India is currently the second largest arms importer globally

1. Investing in India’s Defence Sector India is currently the second largest arms importer globally India’s defence budget rising from INR 58,587 crores in 2000 to INR 4,71,378 crores in 2020 India spends close to 2% of its GDP on defence related expenditure Key countries which India relies upon for imports include Russia (56%), Israel (14%), and France (12%) with imports from US falling recently but expected to pick up

2. Recent Policy Changes to boost Self-reliance and Make-in-India ini�a�ve Over the past few years, the Government has taken numerous steps in order to increase private sector par�cipa�on and to boost the defence sector, some of which include: Dra� DAP 2020 The Dra� Defence Acquisi�on Procedure ("DAP") 20201 which governs capital procurement of defence equipment in India and heavily focuses on indigenisa�on and introduces new categories of procurement such as Buy Global (Manufacture in India), Buy (Leasing) and Make III. Foreign Direct Investment While the present policy allows FDI upto 49% under the automa�c route, a recent announcement made by the Finance Minister alludes to an increase in FDI to 74% under the automa�c route. Official no�fica�on of this change in FDI Policy is s�ll awaited. Doing away with Offsets The Dra� DAP 2020 also envisions doing away with offsets in cases progressed through Inter-Governmental Agreements such as Foreign Military Sales, India-Russia Intergovernmental Commission etc. Offset Guidelines made flexible Offset guidelines have been made flexible by allowing change of Indian Offset Partners (IOPs) and offset components, even in signed contracts. Foreign OEMs are now not required to indicate the details of IOPs and products at the �me of signing of contracts. ‘Services’ as an avenue of offset discharge have also been re-instated. Licensing regime liberalized Industrial licensing regime for Indian manufacturers in Defence sector has been liberalized. The total number of defence licences issued has more than doubled from 215 as on March 31, 2014 to 460 on December 31, 2019, covering a total of 275 Companies.2 1https://mod.gov.in/dod/news/amended-draft-dap-2020-dated-27-july-2020 2 https://pib.gov.in/PressReleseDetail.aspx?PRID=1606539

3. Government has no�fied the Strategic Partnership (SP) Model Government has no�fied the ‘Strategic Partnership (SP)’ Model which envisages establishment of long-term strategic partnerships with Indian en��es through a transparent and compe��ve process, wherein they would �e up with foreign OEMs to seek technology transfers to set up domes�c manufacturing infrastructure and supply chains. Defence Industrial Corridors Government has decided to establish two defence industrial corridors across several ci�es, to serve as engines of economic development and growth of defence industrial base in the country, which ensures a mature manufacturing ecosystem for investments and innova�on in India. Tes�ng facili�es made available to private sector The Tes�ng facili�es/infrastructure available with the various Government agencies have been made available to private sector with the objec�ve of assis�ng them in design and development of defence systems. Technology Development Fund (TDF) Government has set up the TDF to encourage par�cipa�on of public/private industries especially MSMEs, through provision of grants, so as to create an eco-system for enhancing cu�ng edge technology capability for defence applica�ons.

4. Categories of Capital Procurement The acquisi�on of capital defence equipment in India is governed by the Defence Procurement Procedure (DPP), a document published by the Ministry of Defence (MoD) and revised every few years. Presently DPP 2016 is in force, however, a new re-christened Defence Acquisi�on Procedure (DAP) in dra� version had been released for public comments recently and is likely to formally no�fied and effec�ve from 1st September 2020. The DPP lists out the various categories of procurements by Ministry of Defence and a quick comparison with the new Dra� DAP is set out below – Indigenous Content (IC) requirement in DPP 2016 (presently in force) IC requirement Proposed in Dra� DAP 2020 (yet to be no�fied) Eligible Tender Par�cipant Remarks Category Descrip�on Buy (Indian - IDDM) Indian Vendor Procurement of products from an Indian vendor mee�ng one of the two condi�ons: products that have been indigenously designed, developed and manufactured with a minimum of 40% Indigenous Content (IC) on cost basis of the total contract value; Or products having 60% IC on cost basis of the total contract value, which may not have been designed and developed indigenously Minimum 50% Minimum 40% Procurement of products from an Indian vendor having a minimum of 40% IC on cost basis of the total contract value Indian vendor Minimum 40% Indigenous design – 50% Otherwise, Minimum 60% Buy (Indian) Buy & Make (Indian) Ini�al procurement of equipment in Fully Formed (FF) state in quan��es as considered necessary, from an Indian vendor engaged in a �e-up with a foreign OEM, followed by indigenous produc�on in a phased manner involving Transfer of Technology of cri�cal technologies as per specified range, depth and scope from the foreign OEM. Indian vendor engaged in a �e-up with a foreign OEM Minimum of 50% IC is required on cost basis of the Make por�on of the contract Minimum of 50% IC is required on cost basis of the Make por�on of the contract Buy & Make Ini�al procurement of equipment in FF state from a foreign vendor, in quan��es as considered necessary, followed by indigenous produc�on through an Indian Produc�on Agency (IPA), in a phased manner involving Transfer of Technology of cri�cal technologies as per specified range, depth and scope. Foreign OEM No IC requirement Minimum 50% IC on cost basis for the ‘Make’ por�on of acquisi�ons under ‘Buy and Make’ category In Buy and Make cases where the vendor achieves minimum 30% IC as per cost of base contract value of the en�re procurement i.e. Buy plus Make, such vendor will not require to discharge offsets. In case the vendor

5. Indigenous Content (IC) requirement in DPP 2016 (presently in force) IC requirement Proposed in Dra� DAP 2020 (yet to be no�fied) Eligible Tender Par�cipant Category Descrip�on Remarks achieves only par�al IC requirement i.e. less than the 30%, offset waiver will not be applicable. Buy (Global – Manufacture in India) Outright purchase of equipment from foreign vendors, in quan��es as considered necessary, with a minimum of 50% Indigenous Content (IC) on cost basis of the total contract value which can be achieved in the manufacturing of either the en�re equipment or spares/assemblies/sub-assemblies/Ma intenance, Repair and Overhaul (MRO) facility for the en�re life cycle support of the equipment, through its subsidiary in India. Foreign OEM, with subsidiary in India Minimum of 50% IC on cost basis of the base contract price New category of procurement introduced in the Dra� DPP 2020 Buy (Global) Outright purchase of equipment from foreign or Indian vendors. In case of procurement through foreign vendors, Government to Government route/Inter Government Agreement may also be adopted, for equipment mee�ng strategic/long term requirements. Foreign OEM or Indian vendors Minimum 30% IC for Indian Vendors IC requirement introduced in Dra� DPP 2020 Make I Projects involving design and development of equipment, systems, major pla�orms or upgrades thereof by the industry Indian vendor To be designed, developed and manufactur ed by an Indian vendor As per Dra� DPP 2020, MoD will provide fund support maximum up to 70% of the prototype development cost or a maximum 250 crores per Development Agency. Make II Projects under Make-II category will include prototype development of equipment/system/ pla�orm or their upgrades or their sub-systems/subassembly/assemblies /components/ materials/ammuni�on/so�ware, primarily for import subs�tu�on/ innova�ve solu�ons by the Private industry, for which no Government funding will be provided Indian vendor To be designed, developed and manufactur ed by an Indian vendor In Make-II cases, where innova�ve solu�ons have been offered even by a single individual or a firm, the cases would be progressed as a Resultant Single Vendor. Make III Includes subsystems/ sub-assembly/ assemblies/ components/ materials/ammuni�on, etc, which although not designed/developed indigenously, can be manufactured in Indian vendor may manufactur e these either in To be designed, developed and New category introduced in the Dra� DPP 2020

6. Indigenous Content (IC) requirement in DPP 2016 (presently in force) IC requirement Proposed in Dra� DAP 2020 (yet to be no�fied) Eligible Tender Par�cipant Category Descrip�on Remarks India as import subs�tu�on for product support of weapon systems/equipment held in the inventory of the Services. collabora- �on or with ToT from foreign OEMs. manufac- tured by an Indian vendor New category introduced in Dra� DPP 2020, Cases where lease of equipment may be preferred are:- (a) Where procurement is not feasible due to �me constraint. (b) Where the asset/capability is needed for a specific �me or would be underu�lized if procured. (c) Where smaller numbers of assets are needed and administra�ve /maintenance infrastructure expenditure would be high. (d) When service life lease rentals are a be�er op�on compared to a one-�me acquisi�on cost. (e) To gain experience for opera�onal exploita�on of equipment (f) Due to opera�onal necessity. Buy (leasing) Leasing provides means to possess and operate the asset without owning the asset and is useful to subs�tute huge ini�al capital outlays with periodical rental payments. Leasing would be permi�ed in two sub categories i.e. Lease (Indian), where Lessor is an Indian en�ty and is the owner of the asset, and Lease (Global). Foreign OEM or Indian vendor

7. Key Compliance Requirements for an Investor specific to the Sector Foreign Direct Investment 01 As per the current policy, Foreign Direct Investment Cap is 100% with FDI up to 49% being allowed through automa�c route and above 49% under government route wherever it is likely to result in access to modern technology or for other reasons to be recorded. However earlier in May 2020 this year, as part of Economic S�mulus Package, India’s Finance Minister has announced an increase in FDI upto 74% under automa�c route. A formal no�fica�on to that effect is awaited. Arms Act 1959 (Arms Act) 02 The Department of Industrial Policy and Promo�on (DIPP(now DPIIT)) has vide Press Note No. 1 (2019 Series)3 announced that the following defence items would require a license as under Sec�on 51 of the Arms Rules 20164, namely: Tanks and other armoured figh�ng vehicles Arms and ammuni�on and allied items of defense equipment; other than small arms of caliber 12.7mm and above as defined under clause (51) of sub-rule (I) of rule 2 of the Arms Rules, 2016 A license for the manufacture, proof test or transfer of all categories of Arms & Ammuni�on under Schedule I of the Arms Rules. 2016 would be required in accordance with Sec�on 5 of the Arms Act. Industries (Development & Regula�on) Act, 1951 (IDR) 03 The DIPP vide Press Note 1 (2019 Series)5 has also provided list of Defence items finalised by the MoD that would require a license under the IDR Act, namely: Defence Aircra�s Warships of all kinds Allied items of defence equipment such as electronic, jamming, radio equipment etc. Export Control - SCOMET 04 In India’s Foreign Trade Policy, dual-use items have been given the nomenclature of Special Chemicals, Organisms, Materials, Equipment and. Technologies (SCOMET)6. Export of SCOMET items in India are only permi�ed against an export authorisa�on issued by the concerned department or ministry. Category 6 of the SCOMET list contains the list of muni�ons items eligible for export and the licensing authority for the same is the MoD. As per the Standard Opera�ng Procedure issued by the DDP7, any company interested in expor�ng a Muni�ons List item shall file an online applica�on at www.ddpmod.gov.in 3 https://dipp.gov.in/sites/default/files/PressNote12019.pdf 4 https://dipp.gov.in/sites/default/files/Notification_ArmsRule_26May2017_3.pdf 5 https://dipp.gov.in/sites/default/files/PressNote12019.pdf 6 https://dgft.gov.in/sites/default/files/append3.pdf 7 https://ddpmod.gov.in/sites/default/files/New%20SOP0001_2.pdf

8. Future of India’s Defence Industry From one of the world's biggest importer of defence hardware and equipment, India is slowly emerging as an exporter now and India's defence exports have increased in the last four years by more than 5.5 �mes mainly due to the country’s emphasis on ‘Make in India’, with India now expor�ng to about 42 countries worldwide including the US, Australia, Finland, France, Germany, Israel, South Africa and Sweden. According to the Ministry of Defence's Department of Defence Produc�on dashboard, India's export of military equipment increased from INR 1521.86 crores (~USD 200Mn) in FY 2016-17, to INR 8620.59 crores (~USD 1.1Bn) in the last fiscal 2019-208. In lieu of India’s ever-improving defence sector, the Prime Minister has announced a target of expor�ng USD 5 billion worth of military hardware which is about INR 35,000 crore.9 The Indian Government has also announced plans to spend USD 130 bn on military moderniza�on in the next 5 years. At the same �me, in order to meet it’s stated objec�ve of achieving self-reliance in the sector, Government has consistently been opening up the Defence industry for private sector par�cipa�on to provide impetus to indigenous manufacturing. This also paves the way for foreign original equipment manufacturers (OEMs) to enter into strategic partnerships with Indian companies, as against in the older days, when such �e-ups were only encouraged with Public Sector Undertakings (PSUs). 8 https://zeenews.india.com/india/indias-defence-exports-rise-over-5-times-in-last-4-years-2277804.html 9 https://www.livemint.com/industry/manufacturing/india-now-exports-defence-products-to-42-countries-11581332398457.html

9. MUMBAI 9th Floor, Mafatlal Centre Vidhan Bhavan Marg Nariman Point, Mumbai 400 021 T: +91 22 6636 7000 elplaw.in insights@elp-in.com /elplaw.in NEW DELHI 801 A, 8th Floor, Konnectus Tower, Bhavbhuti Marg Opp. Ajmeri Gate Railway Station, Nr. Minto Bridge New Delhi 110 001 T: +91 11 4152 8400 /ELPIndia /company/economic-law-practice AHMEDABAD 801, 8th Floor, Abhijeet III Mithakali Six Road, Ellisbridge Ahmedabad 380 006 T: +91 79 6605 4480/8 PUNE 202, 2nd Floor, Vascon Eco Tower Baner Pashan Road Pune 411 045 T: +91 20 4912 7400 BENGALURU 6th Floor, Rockline Centre 54, Richmond Road Bengaluru 560 025 T: +91 80 4168 5530/1 CHENNAI No 18, BBC Homes, Flat-7 Block A South Boag Road Chennai 600 017 T: +91 44 4210 4863 DISCLAIMER: The information contained in this document is intended for informational purposes only and does not constitute legal opinion or advice. This document is not intended to address the circumstances of any particular individual or corporate body. Readers should not act on the information provided herein without appropriate professional advice after a thorough examination of the facts and circumstances of a particular situation. There can be no assurance that the judicial/quasi judicial authorities may not take a position contrary to the views mentioned herein. © Economic Laws Practice 2020