A Guide to Conquer the Cross-Border Compliance Challenges

Cross-border compliance is a critical aspect of business operations in an increasingly globalized economy. As companies expand their activities across international borders, they face the many challenges of legal and regulatory requirements that a company must comply with during cross-border transactions. This article provides an overview of cross-border compliance, highlighting its importance, challenges and strategies for effective implementation and states the consequences of failure in implementation, along with many examples of leading companies that have succeeded or failed to meet the cross-border compliance requirements.

Introduction

Cross-border compliance refers to the compliance and management of regulatory requirements and compliance obligations by organizations operating in different jurisdictions. It includes ensuring that companies comply with the laws, regulations and standards of each jurisdiction in which they do business. Operating in multiple jurisdictions further introduces complexities due to differences in legal and regulatory frameworks, cultural norms and business practices. Cross-border compliance aims to address these challenges and ensure that organizations operate within the boundaries of applicable laws and regulations while maintaining ethical and responsible business practices.

The key aspects of cross-border compliance include regulatory compliance, risk management, internal controls, due diligence, monitoring and reporting, cultural and ethical considerations, and cross-border data transfers. Cross-border compliance is an ongoing endeavour that requires a comprehensive understanding of each jurisdiction’s legal and regulatory requirements. It involves implementing robust compliance programs, conducting regular assessments and adapting to the evolving regulatory environment to ensure organizations operate responsibly and ethically in the global marketplace.

Cross-Border Compliance Issues

Cross-border compliance challenges are the difficulties and complexities that arise when companies operate in different jurisdictions and must comply with different regulatory frameworks, laws and cultural norms. These challenges can present significant hurdles for organizations, requiring them to navigate various legal, regulatory and operational aspects to ensure compliance across jurisdictions. Here are some common cross-border compliance issues: –

  1. Regulatory Variation

Each country or region has its own unique set of laws and regulations governing areas such as data protection, anti-corruption, labour practices, environmental standards and product safety. Companies operating in different jurisdictions must understand and comply with these variations, which can be complex and time-consuming. In addition, regulatory areas are constantly evolving, and new laws and regulations are introduced or amended. Such companies need to keep abreast of regulatory changes and adapt their compliance programs to ensure ongoing compliance. Every company involved in cross-border transactions usually faces this challenge.

  1. Language and Cultural Differences

Doing business across borders often involves language barriers and cultural differences. Accurately translating legal and compliance documentation, understanding local customs, and adapting compliance programs to local cultural norms can be challenging, but critical to effective compliance. Companies like Walmart, McDonald’s etc. face many language and cultural challenges because they operate in different countries with different languages ​​and different cultures.

  1. Privacy and Security

Data protection and privacy regulations vary from jurisdiction to jurisdiction. Companies must comply with various requirements related to collection, storage, transmission and privacy rights. Ensuring compliance with these regulations while maintaining effective data management practices can be particularly challenging in a global business environment. An example of a company with this problem is Facebook, which has faced several compliance issues related to privacy and user consent and has been under scrutiny for how it handles user data. These non-compliances have led to regulatory investigations, fines and increased public scrutiny of Facebook’s privacy practices.

  1. Supply Chain Complexity

Cross-border operations often involve complex global supply chain arrangements. Ensuring compliance throughout the supply chain, including vetting suppliers, managing third-party risks and monitoring compliance at each stage, can be challenging, especially when dealing with different legal and regulatory frameworks. The company Nike is an example that has faced criticism and legal challenges in the past related to labour practices and working conditions in its supply chain.

Overcoming Challenges & Risk Management in Cross-Border Compliance

Overcoming cross-border compliance challenges requires a proactive and strategic approach. Some of the steps that organizations can take to effectively address and mitigate these challenges are as follows: –

  1. Companies may carry out comprehensive compliance risk assessments to identify potential cross-border compliance issues specific to the organization and the jurisdictions in which they operate. This assessment should take into account regulatory variances, cultural factors and enforcement practices to identify areas of potential non-compliance and develop a comprehensive compliance program.
  2. Robust internal controls such as monitoring, auditing and reporting mechanisms can be implemented to detect and prevent violations. These controls should be designed to address specific cross-border compliance issues and adapt to the evolving regulatory environment. It should also establish a clear incident response plan to address violations or incidents that may occur in different jurisdictions and develop protocols for prompt and effective reporting, investigation and remediation of compliance issues by implementing corrective actions and monitoring their effectiveness to prevent future occurrences.
  3. Regularly monitoring regulatory changes and being informed of developments and changes in legislation in the jurisdictions where the organization operates is essential to deal with cross-border compliance challenges. The same may be done by establishing a process to track regulatory updates and evaluate their impact on the company’s compliance program. This ensures that the organization can proactively adapt its compliance efforts to stay in line with the evolving legal landscape. Companies must engage local legal counsel and compliance professionals familiar with the laws and regulations of each jurisdiction. Their expertise can help interpret and navigate complex regulatory environments, ensure compliance, and minimize risk.
  4. Technology solutions and data analytics tools could be used to streamline compliance processes, monitor compliance activities and identify potential compliance risks. It should also promote open communication and cooperation with local regulatory authorities and industry associations to ensure a cooperative approach to cross-border compliance.
  5. When working with third parties, it is an important requirement to conduct thorough due diligence to assess their compliance practices and risk profile.

By taking these steps, organizations can improve their ability to overcome cross-border compliance challenges, effectively manage risk, mitigate breaches, and ensure compliance with applicable laws and regulations in the jurisdictions where they operate. To effectively navigate the complexities of the global business environment, maintaining a commitment to compliance, ongoing monitoring and continuous improvement is essential.

Further, companies such as Apple Inc, Siemens AG, Unilever, Coco-Cola and many others have implemented robust compliance programs and invested in local expertise to ensure regulatory compliance across borders by addressing many cross-border issues such as data protection, antitrust, intellectual property rights, work practices, business transactions, audit processes and so on.

Consequences of Non-Compliance

Cross-border compliance is essential for companies operating globally, and non-compliance can result in various consequences such as legal and regulatory penalties, reputational damage from negative publicity, loss of business opportunities, legal disputes and lawsuits initiated by regulators, leading to additional costs, time and resources spent on litigation, disruption of operations, loss of licenses and certifications preventing the Company from doing business in certain markets or sectors, increased compliance costs due to remediation efforts, audits, internal controls and compliance programs to address issues with non-compliance and prevention of future violations and criminal and civil liability depending on the nature and severity of the non-compliance.

Key Takeaways

In conclusion, cross-border compliance presents unique challenges for companies operating in different jurisdictions. For navigating the complex web of laws, regulations and cultural differences, a proactive and systematic approach is required to ensure that compliance obligations are met, and a successful cross-border compliance strategy involves many factors and, more importantly, for long-term business opportunities, it is necessary to have a continuous assessment and improved cross-border compliance to gain market share and expand into new geographies. In addition, by effectively managing risk and proactively addressing compliance issues, companies can mitigate legal and reputational risks by maintaining stakeholder trust and operating with integrity across borders. However, it requires vigilance, adaptability and a commitment to ethical behaviour, which is essential for companies to stay abreast of changing regulatory environments to meet evolving requirements. Therefore, successful cross-border compliance is essential for companies to operate responsibly, sustainably and with integrity in the global business environment.

References:

Digital Cross-Border Compliance: The Definitive Guide

https://www.avalara.com/blog/en/apac/2022/04/five-cross-border-compliance-challenges-for-manufacturers.html

https://cellpointdigital.com/articles/blog/cross-border-payments-the-issues-and-challenges

https://www.capgemini.com/wp-content/uploads/2017/07/Regulatory_Reforms_around_Global_Cross-Border_Regulations.pdf

https://www.epiqglobal.com/en-us/resource-center/articles/cross-border-data-protection-laws

https://www.timesnownews.com/business-economy/companies/2021-facebook-data-breach-meta-fined-277-million-by-irish-regulator-article-95844568

https://www.forbes.com/sites/brianbushard/2023/01/04/meta-fined-over-400-million-by-eu-for-alleged-personal-data-collection-violation/amp/

https://markets.businessinsider.com/news/stocks/nike-stock-price-earnings-inventories-supply-chain-retail-forecast-sales-2022-9

https://www.ecotextile.com/2023030330436/social-compliance-csr-news/unions-and-ngos-lodge-complaint-against-nike.html

https://www.bbc.com/news/world-us-canada-66171702

https://www.forbes.com/sites/forbesbusinesscouncil/2023/03/08/how-to-develop-cultural-intelligence-to-avoid-pitfalls-overseas/?sh=314e0c382c5d

https://www.google.com/amp/s/www.cbc.ca/amp/1.4277179

Image Credits:

Photo by Melpomenem: Compliance theme with aerial view of city skylines – Photos by Canva

Cross-border compliance is essential for companies operating globally, and non-compliance can result in various consequences such as legal and regulatory penalties, reputational damage from negative publicity, loss of business opportunities, legal disputes and lawsuits initiated by regulators, leading to additional costs, time and resources spent on litigation, disruption of operations, loss of licenses and certifications preventing the Company from doing business in certain markets or sectors, increased compliance costs due to remediation efforts, audits, internal controls and compliance programs to address issues with non-compliance and prevention of future violations and criminal and civil liability depending on the nature and severity of the non-compliance.

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Foreign Funding: Guide to FCRA Regulations

The Foreign Contribution (Regulation) Act (“the Act” or “FCRA”) was first enacted in the year 1976 to regulate the utilisation of foreign contributions or hospitality to maintain strict control over voluntary organisations and political associations that received foreign funding. The Act aims to prevent foreign organisations from influencing electoral politics, social, political, economic, or religious discussions in India for wrong purposes and activities detrimental to the public interest. The Act falls under the purview of the Ministry of Home Affairs (MHA) since it is a law relating to internal security and not under the Reserve Bank of India (RBI) despite it being a financial legislation.

In 1984, an amendment was made to the Act requiring all non-governmental organisations to register themselves with the MHA. In 2010, the Act was repealed, and a new Act was enacted with stricter provisions. The Act was further amended in the year 2020 by the Foreign Contribution (Regulation) Amendment Act, 2020 (“FCRA Amendment Act”).

The FCRA is applicable to the whole of India and its citizens outside India and to the associated branches or subsidiaries outside India of companies or bodies corporate, registered or incorporated in India.

 

Prohibition on Accepting Foreign Contributions

The FCRA prohibits the following persons from accepting any foreign contributions:

  1. Candidate for election;
  2. Correspondent, columnist, cartoonist, editor, owner, printer or publisher of a registered newspaper;
  3. Public servant, Judge, Government servant or employee of any entity controlled or owned by the Government;
  4. Member of any Legislature;
  5. A political party or office bearers thereof;
  6. Organisations of a political nature as may be prescribed;
  7. Associations or companies engaged in the production or broadcast of audio news or audio-visual news or current affairs programmes, through any electronic mode or form, or any other mode of mass communication;
  8. Correspondent or columnist, cartoonist, editor, owner of the association or company referred to in (g) above.

However, the above-mentioned persons can accept foreign contributions in the following situations:

  1. from their relatives;
  2. by way of salary, wages or other remuneration in the ordinary course of business;
  3. by way of a gift as a member of any Indian delegation, provided the gift was accepted in accordance with relevant rules made by the Central Government in this regard;
  4. by way of any scholarship, stipend or any payment of like nature;
  5. by way of remittance received in the ordinary course of business.

 

Meaning of Foreign Contributions

‘Foreign Contribution’ means the donation, delivery or transfer made by any foreign source of any:

  1. article (not being an article given to a person as a gift for his/her personal use, the market value of which is not more than one lakh rupees);
  2. currency (whether Indian or foreign);
  3. security. 

Contributions made by a citizen of India living in another country (e.g. a Non-Resident Indian (NRI)) from his/her personal savings, through the normal banking channels, will not be treated as foreign contributions. However, it is advisable to obtain the passport details of such an NRI to ascertain that he/she is actually an Indian citizen.

Donations from an Indian-origin person who has acquired foreign citizenship will be treated as a foreign contribution. This will also apply to Person of Indian Origin [PIO]/ Overseas Citizen of India [OCI] cardholders as they are foreigners.

Foreign remittance received from a relative shall not be treated as a foreign contribution. However, any person receiving a foreign contribution in excess of ten lakh rupees or equivalent thereto in a financial year from any of his/her relatives is required to inform the Central Government on Form FC-1 within thirty days from the date of receipt of such contribution.

 

Who can Receive Foreign Contributions?

Any person* can receive foreign contribution provided:

  1. The person has a definite cultural, economic, educational, religious, or social programme;
  2. The person must have obtained FCRA registration/prior permission from the Central Government; and
  3. The person must not be a prohibited person under Section 3 of the FCRA (Persons prohibited are already discussed above).

*Person includes –

  • an individual;
  • a Hindu Undivided Family;
  • an association;
  • a company registered under Section 8 of Companies Act, 2013 (earlier Section 25 of Companies Act, 1956).

There is a prohibition on the transfer of foreign contributions to any other person.

The foreign contribution received has to be utilised only for the purpose for which it has been received and not more than 20% of the foreign contribution received in a financial year can be utilised to defray administrative expenses.

 

Registration/Prior Permission under FCRA

Section 11 of FCRA mandates that unless a person having a definite cultural, economic, educational, religious or social program obtains a certificate of registration [COR] or prior permission from the Central Government, such person cannot accept any foreign contribution.

This means that a person should either obtain a COR or obtain prior permission before accepting any foreign contribution.

 

Eligibility to Obtain Registration 

For grant of registration under FCRA, the association should:

  • be registered either under the Societies Registration Act, 1860 [SRA] or the Indian Trusts Act, 1882 [ITA] or under section 8 of the Companies Act, 2013 [Co. Act] etc,
  • has undertaken reasonable activities in its chosen field for the benefit of society, for which the foreign contribution is proposed to be utilised;
  • normally be in existence for at least three years and has spent a minimum of INR 15 lakhs (excluding administrative expenditure) on its core activities for the benefit of society during the last three financial years;
  • submit audited statement of accounts and activity report for the last three years.

 

COR: Form of Application and Period of Validity

  • An application for COR has to be filed electronically on Form FC-3A.
  • COR is ordinally granted within ninety days from the date of receipt of the application.
  • COR is valid for a period of five years and can be renewed within six months of its expiry.

 

Eligibility for Grant of Prior Permission

An association in its formative stages would not be eligible for COR. Such an association can apply for a grant of prior permission, which may be granted for the receipt of a specific amount from a specific donor, for the carrying out of specific activities/projects.

For this purpose, the association should:

  • be registered under the SRA or the ITA or Section 8 of the Co. Act, etc.;
  • submit a specific commitment letter from the donor indicating the amount of foreign contribution and the purpose for which it is proposed to be given; and
  • have prepared a reasonable project for the benefit of the society for which the foreign contribution is proposed to be utilised.

 

Form of Application and Period of Validity of the Grant of Prior Permission 

  • An application for the grant of PP must be filed electronically in Form FC-3B.
  • Grant of PP is ordinally be granted within ninety days from the date of receipt of application.
  • Its validity shall expire once the foreign contribution is fully utilized, for which the PP was/is granted.

 

Opening an FCRA Account

Every person who makes an application for the grant of COR or PP shall be required to open an ”FCRA Account” in a designated bank account with State Bank of India, – Main Branch, New Delhi [the designated FC account].

 

Conditions for Obtaining a Registration/Grant of PP

The applicant:

  1. should not be fictitious or benami;
  2. should not have been prosecuted or convicted for indulging in activities aimed at conversion through inducement or force, either directly or indirectly, from one religious faith to another;
  3. should not have been prosecuted for or convicted of creating communal tension or disharmony;
  4. should not have been found guilty of diversion or misutilization of funds;
  5. should not be engaged or likely to be engaged in the propagation of sedition or advocate violent methods to achieve its ends;
  6. should/is not likely to use the foreign contribution for personal gains or divert it for undesirable purposes;
  7. should/has not contravened any of the provisions of the FCRA;
  8. should/has not been prohibited from accepting foreign contributions.

 

Maintenance of Accounts

  • Every person who has been granted a COR or given a PP is required to maintain a separate set of accounts and records exclusively for the foreign contribution received and submit an annual return, duly certified by a CA, giving details of the receipt and purpose-wise utilisation of the foreign contribution.
  • The annual return is to be filed for every financial year within a period of nine months from the end of the year i.e., by 31st December each year. It is mandatory to submit a ‘Nil’ return even if there is no receipt/utilization of foreign contribution during the year.
  • The annual return is to be submitted online on Form FC-4, duly accompanied by the balance sheet and statement of receipt and payment, which is certified by a CA.
  • The annual return must be filed on a yearly basis, till the amount of foreign contribution is fully utilised.

 

Recent Update: Noel Harper v. Union of India

The Hon’ble Supreme Court has, in the case of Noel Harper v. Union of India[1] upheld the constitutional validity of the Foreign Contribution (Regulation) Amendment Act, 2020 which had placed restrictions on the way foreign contributions are raised and used by organisations in India. It held that the amendments were intended to remedy the mischief of an endless chain of transfers of the foreign contributions that create a layered trail of money making it difficult to trace the flow and legitimate utilisation thereof. Further, the Hon’ble Delhi High Court in the case of Advantages India[2] had also held that provisions of FCRA do not violate Articles 14 and 21 of the constitution and are not arbitrary, unreasonable and ultra vires.

 

Concluding views

FCRA is an internal security law aimed at ensuring that foreign contributions/organisations do not affect the sovereignty of India and its public interest. The provisions under FCRA are quite strict and it is seen that the government is proactively monitoring the compliance relating to the acceptance and use of foreign contributions. It is therefore important for organisations covered under FCRA to follow the law in its true letter and spirit.

References: 

[1] Writ Petition (Civil) Nos. 566, 634 And 751 Of 2021

[2] Writ Petition (Crl) Nos. 3595 Of 2017

 

 

Image Credits: Photo by Nehal Patel on Unsplash

FCRA is an internal security law aimed at ensuring that foreign contributions / organisations do not affect the sovereignty of India and its public interest. The provisions under FCRA are quite strict and it is seen that the Government is proactively monitoring the compliances relating to the acceptance and use of foreign contributions.

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Foreign Contribution (Regulation) Amendment Rules, 2022: Highlights & Implications

Based on the Home Ministry report on foreign contributions presented to Rajya Sabha in March 2021, NGOs working in India and registered under the Foreign Contribution (Regulation) Act have received funding of over Rs 50,975 crore from abroad in the span of four years between 2015-2020. The Foreign Contribution (Regulation) Act, 2010 and Foreign Contribution (Regulation) Rules, 2011 provide the legal mechanism to monitor the receipt and utilisation of foreign contributions received by NGOs. In exercise of the powers conferred by section 48 of the Foreign Contribution (Regulation) Act, the Central Government made amendments to the Foreign Contribution (Regulation) Rules, 2011. These rules may be called the Foreign Contribution (Regulation) Amendment Rules, 2022.

Reason for the Amendments


In order to strengthen the compliance mechanism, ease compliance burden, enhance transparency and accountability in the receipt and utilisation of foreign contributions worth thousands of crores of rupees every year and facilitate genuine non-governmental organisations or associations who are working for the welfare of society and thereby facilitate the implementation of the Foreign Contribution (Regulation) Act, 2010 and Foreign Contribution (Regulation) Rules, 2011, in letter and spirit, the Foreign Contribution (Regulation) Amendment Rules, 2022 are notified by the government.


List of Amendments


Amendments to Rule 6 – Intimation of foreign contribution received from relatives:

  1. The threshold limit for any person to receive foreign contribution from any of his relatives in a financial year without informing the central government has been increased from rupees one lakh to rupees ten lakh.
  2. Time period for intimation to Central Government regarding receipt of foreign contributions from relatives has been increased to 3 months from the existing time limit of 30 days.

 

Amendments to Rule 9 – Application for obtaining “registration” or “prior permission” to receive foreign contributions:

 

  1. One of the conditions of obtaining the FCRA registration or prior permission is that the person seeking registration be required to open an exclusive bank account to receive the foreign contribution.
  2. The person may open one or more accounts in one or more banks for the purpose of utilising the foreign contribution after it has been received and, in all such cases, intimation shall be furnished to the Secretary, Ministry of Home Affairs, New Delhi. As per the present Amendment, the time limit for such intimation is enhanced from 15 days to 45 days from the opening of any such account.
  3. As per the present amendment, this enhanced time limit of 45 days shall also be applicable to any person seeking prior permission under this rule.

Amendment to Rule 13 – Declaration of receipt of foreign contribution:

  1. As per the existing provisions of Rule 13(b), any person receiving foreign contribution in a quarter of the financial year, including details of donors, amount received, and date of receipt, shall place details of foreign contribution received on its official website or on the website as specified by the Central Government within fifteen days following the last day of the quarter in which it has been received clearly indicating the details of donors, amount received and date of receipt.
  2. The current amendment removes Rule 13(b) from the Rules.

Amendment to Section 17A– Change of designated bank account, name, address, aims, objectives, or key members of the association:

  1. A person who has been granted a certificate of registration under section 12 or prior permission under section 11 of the Act shall intimate in electronic form the following: –
  • Name of the association or its address within the State for which registration/prior permission has been granted under the Act
  • Its nature, aims and objects and registration with local/relevant authorities
  • Bank and/or branch of the bank and/or designated foreign contribution account number.
  • Bank and/or branch of the bank for the purpose of utilising the foreign contribution after it has been received.
  • Office bearers or key functionaries or members mentioned in the application for grant of registration or prior permission or renewal of registration, as the case may be.

It is stipulated that the change will take effect only after final approval from the Central Government.

2. As per the present Amendment, the time limit for intimating such change to the competent authorities has been increased from fifteen (15) days to forty-five (45) days from the date of any such above-stated change.

 

Amendment to Rule 20:

  1. As per the existing provisions of Rule 20, an application for revision of an order passed by the competent authority, under section 32 of the Foreign Contribution (Regulation) Act, 2010, shall be made to the Secretary, Ministry of Home Affairs, Government of India, New Delhi, on plain paper along with a fee of Rs. 3,000/- only.
  2. The present Amendment provides for such application for revision of an order by the competent authority to be in such form and manner, including in electronic form, as may be specified by the Central Government.

In order to strengthen the compliance mechanism, ease compliance burden, enhance transparency and accountability in the receipt and utilisation of foreign contributions worth thousands of crores of rupees every year and facilitate genuine non-governmental organisations or associations who are working for the welfare of society and thereby facilitate the implementation of the Foreign Contribution (Regulation) Act, 2010 and Foreign Contribution (Regulation) Rules, 2011, in letter and spirit, the Foreign Contribution (Regulation) Amendment Rules, 2022 are notified by the government.

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CERT-IN's Cyber Security Breach Reporting: An Update

The Indian Computer Emergency Response Team (CERT-In) was constituted in 2004 under section 70B of the Information Technology Act, 2000. It is the national nodal agency that responds to cyber security threats within the country and is under the Ministry of Electronics and Information Technology, Government of India. Recently, CERT-In released a direction [1] relating to information security practices, procedures, prevention, response and reporting of cyber security threats.

Key Features of the Cyber Security Breach Reporting Directions 

 

Mandatory Reporting

The direction mandates all service providers, government organisations, data centres, intermediaries and body corporates to mandatorily report within 6 hours of noticing or being brought to notice of any cyber incident. Rule 12(1)(a) of the Information Technology (The Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013 provides for a list of cyber security incidents that needed to be reported mandatorily by these entities mentioned above. The rules had previously listed 10 different types of cyber security incidents which need to be mandatorily reported. Apart from these 10 types, the new direction has also categorised data breaches, data leaks, attacks on IoT, and payment systems, fake mobile apps, unauthorised access to social media accounts and attacks or suspicious activities affecting software/servers/systems/apps relating to big data, blockchain, virtual assets, 3Dand 4D printing, drones as cyber security incidents which should be mandatorily reported. 

 

 

Point of Contact

All service providers, intermediaries, data centres, body corporates and Government organisations shall appoint a point of contact within their organisation, who shall ensure effective coordination with the CERT-In. The name and other details of the point of contact shall be sent to CERT-In and the entity should also ensure that it is updated every now and then when there is a change.

 

 

Log Retention and Data Localisation Requirement

The direction mandates all entities mentioned in the direction to mandatorily maintain and secure logs of their ICT systems for a period of 180 days. All such logs should be stored within the jurisdiction of the country and the same should be handed over to the CERT-In in the event of a cyber security incident or any order or direction from CERT-In.

 

 

Registration of Information

The direction has mandated data centres, Virtual Private Server (VPS) providers, Cloud Service providers and Virtual Private Network Service (VPN Service) providers to register certain information with CERT-In. All these entities are required to maintain such information for a period of 5 years or longer duration as mandated by law, even after the cancellation or expiration of the registration. The following information is required to be registered with CERT-In:

  • Validated names of subscribers/customers hiring the services.
  • Period of hire, including dates.
  • IPs allotted to/being used by the members.
  • Email address and IP address and time stamp used at the time of registration/on-boarding.
  • The purpose of hiring services.
  • Validated address and contact numbers.
  • Ownership pattern of the subscribers/customers hiring services.

 

KYC Requirement

This decade has witnessed the rise of cryptocurrencies across the globe and most countries, including India, still lack a dedicated framework to regulate this space. These new directions from CERT-In intend to regulate and streamline some aspects of this exponentially expanding sector. The directions mandate that virtual asset service providers, virtual asset exchange providers and custodian wallet providers to obtain KYC information from their customers. Further, these entities are also obligated to record all their financial transactions for a period of 5 years. Entities are also directed to maintain information about the IP addresses along with timestamps and time zones, transaction ID, the public keys, addresses or accounts involved, the nature and date of the transaction, and the amount transferred. 

 

 

Integration into ICT System

The direction calls on data centres, body corporates and government organisations to connect to the Network Time Protocol (NTP) Server of the National Informatics Centre (NIC) or the National Physical Laboratory (NPL) for synchronisation into the ICT system. Moreover, where ICT infrastructure of the entities are scattered in multiple locations, the entities are free to use accurate and standard time sources other than NPL and NIC.

 

Non-compliance

In the event that the above-mentioned entities fail to adhere or comply with these directions issued by CERT-In, they shall be punishable with imprisonment for a term which may extend to one year or with a fine which may extend to one lakh rupees or with both under subsection (7) of section 70B of the IT Act, 2000.

 

Conclusion

These new directions issued by CERT-In have acknowledged the concerns of end-users, who were kept in the dark regarding their data and the process undertaken by a corporate body in the event of a data breach or leak. The directions have also touched upon the latest technological developments like cloud services, virtual assets, and online payments, which are yet to be completely regulated by the government. When compared with the CERT rules 2013, the new directions have an expanded scope and applicability as well as a significantly increased compliance bracket for entities.

The European Union enacted the EU Directive on Security of Networks and Information Systems (called the NIS Directive), which supervises the cyber security of European markets. Unlike the present directive, the scope and applicability of the NIS directive are much larger. Certain critical sectors such as energy, transport, water, health, digital infrastructure, finance, and digital service providers such as online marketplaces, cloud and online search engines are all required to comply with these directives.

CERT-In has provided the entities with a 60-day window to comply with the directions. The increased compliance requirements and the added cost that comes along with such compliance will make smaller entities anxious. Hence, the effectiveness of these directions can only be judged with the passage of time. Significant concern can also be placed on the fact that these new directions will merely add to the compliance burden rather than improve the cyber security environment of the country.

References:

[1] https://www.cert-in.org.in/Directions70B.jsp

Image Credits: Image by Pete Linforth from Pixabay

These new directions issued by CERT-In have acknowledged the concerns of end-users, who were kept in the dark regarding their data and the process undertaken by a body corporate in the event of a data breach or leak. The directions have also touched upon the latest technological developments like cloud services, virtual assets, and online payments, which are yet to be completely regulated by the government. When compared to the CERT rules 2013, the new directions have an expanded scope and applicability and a significantly increased compliance bracket for entities.

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New Labour Codes : How to Prepare for the Challenges Ahead?

A couple of years ago, India’s Parliament approved four new Labour Codes that cover important areas such as Wages, Social Security, Industrial Relations and Occupational Safety and Health. Labour reforms have been a long-pending agenda item for successive governments. The creation of these codes was aimed at modernizing, rationalizing and strengthening India’s arguably archaic labour-related laws. The new codes are also intended to attract investments into various sectors and make it easier to do business in India.

Although the Central Government notified these four new Labour Codes in September 2020, even now, a majority of states have not notified rules; less than half the states have even come up with draft rules. There has been some talk in recent days that the government may decide to implement the new codes effective 1 July. While this has not been officially confirmed, the inevitability of the implementation of the new codes makes it important for state governments to quickly come up with their draft rules and allow time for consultation so that loopholes and lacunae can be plugged before they come into effect. There will naturally be protests against the new laws because any change causes pain by forcing people outside their zones of comfort.

Once the new labour codes come into effect, two key changes will occur that will directly impact employees and organizations:

Working hours: It is expected that working hours may increase from the current 9 hours a day to 12 hours a day. The flip side, however, is that employees will need to work only four days a week, instead of the current five.

Take-home salary: The new wage code stipulates that an employee’s “basic salary” must be at least 50% of the total salary. This will cause changes to allowances and other perquisites that are widely used for tax planning purposes. A higher Basic Salary also means that deductions towards retirement benefits such as provident fund and gratuity will increase. In turn, this will reduce the net take-home salary for employees. However, this also means that employees will accumulate a much larger corpus of money when they retire, in effect, trading off current consumption with future security.

Adapting to this change will require companies to revisit policies, employment terms and contracts and even operating procedures. It may require fresh investments in amenities for workers and other employees at factories, construction sites, stores etc. New compliance requirements will arise, which means that business leaders, HR teams and those responsible for compliance must gear up to ensure that the organisation remains compliant with the new set of rules. This task becomes more difficult because the new codes have amalgamated a number of laws. For example, four laws have been amalgamated into the Wage Code, three into the Industrial Relations Code, nine into the Social Security Code and thirteen laws into the Occupational Safety, Health and Working Conditions Code, 2020.

Organizations must also keep in mind that these new codes will need to be implemented in tandem with hybrid ways of working. Even when employees were required to work for only 9 hours a day, there have been many instances of individuals (across industries and companies) working for 14 hours a day in a “work from home” model. Care must be taken to ensure that work-life balance is not further damaged by the extended working hours that the new codes provide for.

Business organizations with offices and production facilities in multiple locations spread across a number of states will need to be extra careful to ensure compliance with every state’s laws. Enterprises considering M&A will need to evaluate the costs of compliance with the new labour codes as part of their due diligence and strategic/financial assessment during valuation. Expert advice will be needed to minimize the pain that will inevitably accompany the transition. But given the intent of the new labour codes, it is fair to say that if they are backed by pragmatic rules, they will surely play a key role in accelerating the country’s economic growth in the years ahead.

Image Credits: Photo by Pop & Zebra on Unsplash

Adapting to this change will require companies to revisit policies, employment terms and contracts and even operating procedures. It may require fresh investments in amenities for workers and other employees at factories, construction sites, stores etc. 

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Revised Guidelines and Standards for Charging Infrastructure for Electric Vehicles: An Analysis

To promote e-mobility in India, the Ministry of Power, on 14th January 2022, introduced the revised consolidated Guidelines & Standards for Charging Infrastructure for Electric Vehicles (hereinafter, the Guidelines).[1] The Guidelines play a pertinent role in facilitating the e-mobility transition in India by increasing the affordability, accessibility, and reliability of the charging infrastructure. These guidelines are comprehensive as they deal with issues ranging from public charging stations to the tariff for the supply of electricity.[2] This article aims to study the provisions under the recent Guidelines, analyse the same, and delve into the suggestions for their effective implementation.

Exploring the Contours of the Electric Vehicle Infrastructure Guidelines

 

The Guidelines allow individuals to charge the Electric Vehicles (hereinafter, “EV”) at their residences and places of work with the help of their existing electricity connections.[3]  A private entity is free to set up a public charging station till the time it complies with the standards and protocols laid down by the Ministry of Power, Bureau of Energy Efficiency and Central Electricity Authority (CEA) from time to time.

The government, through the new Guidelines, aims to establish a grid of 3x3km for the EVs.[4] On the highways, a charging station would be available within every twenty-five kilometres. These charging stations would be present on both sides of the highways. To facilitate this goal, the government may resort to the installation of public charging stations at the existing outlets of the oil marketing companies.[5] It is interesting to note that the Guidelines also target heavy-duty EVs such as trucks and buses. A separate list of compliances, such as the requirement of at least two chargers of a minimum 100 kW (with 200-1000 V) each, has been specified for the long-distance and heavy-duty EVs.[6]

Under the Guidelines, the public charging stations can apply for electricity connection and the distribution licensee would provide the same as per the timelines provided under the Electricity (Rights of the Consumers) Rules, 2020.[7]  The public charging stations set up in metro cities would be able to have connectivity within the seven days of applying.[8] The deadline extends to 15 days in the case of other municipal areas and 30 days in rural areas. The Guidelines also present the option of procuring power from any power generating company through open access.

To provide for advanced remote or online booking of charging slots, it is necessary for the public charging station to have a tie-up with at least a single network service provider. This would allow the EV owners to have the requisite information pertaining to various aspects such as a number of the installed and available chargers, location, and applicable service charges. While acknowledging that few public charging stations would be set up for internal use of an entity, the Guidelines additionally mention that no network service provider tie-ups are needed in that instance.

One of the key features of these Guidelines is that they provide for the single part tariff for the electric supply to the public charging stations, which would not extend the average cost of the supply until March 31st, 2025.[9] A separate meeting arrangement would be provided for the public charging stations, as opposed to the domestic charging, so as to ensure that the consumption is recorded and billed in line with the applicable tariffs. To further reduce the cost, the government has provided electricity at concessional rates along with the subsidies to set up the Public Charging Stations. Moreover, the state governments would be fixing the ceiling of service charges, which are to be levied on these charging stations.[10]  The Guidelines, inter alia, provide that the DISCOMs may leverage on the funding from the Revamped Distribution Sector Scheme for the augmentation of the general upstream network, which is necessitated due to the upcoming charging infrastructure. It specifies that the “cost of such works carried out by DISCOMs with the financial assistance from the Government of India under the revamped scheme should not be charged from the consumers for the Public Charging Stations for EVs.”[11]

The recent guidelines play an instrumental role in ensuring the process of charging is made affordable for EV users. The public charging stations would be set up on a revenue-sharing basis at the fixed rate of Rs 1/kWh.[12] More and more public charging systems would be set up by using the land available with the government and private entities.

It is pertinent to note that a phased manner would be followed with respect to the rolling out process. Phase I, which ranges from the first to third year, would target all the megacities having a population of over four million. In this phase, all the existing expressways and important highways linked with the above megacities would also be included. Thereafter, under the second phase (which would range from the third to the fifth year) would cover certain big cities, state capitals, and headquarters of the Union territories.[13]

Moreover, these Guidelines are made technology agnostic because they provide for prevailing international charging standards available in the market as well as new Indian charging standards.

The Bureau of Energy Efficiency would be the central nodal agency for the rollout of the EV public charging infrastructure.[14] Moreover, every state government can have its own nodal agency for the purposes of setting up the requisite infrastructure.

 

Requisites of Electric Vehicle Charging Stations

 

The Guidelines can be perceived as a massive step forward to promote the adoption of EVs in India by increasing accessibility and affordability. They should be lauded for introducing a reliable economically viable and coordinated system to regulate the charging of such vehicles. They further tend to address the long-existing lacunae, which persisted with respect to the applicable tariffs.

In India, one of the reasons as to why the adoption of EVs has been quite staggered is because, according to the data with the Ministry of Road Transport and Highways (“MORTH”), for 9,47,876 registered cars, only 1028 public charging stations are there.[15] This was observed by the Bureau of Energy Efficiency. Therefore, from the above figure, it could be clearly observed that the country does not have the necessary infrastructure to cater to the growing demand for EVs. These guidelines have identified the existing problem and provided appropriate solutions for the same. As discussed above, apart from the installation of an adequate number of public charging stations, the individual consumers will also have the option of charging the EVs at their homes or places of work. The Guidelines state that under private charging, the batteries of the privately owned cars are charged through the domestic charging points and the billing is done via the home or domestic metering.  On the other hand, for charging outside the home premises, the power needs to be billed and payment needs to be collected. Moreover, the power drawn from these chargers is regulated from time to time.

The provision of private charging, in addition to public charging, would overall result in consumer welfare as now the private users do not have to rely completely on the government for the charging process. They can bridge the implementation gap by setting up their own charging stations. Further, the government has also been taking the right steps to bring down the price of electric vehicles by providing subsidies. At present, the price of the majority of Electric two-wheelers and three-wheelers are almost equivalent to their petrol counterparts.[16]

India has set the target of meeting 30% EV sales penetration for private cars, 70% for commercial vehicles, 80% for two and three-wheelers, and 40% for buses by 2030.[17] However, earlier this goal seemed unachievable due to the high costs associated with EVs and lack of the required infrastructure for public charging stations. The new Guidelines strive to make certain that the country is back on the track to meet the above-mentioned objective. This has been possible due to the subsidies that have been provided by the government. It is predicted that the sale of the total electric vehicles in India would reach approximately 10 lakh units. This number is equal to the units sold collectively in the last fifteen years.[18] Apart from this, the government has introduced a portal called e-Amrit to make India a more conducive place for the manufacture and adoption of EVs.[19]

Furthermore, the Guidelines aim to strike a balance between accessibility and safety. By allowing private entities to set up charging stations, the government has not only made the charging of EVs more feasible for individuals but has also reduced its burden of being the sole provider of the charging stations.  Annexure 3 lay down a list of requirements to ensure that the safety protocols have been followed[20]

Instrumental Role Played by EV Charging Infrastructure

 

The Guidelines would play an instrumental role in transforming and shaping the future of the use of EVs in India. They have efficiently recognized the existing issues and have formulated promising ways for addressing the same. Not only would they help in promoting energy security, but would also help in the reduction of emissions that are harmful to the environment which is a major concern at the global level. This would enable the country to take a step forward in the direction of its concern to save the environment and sustainable development.

However, the success of these Guidelines entirely depends on their effective implementation. Therefore, both central and state governments shall play a crucial role in its success in introducing a user-friendly EV policy. It is suggested that the Central Government or the Central Nodal Agency should keep a check on the performance of all the States with regards to the Guidelines. It should ensure that the development is taking place in a continuous and coordinated manner. Moreover, since the private individuals and entities for public use are free to set up their own charging stations, measures should be taken to ensure that the safety standards are strictly being met.

References:

[1] https://powermin.gov.in/sites/default/files/webform/notices/Final_Consolidated_EVCI_Guidelines_January_2022_with_ANNEXURES.pdf

[2] https://www.business-standard.com/article/economy-policy/power-ministry-revises-norms-for-pro-actively-setting-up-ev-charing-infra-122011500778_1.html

[3] https://auto.economictimes.indiatimes.com/news/industry/guidelines-and-standards-for-ev-public-charging-stations-released-owners-can-charge-at-home-or-office-too/88941883

[4] https://economictimes.indiatimes.com/industry/renewables/what-budget-2022-can-do-to-power-up-ev-charging-scene/articleshow/89069935.cms

[5] https://mercomindia.com/ministry-of-power-guidelines-ev-charging-infrastructure/#:~:text=As%20per%20the%20new%20guidelines%2C%20public%20charging%20stations%20will%20be,30%20days%20in%20rural%20areas.

[6] https://powermin.gov.in/sites/default/files/webform/notices/Final_Consolidated_EVCI_Guidelines_January_2022_with_ANNEXURES.pdf.

[7] https://powermin.gov.in/sites/default/files/uploads/Consumers_Rules_2020.pdf

[8] https://www.news18.com/news/auto/government-allows-ev-owners-to-charge-cars-using-existing-electricity-connections-4666697.html

[9] https://www.thehindu.com/news/national/revised-guidelines-for-charging-infrastructure-for-electric-vehicles-issued/article38275645.ece

[10] https://indiaesa.info/resources/ev-101/3924-public-ev-charging-infrastructure-in-india.

[11] https://powermin.gov.in/sites/default/files/webform/notices/Final_Consolidated_EVCI_Guidelines_January_2022_with_ANNEXURES.pdf

[12] https://www.freepressjournal.in/india/owners-of-evs-can-now-charge-them-at-their-residenceoffices-using-their-existing-electricity-connections

[13] https://economictimes.indiatimes.com/industry/renewables/govt-land-to-ev-public-charging-stations-through-bidding/articleshow/88917938.cms?from=mdr

[14] https://beeindia.gov.in/content/e-mobility

[15] https://www.hindustantimes.com/india-news/govt-allows-use-of-existing-power-connections-to-charge-evs-101642392095051.html

[16] https://www.hindustantimes.com/india-news/govt-allows-use-of-existing-power-connections-to-charge-evs-101642392095051.html.

[17] https://www.hindustantimes.com/india-news/budget-2022-special-mobility-zones-for-evs-soon-101643699503104.html#:~:text=her%20budget%20speech.-,India%20has%20set%20a%20target%20of%2030%25%20EV%20sales%20penetration,and%20three%2Dwheelers%20by%202030.

[18] https://www.news18.com/news/auto/electric-vehicles-sales-in-india-expected-to-touch-10-lakh-units-in-2022-smev-4630505.html.

[19] https://www.india.gov.in/spotlight/e-amrit-accelerated-e-mobility-revolution-indias-transportation#:~:text=e%2DAMRIT%20is%20a%20one,%2C%20charging%20stations%2C%20business%20requirements.

[20] https://powermin.gov.in/sites/default/files/webform/notices/Final_Consolidated_EVCI_Guidelines_January_2022_with_ANNEXURES.pdf.

Image Credits: Image by Photo by Michael Marais on Unsplash

The success of these Guidelines entirely depends on their effective implementation. Therefore, both central and state governments shall play a crucial role in its success in introducing a user-friendly EV policy. It is suggested that the Central Government or the Central Nodal Agency should keep a check on the performance of all the States with regards to the Guidelines. It should ensure that the development is taking place in a continuous and coordinated manner.

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IS17428 -A New Privacy Assurance Standard in India

Recently, Aditya Birla Fashion and Retail Ltd (ABFR) faced a major data breach on its e-commerce portal. As per the reports, personal information of over 5.4 million users of the platform was made public. The 700 GB data leak included personal customer details like order histories, names, dates of birth, credit card information, addresses and contact numbers. Additionally, details like salaries, religion, marital status of employees were also leaked.  Forensic and data security experts were pro-actively engaged to implement the requisite damage-control measures and launch a detailed investigation into the matter.[1] This demonstrates the need to have wider awareness and establish standardized protocols for personal data management. 

The battle of data protection and privacy currently stands at a juxtaposition with a flourishing data economy. 2021 was a watershed moment in the privacy & data protection dialogue in the country. The need for comprehensive data protection law was louder than ever and there were major initiatives on the legislative and executive front.

In June of 2021, the Bureau of India Standards (BIS) introduced IS 17428 for data privacy assurance. It is a privacy framework designed for organisations to handle the personal data of individuals that they collect or process. The certification provided by BIS for IS 17428 can be deemed as an assurance extended to the customers/users by the organizations of well-implemented privacy practice. The BIS being a statutorily created standard-setting body of our country will bring some welcome change in our data management.  

IS 17428 is divided into 2 parts[2]:

  • Part 1 deals with the Management and Engineering parameters that are mandatory for an organization to comply with. This part provides for establishing and cultivating a competent Data Privacy Management System.
  • Part 2 deals with the Engineering and Management guidelines which enable the implementation of Part 1. These guidelines are not mandatory in nature but a reference framework for an organization to implement good practices internally.

 

The Context – Privacy & Data Protection laws in India

 

The Data protection bill was expected to be tabled in parliament back in 2019 but was postponed due to the ongoing pandemic. The country was hoping to pass the bill last year, however, it was sent to the Joint Parliament Committee (JPC) for perusal. The JPC made its report on the bill public in the month of December 2021.

Also, Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 had been implemented back in 2011, primarily to safeguard the sensitive personal data of individuals that are collected, processed, transferred, or stored by any organisation and enumerate security practices. The rule lays down certain practices and procedures to be followed by a stakeholder while dealing with sensitive personal data. International Standard IS/ISO/IEC 27001 is one such acceptable standard.

Later ISO27701 was specifically introduced that focused on Privacy Information Management.  However, our Indian enactment has not specifically endorsed any such standards though Standards formulated by the industry association that is approved and notified by the Central Government are also deemed appropriate.  In this background, BIS introducing a standard is a welcome initiative as it will help in bringing uniformity in terms of the implementation of privacy practices across Indian industries.

Components of Part 1 of IS 17428[3]

 
Development of Privacy Requirements:

While developing the privacy requirements of the organisation in relation to the data collected or processed, the organisation has to take into consideration various factors such as jurisdiction, statutory requirements and business needs.

Personal Data Collection and Limitation:

The organisation is permitted to collect the personal information of the individuals, provided the same has been consented to by such individuals.

Privacy notice: 

The organisation is bound to provide a notice to individuals while collecting information from them and when such collection is through an indirect method employed by the organisation, then it is the duty of the former to convey by the same in an unambiguous and legitimate means.

The contents of a privacy notice at the minimum should include the following[4]:

  • Name and Address of the entity collecting the personal data
  • Name and Address of the entity retaining the personal data, if different from above
  • Types and categories of personal data collected
  • Purpose of collection and processing
  • Recipients of personal data, including any transfers
Choice and Consent:

As mentioned earlier, while collecting information, the organisation should get the consent of the individual at the initiation of the process while offering such individuals the choice of the information that they consent to disclose. This entire process should be done in a lawful manner and according to the privacy policies implemented by the organisation.

Data Accuracy: 

The data collected by the organisation should be accurate, and in case it is inaccurate, it should be corrected promptly.

Use Limitation: 

The data collected by the organisation should be used for the legitimate purpose for which it was agreed upon and it shall not be used for any other purposes.

Security: 

The organisation should implement a strict security program to ensure that the information collected is not breached or compromised in any manner.

Data Privacy Management System: 

The organisation is required to establish a Data Privacy Management System (DPMS). The DPMS shall act as a point of reference and baseline for the organisation’s privacy requirements/objectives.

Privacy Objectives: 

The privacy objective of the organisation shall be fixed and set out by the organisation itself. While determining the objectives the organisation shall also look into various factors such as the nature of business operations involving the GDPR processing of personal information, the industry domain, type of individuals, the extent to which the processed information is outsourced and the personal information collected. Moreover, the organisation shall also ensure that the objectives are in alignment with its privacy policy, business objectives and the geographical distribution of its operations.

Personal Data Storage Limitation: 

The organisation shall be allowed to retain the information collected from the individual only for a specific time period as required by the law or the completion of the purpose for which it was collected in the first place. The individual shall have the right to delete their personal information from the organisation database upon request.

Privacy Policy: 

The organisation shall create and implement a privacy policy that shall determine the scope and be applicable to all its business affiliates. The senior management of the organisation shall be in charge of the data privacy function. Moreover, the privacy policy should be in consonance with the privacy objectives of the organisation.

Records and Document Management: 

The organisation shall keep a record of its processing activities which shall, in turn, ensure responsibility towards the compliance of data privacy. The possible way to achieve such a standard is to lay out procedures that help to identify various records. While laying out procedures, the organisation shall take into consideration certain factors such as a record of logs that demonstrate affirmative action and options chosen by individuals on privacy consent and notice, evidence of capture events related to access or use of personal information, and retention period of obsolete documents.

Privacy Impact Assessment: 

A privacy impact assessment shall be carried out by the organisation from time to time. Such an assessment shall help in estimating the changes and the impact that they can possibly have on the data privacy of the individuals.

Privacy Risk Management: 

The organisation shall put in place and document a privacy risk management methodology. The methodology shall determine how the risks are managed and how the risks are kept at an acceptable level.

Grievance Redress:  

A grievance redressal mechanism shall be established by the organisation to handle the grievances of the individuals promptly. The organisation shall ensure that the contact information of the grievance officer shall be displayed or published and that they have the channel of receiving complaints from the individuals. Moreover, the organisation shall also make it clear as to the provision for escalation and appeal and the timelines for resolution of the grievance.

Periodic Audits: 

The organisation shall conduct periodic audits for the data privacy management system. The audit shall be conducted by an independent authority competent in data privacy, internal or external to the organization, at a periodicity appropriate for the organization, at least once a year.

Privacy Incident Management: 

Privacy breaches and data privacy incidents shall be reported regularly and the organisation shall come up with a mechanism to manage such incidents. The process shall involve identifying the incident at the first stage and investigating the root cause, preparing analysis and correcting the incidents in the second stage. The last stage is basically informing the key stakeholders including Data Privacy Authority about the breach or incident.

Data Subject’s Request Management: 

The organisation shall develop a mechanism to respond to requests from individuals concerning their personal data. This process shall include the means to verify the identity of the individual, provision access to the information and the means to update the information.

 

How IS 17428 would help in Privacy and Data Protection? 

 

The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (RSPP and SPDI rules) had been the only law for organisations to follow. The rules did not prescribe or detail any specific requirements or standards in relation to personal data management and in the absence of formulated standards for the protection of the sensitive personal data of individuals, industry bodies were struggling to have uniform procedures. 

This being the case, introducing specific standards for personal data management will bring more clarity and will help companies to adhere to an approved standard prescribed by a government agency. Moreover, principles narrated in this standard are in accordance with the Internationally recognised privacy principles and will help Indian companies to proffer confidence when dealing with their commercial counterparts.

Introduction of record and document management, risk assessment and data subject request management are a few of the aspects that bring onerous responsibilities on companies making them more accountable and transparent.  These aspects have laid down procedures and mechanisms for an organisation to improve their privacy management, for example, introducing processes such as verification of identity, access to information, evidence of capture events of consent and retention period of obsolete documents.

 

The proposed data protection legislation and the IS 17428

 

The IS 17428 standard has been inspired primarily from the principles dictated from OECD privacy principles, GDPR and ISO27701. The proposed data protection legislation on the other hand has many divergences from the above instruments in many respects. For Instance, the IS standard has an elaborate description provided for the privacy objective of the organisation and the factors that need to be taken into account. Most of these objectives are covered under Sections 22 and 23 of the draft Bill but nevertheless, the standard has recommended a few other factors such as geographical operation, industrial domain and type of individuals as specific factors to be taken into consideration while drafting the privacy objectives. How much discretionary privacy standards can be created, what is allowed freedom for industries in this regard is unclear.

Section 28 of the draft bill talks about the records and document management of the data collected or processed and the standard covers almost every bit of the section. In addition to the consideration mentioned under the bill, the standard goes forward and echoes the need to establish a policy on the preservation of obsolete policies and process documents. Data and record-keeping should be for a defined period. The majority of other legislation prescribes an average of 7 years of data-keeping. Keeping any data beyond such a reasonable period may not serve many purposes. Why this standard has prescribed such obsolete data retention is again unclear.

The standard could be made effective by only having an enactment for data protection legislation in place. For instance, the grievance redressal mechanism, though the standards do envisage an appeal mechanism, they do not establish appeal machinery. This part of the standard can be put to use only after the Data Protection Authority as per section 32 is constituted. The standard also calls for an investigative process in the event of any breach or compromise of data. The organisation is welcome to conduct an onsite or internal investigation into the breach or incidents, but once again an independent authority to investigate in a legitimate and fair manner is required.

In short, I am afraid, has it failed to take into account the special requirements contemplated under the PDPB, 2019 which may eventually become the law of the country thereby, once this law is enacted, this standard will also be required to be modified. The government has not made any announcement as per the RSPP and SPDI rules, that IS 17428 is an appropriate standard certifying the compliance of personal data management. In the absence of such explicit endorsement, the ambiguity continues as to whether the adoption of this standard is sufficient compliance under the said rules.

Finally, with the Data protection bill around the corner, the Data Protection Authority envisaged being constituted under the legislation which shall have the power to issue code, guidelines, and best practices for protecting the privacy of data subjects. How IS 17428 standards framed by the BIS will be looked at by the DPA or the proposed rule will offer a different set of practices shall be an interesting development to observe.

References:

[1] https://economictimes.indiatimes.com/industry/cons-products/fashion-/-cosmetics-/-jewellery/abfrl-faces-data-breach-on-its-portal/articleshow/88930807.cms

[2] The IS 17438 was established on November 20, 2020 and notified in the official gazette on December 4, 2020. Please see the notification available at: https://egazette.nic.in/WriteReadData/2020/223869.pdf (last visited Jan 18, 2022).

[3] Supra note 2.

[4] Sub-clause 4.2.2 of the IS Requirements: “Privacy Notice”.

 

 

Photo Credits:

Image by Darwin Laganzon from Pixabay 

Introduction of record and document management, risk assessment and data subject request management are a few of the aspects that bring onerous responsibilities on companies making them more accountable and transparent.  These aspects have laid down procedures and mechanisms for an organisation to improve their privacy management, for example, introducing processes such as verification of identity, access to information, evidence of capture events of consent and retention period of obsolete documents.

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Global Captive Centers in India: Can Add Value if Set Up Differently

Major forces of change, such as the emergence of new technologies, maturing of platform-based business models and other competitive threats are forcing businesses to transform themselves. Another driver of large-scale change is the pandemic, which has led to new ways of working. Hybrid models, where a large chunk of employees work remotely and not from a designated office space, are now becoming the norm. Although some companies have begun to announce plans for their employees to return to workplaces, the consensus opinion is that a hybrid model is going to become the new norm because it significantly reduces operating costs; also, employees are finding it more convenient.

One area where the above changes are clearly visible relates to how large and medium enterprises across industries are looking at outsourcing to countries such as India. In recent years, the contours of both IT outsourcing and BPO have evolved rapidly; the above-mentioned forces of change are only accelerating the velocity of change.

A survey by NASSCOM recently found that by 2025, MNCs are likely to set up 500 new Global Captive Centers (GCCs) in India. Until two years ago, the number of such units established annually was around 50. This demonstrates that India’s large talent pool continues to be attractive. But it’s a different world we live in than even five years ago.

Earlier, most MNCs viewed their GCCs in India as low-cost delivery centers and design, architecture, prioritization of projects etc. were all the exclusive domain of Business/Technology leaders in the parent company. Cost arbitrage opportunities still exist in India vis-à-vis western countries, and thus, cost savings will remain an important objective for evaluating GCC performance. However, the ongoing shifts are raising the bar on how GCCs are expected to contribute to their parent organizations. Along with cost-efficient service delivery, enhancing automation, driving process innovation and enabling adoption of new technologies and architecture paradigms will all become important performance criteria. In some cases, there may even be expectations of new product innovations coming out of the Indian GCC.

MNCs will need appropriate operating models and talent to deliver on the potential. Employee contracts need to be suitably structured. IPR must be appropriately protected. Compliance with data privacy and other regulations must be ensured. As MNCs plan and implement their GCCs in India, they must keep in mind that India too is changing rapidly. They must formulate their strategies keeping in mind four specific factors:

  • Quality infrastructure (including reliable electricity and broadband connectivity) is now available across the country, and not limited to Tier 1 cities. This gives companies a wider choice of locating their GCCs.
  • As a result of reverse-migration triggered by the pandemic, talent too is available in smaller cities across the country. Given the possibility of remote working, the proximity to families and lower cost of living have become significant incentives; in fact, many employees prefer to live and work from such locations.
  • Many state governments are offering incentives to companies establishing operations in less-developed parts of their states and creating employment opportunities.
  • The country’s FDI, income tax and GST regimes are also frequently being tweaked to make India more competitive and business-friendly.

All this means that making choices and decisions around business objectives, investment routing, structuring and locations based on criteria and checklists that were relevant even a couple of years ago may lead to sub-optimal outcomes. Your GCC in India has the potential to be a global Centre of Excellence- so make sure that you make the right decisions so that your investments deliver ROI in ways that go far beyond cost arbitrage.

Mr. Sandip Sen, former Global CEO of Aegis and a well-known veteran of the BPO industry, put it thus: “These are exciting times for the Business Process Management industry for many reasons. Use of Artificial Intelligence (AI), analytics and higher levels of automation mean that players at the lower end of the value chain will need to raise their capabilities. In the next phase, GCCs will focus more on innovation as well as technology enablement aimed at enterprises to embrace ecosystem-based business models and higher levels of customer-centricity. But to achieve all this, companies have to take an approach that is very different from what they might have taken some years ago”.

 

Image Credits: Photo by Alex Kotliarskyi on Unsplash

MNCs will need appropriate operating models and talent to deliver on the potential. Employee contracts need to be suitably structured. IPR must be appropriately protected. Compliance with data privacy and other regulations must be ensured. 

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Project Cost in Infrastructure Projects: Concept, Challenges and Way Forward

The IMF and Central Statistic Organization had dubbed the Indian economy as the fastest growing economy back in 2019. Moving forward, in 2021 despite the havoc wrecked by the pandemic on advanced economies across the globe, the IMF has kept India’s growth forecast unchanged at 9.5%. In order to sustain India’s growth momentum, the development of country’s infrastructure sector is cogent. The National Infrastructure Pipeline has been the focus of current policies, with an unprecedented increase in capital expenditure allocation for FY 2021-22 by 34.5% to INR 5.5 lakh crore to propel infrastructure creation. However, the April-June 2021 report of The Ministry of Statistics states that 470 projects sanctioned by the centre suffered from a cost overrun of 61.5 percent, that is Rs 4,46,169.37 crore[1].

Project cost remains the central concern for any seminal discussion on infrastructural projects in India or around the world. This is the nebulous point where a host of stakeholders would converge to dispute, disagree, or litigate. This article aims to discuss the concept of project cost and its various implications for the different stakeholders involved.

Introduction to Infrastructure and Projects

 

Costs that are reasonably incurred for the acquisition and construction of infrastructure are referred to as infrastructure costs. Hence, Project cost could mean the total cost of an infrastructure project.  In India, there is no clear definition of the term infrastructure. However, on 1st March 2012, the Cabinet Committee on Infrastructure approved the framework to include a harmonised master list of sub-sectors to guide all the agencies responsible for supporting infrastructure in India. These sub-sectors include transports and logistics, energy, water and sanitation, communication, and social infrastructure. Out of the plethora of these sub-sectors, during the fiscals of 2020-2025, it is expected that sub-sectors such as Energy (24%), Roads (19%), Railways (13%) and Urban (16%) shall constitute 70%of the projected capital expenditure in infrastructure in India[2]. The total capital expenditure as per the report is expected to be 102 lakh crore Indian rupees. Furthermore, in India, the current investment in infrastructure is USD 3.9 Trillion, and the required investment is USD 4.5 Trillion, leaving a gap of USD 526 Billion[3]. Therefore, the energy and infrastructure sector are instrumental in generating tremendous employment opportunities and drive a substantial increase in GDP per annum in India as well as countries all over the world.

 

Structure of Project Finance Transactions

 

The main parties involved in a project finance transaction structure are (i) The Authority or the Government (ii) The Private Party Investors/Developers, Sponsors or Promotors and (iii) the Lenders. These three parties are key players responsible for the determination of project costs in infrastructure and construction projects. The principal point of convergence for these three players is the project company (i.e., also known as special purpose vehicle) set up by the private party investors under which the infrastructure project is formed and under which the project exists in the concession agreement. The project cost is mainly estimated by the private party and the lenders who would finance in the form of equity and debt. The typical financial structure for infrastructure projects has a debt-to-equity ratio of 75:25. However, the ratio may vary depending upon the risks involved.

                Illustration I: Key parties that influence the project cost of an infrastructure project

                                                                                                                     

 

Risks that affect the Determination of Project Cost

 

Every project has certain risks attached to its completion. These risks influence the determination of project costs by the authority, the private parties and the lenders. The risks, in turn, then affect the total cost of the project. The risks affecting the three parties are explained below:

 

                                Illustration II: Risks that affect the determination of project cost

    

 Risk for Authority

Risk for Private Party
Investors

Risk for Lender

Technical or physical risks

Economic or market risks

Economic or market risks

Risk relating to land acquisition

Construction and completion risk – cost overrun/time
overrun/delays

Financing risks

For eg. Technical or physical risks may include risks
associated with technology during
construction and operation as well as social and environmental risks.

For eg. Economic or
market risks may include input and output price variations, variation in
demand, debt/equity financing as well as counterparty risks.

For eg. Economic or
market risks may include input and output price variations, variation in
demand, debt/equity financing as well as counterparty risks.

The other risks that affect the cost of the project are contractual and legal risks, resource and raw material availability risks, demand risks, design risks, force majeure, property damage, permits, licenses, authorization, supply risk, social and environmental risks.

 

The Major Risks affecting Project Cost in India: Cost Overrun and Time Overrun

 

Out of the myriad of risks affecting project cost, the major risks in India are the risks associated with cost and time overruns. As many as 525 infrastructure projects were hit by time overruns, and as many as 470 infrastructure projects, each worth Rs 150 crore or more, were hit by cost overruns of over Rs 4.38 Trillion owing to delays, according to a report by the Ministry of Statistics, cited previously[4] The main causes for time overruns are delay in obtaining forest and environmental clearances, delay in land acquisition,  and lack of infrastructure support.  As per the report, there are other reasons like delay in project financing, delay in finalisation of detailed engineering, alteration in scope, delay in ordering and equipment supply, law, geological issues, contractual complications and delay in tendering.

 

The Key Elements of Project Cost

 

The elements of ‘costing’ include variables such as raw materials, labour, and expenses. Thus, for infrastructure projects as well, at the time of estimation of cost, these variables would come into play. The factors affecting cost for a public-private partnership project could be the following:

 

                        Illustration III: Factors affecting Cost of Projects: PPP model projects

FACTORS AFFECTING COST OF PROJECTS : PPP MODEL PROJECTS

Materials

Labour

Consultants

Contractor

Client

External
Factors

Dispute
Resolution

Costs and delays
associated with procurement and delivery of materials, import costs

Availability or non –
availability of skilled labour.

Recurring changes in
design

Poor site management
and supervision

Change orders

Force Majeure events
and weather changes.

International dispute
resolution in outside jurisdictions[1]

Unavailability of raw
materials

Poor management of
labour

Delay in approvals and
inspections

Inept subcontractors

Political and policy
changes such as MII[2]

Approvals from
authorities

Costly and time-consuming
domestic litigation

Wastage and theft of
materials – 13 to 14 million construction waste (FY 2000-2001)[3]

Increasing cost of
labour

Inaccuracy in design,
costs associated with knowledge transfer

Poor planning,
scheduling and cash flow management by Contractors

Poor communication for
quality and cost

Accidents

High legal costs and high
arbitrators fees[4].
Non-realisation of arbitral awards and court decree amounts.

 

 

Case Study: The Mumbai Monorail – An EPC Contract Model

 

Time and cost overruns in projects lead to disputes and arbitrations. A suitable example is the  Mumbai Monorail which has entered disputes and arbitration between the Contractor and the Authority over its project cost[9]. The development authority MMRDA entered into a contract with L&T Scomi Engineering for the construction of the Mumbai Monorail project. The original project cost between the Private Party Investors and the Authority was estimated to be Rs 2,700 crore, after which disputes arose. The Authority had claims against the Contractor for not completing the project task on time. The arguments of the Contractor pertained to the cost escalations caused by delays due to the fault of the Authority.  In 2019, the Bombay High Court appointed an arbitrator to settle the dispute. Currently, the dispute is still in the arbitration stage. Furthermore, post-December 2018, the MMRDA had taken over the Operation and Maintenance of the Mumbai Monorail project from L&T Scomi Engineering. Due to the Make in India policy, the tenders for manufacturing of the Mumbai Monorail were altered to encourage manufacturers and Indian technology partners to participate and fulfil the demands of manufacturing the additional monorail rakes[10]. Among other issues currently plaguing the Mumbai Monorail project, such as unavailability of a sufficient number of rakes to keep the services running and an inadequate number of spare parts, the widening deficit between revenue and O&M costs, remains primary.   

   

Way Forward

 

As per the report by the Ministry of Statistics cited above, the reason for cost and time overruns can be largely attributed to the state-wise lockdown due to the COVID-19 pandemic, which has been causing great hindrance to the implementation of infrastructure projects. Time and cost overruns in projects lead to disputes and arbitrations. Furthermore, in the procurement stage of projects, biddings in India happen with the project sponsor underbidding for the project so as to survive the competitive market. However, the underbidding combined with lack of margin included in the overall costs by contractors or sponsors often overlook inevitable hidden and unforeseeable costs which in turn enhance the final costs of the project. For instance, the Mumbai-Monorail project is a classic example of cost overrun. The solution would be to have a clear understanding of the project agreements, risks involved in the project particularly the conditions of force majeure, an objective evaluation of project cost while bidding taking into account uncertainties relating to raw material procurement, labour laws, land acquisition and risks related to cost and time overruns due to decisions of the awarding authority or public policy or any of the factors described above. The compensation clauses should be coherent and unambiguous, and in line with actual project cost incurred in the project leaving less scope for future disputes and arbitrations. Furthermore, it would be useful for the contractors / concessionaires , while making claims in an infrastructure project, to do it in a timely manner while maintaining clear and systematic evidentiary documentation, to substantiate the claims that may have arisen during the course of the project.

References: 

[1] http://www.cspm.gov.in/english/flr/FR_Mar_2021.pdf

[2] Finance Minister Smt. Nirmala Sitharaman releases Report of the Task Force on National Infrastructure Pipeline for 2019-2025, dated 31 December 2019, Press Information Bureau, pib.gov.in (2019), https://pib.gov.in/Pressreleaseshare.aspx?PRID=1598055 (last visited Sep 17, 2021).

[3] Forecasting Infrastructure Investment Needs and gaps, Global Infrastructure Outlook – A G20 INITIATIVE, https://outlook.gihub.org/ (last visited Sep 17, 2021).

[4] 422nd Flash Report on Central Sector Projects (Rs.150 Crore and Above), March 2021, Ministry of Statistics and Programme Implementation Infrastructure and Project Monitoring Division (2021), Available at: http://www.cspm.gov.in/english/flr/FR_Mar_2021.pdf (last visited Sep 17, 2021)

[5] Joseph Mante, Issaka Ndekugri & Nii Ankrah, Resolution of Disputes Arising From Major Infrastructure Projects In Developing Countries Fraunhofer, https://www.irbnet.de/daten/iconda/CIB_DC24504.pdf (last visited Sep 17, 2021).

[6] Make in India Initiative, Government of India.

[7] Sandeep Shrivastava and Abdol Chini M.E. Rinker Sr., Construction Materials and C&D Waste in India, School of Building Construction University of Florida, USA, https://www.irbnet.de/daten/iconda/CIB14286.pdf (last visited Sep 17, 2021).

[8] Amendments to the Arbitration and Conciliation Act, 1996, August 2014, Law Commission of India, Report No.246.

[9] Larsen and Toubro Limited Scomi Engineering BHD vs. Mumbai Metropolitan Region Development Authority MANU 2018 SC 1151, Arbitration Petition (C) No. 28 OF 2017.

[10]Adimulam, S. (2021, March 2). Mumbai: Monorail rakes will be made in India. Mumbai. Retrieved September 17, 2021, from https://www.freepressjournal.in/mumbai/mumbai-monorail-rakes-will-be-made-in-india.

 

 

Image Credits: Photo by Wade Austin Ellis on Unsplash

The solution would be to have a clear understanding of the project agreements, risks involved in the project particularly the conditions of force majeure, an objective evaluation of project cost while bidding taking into account uncertainties relating to raw material procurement, labour laws, land acquisition and risks related to cost and time overruns due to decisions of the awarding authority or public policy or any of the factors described above.

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Education in India: Time to Connect the Dots and Look at the Big Picture

In the last few days, I read news reports that are seemingly unrelated on the surface. However, I think there exists a deeper connection for those willing to think outside the box. I thought I would use this article to articulate my thoughts on the connections and their possible implications for India. 

India’s New Education Policy expected to gain traction

The first item was about various initiatives announced by the Union government on the first anniversary of India’s National Education Policy (NEP). While internationalization, multiple entry/exit options, and digital education will be key pillars, one other important component is to enable students to pursue first-year Engineering courses in Indian languages.

In the context of the broad-brush changes envisioned to India’s education system, it is time to rethink the role of the UGC as a body that enables the nation’s higher education system in ways beyond disbursing funds to be recognized universities. There also ought to be more harmony between the various Boards that govern school education. The roles of bodies responsible for governing professional education in India- e.g., AICTE, NMC (which replaced the MCI), ICAI, ICSI, ICWAI, Bar Council of India etc. should also be redefined to ensure that India’s professionals remain in tune with the needs of a fast-changing world.

English will play an important role in our continued growth

The second report that caught my attention was on two main points made by Mr. Narayana Murthy (the Founder of Infosys), in a recent media interaction. He stated that it is high time that English be formally acknowledged and designated as India’s official link language, and greater emphasis is given to its teaching and learning in Indian schools. He said that his opinion is based on his first-hand knowledge of many technically qualified students in Bangalore/Karnataka who lose out in the job market largely because they lack a certain expected level of proficiency in English.

In the same interview, Mr. Murthy went on to say that on a priority basis, India needs overseas universities and vocational educational institutions to set up facilities in India to train students and teachers in key areas like nursing. This too makes sense because our healthcare infrastructure needs massive upgrades- and human resources will be critical.

China’s tightening regulations threaten its US$100 Billion EdTechc industry

The third report was on China’s recent decision to tightly regulate its online tutoring companies. The new rules bar online tutoring ventures from going public or raising foreign capital. There are also restrictions on the number of hours for which tutors can teach during weekends and vacations. In fact, the rules go so far as to make online tutorial businesses “not for profit”.

Different views have been expressed on why Chinese authorities have taken this step. Some see it as a means to reduce the cost of children’s education- and thus encourage couples to have more children. They point to this as a logical enabler of the recent relaxations in China’s two-child policy. Others view it as a step designed to clip the wings of Chinese tech companies that are deeply entrenched in many consumer segments, and have, over the past decade, acquired significant financial muscle.

To put into perspective the size of Chinese EdTech companies, consider this data point: Byju’s, arguably India’s largest EdTech company, was valued at over US$16.5 Billion as of mid-June 2021. Despite this high valuation, Byju’s would have been smaller than the top 5 Chinese EdTech players (on the basis of valuations that existed before the recent draconian rules came into effect).

Implications for India

The majority of China’s EdTech ventures are financed through significant venture capital investments from the west. Analysts expect that China’s sudden actions will, at least in the short run, divert capital to other locations. India could be a potential beneficiary because it already fosters a large EdTech ecosystem.

Given our demographics, we have a significant domestic market for education across all levels- primary, secondary, and college. Since digital education will likely become the norm, this space is ripe for newfangled innovations in the days ahead. If online education can bridge the gaps that employers currently perceive in our fresh graduates, unemployability rates shall notably decline. . This will not only contribute directly to our GDP but also indirectly stimulate innovation and entrepreneurship.

India has a large technical skill base. Some of these resources can easily be harnessed to develop next-gen education solutions using cutting-edge technologies such as AI, ML, Language Processing, Augmented Reality, etc. To begin with, Indian start-ups can build, test, and scale EdTech platforms and solutions for our domestic market. Over time, these can be refined and repurposed for global markets. Similarly, features built for the global market can be adapted to Indian markets, thus creating a virtual cycle. Such a trend will not only proffer legs to implementing India’s NEP but will also enable us as a society to improve access to education to underprivileged sections of the society. This is critical to sustaining our growth on the path of socio-economic development.

By taking the right decisions now, we can attract capital, talent, and world-famous institutional brands to this critical sector. EdTech in India has the potential to become a powerful engine of growth for our services sector. Done right, I have no doubt that in a few years, India can become a “Vishwaguru” not just in the spiritual sense, but also literally.

PS: As with many other sectors in India, the legal framework that governs education too needs to be made more contemporary and relevant, but that’s for another time.

Image Credits: Photo by Nikhita S on Unsplash

By taking the right decisions now, we can attract capital, talent and world-famous institutional brands to this critical sector. EdTech in India has the potential to become a powerful engine of growth for our services sector. Done right, I have no doubt that in a few years, India can become a “Vishwaguru” not just in the spiritual sense, but also literally.

 

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