Introduction
With globalization redefining business boundaries, Overseas Investments by Indian entities and individuals have witnessed a steady rise. Whether it’s setting up a wholly owned subsidiary abroad or acquiring shares in a foreign company, such cross-border transactions are governed under the Foreign Exchange Management Act, 1999 (FEMA).
This blog demystifies the Overseas Investment (OI) regulations under FEMA, highlights key legal provisions, and outlines the compliance framework introduced through the revamped Foreign Exchange Management (Overseas Investment) Rules and Regulations, 2022.
What is Overseas Investment under FEMA?
Overseas Investment (OI) refers to investment made by persons resident in India in the capital of foreign entities. Such investments could be:
- Equity capital (shares or capital contribution),
- Debt instruments (such as loans or guarantees), or
- Other financial commitments.
FEMA governs these transactions to regulate the outflow of foreign exchange and ensure economic stability.
Key Legal Framework for Overseas Investment
The regulatory framework governing overseas investment includes:
1. FEMA, 1999
The umbrella legislation empowering the Reserve Bank of India (RBI) to regulate capital account transactions, including investments outside India.
2. Foreign Exchange Management (Overseas Investment) Rules, 2022
Notified by the Central Government under Sections 46 and 47 of FEMA, these rules replaced the earlier 2004 regulations and became effective from August 22, 2022.
3. Foreign Exchange Management (Overseas Investment) Regulations, 2022
Issued by the RBI to complement the above Rules, these regulations provide operational guidelines.
4. Master Direction on OI
RBI’s Master Direction consolidates the procedures, limits, and reporting requirements for overseas investments.
Classification of Overseas Investment
The OI framework classifies investments into two categories:
1. Overseas Direct Investment (ODI)
Investment by way of acquisition of control or significant ownership (≥10%) in a foreign entity, including setting up Joint Ventures (JV) or Wholly Owned Subsidiaries (WOS).
2. Overseas Portfolio Investment (OPI)
Investment in less than 10% equity or where no control is exercised — usually for passive investment purposes.
Who Can Invest Overseas?
✅ Resident Individuals
Under the Liberalized Remittance Scheme (LRS), individuals can invest up to USD 250,000 per financial year in OPI and certain ODIs.
✅ Indian Entities
Companies, LLPs, and registered partnership firms are eligible to make ODI/OPI in accordance with the Rules.
✅ Registered Trusts and Societies
Subject to certain conditions, these can also invest abroad in specific sectors.
Routes of Overseas Investment
Overseas investment can be made under:
- Automatic Route: No prior approval from RBI required; subject to conditions.
- Approval Route: Prior approval required for certain sectors, jurisdictions (like Pakistan), or non-compliant structures.
Key Conditions and Restrictions
- Investments in foreign entities engaged in real estate, gambling, or financial products linked to the Indian rupee are prohibited.
- Round-tripping structures (investment in Indian entities via a foreign entity) are allowed but upto 2 layers.
- Investment must be in a bona fide business activity.
Compliance and Reporting Requirements
- Filing of Form FC on RBI’s FIRMS portal within 30 days of investment.
- Annual Performance Reports (APR).
- Reporting of disinvestment or changes in investment structure.
Failure to comply may attract penalties under Section 13 of FEMA.
Conclusion
Understanding FEMA’s overseas investment regulations is crucial for Indian investors eyeing global expansion.
The 2022 reforms are a progressive step towards aligning with India’s vision of becoming a $5 trillion economy by enabling smoother outbound investments.
