India M&A counsel for foreign buyer
Cross-border mergers and acquisitions involving an Indian target company require counsel familiar with both the Indian regulatory framework and the home-country legal obligations of the foreign buyer. A foreign purchaser acquiring an Indian business or assets navigates Indian corporate law, foreign-exchange controls administered by the Reserve Bank of India, and sector-specific foreign direct investment conditions, while simultaneously addressing home-country compliance matters such as the U.S. Foreign Corrupt Practices Act for US-based acquirers. Law Offices of SRIS, P.C., a US law firm practicing since 1997, addresses the US-law dimension of these transactions. For India-law aspects, the firm works with Sowmya R, Of Counsel, who is admitted to practice law in India (Enrollment No. MP2285/2014, State Bar Council of Madhya Pradesh) and is not admitted in any US state bar. This dual-jurisdiction structure allows each side of the transaction to be handled by counsel admitted in the relevant jurisdiction.
What India M&A Involves for a Foreign Buyer
A foreign buyer acquiring an Indian company must satisfy India’s foreign direct investment rules, corporate law requirements, and foreign-exchange regulations, while also addressing the buyer’s home-country legal obligations. The practical consequence is that an India M&A transaction is inherently a two-jurisdiction matter. On the India side, the acquirer must determine whether the target’s sector falls under the automatic route (no prior government approval required) or the government route (requiring approval from the relevant ministry or the Foreign Investment Facilitation Portal). The Reserve Bank of India administers the Foreign Exchange Management Act, 1999 (FEMA), which governs cross-border fund flows, share pricing, and repatriation of proceeds. The Companies Act, 2013 sets the framework for share transfers, board approvals, and merger procedures.
On the US side, a buyer that is a US person or issuer must evaluate the transaction for compliance with the FCPA’s anti-bribery and books-and-records provisions. The FCPA’s jurisdictional provisions at 15 U.S.C. § 78dd-1 (issuers), § 78dd-2 (domestic concerns), and § 78dd-3 (certain foreign persons acting in US territory) may apply depending on the buyer’s structure. Criminal penalties are set by 15 U.S.C. § 78ff. Additionally, the buyer’s financing arrangements, securities-law disclosures, and post-closing integration each carry US-law dimensions that run parallel to the India-side process.
How Cross-Border India M&A Counsel Is Structured
An India M&A transaction involving a US buyer is typically structured with US-admitted counsel handling US-law matters and India-admitted counsel handling India-law matters, with coordination between the two. This division reflects the principle that no attorney practices law in a jurisdiction where they are not admitted. Mr. Sris, admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York, addresses the US-law components: FCPA due diligence, US securities-law analysis where applicable, financing documentation governed by US law, and any US regulatory filings. Sowmya R, Of Counsel, admitted to practice law in India (Enrollment No. MP2285/2014, State Bar Council of Madhya Pradesh) and not admitted in any US state bar, addresses the India-law components: FDI route classification, FEMA compliance, Companies Act procedures, and filings with the Registrar of Companies and the Reserve Bank of India.
The two sides collaborate on transaction documents that span both jurisdictions, such as the share purchase agreement, which may be governed by Indian law but contain representations and warranties that implicate US legal standards. Due diligence is similarly divided: the India-admitted counsel reviews Indian corporate records, regulatory filings, and litigation history, while the US-admitted counsel reviews FCPA risk, US sanctions exposure where relevant, and any US-facing aspects of the target’s business. This structure ensures that each jurisdiction’s professional-conduct rules and substantive legal requirements are addressed by counsel licensed in that jurisdiction.
About the Attorneys
Mr. Sris is the founder of Law Offices of SRIS, P.C., practicing since 1997. He is admitted to practice law in Virginia, Maryland, the District of Columbia, New Jersey, and New York. His practice includes cross-border transactions where US law governs aspects of the deal, including FCPA compliance, US securities-law considerations, and the US-side structuring of international acquisitions. Mr. Sris testified before the Virginia House Courts of Justice Committee in support of 2019 HB 635 (chief patron Del. David Bulova), the bill that became the 2019 revision to Va. Code § 20-107.3(g).
For India-law matters, the firm works with Sowmya R, Of Counsel. Sowmya R is admitted to practice law in India (Enrollment No. MP2285/2014, State Bar Council of Madhya Pradesh) and is not admitted in any US state bar. Her practice with Law Offices of SRIS, P.C. is limited to matters of Indian law in collaboration with the US-admitted attorneys of the firm. All US-law aspects of an India M&A transaction are handled by Mr. Sris and the US-admitted attorneys of the firm.
Frequently Asked Questions
What is the difference between the automatic route and the government route for FDI in India?
Under India’s foreign direct investment framework, the automatic route allows foreign investment in most sectors without prior government approval, while the government route requires approval from the relevant ministry or the Foreign Investment Facilitation Portal for sectors subject to caps or conditions. The Department for Promotion of Industry and Internal Trade publishes a consolidated FDI policy that lists which sectors fall under each route. Sectors such as manufacturing, most services, and infrastructure are generally under the automatic route. Sectors including defense, broadcasting, and certain financial services may require government approval. The distinction affects transaction timeline, deal certainty, and the regulatory representations a seller can make. The applicable route is determined by the target company’s sector classification under the prevailing FDI policy at the time of the transaction.
Does a US buyer need to comply with the FCPA when acquiring an Indian company?
Yes, a US buyer must evaluate FCPA compliance when acquiring an Indian company, because the buyer may inherit liability for the target’s pre-acquisition conduct and because the transaction itself may involve interactions with Indian government officials that trigger FCPA scrutiny. The FCPA’s anti-bribery provisions apply to US issuers, domestic concerns, and certain foreign persons acting in US territory. Pre-acquisition due diligence typically includes a review of the target’s interactions with government officials, its use of third-party intermediaries, and its books and records. Post-acquisition, the buyer is expected to integrate the target into its own compliance program. The FCPA’s accounting provisions also require issuers to maintain accurate books and records, which extends to acquired subsidiaries. Criminal penalties for individuals are set at up to five years imprisonment per violation under 15 U.S.C. § 78ff.
What role does the Foreign Exchange Management Act (FEMA) play in India M&A?
FEMA governs the inflow and outflow of foreign exchange in an India M&A transaction, including the pricing of shares, the mode of payment, and the repatriation of sale proceeds. The Reserve Bank of India administers FEMA through regulations and master directions that set out the conditions under which a foreign buyer may acquire shares of an Indian company. Key considerations include whether the purchase price meets the minimum valuation requirements, whether the payment is made through proper banking channels, and whether any post-transaction reporting obligations to the RBI are satisfied. FEMA also regulates the transfer of shares between a resident and a non-resident, and non-compliance can result in penalties and restrictions on future transactions. The regulatory framework is set out in the Foreign Exchange Management (Non-debt Instruments) Rules, 2019, and related RBI master directions.
How are cross-border M&A transactions structured when both US and India law apply?
Cross-border India M&A transactions are typically structured with a share purchase agreement governed by Indian law, while US-law elements are addressed through separate representations, warranties, and disclosure schedules that reflect US legal standards. The principal transaction document is usually the share purchase agreement or share subscription agreement, which is governed by Indian law and subject to Indian court jurisdiction or arbitration in an Indian venue. However, where the buyer is a US entity, the agreement often includes FCPA representations, US-style indemnification provisions, and disclosure schedules that address US regulatory concerns. Ancillary documents such as escrow agreements, non-compete undertakings, and transition-services agreements may be governed by US law or a neutral law depending on the parties’ negotiation. The structure requires coordination between US-admitted and India-admitted counsel to ensure that each jurisdiction’s requirements are satisfied without creating conflicts between the two legal frameworks.
What due diligence considerations are specific to India M&A?
India M&A due diligence for a foreign buyer includes review of the target’s FDI compliance history, FEMA reporting record, corporate filings with the Registrar of Companies, and any pending litigation before Indian courts or tribunals. The due diligence process also examines the target’s intellectual property registrations, employment-law compliance under Indian labour codes, tax filings under the Income Tax Act, and any outstanding show-cause notices from Indian regulatory authorities. For a US buyer, the due diligence further includes an FCPA risk assessment of the target’s government interactions and third-party relationships. Document authentication for use in Indian proceedings may be facilitated by the 1961 Hague Apostille Convention, to which India has been a contracting party since 14 July 2005, eliminating the need for consular legalization of public documents from other contracting states.
How does the 1961 Hague Apostille Convention affect document authentication in India M&A?
Because India is a contracting party to the 1961 Hague Apostille Convention, a public document from another contracting state may be authenticated for use in India by obtaining an apostille from the issuing state’s competent authority, rather than undergoing consular legalization. This applies to documents such as corporate certificates, powers of attorney, and notarized affidavits that a foreign buyer may need to submit to Indian regulatory authorities or to file with the Registrar of Companies. The apostille certifies the authenticity of the signature, the capacity in which the person signing acted, and the identity of any seal or stamp on the document. India acceded to the Convention effective 14 July 2005. For documents originating in a non-contracting state, the traditional chain-legalization process through consular channels remains necessary. The Convention’s status as of 2026-05 is confirmed at hcch.net.