Capital Markets and Securities Law

[By Shruti Srivastava] The author is a student of National Law University and Judicial Academy, Assam.   Introduction Currently, India has more than 1,12,718 registered start-ups, making it the third largest start-up ecosystem globally after the USA and China. However, despite these burgeoning numbers, India has only 111 profitable unicorns. Among the many concerns that India’s startup ecosystem is facing, funding emerges as paramount. Though there are multiple avenues for startups to raise funds such as private equity, venture capital etc., a new route of crowdfunding has started making its place in the market.  Crowdfunding is simply the collection of small funds from multiple investors for some social cause, business venture or specific project, typically facilitated through web-based platforms or social networking sites. There are different types of crowdfunding, but not all of them need debates and discussions. Social lending or donation-based crowdfunding, for instance, is a type of crowdfunding in which donations are made without any expectation of investment. They carry minimal risk, but still, SEBI has issued Framework on Social Stock Exchange under which donation-based crowdfunding can be regulated. The second type of crowdfunding is peer-to-peer lending, wherein the platforms connect the lenders with the investors for loans of an unsecured nature. RBI came up with the Master Directions- Non-Banking Financial Company- Peer to Peer Lending Platform (Reserve Bank of India) Directions, 2017, which laid down the rules for peer-to-peer lending. Lastly, equity-based crowdfunding in which equity shares of a company are given to investors in exchange of funds, but it currently lacks legal recognition. This issue is discussed in detail later in the article.    This article commences by examining the contemporary discourse surrounding equity crowdfunding, elucidating its relevance and evolving dynamics. It subsequently conducts a comparative analysis between SEBI’s consultation paper on crowdfunding and the UK’s crowdfunding regulation. Lastly, the article offers a few suggestions and recommendations to enhance SEBI’s approach to crowdfunding.  Equity Crowdfunding in Contemporary Discourse Recently, the Registrar of Companies (NCT of Delhi and Haryana) issued an order stating that two companies, Anbronica Technologies Limited and Septanove Technologies Private Limited, are liable for raising funds through the online equity crowdfunding platform, Tyke, as the fundraising was in violation of Section 42 of the Companies Act 2013. This order underscored the growing influence of crowdfunding platforms as pseudo- stock exchanges.  In 2017, SEBI raised concerns with LinkedIn, inquiring whether they provided a platform for start-ups to raise funds in contravention of the Companies Act 2013.   Furthermore, in the Sahara India Real Estate Corporation Limited & others v Securities and Exchange Board of India & another1, two companies of the Sahara groups, not listed on the stock exchange issued their securities to approximately 3 crore people in the name of private placement. This action violated the Companies Act of 1956 which allowed private companies to issue its securities to only 50 people. Subsequently, SEBI and later the Supreme Court of India held this act to be violative of the provisions of private placement. They clarified that if an issue is made to such a large number of people, it should be treated as a public issue.   It is important to note that at present, equity crowdfunding in India is not explicitly regulated and therefore this regulatory vacuum requires attention. However, in 2014, SEBI came up with a consultation paper acknowledging the usefulness of crowdfunding and proposed a viable regulatory framework. Furthermore, in 2016, SEBI issued a press release cautioning investors. The press release highlighted the increase in the number of digital platforms for raising funds, none of which are recognized or approved by securities market laws.   At this juncture, it is imperative to analyze whether the proposed framework is beneficial for India’s context. Additionally, a comparative analysis is important to understand what lessons India could learn from other jurisdictions.  SEBI’s Consultation Paper vis-a-vis UK’s Crowdfunding Regulation  The framework proposed by SEBI is similar to many functional models in other jurisdictions. However, the UK’s model is flexible, with its primary focus remaining proportional to the risk posed, making it more suitable for India.  The SEBI consultation paper proposes to allow only accredited investors to participate in equity crowdfunding, which includes Qualified Institutional Buyers (QIBs), Companies with a minimum net worth of Rs. 20 crore, Eligible Retail Investors (ERIs) and high-net-worth Individuals (HNIs). Though accredited creditors comprise ERIs, there are a series of restrictions imposed on them. For instance, they must be seeking investment advice from an investment advisor or have a minimum annual gross income of Rs. 10 Lacs. These restrictions create high entry-level barriers, keeping out many retail investors who might be interested in funding Indian startups.   While SEBI has proposed a minimum investment limit for all accredited investors, the UK’s model does not, however, have any restrictions on investments for investors who receive professional advice, are associated with venture capital or corporate finance businesses, or recognized as having a high net worth. Here, SEBI could benefit from the UK model by considering the removal of the minimum investment limit for QIBs and HNIs. They have multiple investment options available, and a minimum limit might act as a barrier to them. These accredited creditors possess a pool of resources, expertise, and experience. Therefore, even if they invest a relatively small percentage in startups, it can still be beneficial. They are likely to invest in startups with a higher probability of success; aiding small retail investors in their decision-making and protecting them from investing in startups with poor outlooks.   Secondly, disclosure requirements are crucial for crowdfunding, but they must differ from IPO disclosures. In the UK, crowdfunding regulations emphasize providing investors with fair, clear, and non-misleading information to support their investment decisions. However, while the UK regulation talks about disclosure requirements, it does not specify compulsory disclosures. Not specifying the disclosure requirements can leave a grey area, and because of this, SEBI has suggested a list of disclosure requirements that have to be made by a company.   Lastly in  the UK, if a project fails to

[By Siddhant Shinde] The author is a student of MNLU Mumbai.   Introduction Real Estate Investment Trusts (‘REIT’) are instruments that allow investors to pool their collective resources and invest in publicly-traded securities, in the form of real estate, without having to make substantial capital commitments. Thus, they provide an avenue for consumers to invest in commercial real estate with regular returns to investors along with long-term capital growth, and an alternate source of funding to developers. Introduced initially in the USA as a way to counter inadequacy of public capital for the real estate industry, it was introduced in India through SEBI (Real Estate Investment Trusts) Regulations, 2014 (‘REIT Regulations’).  In the first part, the author discusses the basic framework of REITs in India, and juxtaposes the same with the The Securities Contracts (Regulation) Act, 1956 (SCRA), highlighting the ambiguity related to the classification and positioning of REIT units within the SCRA Framework. Following this, the article argues for the inclusion of REIT units within the meaning of ‘securities’.   I-REIT Framework and SCRA – Locating the Problem  REITs in India are registered as a Trust with SEBI,1under the Securities and Exchange Board of India (Debenture Trustees) Regulations, 1993, and regulated by the REIT Regulations, which are amended regularly. Every REIT has various stakeholder; namely, Managers, Trustees, Sponsors, and Unitholders. While managers provide investment management services to the Trust, the Trustee holds the assets, for the benefit of the unit holders (beneficiaries).2 Much like the Board of Directors of a company, even the Trustees have a fiduciary responsibility towards the unitholders, which the managers don’t. Another important stakeholder is the Sponsor/Sponsor Group, who inject their assets into the initial portfolio of the trust and appoint the trustee, and thus play a crucial role in the initial stages of setting up an REIT.  The main purpose of the REIT however is to invest in commercial real estate assets, which are divided into units and traded on stock exchanges. These trusts are established for the benefit of unitholders, who receive rental distributions.  The Securities Contracts (Regulation) Act, 1956 (SCRA) defines the scope of securities within the Indian regulatory framework. It defines ‘securities’, and intriguingly includes the term ‘units’. However, the SCRA refrains from offering a precise and comprehensive explanation of what these ‘units’ encompass. SCRA’s definition of securities, however, is not exhaustive, and Courts have maintained that the term must be interpreted widely. The lack of a specific statutory definition under SCRA makes it difficult to ascertain if REIT units fall under SCRA’s ambit.   Making a Case for Inclusion of REIT Units within the Ambit of ‘Securities’  The SCRA limits the scope of securities to marketable securities of a ‘company’ or a ‘body corporate’3. The question of classification of REIT is dealt with by two statues. While SEBI Regulations classify REITs as trusts, the Foreign Exchange Management (Non-Debt Instruments) Rules,2019 define REITs as an ‘investment vehicle’4. The SCRA makes no explicit mention of either of these terms, raising the question if trusts or investment vehicles can fall under ‘other marketable securities.   The marketability criteria purports that an instrument must be freely bought and sold in a market regardless of whether it is listed in a stock exchange. It is argued that the absence of any explicit terms restricting or barring transfer of REITs implies that they are transferrable, and hence marketable. A similar line of argument was accepted by the Court, when it held that OFCDs are marketable. Marketability in this context is closely linked with transferability, and thus the test of marketability implies that an instrument must not only be capable of being sold in the market, but also freely transferrable. REITs can raise capital from investors through issuance of units via initial offer, which is collectively used to invest in real estate assets. Post the initial offer, Regulation 16 mandates REITs to be listed on a recognized stock exchange, where the trade of individual REIT units is governed by the bye-laws of the respective stock exchange. Further, Regulation 19 clearly states that REIT units are fully transferrable. Thus, the absence of explicit restrictions on transfer affirms the marketability and transferability of REIT units.  In the past, the Court has also considered the purpose of the instrument to decisively determine its nature. Thus, an instrument that is marketable and issued for the purpose of investment falls under Section 2(h). This test purports that the instrument must be issued in an investment context. The definition clause itself explicitly refers to “real estate investment trust” as an investment vehicle. Regulation 13 prescribes the investment criteria for REITs. It specifies that a REIT shall invest in income-generating real estate assets, thus highlighting the core investment nature of REITs. Further, from the unitholder’s perspective too, Regulations 18 and 20 talk about Public Issue Allotment and Minimum Public Shareholding respectively, both of which are typical features of investment offerings.   Thus, it is argued that because REIT units are marketable, transferrable and issued for the purpose of investment, they are under the ambit of ‘securities’ und thus the SCRA is applicable to REIT units too.  Further, it is also argued that the SCRA is an essential regulatory framework, which cannot be replaced by the REIT Guidelines. The aim of The Securities Contracts (Regulation) Act, 1956 is to prevent undesirable and unethical securities transactions. Though The Securities and Exchange Board of India (Real Estate Investment Trusts) Regulations, 2014 (REIT Regulations) regulations provide a regulatory framework for REITs in India, and both largely aim at investor protection, they have varied functions. While SCRA regulates stock exchanges, brokers, intermediaries, and various other entities involved in the broader securities market, whereas REIT Regulations focus on the specific structure, governance, and operation of REITs and set criteria for their formation and operation. Thus, given the difference in their purpose and scope, the same is not a case of overlapping legislation or concurrent jurisdiction; it is thus argued that both the SCRA and the REIT Regulations are essential for regulating the REIT framework. 

[By Vikas Saran & Pritha Lahiri] The authors are students of Institute of Law, Nirma University.   Overview:   In the dynamic landscape of securities trading, the contentious practice of short selling has emerged as a focal point of regulatory scrutiny. In response to the Adani Hindenburg fiasco and in alignment with the Supreme Court directive in the matter of Vishal Tiwari v. Union of India,  the Securities and Exchange Board of India (SEBI) has introduced new regulations to address the risks associated with short selling.  The regulatory intervention reflects SEBI’s strategic approach of preventing, detecting and deterring, and underscores the importance of a balanced regulatory framework.   This article presents a detailed analysis of the recent framework introduced by SEBI. It provides insights from both domestic and international perspectives, offering a comprehensive examination of the regulatory landscape. Additionally, the authors offer innovative strategies for future improvements within this framework.  Revisiting SEBI Guidelines:   Regulation of short selling is not new in India; in 2007, SEBI introduced the first set of regulations on short selling, titled, “Circular on Short Selling & Securities Lending and Borrowing” wherein it defined short selling as the “practice of selling a stock which the seller does not own at the time of trade”. All classes of investors were permitted to short-sell with certain disclosure requirements put in place to ensure transparency. Pertinently, naked short selling, involving selling shares that have not been borrowed or even confirmed to exist at the time of the trade was not allowed by SEBI.   Fast forward to 2024, SEBI has overhauled its 2007 circular, integrating it into the “Master Circular on Short Selling and Securities Lending and Borrowing Scheme”. The new framework provides for:   Inclusivity in Market Participation: The framework democratises the short-selling arena, extending the privilege to both retail and institutional investors alike.  Prohibition of Uncovered Short Selling: In a bid to ensure the integrity of market transactions, the framework categorically proscribes the practice of naked short selling.  Restrictions on Day Trading for Institutional Investors: Institutional entities are enjoined from day trading while engaging in short selling, with an imperative to satisfy their delivery commitments.  Transparency as the Bedrock: The framework institutes rigorous disclosure mandates, requiring institutional investors to declare their short selling positions at the juncture of order placement, while retail investors are accorded a grace period extending to the trading day’s end.  Dissemination of Short Interest Data: Brokers are tasked with the daily aggregation of short-sell positions, which are subsequently reported to the stock exchanges. This data is synthesised and released on a weekly basis, enhancing the market’s transparency quotient.  In its recent circular, SEBI has synchronised the framework for short selling, detailed in ‘Annexure 3’ of Chapter 1 of the Master Circular, with provisions from the rescinded SEBI 2007 circular. Notably, this has not yielded any material changes because the recent framework essentially replicates the structure and guidelines established by the earlier framework. Therefore, while the regulatory process was updated and streamlined, the substantive rules governing short selling remained largely unchanged.  However, the Expert Committee established by the Supreme Court, after the Adani Hindenburg episode, had suggested a proactive regulatory intervention. It had emphasised using market events for enhancements, inviting SEBI and the Indian government to engage in proactive improvements aligned with market dynamics.  This suggests that while SEBI’s recent circular revision reflects a commitment to regulatory stability, there is still scope for refinement and enhancement in certain aspects of the framework.  A Global Perspective:   To gain a comprehensive understanding of SEBI’s regulatory approach, it is essential to explore international practices and their potential impact on India’s securities market landscape.   United States  The US has a long history of regulating short selling, overseen by the Securities and Exchange Commission (SEC). Regulation SHO, implemented by the SEC in 2010, includes measures to limit manipulative short selling. Rule 201 mandates trading centres to enforce price limits on short sales during significant price drops.  Furthermore, Regulation SHO Rules 203(b)(1) and (2) establish ‘locate requirements’. These rules require broker-dealers to confirm that a security can be borrowed, guaranteeing its delivery on the settlement date of the short sale.   Recently, Rule 13f-2 was approved under the Securities Exchange Act of 1934, requiring managers with significant short-sale positions to report certain information to the SEC through Form SHO.  United Kingdom  In the UK, short selling is governed by the Short Selling Regulation (SSR) of 2012 which applies to financial instruments and sovereign debt traded in the UK. Key provisions include:  Notification Requirement: Holders of significant net short positions in shares or sovereign debt have to notify the Financial Conduct Authority (FCA) upon reaching specified thresholds.  Public Disclosure: Investors who hold significant net short positions in shares are mandated to publicly disclose these positions once they cross certain predefined thresholds.  Restrictions on Uncovered Short Positions: The SSR outlines restrictions on investors entering into uncovered short positions in shares or sovereign debt.  Exemptions: Stabilisation activities and market makers meeting specific criteria may apply to the FCA for exemptions from uncovered short-selling restrictions and notification requirements.  FCA Powers: The FCA has the authority to restrict short selling in specific situations to prevent disorderly price declines and threats to financial stability.   The SSR exempts sovereign debt and CDS from uncovered short-selling restrictions and notification requirements, aligning with the government’s stance. Once implemented, there will be no such restrictions or notification obligations for these instruments.  Singapore  In Singapore, the Monetary Authority of Singapore (MAS) regulates short selling through its Guidelines on Short Selling Disclosure under Section 321 of the Securities and Futures Act, 2001. The Central Depository (Pte) Limited (CDP) addresses settlement disruptions via buying-in processes, with costs and penalties for sellers failing to deliver securities. The SGX-ST conducts surveillance to prevent market abuse.  The SGX-ST’s rules mandate disclosure for sell orders: Rule 8A.3.1 requires market participants to indicate if an order is a short sell. Rule 8A.5.1 necessitates reporting short sell order volumes before each market day. Additionally, Rule 8A.6.1 allows for the correction of erroneously marked sell

[By Tirth Purani & Ananya Sinha] The authors are students of Institute of Law, Nirma University and KIIT School of Law, Bhubaneswar, Odisha respectively.   Introduction   To make India’s debt securities market robust, the Securities and Exchange Board of India (SEBI) introduced a consultation paper on 9 December 2023, prescribing amendments to the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015, (LODR Regulations) and the SEBI (Issue and Listing of Non-Convertible Securities) Regulations, 2021, (NCS Regulations). Along with the amendments in the regulations, SEBI has also introduced fast-track public issuance and listing of debt securities. These amendments were driven by the Union Budget (2023-24) which settled its primary focus to ease the existing regulations and simplify and reduce the cost of compliance. To elevate ease of doing of business Over 3,000 law provisions were decriminalized, and more than 39,000 compliances were decreased. To put this into effect, SEBI constituted a specialized Corporate Bonds and Securitization Advisory Committee, to propose strategies for enhancing ease of doing business for debt issuers listed on the stock exchange and assess the LODR and NCS Regulations.   The authors of this post attempt to showcase the consequences of the consultation paper on India’s debt securities market and the facilitation of business operations through its proposals and recommendations. The piece aims to elaborate on the recommendations concerning the reduction of the minimum face value for non-convertible securities, need for an efficient regulatory procedure, and abolishing the requirement of minimum subscription for banks and financial institutions.   Lacunas in the existing framework and Underlying Reasoning   Debt securities such as bonds and debentures are pertinent for a company’s growth and benefit as they are efficient and cost friendly. India’s debt securities market has grown considerably, as the market of corporate bonds took a leap from Rs 16.49 lakh crore in 2014 to Rs 44.16 lakh crore in 2023. Annual issuances of listed bonds increased from Rs 3 lakh crore in 2013 to Rs 6 lakh crore in 2022. With this growth, however, there exist multiple lacunas, which are impeding the sophisticated growth of debt market. The share of retail investors in debt market is very small as bulk of the debt is raised through private placement. It lacks transparency due to potential flaws in the credit rating process such as influencing ratings by borrowers thus making the process highly unreliable. There is also lack of liquidity due to thin market as it makes it difficult to buy and sell debt instruments quickly and efficiently. Additionally, the existing regulatory framework of the debt market is not designed in a manner to accomplish minimum cost and less time in the issuance and listing procedures. Stringent regulations have discouraged investors from investing, and to say the least, market-making has been difficult to implement.  To resolve the above stated lacunas and boost the debt securities market, SEBI has been striving to raise the monetary threshold, which requires large corporations to raise at least 25% of their incremental borrowings through corporate bonds during a consecutive three-year period. Further, it has introduced settlement through delivery versus payment method that guarantees transfer of securities only after payment has been made. To improve transparency, it was mandated that all trades in the securities debt instruments shall be reported on the trade reporting platform of the stock exchanges. To make the process of issuing securities smooth SEBI introduced electronic book platform through which investors can place multiple bids in a private placement on debt basis. A novel idea for fast-track public debt securities issuance has been put out in the consultation paper, allowing regular issuers to issue debt securities publicly in less time, money, and effort.  Proposals of the Consultation paper and its implications   One of the major proposals of the consultation paper is reducing the minimum face value for non-convertible securities (NCS) and non-convertible redeemable preference shares (NCRPS) to Rs 10,000 as opposed to Rs 1 lakh earlier. However, it is mandatory for the issuer to appoint a merchant banker for carrying out due diligence of such securities. Such a step would promote investments by non-institutional investors and make the debt securities market more accessible for them. In pursuant to this, SEBI witnessed an increase in the participation of non-institutional investors.  To make the regulatory procedure more efficient and cost-friendly, the proposal provides that the financial statements should be accessible through a QR code, which will directly lead to the audited financial statements on the stock exchange’s website. As the LODR Regulations requires financial results to be submitted to stock exchanges within 30 minutes of the board meeting and immediate online publication is accessible, discretion has also been given to publish the financial results in the newspaper, which was earlier necessary. The timeline for listing fast-track issue of debt securities has been proposed to be T+3 instead of T+6 for a regular public issue. This step to a larger extent will reduce the time for raising funds. To inculcate more consistency and harmonization, the format of the due diligence certificate has been modified with formats of the certificate for equity issuances.   The consultation paper has also proposed to abolish the requirement of minimum subscription for banks and financial institutions, which will help them to generate more funds for their functioning. In the year 2023, SEBI introduced the concepts of General Information Document (GID) and Key Information Document (KID) for filing only necessary and required information. In the event of a subsequent NCS issuance, KID will take the place of the shelf placement memorandum, whereas GID will replace it during the original NCS issuance. These concepts were, however, first limited to the private placement issuance of NCS. At present, they have also been extended to public issuance of securities. These documents containing disclosures in the NCS regulations, information on key developments, and details of debt securities will aid the fast-track issuance of securities. They will reduce the complexity in disclosure requirements and only material information conveyed to the investors through them.   The above-mentioned changes are likely to reduce the time and

[By Vishesh Bhardwaj] The author is a student of National Law University Odisha.   INTRODUCTION  To generate wealth, provide liquidity to investors and raise capital, companies need access to global capital markets. Earlier, Indian firms had been able to raise equity capital from foreign investors either through listing in local stock exchanges or via international listing through depository receipts like American Depository Receipts (“ADR”) and Global Depository Receipts (“GDR”). ADR is used for trading on US stock exchanges while GDR is traded outside the US.  Recently, the Ministry of Corporate Affairs (“MCA”) notified an amendment brought in Companies Act, 2013 (“Act”)  in 2020 regarding the direct listing of shares of public companies on foreign stock exchanges (“Direct listing scheme”). This amendment in Section 23 of the Act, permits companies specified by the MCA to list their shares directly on foreign stock exchanges. Additionally, an amendment was made to the Foreign Exchange Management (Non-debt Instruments) Rules, 2019, complemented by the issuance of the Companies (Listing of Equity Shares in Permissible Jurisdictions) Rules (“Listing rules”), 2024.  The author through this post aims to highlight the benefits, problems, and gaps in the framework of direct listing scheme.  ADVENT OF THE SCHEME: A HISTORICAL OVERVIEW  The inception of the direct listing scheme in India began with the proposal outlined in the SEBI report in December 2018. This report advocated for changes to facilitate the direct listing scheme. Subsequently, the Companies (Amendment) Act 2020 and further amendments provided the legal framework for the scheme, specifying the eligibility criteria for public companies to list on select foreign stock exchanges.  In July 2021, the introduction of International Financial Services Centres Authority ILS Regulations outlined the regulatory framework for listing companies, including SMEs, startups, and various securities. This laid the groundwork for the direct listing scheme’s implementation. The announcement by the Indian government in July 2023 marked a significant milestone, signalling the direct listing scheme on International Financial Service Centre (“IFSC”) exchanges. A Working Group was formed to oversee the implementation process.  By October 2023, amendments to the Companies Act were notified to allow the direct listing scheme. The Working Group proposed amendments to existing frameworks and regulations in December 2023 to streamline the implementation process. Finally, in January 2024, MCA and Ministry of Finance notified rules allowing the direct listing scheme in GIFT-IFSC. SEBI began working on operational guidelines to facilitate the smooth functioning of the scheme.   The rationale for the regulatory changes stems from the belief that permitting Indian companies to list on foreign stock exchanges bolsters global competitiveness, especially in the technology sector. By opening Indian capital markets, innovation and efficiency are promoted, benefiting the financial ecosystem. Furthermore, nurturing finance as a high-value export sector and enticing prominent technology firms to Indian exchanges have the potential to elevate the nation’s global standing and enhance economic relations.  REAPING THE REWARDS: EXPLORING THE BENEFITS OF THE SCHEME  The move aligns with the government’s vision to position GIFT-IFSC as a global financial hub and attract foreign capital. The direct listing scheme will boost the global capital of Indian companies. The amendment provides flexibility to certain classes of domestic public companies for direct listing scheme, providing them with access to a broader pool of investors. It also reduces the compliance for listing of shares, like issuing prospectus, and disclosure of share capital and beneficial ownership.   Within the IFSC, Indian public companies are permitted to issue shares with differential voting rights, empowering them to customize unique share classes for foreign stakeholders. This flexibility augments the company’s capacity to configure its capital in alignment with its requirements, facilitating the retention of shares that grant greater control while divesting those with reduced voting authority.  From an investor’s standpoint, this classification enables them to select a share class that aligns with their investment objectives and risk tolerance. Additionally, listing shares through an offer for sale on the IFSC involves less stringent norms than listing on recognized stock exchanges in India. This streamlined process reduces compliance burdens, making it easier for promoters and investors to realize liquidity from their holdings. Moreover, it is an additional method to provide an exit to the investors.   The scheme also benefits the investor as investing through the GIFT-IFSC not only eliminates foreign currency concerns for investors because transactions are handled in foreign currency, but it also allows for extended trading hours on international stock markets, which exceed 20 hours per day. Furthermore, the GIFT-IFSC provides substantial tax incentives under the Income Tax Act,1961, including exclusions from capital gains tax on the transfer of shares in Indian enterprises within its jurisdiction.  PROBLEMS AND GAPS: THORNS OF THE SCHEME  The regulatory framework governing investments in the IFSC has a lot of complexities. Despite listing the securities on international stock exchanges, the status of public unlisted companies remains unchanged. As per Section 2(52) of the Act, a listed company is defined as one that has listed its securities on any recognized stock exchange. However, international stock exchanges are not recognized for this purpose under Section 4 of the Securities Contract Regulation Act, 1956. So, despite listing their securities on these exchanges, unlisted companies will be exempted from the obligations and compliances mandated for listed companies under the Act. This gap may result in a lapse in investor protection, as the obligations intended to safeguard investors will not be enforced for these companies.  The SEBI (Substantial Acquisition of Shares and Takeovers) (“SAST”) Regulations, 2011 are only applicable to a listed company. As the status of a public unlisted company will not change, the regulations will not be applicable here. This exposes the public companies to the risk of hostile takeovers, as competitors could potentially acquire securities without the regulatory safeguards provided by the takeover code. The absence of structured protections may pose challenges for permissible holders seeking to exit in the event of a hostile takeover. As international investments through IFSC evolve, there is anticipation that SEBI will address and provide clarity on these aspects to mitigate the associated risks and ensure a

[By Gagireddy Vyshnavi Reddy] The author is a student of Tamil Nadu National Law University.   Part-1  With the advancement of technology, the incorporation of algorithm strategies into the trading of securities has emerged and has been growing at an exponential rate since then. The provision of algorithm strategies for the purpose of trading securities can be sought in two ways, where one of them is by the provision of such strategies by the stock brokers themselves, however, another way is through the third party algorithm strategy providers, where the stock brokers outsource the services of the third party algorithm strategy providers. SEBI in its Consultation Paper on Algorithm Trading by Retail Investors, 2021 has stated that the services provided by such third party algorithm strategy providers cannot be categorized as either investment advisor or a research analyst and thereby such third party service providers are not recognized. This article focuses on how there is mis-regulation of such third party algorithm strategy providers, and how their services cannot be interpreted as  investment advisors but can be categorized as research analysts henceforth eliminating the unnecessary burden placed on the stock brokers in gaining permission for each and every algorithm strategy employed from the third party algorithm strategy provider by not recognizing the third party algorithm strategy providers under a regulatory framework.   INTRODUCTION Algorithmic Trading has been used very widely in India from the past few years. According to report from the National Institute of Financial Management submitted to the Department of Economic Affairs indicates that over 50% of total orders at both the National Stock Exchange and Bombay Stock Exchange are algorithmic trades on the client side, while over 40% are trades on the prop side. Algorithmic Trading refers to an automated execution of logic that generates a buy or sell order of the securities in the securities market. It enables the investor in trading the securities when there is an appropriate market situation that enables the investor in gaining profits. This would not require the interference by the investor in analyzing and keeping a track on the market conditions in order to trade the securities.  The rise of algorithmic trading in India can be traced back to SEBI’s Circular on Introduction of Direct Market Facility in 2008 (2008 Guidelines) allowing institutional investors to use the direct market access (DMA) facility, which allowed brokers to offer their clients direct access to the exchange trading system without any manual intervention. Later, SEBI released the “The Broad Guidelines on Algorithmic Trading” (2012 Guidelines) and these 2012 Guidelines provide for seeking mandatory approval by the stock brokers from the stock exchanges for providing the service of algorithm trading to the investors. It also provides various other compliance for the stock brokers and the stock exchanges to be followed in order to enable the investors with the facility of algorithm trading by providing algorithm strategies. Further, SEBI has also released the Consultation Paper on Algorithmic Trading by Retail Investors (Consultation Paper) in 2021, wherein, it stated that there would be no recognition given by SEBI to the third-party algorithm strategy providers (ASPs) creating such algorithms and has instead placed multiple reporting requirements on the stock brokers in order to regulate such third party ASPs. It also mentioned in Consultation Paper, how it is unclear as to the categorization of the services provided by these third party ASPs as either investment adviser or research analyst and thereby concluded to not grant a recognition for such third party ASPs.  This article deals with the above mentioned aspect of the Consultation Paper, how the third part of how the third party ASPs are mis-regulated by first establishing that the third party ASPs do not come under the current Investment Advisor Regulations and later establishing that such third party ASPs can be interpreted under the Research Analyst Regulations. It concludes with the suggestion that instead of placing extra burden on the stock brokers for obtaining permission for every algorithm employed from the third party ASPs by eliminating the third party ASPs from the regulatory framework, SEBI can regulate these third party ASPs as under the Research Analyst Regulations, 2014.   REGULATORY OVERSIGHT ON THIRD PARTY ALGORITHM TRADING STRATEGY PROVIDERS   An Algorithm Trading Strategy is a logic employed by the investor to execute orders in the securities market. These include using a defined set of logic and instructions in the form of algos to generate trading signals and placing orders as mentioned in the Para 2.1 of the Consultation Paper. These orders would emanate with minimal human interference by placing them as and when the required criteria of the investor is met. This is done by constant analysis and monitoring of the stock market and employing the provided logic to understand if an order can be placed for such investor.   These algorithm trading strategies are majorly of two types, the first generation algorithm trading strategies and the second generation algorithm trading strategies. First generation strategies are those which consists of human-defined, rules-based strategies that are transformed into computer code and then executed through sophisticated technological infrastructures that connect firms to markets. Whereas, the second generation strategies consists of the machine learning approach wherein machine learning system in itself creates the strategy basing on the objective function of the investor and creates trading rules which are automatically implemented into the market in the form of orders to buy or sell the securities of such investor. This blog deals with only the first generation algorithm trading strategies and does not concern about the second generation algorithm trading strategies.   The usage of the first generation algorithm trading strategy can be predominantly provided in two ways (Algorithm Strategies). While stock brokers offer algorithm strategies to the investors in-house, at the same time, the brokers can outsource the services of the third-party ASPs. These strategies would be thereafter offered to the investors by the stock brokers. In the second scenario, it is important to understand the regulatory framework of such third-party ASPs. As mentioned earlier,

[By Santripta Swain] The author is a student of National Law University Odisha.   Introduction  Recently, SEBI has been heavily criticised for its conflicting and lackadaisical approach in dealing with the securities matters. The Appellate Courts of different forums – the Supreme Court, High Court, or Securities Appellate Tribunal (SAT) have time and again been disappointed with the market regulator for its persistent non-compliance and, at times, non-uniformity in investigations as well as adjudication of various securities law matters. Thus, raising the question of its enforcement.  A similar instance was observed in the matter of IIFL Securities. SAT in the Matter of IIFL Securities has partly set aside the order of Whole Time Member (WTM) and Adjudicating Officer (AO). – The violation of misuse of clients’ funds along with the WTM order barring the Appellant from dealing with new clients for two years were set aside, and the order for not maintaining different nomenclature for clients’ account and proprietary account was allowed.  SEBI, at times, has been lauded for its strict norms. For instance, in the matter of Karvy Stock Broking Ltd – which gave us the perspective why stricter norms are necessary for preventing a series of fraudulent activities in the form of misuse of clients’ fund by the stock brokers (it has its own tales to tell). In another Adani-Hindenburg matter, the Supreme Court has sided with the SEBI for not blindly relying on the Hindenburg report, as such foreign reports should not be treated as gospel truth.  Premise  SEBI, based on its own investigation in the past, has found out that stock brokers have misused clients’ funds to meet their own settlement obligations or in some cases high net-worth clients’ settlement obligations. Additionally, SEBI found out that these intermediaries in order to raise fresh funds, pledge clients’ securities vehemently without their consent – such misuse of clients’ funds/securities was found to be in contrary to the principle and spirit of SEBI – protecting the rights of the investors.  Therefore, SEBI through a press release in 2020, stated that it has developed an in-house supervisory system to detect misuse of clients’ securities by the brokers.  Further SEBI, through various circulars on enhanced supervision of stock brokers has mentioned the standard operating procedures for the stock brokers and other intermediaries on how to segregate clients’ funds from their own proprietary funds. SEBI also made the NSE the watchdog in the workings of such intermediaries and initiate inspections as and when it felt necessary, while keeping the market regulator in loop in the matter.  The IIFL Securities (Appellant) is one of the many matters where SEBI has been criticised for its non-uniformity in penalising the alleged. Additionally, SAT also cautioned that SEBI should always work in the public interest. And in my humble opinion, the term public is inclusive of investors, brokers, and all other stakeholders in the securities market – meaning SEBI has a larger purpose to serve than to be termed as a rigid regulator.  Crux  The SEBI in the matter of IIFL Securities was concerned with the probable misuse of clients’ funds due to the non-segregation of such funds from proprietary trading fund. SEBI for the first time, through its Circular of 1993,  mandated segregation of clients’ funds from the proprietary ones, which, according to the SEBI Circular of 2016 and follow-up Circulars of 2017, were in furtherance of the Circular of 1993. And the whole crux of the matter revolves around how this mixing of funds is in violation to the SEBI Circular of 1993.  SEBI in the present matter took two things into consideration the Circular of 1993 and the Circular of 2016. SEBI’s whole stance was dependent on the fact that the Appellant failed to segregate clients’ funds from its own proprietary funds – potential misutilisation of clients’ funds. On top of that, SEBI’s Adjudicating Authority initiated two different proceedings for the same offence citing a long investigation period, hence the segregation – which the SAT found peculiar, as such segregation of matter was unnecessary and created an unwanted legal hurdle.  Case Issue  SEBI’s take on the issue was that the Appellant had failed to segregate the client’s fund from its own; therefore, there is a high possibility of misutilisation of client funds. I say this as a possibility because SEBI used a formula to establish such misutilisation without any concrete investigation to find such anomalies, which we would analyse in detail further as we go through the blog.  In order to understand the same, the Respondent (SEBI) referred to the formula that was first mentioned in the Circular of 2016.  G = (A+B) – C  A = Aggregate of fund balances available in all Client Bank Accounts, including the Settlement Account, maintained by the stock broker across Stock Exchanges  B = Aggregate value of collateral deposited with Clearing Corporation and/or clearing member in form of Cash and Cash Equivalents (Fixed deposit (FD), Bank guarantee (BG), etc.) (across Stock Exchanges). Only funded portion of the BG, i.e. the amount deposited by stock broker with the bank to obtain the BG, shall be considered as part of B.  C = Aggregate value of Credit Balances of all clients as obtained from trial balance across Stock Exchanges (after adjusting for open bills of clients, uncleared cheques deposited by clients and uncleared cheques issued to clients and the margin obligations.  From the aforementioned formula, if the value of G is negative, then it indicates that clients’ funds are being utilised for settlement obligations or for stock brokers own purposes.  Based on the recommendation of the Designated Authority (DA) – cancellation of the registration of certificate, the WTM (power exercised under Reg. 27 and Reg. 28 of the Intermediaries Regulation) restrained Appellant from onboarding new clients for a period of two years. Further, the AO also initiated parallel proceedings on similar facts and therefore issued two separate Show Cause Notices (SCN), and accordingly, a penalty of INR 1 Crore against each SCN was levelled against the Appellant. 

[By Shyama Singh] The author is a student of Gujarat National Law University, Gujarat.   Background  Through an informal guidance by way of an ‘interpretative letter’ dated 21st July 2023, the Securities and Exchange Board of India (“SEBI”) clarified whether open offer obligations under Regulation 3(3) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (“SEBI SAST Regulations”) or Takeover Code would be triggered. The clarification pertained to a situation where an increase in individual shareholding of promoters occurred, while the aggregate shareholding or voting rights of the promoter and promoter group did not exceed the 5% threshold. The guidance is significant since a plain reading of the SEBI SAST Regulations might initially suggest a contrary outcome than the guidance provided by SEBI.  As for the binding nature of such guidance, the Securities Appellate Tribunal (“SAT”) emphasized in paragraph 28 of JK Paper Ltd. v. SEBI that any guidance is not binding on the Board. Nevertheless, Clause 12 of the SEBI (Informal Guidance) Scheme, 2003, indicates that the Board generally aligns its actions with the letters issued as informal guidance.   Legal Framework  Under Regulation 3(1) of the Takeover Code, an acquirer, together with persons acting in concert (“PAC”), is obligated to make a mandatory open offer if their combined holding reaches 25% or more of the target company’s shareholding, conferring them the right to exercise 25% or more of the voting rights. Regulation 3(2) stipulates that an acquirer, along with PAC, holding 25% or more of the target’s shareholding, must initiate an open offer when acquiring an additional 5% or more of voting rights in the target during a financial year.  Subsequently, Regulation 3(3) elucidates that an acquisition leading to an individual’s shareholding surpassing the prescribed thresholds in either sub-regulations (1) or (2) necessitates an open offer obligation. This obligation holds true regardless of any change in aggregate shareholding with PAC. This means that if an individual acquisition exceeds the 25% threshold specified in sub-regulation (1) or surpasses the 5% threshold in a financial year after holding 25% or more under sub-regulation (2), Regulation 3(3) mandates a compulsory open offer, irrespective of whether the aggregate shareholding with PAC experiences any change or remains unchanged.  Brief facts   The informal guidance was sought by Kreon Financial Services Limited (“Kreon”), a publicly listed Non-Banking Financial Company registered with RBI and listed on BSE, concerning an increase in individual shareholdings of two promoters. These two promoters were Mr. Jaijash Tatia and Ms. Henna Jain. Through a board meeting dated 28.01.2021, board approval was received for the issuance of 95,00,000 warrants convertible to equity on a preferential basis to promoters, including Mr. Jaijash Tatia, Ms. Henna Jain, and other investors. The shareholders’ approval was received on 27.11.2021. Subsequently, an in-principle approval was received from BSE on 13.01.2022 for the allotment of these 95,00,000 warrants. On 24.01.2022, a board meeting approved the allotment of these 95,00,000 warrants. On 28.03.2023, another meeting approved the partial allotment of 28,77,000 equity shares against the partial conversion of the warrants. Resultantly, the shareholding of Mr. Jaijash Tatia and Ms. Henna Jain increased from 9.29% to 14.28% and 0% to 4.99%, respectively, in FY 2023. This increase was of 4.99% for both promoters.  Since the warrants were only valid for 18 months, Kreon enquired whether a further conversion of the pending warrants into shares in FY 2024 would trigger the Open Offer Obligation as per Regulation 3(3) of the SAST Regulations since the individual shareholding/voting rights of the two promoters would increase by 5.37% and 9.84% post-conversion. This was notwithstanding that the promoter and promoter group’s combined shareholding/voting right would not surpass 5%, as mandated by Regulation 3(2) of the SEBI (SAST) Regulations.  The shareholding of these promoters, along with PAC (i.e., the promoter group), was 50.60% in FY 2023. This aggregate shareholding was estimated to increase by 4.99%, i.e. to 55.59% after converting the remaining warrants in FY 2024. However, the individual shareholding of the two promoters would cross 5%. This was because the shareholding of other promoters in the promoter group decreased by 10.22% when the shareholding of the concerned promoters increased by 15.21%, resulting in a cumulative increase of 4.99%.   SEBI’s guidance and analysis  SEBI noted that the individual shareholding of Mr. Jaijash Tatia and Ms. Henna Jain was below 25%, and thus, open offer obligations were not triggered for them under Regulation 3(3) read with Regulation 3(2) of the SEBI SAST Regulations, 2011, even if they acquired 5.37% and 9.84% respectively.   The guidance tendered by SEBI might seem incorrect initially since the shareholdings of the two promoters increased by 5.37% and 9.84% when they aggregately held 50.60% along with PAC before the acquisition. One might conclude that this situation would attract Regulation 3(2) and mandate an open offer thereunder. This conclusion would be based on an understanding that Regulation 3(2) mandates an acquirer who acquires more than 5% when already holding 25% or more together with PAC, to make an open offer. However, this is an incorrect and partial understanding of the Regulation. A complete reading would reveal that SEBI’s guidance aligns with the SAST Regulations and no open offer is required.  As per Regulation 3(3), an open offer obligation is triggered when, ‘individually’, the thresholds under sub-regulations (1) and (2) are exceeded. In the present case, the 25% or 5% thresholds under sub-regulation (1) and (2) were not breached ‘individually’. However, under sub-regulation (2), one may argue that the shareholding of the promoter and PAC was well beyond 25%, after which the two promoters individually acquired more than 5%, mandating an open offer obligation. Such an interpretation is incorrect.   It has been noted that Regulation 3(3) addresses breaches at the individual level, contrasting with the provisions outlined in Regulations 3(1) and 3(2). Sub-regulations (1) and (2) cover situations wherein individuals and PACs ‘collectively’ exceed the prescribed thresholds. This can also be gathered from the language employed in these sub-regulations, which uses the word “them,” meaning the individual acquirer,