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-ARPIT GUPTA
HIDAYATULLAH NATIONAL LAW UNIVERSITY
INTRODUCTION 2
o With the advent of easier internet accessibility and a huge
number of youth population India is set to become the second
largest e-commerce industry in the near future. The E-commerce
market is expected to reach US$ 200 billion by 2027 from US$ 38.5
billion in 2017.
o 100% FDI is permitted in business to business and marketplace
model of e-Commerce, whereas FDI in inventory model as well
as Business to Consumer model is prohibited.
o DPIIT (Earlier DIPP) along with RBI and SEBI regulate FDI Policies in
India under FEMA, 1999.
o The FDI Policy 2017 defines e-commerce as “E-commerce means
buying and selling of goods and services including digital
products over digital & electronic network.”
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o DIPP releases circulars and Regulations to amend or to clarify the
FDI policy.
o Last two Press Notes relating to e-Commerce were released in
2016 as Press Note 3 and in 2018 as Press Note 2.
o Various Changes were made by the 2018 Press Note 2.
o Recently, after the Press Note 2 of 2018 was released in
December, 2018, A Draft National Policy on E-commerce was
released in February 2019, which will effect the FDI in e-
commerce industry in numerous ways.
o There are still grey areas which need to be addressed for better
implementation of FDI Policy.
CHANGES BROUGHT IN BY PRESS NOTE 2 OF 2018 4
Need: The Clarification of PN 2 of 2018 stated that there were numerous
complaint stating that certain e-commerce marketplaces (with FDI)
were indirectly engaging in inventory based e-commerce and
influencing the price of Products.
On the basis of the statements of the government, the changes made
are not new but only clarification for better implementation of existing
regulations.
Changes brought in by the Press Note 2 of 2018 vis-à-vis Press Note 3 of
2016:
1. CONTROL OVER INVENTORY: FDI in e-commerce in India is permitted
only in marketplace model and not inventory based model. The e-
commerce entities cannot control the inventory. Respectively the word
‘control’ was introduced in the guidelines.
Continued.
The provision of 25% of sales from a single source proved to be 5
ineffective and thus in 2018, in an attempt to explain ‘control’, it was
stated that if 25% or more of the vendor’s purchases are from the market
place entity then the marketplace entity will deemed to have control,
and the same is prohibited.
However, confusion still persists.
2. EQUITY OWNERSHIP- Press Note 2 of 2018 states that "…an entity
having equity participation by an e-commerce marketplace entity or its
group companies… will not be permitted to sell its products on the
platform run by such marketplace entity".
This is an attempt to restrict equity holding of the marketplace entity. The
blanket prohibition does not clarify if indirect holding is also prohibited.
3. EXCLUSIVITY: Press Note 2 of 2018 provides that e-commerce
marketplace entity will not mandate any seller to sell any product
exclusively on its platform only.
Continued..
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This will impact the exclusive arrangement provision of anti-trust laws.
However, the guidelines for enforcing authorities would determine if a
seller has been ‘mandated’ to sell its products exclusively on an e-
commerce platform.
Some brands resort to exclusive supply due to less demand voluntarily.
This change might not be of great importance if an e-commerce
marketplace has an arms length relationship with its vendors.
4. CERTIFICATE OF COMPLIANCE: Press Note 2 of 2018 requires an e-
commerce entity to furnish a certificate annually, confirming
compliance with these guidelines. Since some of the compliances
relate to vendors, it is unclear as to how the e-commerce entities will
be able to provide this certification. Would they be required to
perform any diligence of their own, or can they rely on self-
certification by vendors?
Continued.
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5. LEVEL PLAYING FIELD: PN 2 of 2018 requires that the services provided
should be uniform and on arm’s length basis and in fair and non-
discriminatory manner. The entities are required to provide same
service under similar circumstances.
But the parameters of ‘similar circumstances’ have not been given by
the policy. Cashback has been classified as fair and reasonable.
6. FDI in B2C Model has been completely forbidden. The conditions
mentioned in Press Note 3 of 2016 have been deleted.
The inconsistencies in the FDI guidelines regulating e-commerce open
a Pandora’s box when it comes to interpretation and implementation
of restrictions.
In an attempt to make the regulations more vivid, the Department has
come out with a Draft on National Policy on e-commerce.
LOOPHOLES IN PRESS NOTE 2 OF 2018 8
Continued.
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6. Data Protection and IP Laws.
7. Prohibition on sale of counterfeit products and prevention of other
mal practices.
8. Current policy of not imposing custom might be reviewed.
9. Level the playing field and discourage capital dumping.
10. Talks about an integrated system which connects Customs, RBI
and Indian Post.
*Associate at Trilegal.
SHORTCOMINGS OF THE DRAFT POLICY 12
It can be expected that a better Policy will come into action, and
for that to happen following things can be done:
THANK YOU.