Co-authored with Anirudh Sood and Mihir Deshmukh, associates at Finsec Law Advisors.
In its board meeting held on December 20, 2022, the Securities and Exchanges Board of India approved a slew of proposals with regard to various SEBI regulations. We have analysed a few changes below.
Changes to the Buy-back Regulations
Pursuant to the recommendations made by the Keki Mistry led sub-group committee, and the public comments received by them, SEBI approved certain amendments to its buy-back of securities regulations.
Under the existing mechanisms for buyback of shares through the exchange, according to SEBI, market participants faced two major challenges. First, one shareholder’s entire trade could get matched with the purchase order placed by the company and in turn, deprive other shareholders of the opportunity to avail the benefit of the buy-back. Second, the 6 month window provided to complete the buybackcould create artificial demand resulting in exaggerated prices, and thereby prevent efficient price discovery. In order to remedy this, SEBI is phasing out of the stock exchange mechanism of buybacks, and the introduction of a separate window on stock exchanges for undertaking buyback under this method. The proposal for easing the restrictions for the tender offer route was also approved in the board meeting, through which the requirement for filing a draft letter of offer has been done away with, and the period for tendering of shares, and payment of consideration to the shareholders will be reduced. SEBI has also increased the minimum utilization of the amount earmarked for buyback under this mechanism from the earlier 50% to 75%.
While the sub-committee did not recommend the removal of the stock exchange mechanism,SEBI may have taken away a transparent and open method of buyback of shares,that may have required some revisions to make it more efficient. It has been argued the stock exchange approach ensures that businesses are not"overpaying" for stocks. In fact, the argument that the company’s offer gets matched with a specific seller is merely an efficient use of the anonymous market which values the highest price for the seller in an open and transparent manner. If the highest bidder is a single person, her winning the bid is evidence of the fairness of the process.
Norms strengthening governance of MIIs
Institutions such as stock exchanges, clearing corporations, and depositories, that form the backbone of any securities market are considered as market infrastructure institutions (MII). As MIIs perform various regulatory responsibilities, and simultaneously work towards generating profit, they are subjected to higher governance standards than other intermediaries. In November 2022, SEBI released a report of the Committee on‘Strengthening Governance of MIIs’, that proposed a slew of changes to enhance the governance standards of MIIs. In this meeting, the SEBI board has approved certain recommendations made by the committee to bring in greater transparency and accountability in the functioning of MIIs.
The functions of the MIIs have been divided across three verticals, namely 1) critical operations; 2) regulatory, compliance and risk management; and 3) business development. Further, each core function of the MII should be headed by a designated KMP, with the KMPs of the first two verticals being at par in hierarchy with those of the third. SEBI has also approved revision in the performance assessment requirements of MIIs, and has stated that internal evaluation of functioning of MIIs and their statutory committees will take place annually. Further, external evaluation is to be done by an independent entity every three years. In terms of personnel, the board of SEBI approved the proposal regarding the mandatory appointment of public interest directors, with background and expertise in technology, law and regulatory, finance and accounts and capital markets, and the removal of a KMP shall be on the basis of the recommendation of the nomination and the renumeration committee.
These key amendments, once implemented, would not only strengthen governance standards of MIIs but also increase market confidence and deter malpractices. Measures such as optimal utilisation of resources and classification of functions into three verticals across MIIs could ensure a reasonable balance between the dual role of MIIs as business enterprises and front-line regulators, especially now that the regulatory and risk management verticals have been prioritised. Moreover,enhanced reporting requirements and periodic assessments would prevent any future governance lapses of MIIs, enhance transparency and ensure timely risk management. In addition, it would be useful to think of creating a regulatory framework for alternate marketplace for certain products, like SEBI has started with the online bond platforms.
Amendments to the NCS regulations
Against the backdrop of enhanced climate commitments across the globe, and the growing relevance of sustainable finance, the SEBI board has approved the proposal for revising the framework governing green debt securities in India, i.e., the SEBI (Issue and Listing of Non-Convertible Securities) Regulations, 2018. As per the press release issued pursuant to the board meeting, SEBI has approved the addition the following two categories green debt securities can be issued: (i) pollution prevention and control and (ii) circular economy adapted products. The SEBI board also approved issuance of coloured bonds as sub-categories of green debt securities. For instance blue bonds would be issued for projects facilitating the sustainable use of oceanic resources, and yellow bonds for solar energy-related initiatives.
The inclusion of additional categories will enhance the overall accessibility of the green bond market in the long term and harmonise the framework with international principles, while the subcategorization of green bonds will encourage investments in emerging areas of the economy such as data centres, circular economy, etc and will help in the development of the Indian green bond market. These changes will also contribute to India’s efforts towards meeting its climate commitments and transition to a low carbon economy.
Introduction of framework for execution-only platforms (EoPs)
SEBI has approved the proposal to establish a framework for EoPs for the entities which aim to offer‘execution-only’ services in direct plans of mutual funds. These platforms would be registered as investment advisers or stock brokers, and therefore, be required to comply with the extensive regulatory norms applicable to such entities. The new framework will provide these platforms the option to seek registration either as an agent of an asset management company with registration with AMFI or as an agent of investors with a limited stock broking license. Norms regarding key issues including investor protection measures,cyber security requirements, service pricing, and grievance redressal, would be notified in the coming months.
The introduction of a dedicated regulatory framework will provide these entities with guiding principles better suited to their nature of activities, and reduce undue compliance burdens.
The board of SEBI has also approved a proposal to designate certain brokers which handle a large number of clients, a large amount of client funds, and large trading volumes as qualified stock brokers, that will be subjected to enhanced governance standards. These will be introduced subsequently.
We believe that the abovementioned changes will largely benefit all stakeholders, and further investor confidence in the markets and market institutions with enhanced governance mechanisms
This article was first published in the Financial Express: Link.