NEW ODI REGIME | EFFECT ON CROSS BORDER STRUCTURING

 Following the overhaul of the foreign investment regime through introduction of the non-debt instrument rules, Ministry of Finance also attempted to overhaul the overseas investment regime. On August 22, 2022, Ministry of Finance notified: (a) Foreign Exchange Management (Overseas Investment) Rules, 2022 (“OI Rules”) in supersession of the earlier regime, i.e. (i) the Foreign Exchange Management (Transfer or Issue of Any Foreign Security) Regulations, 2004; and (ii) the Foreign Exchange Management (Acquisition and Transfer of Immovable Property Outside India) Regulations, 2015 (together “Old ODI Regime”).

Immediately thereafter, the Reserve Bank of India (“RBI”) also notified Foreign Exchange Management (Overseas Investment) Regulations, 2022 and Foreign Exchange Management (Overseas Investment) Directions, 2022. (collectively, and along with OI Rules, “New ODI Regime”).

While the New ODI Regime brought about significant changes, the most critical revision for the new age Indian businesses has been legitimisation of round tripping transactions and permitting cross border corporate structuring.

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