The Reserve Bank of India released on its website today, the “Discussion Paper on Presence of Foreign Banks in India”
1.1 In 2005, the Reserve Bank released the “Road map for presence of foreign banks in India” laying out a two track and gradualist approach aimed at increasing the efficiency and stability of the banking sector in India. One track was the consolidation of the domestic banking system, both in private and public sectors, and the second track was the gradual enhancement of foreign banks in a synchronised manner.
The Road map was divided into two phases, the first phase spanning the period March 2005 – March 2009, and the second phase beginning after a review of the experience gained in the first phase. However, when the time came to review the experience gained in the first phase, global financial markets were in turmoil and there were uncertainties surrounding the financial strength of banks around the world. At that time it was considered advisable to continue with the current policy and procedures governing the presence of foreign banks in India.
1.2 Governor on April 20, 2010, in his Annual Policy Statement for 2010-2011 indicated that while global financial markets have been improving, various international fora have been engaged in setting out policy frameworks incorporating the lessons learnt from the crisis. Furthermore, there was a realisation that as international agreement on cross-border resolution mechanism for internationally active banks was not likely to be reached in the near future, there was considerable merit in subsidiarisation of significant cross-border presence. Apart from easing the resolution process, this would also provide greater regulatory control and comfort to the host jurisdictions. In the Policy Statement it was announced “Drawing lessons from the crisis, it is proposed to prepare a discussion paper on the mode of presence of foreign banks through branch or WOS by September 2010” (paragraph 100).
1.3 Accordingly, this discussion paper on the form of presence of foreign banks in India has been prepared taking into account, inter-alia, the lessons learnt from the recent global financial crisis and the practices followed in other countries. Based on the feedback received on the approach outlined in the discussion paper, the Reserve Bank will frame detailed guidelines on the presence of foreign banks in India.
2. Existing framework
The road map unveiled in 2005 comprised two phases – Phase I (March 2005 to March 2009) and Phase II (April 2009 onwards).
A copy of the “Roadmap for presence of foreign banks in India” released with the Press Release dated February 28, 2005 is attached as Annex 1.
During the first phase, foreign banks were permitted to establish presence by way of setting up a wholly owned banking subsidiary (WOS) or conversion of the existing branches into a WOS. The guidelines covered, inter alia, the eligibility criteria of the applicant foreign banks such as ownership pattern, financial soundness, supervisory rating and the international ranking. The WOS was to have a minimum capital requirement of Rs.300 crore i.e. Rs.3 billion and would need to ensure sound corporate governance.
The WOS was to be treated on par with the existing branches of foreign banks for branch expansion with flexibility to go beyond the existing WTO commitments of 12 branches in a year and preference for branch expansion in under-banked areas. The Reserve Bank had indicated that it may also prescribe market access and national treatment limitation consistent with WTO as also other appropriate limitations to the operations of WOS, consistent with international practices and the country’s requirements.
3. Branches vs Subsidiaries
3.1 Regulatory control perspective
3.1.1 Recent global financial crisis have brought out that (a) complex structures (b) too big to fail (TBTF) and (c) too connected to fail (TCTF) have exacerbated the crisis. The post-crisis lessons support domestic incorporation of foreign banks i.e. subsidiarisation.
3.1.2 Branches are not separate legal entities whereas subsidiaries are locally incorporated separate legal entities. Subsidiaries being locally incorporated have their own capital base and their own local board of directors. In the case of branches, parent banks are, in principle, responsible for their liabilities.
3.1.3 The main benefits associated with branches are (i) greater operational flexibility, (ii) increased lending capacity (loan size limits based on the parent bank’s capital) and (iii) reduced corporate governance requirements. Branches are generally not allowed to take retail deposits or enjoy deposit insurance. (The position in this regard in some countries is given in the Annex 2). While the branch form of presence can have its own advantages such as stronger support from the parent could be forthcoming in situations of local adversity of the branch, internationally it is generally understood that with a branch it may be difficult to determine the assets that would be available in the event of failure of the bank to satisfy local creditors’ claims and the local liabilities that can be attributed to the branch.
As branches are part of the head office, assets attributable to it can easily be transferred by the branch to the foreign head office. Further the management of a branch does not have a fiduciary responsibility to the branch’s local clients. In fair weather it may not be of much relevance but in times of crisis, the distinction between the branch and the rest of the bank, and the legal location of assets and liabilities, may well become very important.
3.1.4 Cross Border Resolution Issues with branches
Insolvency procedures may differ by the approach taken by each country. Some countries follow a “separate-entity” doctrine and thus are able to place their depositors and creditors before those of other countries. For example, Australia and USA have enacted rules under which home country depositors or creditors are senior claimants over depositors from branches located overseas during bankruptcy proceedings. Other countries follow “single-entity” doctrine and consider a bank and its foreign branches as a whole and give an equal treatment to all creditors irrespective of domicile unlike Canadian and American legislations that allow the authorities to separate the branch from its parent and use the assets to cover the liabilities under the host country regulations. During liquidation of a foreign bank’s branch, US authorities can collect all the assets of the foreign bank in their jurisdiction, even when those assets do not belong to the branch; hence, more assets will be available to reimburse the claimants of an ailing foreign bank’s branch. Moreover, in the case of a bank failure the FDIC is authorized to bill the cost of the failure to affiliate or sister banks.
In order to overcome these limitations the Cross Border Bank Resolution Group (CBRG) of BCBS has come out with its recommendations based on the lessons from the crisis, delineating two approaches viz. ring fencing or territorial approach and universal approach. The CBRG recommends a “middle ground” approach that recognises strong possibility of ring-fencing in a crisis. This approach entails certain changes to national laws and resolution frameworks. An alternative approach would be establishing a universal framework for the resolution of cross border financial groups, which puts all creditors on same footing. Though some jurisdictions including India stipulate locally assigned capital for branch mode of presence which serves the purpose of ring fencing, setting up subsidiaries clearly provides for ring fenced capital within the country.
3.1.5 In view of the above mentioned facts a number of jurisdictions therefore impose a local incorporation requirement for foreign banks mainly for two reasons (i) to protect retail depositors and (ii) to limit operations of systemically important banks.
3.1.6 In general, following are the main advantages of local incorporation:
(i) it ensures that there is a clear delineation between the assets and liabilities of the domestic bank and those of its foreign parent and clearly provides for ring fenced capital within the host country.
(ii) it is easier to define laws of which jurisdiction applies since laws characterize a subsidiary as a locally incorporated entity with its own capital.
(iii) a locally incorporated bank has its own board of directors and these directors are required to act in the best interests of the bank, to prevent the bank from carrying on business in a manner likely to create a substantial risk of serious loss to the bank’s creditors.
(iv) local incorporation provides more effective control in a banking crisis and enables the host country authorities to act more independently as against branch operations.
3.1.7 It must however be recognised that setting up of subsidiaries does not necessarily ensure support from the parent bank in all weathers. International experience has shown that “comfort letters” provided by the holding companies is not a source of strength as their enforceability in times of stress is very often questioned. In fact numerous examples can be cited from the Argentine crisis and banks such as from Malaysia which abandoned their subsidiaries when faced with a crisis. Similarly holding companies are not necessarily a source of support to their subsidiaries in certain circumstances. The insolvency of a parent or ring fencing of liquidity by parent’s home country regulator can have same effect on subsidiaries as well as branches. In many instances international groups manage liquidity centrally and place it with various subsidiaries on a short-term basis and in such cases the failure of parent necessarily may result in the immediate failure of the subsidiary.
3.1.8 A down side risk with subsidiaries may arise from financial stability perspective if they come to dominate the domestic financial system due to their being locally incorporated entities. It has come to the fore that subsidiaries promoted by foreign banks, where they had large presence, had not only acquired large share at the expense of domestic banks in the boom years but when the home countries were afflicted they had tended to substantially curtail their operations in or withdraw from the host country. Indian experience in this regard even with branch mode of presence has been no exception as the foreign banks had withdrawn substantially from the credit markets in India to the extent that y-o-y growth of credit was -7.1% (as on July 3, 2009) and -15.9% (as on October 9, 2009). However, through prudential measures, like limiting the size of the foreign bank branches and subsidiaries, it can be ensured that the domestic financial system is not dominated by foreign banks.
3.1.9. On balance however weighing the pros and cons of the branch form of presence against the subsidiary form of foreign banks, the advantages in WOS outweigh downside risks. In the light of experience gained, particularly, in the recent global crisis, subsidiary form of presence appears to be a preferred mode for the presence of foreign banks. The regulatory comfort that local incorporation of WOS provides as compared to the branches of foreign banks would also justify a preference for WOS.
4. Proposed Framework for Presence of foreign banks in India
4.1 There are currently 34 foreign banks operating in India as branches. Their balance sheet assets, accounted for about 7.65 percent of the total assets of the scheduled commercial banks as on March 31, 2010 as against 9.03 per cent as on March 31, 2009. In case, the credit equivalent of off balance sheet assets are included, the share of foreign banks was 10.52 per cent of the total assets of the scheduled commercial banks as on March 31, 2010, out of this, the share of top five foreign banks alone was 7.12 per cent.
4.2. The policy on presence of foreign banks in India has followed two cardinal principles of (i) Reciprocity and (ii) Single Mode of Presence. These principles are independent of the form of presence of foreign banks. Therefore, these principles should continue to guide the framework of the future policy on presence of foreign banks in India.
4.3 Following factors seem relevant for any framework for future policy on presence of foreign banks in India:
Prima facie the branch mode of presence of foreign banks in India provides a ring-fenced structure as there is a requirement of locally assigned capital and capital adequacy requirement as per Basel Standards. Certain provisions of the BR Act1 also delineate the separate legal identity of branches of foreign banks in India. Further, under section 584 of the Companies Act, though the company incorporated outside India is dissolved, if it has ceased to carry on the business in India, it may be wound up as an unregistered company. However, except for the assets specifically ring-fenced under Section 11(4) of the BR Act, the claim of domestic depositors and creditors over other assets is yet to be legally tested.
Keeping the above in view, on balance, the subsidiary model has clear advantages over the branch model despite certain downside risks. However, under the extant policy as laid down in 2005 Roadmap, no foreign bank has approached RBI, for setting up a subsidiary, may be due to lack of incentives. Hence there may be a need to incentivise subsidiary form of presence of foreign banks.
From financial stability perspective there would be a need to mandate at entry level itself subsidiary form of presence (i.e. wholly owned subsidiary-WOS) under certain conditions and thresholds. It would likewise be mandatory for those fresh entrants who establish as branches to convert to WOS once they meet the conditions and thresholds referred to above or which become systemically important over a period by virtue of their balance sheet size.
While deciding the approach towards conversion of existing foreign bank branches, India’s commitments to WTO will have to be kept in mind.
It may not, therefore, be possible to mandate conversion of existing branches into subsidiaries. However, the regulatory expectation would be that those foreign banks which meet the conditions and thresholds mandated for subsidiary presence for new entrants or which become systemically important by virtue of their balance sheet size would voluntarily opt for converting their branches into WOS in view of the incentives proposed to be made available to WOS.
The branch expansion of both the existing foreign banks and the new entrants present in the branch mode would be subject to the WTO commitments.
5. Eligibility of the parent bank
5.1 Foreign banks applying to the RBI for setting up their WOS/branches in India must satisfy RBI that they are subject to adequate prudential supervision in their home country. In considering the standard of supervision exercised by the home country regulator, RBI will have regard to the Basel standards.
5.2 The setting up of WOS/branches in India should have the approval of the home country regulator.
5.3 Other factors (but not limited to) that will be taken into account while considering the application for setting up their presence in India are given below:
Economic and political relations between India and the country of incorporation of the foreign bank
Financial soundness of the foreign bank
Ownership pattern of the foreign bank
International and home country ranking of the foreign bank
Rating of the foreign bank by international rating agencies
International presence of the foreign bank
6. Entry norms
6.1.1 In the light of the experience gained during the recent global financial crisis, it may be advisable to mandate presence in form of subsidiaries, at least in case of certain category of banks, on prudential grounds, at the entry point itself. From financial perspective, therefore, following category of banks may be mandated entry in India only by way of setting up a Wholly Owned Subsidiary (WOS):
Banks incorporated in a jurisdiction that has legislation which gives deposits made/ credit conferred, in that jurisdiction a preferential claim in a winding up.
Banks which do not provide adequate disclosure in the home jurisdiction.
Banks with complex structures,
Banks which are not widely held, and
Banks other than those listed above may also be required to incorporate locally, if the Reserve Bank of India is not satisfied that supervisory arrangements (including disclosure arrangements) and market discipline in the country of their incorporation are adequate or for any other reason that the Reserve Bank of India considers that subsidiary form of presence of the bank would be desirable on financial stability considerations.
6.1.2 Foreign banks in whose case the above conditions do not apply can opt for a branch or WOS on entry in accordance with the single mode of presence requirement as stated in Para 4.2. However, it would be mandatory for banks which opt for branch mode of presence to convert themselves into WOS if :
a) any of the conditionalities as mentioned in Para 6.1.1 materialise in the judgement of Reserve Bank of India or
b) they become systemically important by virtue of their balance sheet size. Foreign bank branches would be considered to be systemically important once their assets (on balance sheet and credit equivalent of off-balance sheet items) become 0.25% of the total assets (inclusive of the credit equivalent of off-balance sheet items) of all scheduled commercial banks in India as on March 31 of the preceding year.
6.2 Existing bank branches
As regards the conversion of foreign banks that already have branch form of presence in India prior to the implementation of the new policy, the regulatory stance would be as stated in Para 4.3 This would imply that the expectation of RBI would be that existing branches of foreign banks that meet the parameters set out in paragraph 6.1.1 above, or which are or become systemically important on account of their balance sheet size exceeding a threshold limit, would voluntarily convert themselves into WOS in view of the incentives proposed to be made available to WOS. The measure of systemic importance would be as laid down in Para 6.1.2 (b) above. It may be mentioned in this context that currently, top five foreign banks account for more than 70% of total balance sheet assets of foreign banks in India.
7. Full National Treatment
7.1 For WOS, by virtue of their local incorporation, full national treatment would be expected. However, as discussed in Para 3.1.8, this could create risks from financial stability perspective if the foreign banks come to dominate the domestic banking system. Further, a consolidation of the domestic banks both in private and public sectors is yet to take place under the twin approach model articulated in the “Roadmap”. Thus allowing full national treatment could lead to unintended consequences for the banking sector. It would, therefore, not be possible nor desirable to provide full national treatment to WOSs of foreign banks. However, they would be placed in a much better position than the foreign bank branches operating in India but less then that of domestic banks. This would provide very significant incentives for the WOS mode of presence of foreign banks in India.
7.2 Government of India, Department of Industrial Policy and Promotion (DIPP) vide its press notes 2, 3 and 4 (2009 Series) has defined “foreign company” as a company with more than 50 per cent foreign holding. Therefore, under the FDI policy as set out in Circular 1 of 2010 dated 31st March 2010 issued by DIPP, WOSs of the foreign banks will be treated as foreign owned and controlled companies. Hence, WOSs of foreign banks will be treated as “foreign banks”. This would be an additional reason because of which it would not be possible to provide full national treatment to WOSs of foreign banks in India.
7.3 The extent of full national treatment and limitations thereon in matters like branch expansion, raising non-equity capital in India, priority sector lending, etc. are given in the subsequent paragraphs.
8. Capital Requirement
8.1 The minimum capital requirements for WOS on entry may generally be in line with those that would be prescribed for the new private sector banks. (RBI had issued a discussion paper on Entry of New Banks in the Private Sector on August 11, 2010 which inter alia covers the minimum capital requirement for new banks to be licensed in the private sector). Therefore, the WOS of foreign banks would be treated at par with the new private sector banks in regard to minimum capital requirement. The WOS shall be required to maintain a minimum capital adequacy ratio of 10 per cent of the risk weighted assets or as may be prescribed from time to time on a continuous basis from the commencement of operations.
8.2 The minimum net worth of the WOS on conversion from branches would not be less than the minimum capital requirement for new private sector banks. They would be required to maintain a minimum capital adequacy ratio of 10 per cent of the risk weighted assets or as may be prescribed from time to time on a continuous basis.
8.3 For foreign banks with branch mode of presence - both existing and new, the existing capital requirements will continue for the present i.e USD 25 million.
9. Corporate Governance
9.1 Any global entity would manage its investments on the basis of their assessment of the risk / return trade-off and allocate resources across various subsidiaries. The interest of the shareholders of the parent is the driving force for such decisions. Concerns may arise when the decisions taken for a subsidiary affect domestic depositors (and domestic shareholders, if the subsidiary is listed). Independent board members play an important role in protecting the interests of all stakeholders. Banks must include independent directors on their boards in order to make sure that management acts in the best interest of the local institution. Independent directors also ensure sufficient separation between the board of a bank and its owners to ensure that the board does not have unfettered ability to act in the interests of the owners where those interests diverge from those of the bank.
9.2 In some countries foreign bank subsidiaries operate like branches focussing above all on sales, with decision making powers being locally limited and risk –management being located abroad. To address these tendencies Reserve Bank of New Zealand requires locally incorporated large entities conduct substantial portion of their business in and from New Zealand.
9.3 As the international experience shows, some of the important factors to be taken into account before a foreign bank is allowed to set up a subsidiary is the commitment of its parent to support the subsidiary, the ability of the subsidiary to operate on a standalone basis even when the parent faces crisis and also that the subsidiary is managed from the host country with most of the systems and controls residing within its jurisdiction and not managed remotely from the Head Office.
9.4 In order to ensure that the board of directors of the WOS of foreign bank set up in India acts in the best interest of the local institution, RBI may, in line with the best practices in other countries, mandate that (i) not less than 50 percent of the directors should be Indian nationals resident in India, (ii) not less than 50 percent of the directors should be non-executive directors, (iii) a minimum of one-third of the directors should be totally independent of the management of the subsidiary in India, its parent or associates and (iv) the directors shall conform to the ‘Fit and Proper’ criteria as laid down in our extant guidelines contained in RBI circular dated June 25, 2004, as amended from time to time. This would be in line with our roadmap released in February 2005.
10. Accounting, Prudential Norms and Other Requirements
10.1 The WOS will be subject to the licensing requirements and conditions, broadly consistent with those for new private sector banks.
10.2 The WOS will be governed by the provisions of Companies Act, 1956, Banking Regulation Act, 1949, Reserve Bank of India Act, 1934, other relevant statutes and the directives, prudential regulations and other guidelines /instructions issued by RBI and other regulators from time to time.
11. Raising of Non-equity capital in India
11.1 In terms of the current guidelines branches of foreign bank do not have access to the domestic rupee resources to augment their non-equity capital in India. They are permitted to raise funds from their Head Office for augmenting Tier I and Tier II capital through Innovative Perpetual Debt Instruments (IPDIs) and debt capital instruments subject to terms and conditions prescribed for Indian Banks and additional terms and conditions specifically applicable to foreign banks.
11.2 As regards permitting WOS of foreign banks to raise rupee resources through issue of non-equity capital instruments there can be two views. One view would be that since WOS is a locally incorporated bank it should have access to rupee resources in line with the private sector banks. The other view could be that as WOS is a closely held foreign owned bank it should raise long term resources from the parent foreign bank in the shape of IPDI and debt capital instruments to demonstrate the parent’s commitment towards the host country.
11.3 As an incentive to foreign banks to set up WOS or convert their branches into WOS, RBI may allow them to raise rupee resources through issue of non-equity capital instruments in the form of IPDI, Tier I and Tier II Preference shares and subordinate debt as allowed to domestic private sector banks.
12. Branch expansion
12.1 With a view to creating an environment for encouraging foreign banks to set up WOS, a less restrictive branch expansion policy, though not at par with domestic banks may be envisaged. Accordingly, differentially favourable treatment to WOS of foreign banks as compared to the branches of other foreign banks may be put in place on the grounds of regulatory comfort that subsidiaries would provide.
12.2 Therefore, with a view to incentivise setting up of WOS/conversion of foreign bank branches into WOS, it is proposed that the branch expansion policy as applicable to domestic banks as on January 1, 2010, may be extended to WOS of foreign banks also. This would mean that the WOS would be enabled to open branches in Tier 3 to 6 centres except at a few locations considered sensitive on security considerations. Their application for setting up branches in Tier 1 and Tier 2 centres would also be dealt with in a manner and on criteria similar to those applied to domestic banks.
12.3 The expansion of the branch net work of foreign banks in India – both existing and new entrants – who are present in branch mode would be strictly under the WTO commitments of 12 branches or as may be modified from time to time. The withdrawal of the current stance of permitting larger number of branches than the commitment under WTO of 12 branches each year is to incentivise the foreign banks with branch mode of presence to move to WOS structure.
13. Measures to contain dominance of foreign banks
13.1 As discussed in Para 3.1.8, there is a downside risk to financial stability of the dominance of foreign banks over the domestic banking system on account of the near-national treatment proposed in several respects to WOSs. Therefore, in order to ensure that such a situation does not come about, certain restrictive measures would have to be put in place. At present under the WTO commitments, there is a limit that when the assets (on balance sheet as well as off-balance sheet) of the foreign bank branches in India exceed 15% of the assets of the banking system, licences may be denied to new foreign banks. Building on this to address the issue of market dominance, it is proposed that when the capital and reserves of the foreign banks in India including WOS and branches exceed 25% of the capital of the banking system, restrictions would be placed on (i) further entry of new foreign banks, (ii) branch expansion in Tier I and Tier II centres of WOS and (iii) capital infusion into the WOS – this will require RBI’s prior approval.
14. Priority Sector lending requirements for WOS
14.1 Since the WOS of foreign banks will be locally incorporated banks they should not be treated very differently from domestic banks in respect of Priority Sector Lending norm. Priority sector obligations on WOS have, therefore, to be more onerous than for branches of foreign banks but less than those for domestic banks since they would not get full national treatment.
14.2 Further, Raghuram Rajan Committee has also recommended giving WOSs same rights as private sector banks together with requirement to fulfil priority sector lending norms at par with domestic banks viz. 40% as against 32%.
14.3 In terms of extant priority sector lending norms foreign banks are required to extend lending to the priority sector (total) to the extent of 32% (against 40% for domestic banks) of Adjusted Net Bank Credit (ANBC) or credit equivalent amount of off-balance sheet exposure, whichever is higher.
14.4 Foreign banks play a significant role in financing foreign trade and as a matter of fact, most of the foreign banks have opened branches to cater to trade-finance. Having expertise in handling foreign trade, foreign banks have contributed significantly in rapid rise of cross border trade. Reserve Bank may, therefore, allow WOS of foreign banks also to classify export finance as a part of their priority sector lending.
14.5 At present, no target or sub-target for agricultural lending has been prescribed for the branches of foreign banks. However, keeping in view the role of agriculture in Indian economy, WOS of foreign banks should also be required to lend to agriculture in India, as is the case with domestic banks. It is, however, proposed to prescribe a lower sub-target for lending to agriculture sector by these WOSs, since the branch spread of these banks will be limited due to their not being given full national treatment. Accordingly, a lower sub-target at 10% may be fixed for these WOSs against the target of 18 % for domestic commercial banks.
Analogous to domestic banks, not more than 2.5% out of sub-target of 10% should relate to indirect agriculture finance. As regards any shortfall in achieving PSL norms, the extant instructions applicable to the branches of foreign banks may be made equally applicable to WOSs of foreign banks.
14.6 Following norms are proposed for WOS of foreign banks towards lending to Priority Sector:
Newly set up WOS of foreign banks may be required to comply with the Priority Sector Lending (PSL) norms as given below from day one.
Sr.No. Particulars Target 1. Total Priority Sector Lending target 40% of Adjusted Net Bank Credit (ANBC) or credit equivalent amount of off-balance sheet exposure whichever is higher 2. Sub-target for Export credit 12% of Adjusted Net Bank Credit (ANBC) or credit equivalent amount of off-balance sheet exposure whichever is higher
Total Priority Sector Lending target
40% of Adjusted Net Bank Credit (ANBC) or credit equivalent amount of off-balance sheet exposure whichever is higher
Sub-target for Export credit
12% of Adjusted Net Bank Credit (ANBC) or credit equivalent amount of off-balance sheet exposure whichever is higher