay repatriation without valid reasons, and any delay in repatriation should be reported to the RBI through the AD bank.
2. The profits and dividends can be reinvested in the overseas entity, subject to compliance with the ODI guidelines. However, the Indian entity should report such reinvestment to the RBI through their AD bank.
3. Repatriation of profits and dividends should follow the laws and regulations of the host country and applicable tax treaties between India and the host country.

For any query and plans related to ODI, you may contact IBRLive and obtain professional consultancy.

10 powerful strategies of booking currency forward contract for exporters

by Deepak Madan | Aug 7, 2024 | Blog

In today’s volatile financial markets, forward hedging and forward contract hedging are essential tools for minimizing hedging currency risks. By implementing effective risk management with forward contracts, businesses can secure exchange rates and protect against adverse currency movements. This guide explores best practices for forward contracts, providing a forward hedging example and illustrating the benefits of hedging using forward contracts.

Booking a currency forward contract hedges your adverse currency movement risk, but by adopting the following strategies you may earn good profits out of it.

Always book partial exposure:

Booking a partial exposure is always a good idea. For example, if you are expecting an inward payment of USD 100000 then you may book 50% of your exposure i.e. USD 50000, and keep USD 50000 open.

This strategy will balance your currency exchange rate. If the current spot rate on the date of payment is above your booking rate then you have another USD 50000 to get that rate and vice versa.

Making significant bookings when domestic currency has depreciated a lot recently:

If the domestic currency (INR) has depreciated a lot(more than 2% to 5%) recently, you should book your upcoming & future exposure.

For Example, if the USD/INR pair has recently moved to 75 from 72 Rs. In this case, the domestic currency INR has depreciated by almost 4% and is supposed to appreciate in the future or will depreciate by a marginal amount.

So, booking most of your exposure for up to six months in that scenario is advisable.

Hedging a little less than your expected payment:

If you are expecting a payment of USD 100000 then most likely you will receive a little less because of correspondent bank charges.

You may receive an amount of USD 99950 in your bank’s Nostro account. So if you are planning to book the entire exposure then always book USD 500 less than your expected payment to avoid cancellation of the extra amount and charges thereon.

Check the exact premium before booking a currency forward contract:

You should check the exact premium before booking a contract so that you get exactly what is available in the market. You may refer to currency websites like ibrlive.com which displays the live forward rates.

Always opt for a one-month window:

For example, if you are booking a USD to INR forward contract for USD 100000 for a maturity on 20.09.2021 then you should ask your bank to provide a complete month window. You will get a window of one month starting from 20.09.2021 to 19.10.2021.

Please note that this window is provided because sometimes foreign payments can be delayed due to any reason. You will get a premium only till the start date i.e. 20.09.2021 but all your inward payments up to USD 100000 from 20.09.2021 till 19.10.2021 can be converted on the booking rate.

Never do booking more than your currency exposure:

For example, if you are expecting a payment of USD 100000 and you are finding the rate very attractive, never book more than your expected payment. Because no one can predict currency movements. In case of adverse movement, you may lose money for cancellation of the extra booking.

Book continuously:

Booking continuously is another good practice to follow. Booking currency forward contracts regularly helps to balance your currency rate.

Booking immediately after receiving the purchase order:

One should book immediately a partial amount of the contract after receiving the purchase order. This helps you prevent losses on account of adverse movement.

Consider booking for a shorter duration if you expect the domestic currency to appreciate.

if you are expecting a depreciation in domestic currency in a short span then you should book contracts for a shorter duration like for 15 days to 1 month.

Consider booking for a longer duration when you anticipate a decrease in the value of the domestic currency.

If you are expecting an appreciation in domestic currency then you should book contracts for a longer duration like for 2 months to 6 months.

So by following the above strategies, you may hedge currency exposure along with saving extra money. Please note that you should not completely rely on the above strategies as it is the author’s view. You may follow your strategies as well to form the right decision.

How to Avoid Paying Takeover Charges When Switching Banks?

by Deepak Madan | Aug 6, 2024 | Blog

A significant obstacle remains in the Indian banking system for MSMEs looking to move their credit facilities from one bank to another. When corporate clients decide to shift their credit facilities to another bank for better services and competitive pricing, their existing bankers often resort to threatening tactics by imposing heavy foreclosure charges, takeover charges and prepayment penalties. This practice poses a significant hurdle for clients seeking to switch to a new banking relationship. There is no such RBI notification on foreclosure charges for MSME customers, but the notification is for waiver of foreclosure charges for individual customers only.

However, IBRLive India Private Limited, a prominent player in the field, offers a solution to this predicament. By advocating for clients and writing to nodal offices and regulatory bodies such as the Reserve Bank of India (RBI), IBRLIVE helps waive off these charges, facilitating a seamless transition for clients while saving them substantial amounts of money.

Understanding the Banking Dilemma: The process of shifting credit facilities from one bank to another involves numerous complexities and efforts from both the customer and the prospective new bank. However, the existence of foreclosure charges imposed by the current banker often deters clients from making this transition. These charges, intended to dissuade clients from moving their accounts, create an unfavorable environment where customers feel trapped with their existing bank despite subpar services and non-competitive pricing.

Challenges Faced by MSME Clients:

1. Financial burden: Heavy foreclosure charges can be a significant burden on corporate clients, especially when they are already looking to switch banks due to financial constraints or unfavorable terms with their current bank.
2. Lack of competitiveness: Staying with an underperforming bank often means enduring high interest rates, limited credit options, and inadequate customer service, preventing clients from optimizing their financial strategies.
3. Opportunity cost: By sticking with an unproductive banking relationship, clients miss out on the potential benefits offered by other banks, such as lower interest rates, improved terms, and more favorable lending options.

IBRLIVE: Empowering a Smooth Transition: IBRLIVE India Private Limited, renowned for its expertise in corporate financial consultancy, steps in to alleviate the challenges faced by clients intending to switch banks. By employing their in-depth knowledge of banking regulations, industry practices, and the legal landscape, IBRLIVE assists clients in navigating the complexities of the transition process without incurring foreclosure charges.

Services Offered by IBRLIVE:

1. Advocacy and representation: IBRLIVE acts as a representative on behalf of clients, advocating for their rights and interests. They engage with nodal offices and regulatory authorities, such as the RBI, to highlight the unethical practice of imposing heavy foreclosure charges and the adverse impact it has on clients and the banking sector as a whole.
2. Expert consultation: IBRLIVE provides clients with personalized and comprehensive consultation services, guiding them through the intricacies of the transition process. Their team of experienced professionals ensures clients are well-informed about their options, rights, and legal safeguards.
3. Negotiation and resolution: IBRLIVE initiates dialogue with clients’ existing bankers, emphasizing the unjust nature of foreclosure charges and seeking a resolution that benefits both parties. Through negotiation and strategic communication, they strive to secure waivers or reductions in these charges, ultimately enabling a seamless transition to the new banking relationship.

Benefits of Partnering with IBRLIVE:

1. Financial savings: By successfully waiving off foreclosure charges, IBRLIVE helps clients save substantial amounts of money during the transition process. These savings can be directed towards business expansion, investments, or other areas that contribute to their overall growth and success.
2. Enhanced competitiveness: IBRLIVE enables clients to break free from uncompetitive banking relationships, empowering them to explore more favorable terms, competitive pricing, and superior services offered by new banks. This fosters an environment conducive to their financial objectives and future endeavors.
3. Streamlined transition: With IBRLIVE’s expertise and support, the transition to a new banking relationship becomes smooth and hassle-free. Clients can focus on their core business activities, confident that the complexities of the process are being efficiently handled by experienced professionals.

Conclusion: The banking culture in India often presents a significant hurdle for corporate clients looking to switch their credit facilities to new banks. The threat of heavy foreclosure charges imposed by existing bankers creates an environment where clients feel compelled to stay, even when confronted with inadequate services and non-competitive pricing. IBRLIVE India Private Limited, a corporate financial consultancy, aims to break this pattern by advocating for clients and facilitating a smooth transition process without incurring foreclosure charges. Through their expertise, negotiation skills, and representation, IBRLIVE empowers clients to explore better banking options, save money, and unlock their full financial potential.

Visit https://ibrlive.com or contact us if you are also under the dilemma of shifting to a new bank but afraid of the foreclosure threats by your existing bank.

Currency Forward Contract | Definition, Booking, Cancellation & Basic Requirements

by Deepak Madan | Jun 8, 2024 | Blog

What Is a Currency Forward Contract?

A currency forward contract can be defined as buying or selling a specific currency at a specified future price for delivery on a specified future date.

Who Can Book a Currency Forward Contract?

Any importer or exporter having exposure to foreign currency can book a forward contract with its bank based on underlying (purchase order or pro forma invoice) to hedge his currency movement risk.

How to Book a Currency Forward Contract?

Step 1: On request, the bank set up a forward booking limit on behalf of its client. To set up the forward booking limit bank demands a fixed deposit of approx. 5% of your total booking requirements in the INR term. For example, if you want to book USD100000 then you will have to produce a fixed deposit of Rs. 375000.00 to your bank (considering USD/INR at 75.00). If you are a credit customer then the bank may also set up the limit based on your collateral mortgaged with the bank.

Step 2: You must produce an underlying (valid purchase order or pro forma invoice) mentioning the delivery and payment terms before your bank to book a currency forward contract.

Step 3: The Bank gives you a forward rate and with your consent, book the same. For example, if you want to book USD 100000 for delivery after the end of 3 months. Considering the current USD to INR spot rate of 75.00, the bank may give you a forward rate of 75.90. Here 0.90 is the premium for three months. Please note that exporters get the benefit of premium and importers have to pay the premium because USD is almost on premium in comparison to INR. You may refer to ibrlive.com for live forward rates.

Step 4: On successful booking of the contract bank agrees, generally on a 100 Rs. Stamp paper. The agreement contains all details of the contract and it is signed by both the bank and the client.

How Currency Forward Contracts Are Utilized?

On successful arrival of payment against export or sending the payment for import on the maturity date of the forwarding contract, the bank gives you the same rate which was booked earlier under the forwarding contract irrespective of the current spot rate on the maturity date.

A forward contract can be utilized for other payments irrespective of the underlying (purchase order or pro forma invoice) on behalf of which it was booked.

Early utilization of forwarding contracts is also possible if your payment has come earlier than the expected date.

Where to Check Exact Forward Premiums and Forward Rates?

Many websites show the month-wise or broken date forward rates for a subscription basis. You may refer to ibrlive.com to know the exact premiums and final forward rate, even for broken dates.

Advantages of Currency Forward Contract

For importers & exporters, the main advantage of booking a currency forward contract is to hedge their foreign currency exposure from adverse movements.

Exporters booking a forward contract for USD to INR, EUR to INR, GBP to INR or any major currency get the benefit of a premium added to the present spot rate.

Can I Cancel a Forward Contract?

Yes, the forward contract can be cancelled on the maturity date or 3 days after the maturity date. Cancellation is done on a spot rate and any profit or loss will be passed on to the customer if the same is cancelled on or before the maturity date.

If the forward is cancelled any day between the 3 days grace period, then the profit will not be passed on to the customer but any loss will be recovered from his account.

A forward contract can also be cancelled before the maturity date. Apart from profit & loss calculation from spot day, the client will also have to forgo extra premium from the date of cancellation to maturity.