Legal considerations of investing in india

Investing in India: An Overview of Legal Considerations

Foreign investment is a key contributor to India’s growth story and India continues to consistently experience growth in inflow of foreign direct investment (“FDI”). The Government of India has announced that the provisional figure of FDI inflow into India for the financial year ended March 31, 2023 was USD 71 billion and according to the United Nations Conference on Trade and Development (UNCTAD) World Investment Report, India remains a favored destination for global investors.
In this note we discuss certain key legal considerations for a foreign investor investing in India.
 


Considerations in Outbound Foreign Investment

Geopolitical and National Security Considerations in Outbound Foreign Investment

In a world characterized by geopolitical shifts and heightened national security concerns, the realm of foreign investment is undergoing a profound transformation. Disruptive events, evolving alliances and strategic recalibrations are increasingly influencing how nations perceive the risks and opportunities associated with foreign investment. As international power structures continue to evolve, the rise of new global players – coupled with technological competition in emerging sectors, underscore the need for nations to reassess their foreign investment strategies in alignment with broader geopolitical goals.
In turn, businesses may be expected to not only navigate multiple FDI regimes in the future, but different outbound screening regulations too. Although the final scope of outbound investment review regimes is still being decided, both the US and the EU have indicated that critical technologies which have the potential to advance military and dual-use capabilities, especially in respect of outbound investment into strategic adversaries, will be additionally scrutinized. Accordingly, investors may need to integrate such factors in their due diligence and risk management processes.


Disclosure Requirement SEBI Listing Regulations

Assessing the Sweep of a Recently Introduced Disclosure Requirement in the SEBI Listing Regulations

On June 14, 2023, the Securities and Exchange Board of India (“SEBI”) notified certain amendments to the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (“SEBI Listing Regulations”). The amendments are designed to strengthen corporate governance in listed entities by enhancing shareholder suffrage and disclosure of material events. Notably, the amendments introduced a new Regulation 30A that is to be read with a newly inserted Clause 5A of Paragraph A of Part A of Schedule III to the SEBI Listing Regulations (“Clause 5A”). Regulation 30A mandates shareholders, promoters, promoter group entities, related parties, directors, key managerial personnel, and employees of a listed entity or of its holding company, subsidiary, or associate company (“Specified Persons”) to notify the listed entity as and when any of them enters into agreements covered by Clause 5A (“5A Agreements”).
This note highlights the key features of Clause 5A and outlines certain practical considerations for Specified Persons and listed entities.


Amendments to the Voluntary Delisting Process

Proposed Amendments to the Voluntary Delisting Process

The Securities and Exchange Board of India issued a consultation paper proposing certain amendments to the Securities and Exchange Board of India (Delisting of Equity Shares) Regulations, 2021. Amendments have been proposed to the counter-offer mechanism of the reverse book-building process, manner of calculation of floor price and the determination of the reference date. A fixed-price route for delisting and a framework for delisting of investment holding companies have also been proposed. This note summarizes the proposed changes to the voluntary delisting process.


Listing Obligations and Disclosure Requirements

SEBI Tightens Governance Norms for Listed Entities

On June 14, 2023, the SEBI tightened governance requirements for listed entities by amending the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015. One of the key changes brought about by the SEBI is to the disclosure regime under Regulation 30 of the LODR Regulations, which will become effective on July 14, 2023. This note discusses these changes and their implications.


SEBI Listing Regulations

Recent Amendments to the SEBI Listing Regulations: Additional Disclosure of Agreements and Special Rights to Shareholders

On June 14, 2023, the SEBI introduced certain amendments to the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015, including in relation to disclosure of agreements entered into by or in relation to listed companies and approval by shareholders for special rights granted to shareholders.
While the amendments aim to create a more robust compliance framework and increase transparency and accountability of listed entities, they are likely to lead to additional compliance burden for listed entities and reduce flexibility to shareholders to enter into inter-se arrangements.


Underwriting Framework for Public Issues

SEBI Modifies Underwriting Framework for Public Issues

On May 23, 2023, the Securities and Exchange Board of India amended the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018 to effect changes to the underwriting framework applicable to public offerings. Essentially, the SEBI amendment mandates that if an issuer making a public offering through the book-built route desires to have the offering underwritten to cover any under-subscription (referred to as hard underwriting), it is required to enter into an underwriting agreement with the underwriters upfront and prior to filing the red herring prospectus and make necessary disclosures of the underwriters’ commitment in the RHP. This note discusses the key changes made by SEBI to the regulations governing hard underwriting in book-built public offerings in India.


SEBI v. Abhijit Rajan

SEBI v. Abhijit Rajan: A Flawed Interpretation of the Insider Trading Regulations?

In September 2022, the Supreme Court of India in SEBI v. Abhijit Rajan interpreted the insider trading regulation in India to include a ‘profit motive’ as an essential requirement for establishing a charge of insider trading. This note analyzes the Supreme Court judgement and highlights certain issues that arise for consideration following such judgement. 


InvIT and REIT Regulations

InvIT and REIT Regulations: Recent Amendments

This note provides an overview of the amendments that were issued on February 14, 2023 by the Securities and Exchange Board of India to the SEBI (Infrastructure Investment Trusts) Regulations, 2014 and the SEBI (Real Estate Investment Trusts) Regulations, 2014. The amendments primarily introduce governance-related requirements for investment managers of InvITs and REITs and apply to all InvITs and REITs, including those proposing to register or list. The amendments also include certain requirements with respect to the appointment of auditors of InvITs and REITs, limited review of the accounts of assets of InvITs and REITs and the treatment of unclaimed distributions. Clarifications in relation to the calculation of leverage thresholds and the definition of change in control under the regulations are also part of the amendments. The governance norms and the clarifications to the definition of change in control are effective from April 1, 2023 and the other provisions are effective immediately.