Reference: FEMA (Cross Border Merger) (Amendment) Regulations, 2026 — Notification No. FEMA 389(1)/2026-RB (dated 29 May 2026, listed on the RBI site 5 Jun 2026), amending the FEMA (Cross Border Merger) Regulations, 2018.
Change: Introduces a definition of "Competent Authority" — any authority empowered under the Companies Act, 2013 to sanction a scheme of merger/amalgamation — and replaces references to the NCLT with "Competent Authority" across Regulations 4, 5, 7 and 9 (and omits clause (vii) of Regulation 2).
Significance: Aligns the FEMA framework with non-NCLT merger routes — notably fast-track mergers under s.233 (CAA route), which are approved by the Central Government (Regional Director), not the NCLT. The FEMA deemed-approval/compliance machinery now follows whichever competent authority sanctions the scheme.
Practice note: For clients structuring inbound/outbound cross-border mergers (especially fast-track CAA mergers with foreign holding/subsidiary companies), the FEMA approval pathway and deemed-RBI-approval condition now key off the relevant competent authority. Factor this into scheme drafting, the s.233 vs s.230-232 route decision, and the FEMA compliance certificate.