Fractional Justice
Where there’s a will, there’s No other Way
Lapse of Stay Orders and Judicial Delays
The constitutional predicament of the Supreme Court’s direction in the case of Asian Resurfacing of Road Agency v. Central Bureau of Investigation (“Asian Resurfacing”) assumes significance because of the controversial dictum regarding stay orders. The direction in its essence is that any order that stays civil or criminal proceedings will now lapse every six months unless it is clarified by an exception of a speaking order.
The major grievance is that every order which is passed by the High Courts while exercising its jurisdiction under Article 227 of the Constitution and Section 482 of the Criminal Procedure Code, is virtually annulled with the passage of time.
The decision comes into existence due to the indefinite delays that occur because of stay orders granted by the High Courts, which leads to judicial delays and denies the fundamental right to speedy justice. The Apex Court has observed that proceedings are adjourned sine die i.e. without a future date being fixed or arranged, on account of stay. Even after the stay is vacated, intimation is not received, and proceedings are not taken up.
The concern is that during criminal trials, a stay order delays the efficacy of the Rule of Law and the justice system. The power to grant indefinite stays demands accountability and therefore the trial court should react by fixing a date for the trial to commence immediately after the expiry of the stay.
Trial proceedings will, by default, begin after the period of stay is over. In the case where a stay order has been granted on an extension, it must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized.
The High Court may exercise powers to issue writs for infractions of all legal rights, and also has the power of superintendence over all “subordinate courts,” a power absent in the Supreme Court as it was never intended to supervise subordinate courts or the High Courts.
In the case of Tirupati Balaji Developers (P) Ltd v. the State of Bihar, the Supreme Court recognized that despite having appellate powers, the current directive ordered by the Supreme Court takes a precarious position since the High Court cannot be limited in its exercise of power by any restrictions placed on it by the Supreme Court unless the Supreme Court interprets a statute or the Constitution and prescribes it as a matter of law, which is not the case in the directions issued for Asian Resurfacing.
There are two perspectives to this: firstly, the directive does not annul “every order” of the High Court merely with the passage of time. It only causes those orders that “stay the trial proceedings of courts below” to lapse with the passage of time, wherein even those orders can be extended as per the High Court’s own discretion on a case-to-case basis.
If this is considered supervisory or unconstitutional, then Appellate Courts will be left with the little prerogative to safeguard the basic rules of fair procedure. Secondly, the directive itself is not applicable to the interim order granted by the Supreme Court as reiterated in the case of Fazalullah Khan v. M. Akbar Contractor.
It is clear that the demand for justice to be disbursed and a trial to be completed in 6 months is a necessity given the incessant judicial delays and indefinite freezes on criminal cases. Staying trial proceedings for 6 months must be made a thing of the past and should not be stayed for 6 months or more, save in exceptional circumstances.
Allowing trial proceedings to stay for longer than 6 months encourages parties to abuse the process of law and move to an appellate court merely to stall a trial that has an inevitable conclusion. Legal procedures, the appointment of judges, and judicial vacancies all contribute equally to judicial delay, the rot has spread far and wide creating systemic delays in the entire judicial procedure.
Although courts will be bound to welcome the judgment in letter and spirit, some pressing questions remain unanswered. It is unclear why the Supreme Court provided “directions” to the High Courts now when it has been cautious in issuing such directions in the past? Further, if the primary motive was curbing the judicial delays and ushering in a change in the way the judicial system works, why is the Supreme Court not bound by its own directive?
Tags: criminal procedure code, the code of criminal procedure, stay orders, criminal procedure code act, judicial delays, constitutional conundrum
Will Our Balance Sheet Reflect A Picture Different From NPA?
The virus-induced lockdown has raised “Liquidity” and Non-Performing Assets (“NPA”) issues popularizing the buzzwords in financial circles and beyond. Anticipating a domino effect on loan defaults amongst small to medium-sized businesses, the Finance Ministry in conjoined efforts with Regulators and the Reserve Bank of India (RBI), introduced numerous measures for the maintenance of equilibrium between the market forces of demand and supply during the pandemic.
One of the preliminary measures taken by the Ministry was the suspension of Sections 7 and 9 of the IBC, followed by a moratorium on loan payments until August 31. While this move was appreciated by Corporate Borrowers at the outset, a closer look at the policies revealed deep financial woes in the long run.
Consequently, the embargo may pause the economic ripple effect on businesses for some time, but does not discount or waive off payment liabilities due to losses that occurred under the pretext of COVID-19; however the increase in threshold value to Rs. 1 crore for initiation of insolvency leaves out a massive chunk of small to medium businesses having debts lesser than 1 crore leaving them limited options of traditional litigation, which are time-consuming and expensive.
Further, relaxations in compliance requirements, an extension of the ITR filing deadline to November 30th along with deferred interest payments in relation to the loan moratorium are myopic and are likely to create issues in the long-term for all stakeholders. These measures are collectively aimed at keeping businesses afloat while testing the resilience of financial institutions by offering relaxations – a necessary cushion.
Loan-loss provisioning for NPAs as mandated by the newly-introduced amendments has seriously eroded the capital base of several banks, limiting their ability to make further loans. There is general consensus that the state of Indian banking is among the biggest challenges facing the country in accelerating investments, growth, and sustainability.
A cherry on the cake for defaulting Corporate Borrowers was last week’s Supreme Court’s ruling which stated that Default will not result in NPA until further orders. In view of this, the accounts which were not declared NPA till August 31 shall not be declared NPA till further orders.
RBI’s circular dated 27th March 2020 was considered to be ultra vires to the extent that it was charging interest on the loan amount and also charging interest on interest (compound interest) on the deferred loans during the moratorium period.
In light of this, all pertinent decisions cannot be left to individual banks and the Supreme Court stated that clarification on interest upon interest will have to be obtained. The main purpose of the moratorium was to provide a sigh of relief to those in distress and not as a weapon or an opportunity for those already defaulting on payment of their loan amounts.
This pandemic created hardships for the borrower, especially individual borrowers, and also obstruction the “right to life” as guaranteed by Article 21 of the Constitution of India. Also charging compounding interest during the moratorium period in the wake of the COVID-19 pandemic had no merit as such as held by the apex court.
Non-recognition of NPAs until the end of this year will certainly distort the harsh reality of mounting NPAs in the country and the increasing burden on financial institutions. With the shadow financing industry already struggling with funds in light of recent crises such as the IL&FS fiasco, COVID-19 has further jeopardized the survival of the sector at large.
At this juncture, it is necessary to implement an all-encompassing framework supporting the demand and supply side of the economy so as to avoid any potential systemic risks to the financial sector and accordingly take corrective steps.
As the nation awaits orders from the apex court, there is a dire need for the RBI to develop better mechanisms for monitoring macro-prudential indicators, especially to watch out for credit bubbles. Over the medium term, a simple indicator would be a rate of credit growth that is way out of line with the trend rate of growth of credit or with the broad growth rate of the economy.
This way, the economic ripple effects throughout the country can be traced and mitigated at the source to avoid further damage.
The pandemic has drastically reduced the Indian GDP by 23 percent ruling out a waiver of interest on bank loans during the moratorium period for all borrowers providing a suggestion for long-term rescheduling.
Any “ex post facto” change in terms and conditions of the moratorium favoring those who availed of it over those who made the extra effort of repaying would be grossly inequitable and patently unfair for those who did not avail of the benefits of the moratorium initially or gave it up subsequently.
With the scales of economic relief mostly tipped in favor of small-scale borrowers, it further paves way for banks to restructure loans. In fact, NBFCs have requested RBI to allow them a one-time restructuring of all loans till March 2021, as their borrowers are facing funding issues amid the pandemic. This is a preferred move for financial institutions as there won’t be any buyers in a cash-strapped economy, even if impacted companies are taken to bankruptcy courts.
So it is wise of financial institutions to work out a restructuring package without calling for a change in ownership while allowing the loans to remain ‘standard’. However, misuse of previous restructuring frameworks by promoters has made the RBI wary of approving any such rejig with existing promoters at the helm. Bankers are mindful that any proposal has to have strong checks and balances to ensure it is not misused.
Despite these measures, a formidable overhand of NPAs may linger long after the COVID-19 pandemic dust is settled. Restructuring of loans is a static relief formula and may derail the debt rehabilitation process.
Subsequently, this shall defer NPA recognition, as it did a few years ago, however restructuring may rose tint balance sheets for a few months but the risk of an impending credit bubble burst is a high possibility if a custom policy to sustain the economy is not implemented in a timely manner.
Tags: npa in banking, the balance sheet, balance sheet, the harsh reality, non performing assets, classified balance sheet, loan defaults
EMI Moratorium: Analysing Borrower’s Creditworthiness
Financial institutions are focused on risk now, more than ever before. The virus-induced lockdown has raised “Liquidity” and Non-Performing Assets (“NPA”) issues popularizing these buzzwords in financial circles and beyond.
Anticipating a domino effect on loan defaults amongst small to medium-sized businesses, the Finance Ministry in conjoined efforts with Regulators and the Reserve Bank of India (RBI), introduced numerous measures for the maintenance of equilibrium between the market forces of demand and supply during the pandemic.
With the widespread prevalence of the COVID-19 pandemic, they are increasingly recognizing that the rebuilding phase offers a unique opportunity to encourage action on the agenda of survival until the COVID-19 dust settles.
The acute phase of COVID-19 has drawn central banks’ attention from a crisis that was earlier restricted to some states and regions, to a global economic crisis riddled with challenges. The nature of the crisis has revealed basic vulnerabilities around the world, most importantly those surrounding individual borrowers.
The Finance Ministry directed Banks to roll out a loan resolution framework with the Loan Moratorium period ending on August 31st and the festive season around the corner. In doing that the Supreme Court directed that while Banks are free to restructure loans, they cannot penalize individual borrowers availing moratorium benefits.
The apex court held that charging interest on deferred EMI payments under the moratorium scheme during the COVID-19 pandemic would amount to paying interest on interest which is against “the basic canons of finance” and unfair to those who repaid loans as per schedule.
RBI’s move to restructure personal loans accord this benefit to consumer credit, education loans, loans for creation, or housing loans pursuant to a central bank notification.
Specifically, the relief may include “rescheduling of payments, conversion of any interest accrued, or to be accrued, into another credit facility, or, granting of a moratorium, based on an assessment of income streams of the borrower, subject to a maximum of two years”; however the exact contours of the resolution plan have not been clearly laid out and remain undecided.
The primary objective of this move at help borrowers on the pretext of mass unemployment, pay cuts, and lay-offs in light of the world’s strictest lockdown, thereby paralyzing economic activity. So a 2-year moratorium that RBI has now permitted under such restructuring proves to be a blessing in disguise for people experiencing cash crunch during the pandemic.
Clearly, it will boost households facing a cash crunch — especially those who lost their jobs or small businesses that are on the verge of a shutdown. RBI has moved consistently and quickly since the start of the pandemic to calm markets, to provide liquidity, and, now, these steps should go some distance in giving relief to the distressed liquidity-starved household.
However, each household should be wary of using this facility. At the outset, a loan moratorium was aimed at helping those in distress and was not meant to be used as an opportunity for the pre-existing defaulters of loan payments. At the other end of the spectrum, the moratorium extension is likely to provide a negative credit outlook for financial intermediaries in the shadow financing industry like Housing Finance Companies and Non-Banking Financial Companies.
Invariably, the deferment of EMIs will have an adverse impact on the cash flows of these financial institutions and test their resilience during the depressionary forces emanating from the COVID-19 pandemic.
Despite the slew of measures announced by the RBI and government to alleviate liquidity woes of financial institutions, these measures may have less impact in the short to medium term, but the operative word being “defer” of loan installments, and not a complete waiver or discount thereof should be of prime importance in the personal finance industry and be availed only if absolutely required.
A growing number of central banks and banking supervisors are starting to work together to progress a global approach and agenda. In doing so, the central banks need to develop a clear strategy for the way forward. A monetary policy needs to be forward-looking.
Given the slowdown in the economy and that the transmission of rate cuts takes time, there is a need for further monetary policy easing. This will also be helpful as uncertainty remains over COVID-19 having a deflationary or inflationary impact on the Indian economy in the medium run.
While the temptation to adopt aggressive measures may be high, crossing the traditional boundaries between fiscal and monetary policies, but are feasible for central banks in advanced economies with high credibility stemming from a long track record of stability-oriented policies. Thus this strong medicine should only be taken with extreme care.
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Private Equity in Times of Pandemic
The pandemic has led private equity in India to step into the current crisis riding a decade-long growth wave in transaction volumes and valuations. The value of some investments and investor confidence has been fairly dampened since the outbreak of the virus which continues to persist yet now.
The global financial crisis of 2008-09 for instance can be looked up, to provide a few insights into how PE funds might navigate the fallout from the pandemic. If we take history as a guide, many PE funds have been previously seen to cruise through the crisis staying on the sidelines, a little too long, which could lead to missing out on crucial investment opportunities.
Although there could be a sharp fall in deal-making in the short-term, PE funds are expected to learn from the past as high returns often emerge in times like these and can offset the losses during the downturn.
The returns over the next couple of years will depend on how fund managers react over the next 12 months. However, PE firms have massive amounts of unused funds that are readily available at their disposal coupled with money that has been raised but not yet invested.
The subsequent expectation is that a large part of this money shall be expected to be earmarked for emerging markets, India being no exception. Private debt funds and special situation funds are more visible in the market and can help provide liquidity to businesses that are experiencing cash crunches, the much-required prerogative currently.
While several investors are holding back until the ramifications of the pandemic become clearer, a few distinct themes are emerging that could shape private deal activity as the new normal evolves which include:
- Deferment of deals: Deals are being deferred as investors are speculating the damage of the COVID-19 caused pandemic. While the dealer network is highly robust, deal flow is expected to be slow specifically in the next couple of quarters. The driving factor here to determine the consequences would be the availability of the dry powder with the equity funds.
- Protecting existing portfolio: The primary goal of funds in the short term will likely be to look after portfolio companies. This would eventually take precedence over the search for new investment opportunities as some portfolio companies may need additional financing amid liquidity concerns owning to the government-enforced long shutdown in the wake of the spreading virus.
- Difficulty in managing the valuation conflict between buyer and seller: Financial markets have been significantly disrupted across the globe. The pandemic has triggered a rout in the stock markets and market volatility has increased. Although PE investments are generally less volatile than public investments, there might be valuation challenges as sellers may be reluctant to part with assets given the precipitous fall in valuations. This could delay deal activity in certain cases.
- Availability of leverage for buyout deals: Of late, a higher amount of leverage has been used in buy-out deals. The availability of debt financing from banks could be a challenge and may cause a slowdown in buyout deals. Given the significant amount of available funds, of which a large part is for buyouts alone, deal-making could see an uptick, especially in distressed asset situations.
- Private debt funds and special situation funds are expected to be more active: There is expected to be liquidity pressure on businesses owing to COVID-19-related disruption in demand. PE funds are expected to capitalize on this opportunity through innovative solutions such as debt restructuring and bridge financing.
- Increase in private investment in public equity (PIPE) transactions: As valuations in public markets decline, PIPE transactions are expected to pick up as PE funds take positions in quality assets at significantly cheaper valuations.
- Sector expertise will become more critical than ever: PE funds are expected to focus on sectoral themes with pharmaceuticals, technology, digital, and healthcare expected to drive interest whereas the revival of sectors such as financial services, real estate, and non-essential consumer goods and services may take some time. It will remain difficult to form an investment thesis for sectors such as aviation, travel, tourism, and hospitality.
- Expected change in scope of due diligence: the current crisis highlights the importance of factoring in multiple scenarios and modeling unpredictable disruption in due diligence. Hence, the scope of due diligence will change significantly over the near term.
In light of these circumstances, PE funds will need to respond swiftly and strategically to the new business normal and drive transformation for companies. The pandemic has brought about an extraordinary combination of quality assets going cheap and investors being cash-rich.
The funds that can find the right investment opportunities in this difficult time will not only emerge stronger but also generate significant returns in the coming years.
Tags: global financial crisis, the global financial crisis, private equity financing, private equity funds in india, pe funds in india, private equity, private equity fund, private equity in india, investor confidence, global financial crisis of 2008, pe funds
Strengthening Insider Trading Laws at Last
There is no other kind of trading in India but the insider variety,” remarked a former president of the Bombay Stock Exchange (BSE) in 1992, whereas Arthur Levitt, Chairman of the US Securities Exchange Commission (SEC), viewed it as one with no place in any law-abiding economy.
Between these ends of the spectrum lies the debate on insider trading. Although India was not late in recognizing the detrimental impact of insider trading on the rights of shareholders, corporate governance, and financial markets, the legal regime, including the enforcement mechanism relating to its prevention, remains in a nascent stage.
The Securities and Exchange Board of India (SEBI), Prohibition of Insider Trading Regulations, 2015 (PIT Regulations) prohibit insider trading while in possession of Unpublished Price Sensitive Information (UPSI) subject to certain exceptions.
Rule four of the PIT Regulations contains provisions apropos trading when in possession of UPSI. Trades carried out by a person who has UPSI would be presumed to have been motivated by the knowledge and awareness of such information and they shall be held guilty of insider trading. Simply put, any abuse of position or power by insiders for personal benefits, monetary or otherwise, is a fraud committed on public shareholders, who expect unbiased management of the company’s operations in their interest.
The 2020 amendments to the PIT Regulations aim at bolstering the level of compliance and mitigating the defects plaguing them. Prior to the amendment, there was considerable confusion with respect to the handling of UPSI by intermediaries. Notwithstanding the FAQs released by the SEBI to address the same, specific details regarding the maintenance of the digital database by such entities continued to remain shrouded in uncertainty.
Further, the list of transactions under Schedule B of the Regulations, exempting them from trading window restrictions, was not amenable to additions. This prohibited reasonable expansion of the same to include transactions of a like nature. Lastly, there was also the issue of lack of adherence to the code of conduct under the PIT Regulations.
Recent amendments to insider trading: Through a previous amendment that came into effect on April 1, 2019, the SEBI had mandated every listed entity, intermediary, and fiduciary to maintain a structured digital database, which would have the name and PAN details of a person with whom the UPSI was shared. This was done to ensure that there was a trail of information whenever the SEBI needed to investigate the sharing of UPSI.
Now, through an amendment in July, the SEBI has mandated that the nature of the UPSI and the details of the person sharing it must also be recorded in the database. Moreover, maintaining such a database has to be done internally and cannot be outsourced. The database should store data for the previous eight years at any given time.
The second most notable amendment is that the trading window restrictions would no more apply to “offer for sale” (OFS) and “Rights Entitlement” (RE). Schedule B of the PIT Regulations mandates that there should be a closure of the trading window for designated people and their relatives as it can be reasonably expected that they possess UPSI.
However, through another notification in July, the SEBI allowed the selling of promoters’ holding by way of OFS and exercising RE during the period of closure of the trading window.
The SEBI also specified that listed entities, intermediaries, and fiduciaries are now mandated to promptly and voluntarily report any Code of Conduct violation under the PIT Regulations in the prescribed format to the bourses and any amount recovered from the defaulter shall be deposited in the Investor Protection and Education Fund.
Analysis and impact: The primary benefit of the amendment that mandated a structured digital database is reduced information asymmetry while the SEBI investigates matters of insider trading. In cases relating to it, distinguishing the insider who conveyed the UPSI, in any case, turns out to be progressively significant for narrowing down expected guilty parties and following the data trail.
This was one of the pertinent issues in the ongoing “WhatsApp spill” case wherein after extensive investigations, the SEBI had punished certain people for spilling data identified to be price-sensitive. However, since WhatsApp messages are typically ensured through end-to-end encryption, the SEBI could not efficiently recognize the entities involved in the trade, thus setting an alarmingly low standard of proof in such cases.
It is hoped that the new, organized, and structured digital database may help and forestall such cases. The second amendment that cuts a special exception to the trading window is in the light of the ongoing endeavors by the SEBI to facilitate easy routes of raising capital. This is much needed and will give more chances to listed entities to raise fast capital. Lastly, the mandatory announcing of infringement of the code of conduct would make a more strong system of compliance.
Regulatory solutions: With each of these amendments, while the SEBI has chalked out additional responsibilities for intermediaries and fiduciaries, as well as streamlined its regulatory powers with bourses, the overall impact on the market hygiene remains to be seen.
While there seem to be concerned regarding the degree and extent of control that may be exercised by stock exchanges over unlisted entities, the same will depend on the successful implementation of the PIT Amendment and issuance of further clarifications and circulars by SEBI.
The requirement of maintaining an enhanced digital database is in line with the SEBI’s probe and surveillance procedure. However, it may lead to particular operational challenges and issues for the listed firm, intermediary or fiduciary, because in addition to maintaining more data for a more extended period, the entity is no longer permitted to outsource the task of keeping the database.
Market conduct regulation is poised at a critical threshold in India, where a combination of nuanced laws and efficient enforcement can indeed be transformative. When understood in their true spirit, these amendments are capable of engendering a behavioral shift across corporates, their Board, and other key stakeholders, in terms of how we balance commercial interests with accountability for information access.
As the market practice evolves on this, one can only hope that we can achieve that fine yet firm balance, amply aided by even-handed regulatory practices and judicial momentum.
Tags: nse insider trading, insider buying, bse insider trading, insider trading laws, insider buying stocks, insider selling, insider trading laws in india, insider trading, rights of shareholders
Work Environment: Why Organisations Terrified About Reviving
The effect of COVID-19 flare-up depends on the cataclysm’s gravity, degree, and distribution, which remains unknown even today. The mass transition to WFH has numerous advantages and offers a path to being relevant during such quick-changing dynamics and as a shield from contagion.
During the lockdown, the IT industry transitioned to the WFH model relatively easily providing business continuity to clients without depreciation in service quality or productivity. This was possible due to the industry’s strict adherence to quality processes and the availability of communication bandwidth both from homes in cities and towns.
With unhampered business functioning, other industries attempted to mirror the model, but not without disruptions and a dip in quality. This endeavor across industry verticals is in line with the WHO directives too.
On-site versus work from home
The main concern for organizations is the effective administration of the workforce with the assistance of advanced apparatus, technology-empowered processes, and guaranteeing that everybody is doing their individual errands. Insurance of information and better correspondences have to be kept in sight as WFH turns into a drawn-out plan B.
Organizations have to put resources into improving information security and framework. The mass integration of tech-powered business operations and cloud-based data storage facilities have eased the operations across industry verticals barring essential service workers and employees that have held the country together during such unprecedented times.
So where’s the glitch
The wrath of the pandemic has hurled the entire human species into their homes. The widely prevalent havoc wreaked by the pandemic has been a deterrent for many companies with an underlying fear that resuming offices and returning to the conventional method of functioning is an open invitation to infection. A single positive case may lead to contamination of the work environment, which spells disaster for the entire organization.
While companies deploying essential workers to carry out specific functions take measures to forestall the spread of the infection, it is pertinent to note that such measures do not guarantee protection from the virus. However, with the government unlocking states in a phased manner, companies are set to redefine the employment experience by striking an optimum balance between business continuity and community health and safety.
From a long-term standpoint, WFH may serve as a supplement, rather than a substitute for conventional office environments. However, this common parlance has posed a new challenge with emerging cases of cyber-attacks, frauds, and crime that can seriously and negatively affect the already ailing business enterprise and could open the doors to more invasive forms of government prying in the future.
Hence, there is a need to develop good cyber-security habits to reduce associated risks amidst the mass digitization of businesses. Moreover, proprietary confidential data and information pertaining to businesses are being accessed from unsecured laptops and desktops, thereby leading to increased exposure to phishing, email scams, and ransomware attacks by cybercriminals.
Managers are in dire straits to reassess the legal, technical, and personal dimensions of the cyber-security threats to their data, and proactively evaluate loss prevention processes.
The way forward
Despite high cyber-security risks, WFH may aid managers to reduce unprecedented losses incurred on account of the pandemic by saving on rental expenditures and other operational costs to keep the business afloat. Such mass adoption of the WFH method may bring momentary respite to numerous businesses. These are trying occasions for us all. Companies and their employees must build a culture that creates a conducive environment for the growth of both parties.
As time goes by, a widespread pandemic event will assert more pressure on existing resources, infrastructure, and technology, resulting in a significant depreciation of productivity and eventually that of products and services.
As resources become constrained, firms must constantly re-prioritize the delivery of products and services that are absolutely critical to meet customer needs, provide market stability, and foster development. Thus a calculated deviation from the standard company policies is the need of the hour.
Companies must expand on existing human resources, finance, legal, operations, and business processes to accommodate certain critical exceptions, and clearly communicate the revised policies, criteria, and processes to allow such waivers in an accelerated manner.
All potential changes to existing policies should be carefully reviewed by risk management, compliance, and legal teams prior to being finalized and should take into account what risks are appropriate to accept and any legal and jurisdictional nuances across geographies.
As the world recoups from the pandemic, a redefinition of normalcy is well on its way.
Tags: Work Environment, the work environment, hostile work environment, healthy work environment, workplace environment, ideal work environment
Special Purpose Vehicles for NBFC Funding
Special purpose vehicles (SPVs), a catchphrase during the 2008 financial crisis, have again taken center stage as companies and financial institutions scramble for monies in a contracted economy in the wake of the pandemic.
The key elements that led to the popularity of SPVs are bankruptcy-proof, absorptive capacity, flexibility, easy multiparty funding, longevity, and legitimacy. Empirical evidence suggests SPVs have served the development community and beneficiaries well, but it remains to be seen if these will stand the test of subsisting unprecedented times.
The shadow financing sector was struggling with funds in light of the IL&FS crisis when Covid-19 hit. Pursuant to RBI notification, SBICAP, a subsidiary of SBI, set up an SPV and operationalized Rs 30,000 crore. It shall serve the purpose of purchasing investment-grade commercial papers and non-convertible debentures of NBFCs and HFCs until September 30, 2020, and is expected to recover all dues by December 31, 2020.
At the outset, this scheme acts as an enabler for NBFCs/HFCs to get investment grades or better ratings for the bonds issued, thereby augmenting the flow of funds from the shadow financing sector. These measures, however, lack concrete action.
First, SPVs entail high costs, such as the cost of incorporation, registration, stamp duty at the time of transfer of the company, and compliance with FASB Rules. The efficacy of the SPV until September 30 as opposed to the industry requirement of over two years is being criticized.
The sector is in dire straits for long-term funds so they don’t run into an asset-liability mismatch, but this move may lead to a vicious cycle of extending loans. Second, high thresholds and requirements set by RBI for NBFCs and HFCs in terms of registration, profitability, and other financial considerations are likely to face criticism for the reason that many entities are in dire need of financial support and liquidity will be left out of this scheme.
Third, the number of NBFCs and HFCs availing of this scheme shall be contingent on the rate and amount they receive as part of this scheme, which will be a determining factor of whether the scheme is a true liquidity potion or just another half-baked solution. Fourth, the complexity of SPVs—often in the form of layers upon layers of securitized assets—can make it near-impossible to monitor the level of risk involved and whom it lies with.
In theory, SPVs are bankruptcy-proof. But there exists a moral hazard, not for banks but for end-investors who know they have no financial obligation and thus little incentive to monitor the credit quality of underlying assets. This means SPVs could be inefficient, both from a risk and regulatory perspective.
If the SPV is separated from sponsor SBI, albeit with regulation, the moral hazard from the point of view of SPV investors would be removed. In practice, it is not a credible threat that the sponsor will leave an SPV to collapse during difficult times.
Despite inherent risks, SPVs are a step in the right direction enabling large NBFCs/HFCs to obtain finances, transfer risks, and perform other investment activities to maintain adequate liquidity levels, eliminate or mitigate systemic risks, augment lending resources of NBFCs/HFCs, although for a short duration of three months.
To mitigate the gargantuan effects of pandemic-induced depressionary forces on the shadow financing sector, the government must introduce a dark horse to soothe its long-term woes and not a mere quick-fix.
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