India the business opportunity by Dr. Linda Spedding, Eastern Book Company (2016)

Chritarth Palli reviews this book on it being a practical handbook for understanding the legal and regulatory affairs in India in order to do business in India.

The business world today is facing a global slump with developed nations growing at an ordinary rate of 2-4 percent annually. Amid the sluggish milieu, one country that manages to defy that trend is India. With its growth rate consistently in excess of 7 percent it has become the fastest growing economy of the world. The galloping rate with which India is progressing has caught the attention of the world and has made it an investor magnet. This is the sentiment that echoes in the introductory chapter of the book, ‘Overview’, “The world is looking at India, looking to it”. The current situation being so, triggers the need for the world to know India better, to understand India better. The book is in the form of a compilation of chapters each dealing with a particular issue related to doing business in India. Thus it is an attempt by authors of the various chapters to achieve the same and is written with a spirit to build a holistic understanding of the reader in fields impacting business in India.

The 1st chapter is an overview that acquaints the reader with (a) how establishing a business needs to begin with an understanding of foreign exchange and how it is monitored in India by three regulatory bodies i.e. the Reserve bank of India (RBI), Department of Industrial Policy and Promotion (DIPP) and the Foreign Investment Promotion Board (FIPB) (b) what the different laws regulating business in India are, for example, Company law, the employment of manpower under the various Labour laws, the Intellectual property regime and the Competition Act (c) the system of taxation in India - The two types of taxes (direct and Indirect) and how the Goods and Sales tax (a unified taxation system for indirect taxes) is in the offing and (d) the hierarchy and network of courts in India i.e. Trial courts, High Courts, Supreme Court and specialized Tribunals.

The 2nd chapter being the most topical one discusses (a) the types of legal entities i.e. corporations, private companies, public companies, sole proprietorships and LLPs - their nature and functioning according to domestic laws (b) alternate entry points for formation of legal entities i.e. joint ventures, franchise agreements and portfolio investments (c) Foreign Direct Investment and its regulatory framework in 5 major sectors namely retail, insurance, telecommunications, real estate and banking.

The Editor herself writes the 3rd and 4th chapter, which touch the ‘social’ and ‘psychological’ elements of the consumer-supplier relationship. The chapters deal with (a) corporate responsibility – how there is a greater demand for transparency and the shift in business psyche from ‘profit for stakeholders’ to ‘reputation management discussion’ / ‘assessment of impact of policies’ (b) advantages of adopting a corporate social responsibility model fulfilling sustainable practices for optimizing natural resources, employees and the environment (c) how we need to protect and reward whistleblowers. Dr. Spedding notes that the Indian parliament has initiated a Whistle Blowers Protection bill that has not acquired the status of a law (Act) and there exists a void for a law catering to the subject (d) importance of ethics in business and how there is an increased need for transparency and accountability in India due to proliferation of business in recent times and (e) an illustrative account of mishaps across the globe and their consequences which underline the significance of ‘reputational risk’ in business today.

The 5th chapter caters to the facilitation and execution of plans of big-ticket corporates operating in India by ‘mergers and acquisitions’. The author here draws a legal map on how the mergers take place in India. The contents range from (a) the different investment instruments in India (i.e. equity shares, preference shares, debentures and share warrants) and conditions a foreign investor must meet to purchase these instruments (b) due diligence – how the exercise aids in creating awareness about the business plans, customers, contracts, etc and avoids non compliance of legal provisions (c) an illustrative account of major impediments that often arise in mergers and acquisitions (d) preliminary information about options to liquidate the investment and follow the exit route (e) the procedure of acquisition of shares of a private company or public company and the limitations attached with it (f) the 3 popular modes of acquisitions i.e. slump sale, asset transfer and share acquisition (g) how acquisition of listed companies require additional compliances.

The 6th and 7th chapters talk about raising capital for equity and debt respectively, they familiarize the reader with the different routes an investor can take to accumulate ‘equity capital’ i.e. (a) an initial public offering (b) Global Depository Receipts (c) Qualified Institutions placement (d) Rights issue and (e) bulk and block deals.

After the difference is carved out between equity capital and debt financing the author covers Debt financing from the stage of creating a ‘Charge of over the property’ to the final ‘Enforcement of claims’ in the eventuality of a default of payment. The reference to the ‘Proposed Bankruptcy Code 2015’, which has recently attained the status of a law, assumes great relevance since the new legislation seeks to transform debt recovery in India and even according to the World Bank report on the ‘Ease of doing business’; India has been rated low on the global debt recovery index. In this backdrop, the illumination on debt recovery would be well received, as it constitutes one of the major conditions the investors consider before investing.

Chapter 8 deals with corporate governance. It starts with the fact that India has borrowed most principles/norms from developed economies like UK and USA but there is variance on account of application of those norms in India. The Author has explained the structure of a company and its operations by dint of domestic legal provisions. There is also a demonstration by drawing a time line of events proving that Corporate Governance principles are still in the state of evolution in India, for example the ‘Compensation Awarded to Executives’ is still rising compared to developed markets and ‘Related Party Transactions’ have only recently been put under regulation in Companies Act 2013.

Chapter 9 discusses Labour and Employment Laws. This area is very important for an investor because after the initial investment every business requires skilled labour regulated by domestic laws for smooth and stable functioning of their enterprise. The Constitution of India empowers both State government and Central government to enact laws relating to employment. The chapter deals with a total of 20 Central laws that monitor the employee-employer relationship. The author explains (a) various types of employees, (b) certain uniform conditions of service applicable across the board that are paramount because they are inducted in the governmental ‘Standing Orders’ (c) types of employment contracts i.e. permanent, temporary, probation, casual, etc. (d) all incidental avenues of employment, for example, salaries, allowances, occupational health standards, compensation, pension, etc. (e) concepts of ‘retrenchment’ of employees, ‘closure’ of any undertaking, ‘laying off’ an employee and ‘strike and lockout’ declared by workers which are essential because they generate majority of the litigation in Labour law.

Chapters 10 and 11 are on topics that have gained importance in recent times and have just begun developing in India such as Intellectual Property Rights (IPR) and Competition law. The intellectual property law in India consists of trademarks, copyright, patents, designs and geographical indications. The Author has dealt with each of the instruments by discussing (a) their largely similar procedures for obtaining protection in India (b) the grounds for refusal of the application seeking protection of rights (c) registration of rights to protect the property (d) actions to revoke registration of the protected property.

The Author then deals with the historical evolution of the MRTP Act, 1969 (Monopolies and Restrictive Trade Practices) to the Competition Act, 2002 operational in India today. What investors and analysts would understand from the discussion is - the major impediment of lack of evidence against cartels, the process of complaints /investigation of alleged combinations and the trend of horizontal agreements being subjected to stricter scrutiny than vertical agreements.

Chapter 12 is a critique on the condition of Indian infrastructure. The author tells the reader how there is a pressing need for improvement in various departments of infrastructure especially in the current state of affairs where investors, domestic and foreign are desirous of setting shop in India. The discussion aims to suggest a solution to this problem by encouraging the government to use the PPP route, which has been followed in a few cases in the recent past i.e. development of the National Highways.

Chapter 13 and 14 deal with Tax, which is, one of the most important aspects considered by investors before investing monies. There are chapters dedicated to both types of taxes i.e. Direct and Indirect tax. As far as Direct taxes are concerned, the author enunciates how tax operates in various commercial dealings - (a) the implications of tax incase a foreign investment has to enter India (b) taxation in case of cross border trade with India (c) tax implications during corporate transactions of acquisition, merger, etc.

The appraisal of the ‘Proposed Good and Services Tax’ in India is much needed in the Indirect Tax department as it is aims at reforming the flaws of the current taxation system. An understanding of the new proposed regime is essential because it is just a matter of time till the NDA would have sufficient numbers in the Rajya Sabha to pass this bill.

Chapter 15 deals with Arbitration, which is the preferred mode of dispute resolution in light of the surging pendency in courts. As a consequence, all contracts invariable have an arbitration clause in today’s day and age. The Author dwells on a journey from ‘drafting an arbitral agreement’ to ‘enforcement of an award’. The same provides a reasonable idea about the benefits of Arbitration and apprises the reader about the options/choices parties have with regard to the procedure to be followed, institute selected for the arbitration, appointment of the arbitrator, etc.

Chapter 16 talks about Environment law, the Author cautions investors about the painstaking exercise of obtaining clearances in India. The same also finds reverberation in the World Bank Report on ‘Ease of Doing Business 2016’ (that is complied on various parameters inclusive of environmental clearances) under the title ‘dealing with construction permits’, as per the ratings, India is ranked at 183, which is, one of the worst in the world. The same is atributed to the number of procedures that need to be complied with ‘before construction can commence’ for instance, in India the number of procedures are 40 on an average compared to 12 in OECD countries. Despite that being the case, no concrete steps have been taken by the government to change the scenario, making it all the more important to know and comply with these procedures.

In Chapter 17, the Author talks about Cyber laws and how the government of the day has recognized the boons of internet and has provided access to all ‘Stage-agencies’ online. The intent of the Prime Minister is manifest in the digital India campaign where the agenda is to connect the entire country through the internet. The Author has discussed the importance of intermediaries as ‘respositories of data’ and the provisions ‘protecting private/confedential data’. Cyber laws may not be directly related to business but since the world is moving to an E-platform making it the preffered mode of transcations today, one must be abreast with the developments in this field.

The book culminates with a deduction and summary of the business opportunity in India in light of the above chapters. Dr. Spedding has applauded the Modi government for the initiatives taken to make the environment conducive to commercial development, such as – (a) skill development of our young population, (b) expenditure on roads and ports to improve connectivity, (c) making all state services available on an E-platform, (d) initiation of the GST bill, (e) promoting the ‘Make in India’ campaign, (f) supplying power to businesses, etc. The Author in the presence of certain pitfalls like infrastructure, uneven development, illiteracy and unskilled population forecasts a bright future at the horizon for India.

This book comes at an opportune time and provides the reader the much-needed comprehensive understanding of the Indian market dynamics. Dr. Linda Spedding being an aficionado in the comparative commercial sphere adds another edition to her oeuvre in 18 chapters spread over 700 pages. The theme of the book is to touch major aspects that ought to have a bearing on business in India either directly or indirectly. The assigning of chapters on niche areas to advocates practicing in those very subjects has given greater depth to the book. One appreciable pattern in every chapter is the ease with which the Authors start to explain the basic concept and slowly graduate from an elementary level to a professional level. With the increasing awareness/knowledge/specialization in field specific work today, ‘India – The Business Opportunity’ comes as an ideal capsule for investors, analysts and lawyers alike because it gives a detailed account of all laws impacting Indian commerce in a single compilation.