By Vinita Nair, Vishes Kothari, Rajeev Jhawar & Simran Jalan
India is one of the most exciting markets for fintech startups. Several overseas entities, having already established businesses overseas, want to set up mobile wallets or payments systems in India. This makes them run into two laws, first by virtue of being an overseas entity desirous of moving funds in some form or the other into India, and second because it is entering the payment and settlement systems space. These bring complexities of foreign direct investment covered by Foreign Exchange Management Act, 1999, and nuances of skeletal, regulation-based law under Payment and Settlement Systems Act, 2007. This article intends to provide an easy-to-comprehend guide to the applicable regulations for overseas entities getting into payment systems in India. Read more
By Anita Baid,(firstname.lastname@example.org)(email@example.com)
Investments by Foreign Portfolio Investors (FPIs) in unlisted debentures and securitised debt instruments (SDIs) issued by Indian companies was allowed pursuant to SEBI notification dated 27th February, 2017. Earlier in November, 2016, Reserve Bank of India (RBI) had also permitted investment by FPIs in unlisted non-convertible debentures and securitised debt instruments issued by Indian companies. The said amendments by the securities market regulator and financial services regulator were the final push which was needed to encourage more FPI investments in India.
Previously, FPIs could invest only in debt securities of companies engaged in infrastructure sector. This was a clear indication that the government aimed to develop the infrastructure sector in India. But eventually, it seemed that the government did not want to restrict this to infrastructure only and wanted to reap all the benefits for developing a dynamic and facilitating bond market in the country.
Economic development and smooth flow of funds into the economy are the twin sides of the same coin and the government of India has very well taken this into account while amending the FPI regulation. Allowing FPI investments in unlisted debt instruments of Indian companies, was a step by the government to relax the burden which the companies had to bear, while raising funds in form of equity. The regulation in turn blocked the companies from taping into fresh funds and listing of debt instruments, which called for additional burden of complying with a host of other regulations.
Companies are now able to raise debt funding from foreign sources in form of unlisted debt, i.e., without listing the instrument.
Apart from unlisted debt instruments, FPI investments in SDIs has also gained a lot of popularity. SDI has been defined under SEBI (Public Offer and Listing of Securitised Debt Instruments) Regulations, 2008 as –
“securitised debt instrument” means any certificate or instrument, by whatever name called, of the nature referred to in sub-clause (ie) of clause (h) of section 2 of the Act issued by a special purpose distinct entity
Further, section 2(h) (ie) of the Securities Contracts (Regulation) Act, 1956 defines the term ‘securities’ to include-
(ie) any certificate or instrument (by whatever name called), issued to an investor by any issuer being a special purpose distinct entity which possesses any debt or receivable, including mortgage debt, assigned to such entity, and acknowledging beneficial interest of such investor in such debt or receivable, including mortgage debt, as the case may be;
However, SDIs which are eligible for FPI investments have to be –
- any certificate or instrument issued by a special purpose vehicle (SPV) set up for securitisation of asset/s where banks, FIs or NBFCs are originators; and/or
- any certificate or instrument issued and listed in terms of the SEBI Regulations on Public Offer and Listing of Securitised Debt Instruments, 2008.
Accordingly, instruments issued by other than the ones listed above will neither be regulated by the central bank of the country nor the securities market regulator.
Recently, RBI has further relaxed the regulations for investments by FPI, which has been welcomed by the industry at large. At the same time it has also tighten investor-wise exposure limits.
|The major changes proposed by RBI’s circular dated 27th April, 2018 are specified herein below:
Ø Investment by any FPI, including investments by related FPIs, shall not exceed 50% of any issue of a corporate bond.
Ø In case an FPI, including related FPIs, has invested in more than 50% of any single issue, it shall not make further investments in that issue until this stipulation is met.
Ø As per A.P. (DIR Series) Circular No. 26 dated May 1, 2018 the term “related FPIs” refers to all FPIs registered by a non-resident entity.
Ø No FPI shall have an exposure of more than 20% of its corporate bond portfolio on a single corporate.
The RBI vide its notification dated 27th April, 2018, amended on 1st May, 2018 has relaxed their terms of investments in corporate bonds by FPIs. The intent behind these changes are to accelerate the demand for shorter maturity papers that matures within the span of twelve months. Treasury bills, commercial papers and certificate of deposits are few ubiquitous short-term maturity instruments.
Further, exposure limits on FPI investment in corporate bonds have also been introduced. The relevant extract of the circular is reproduced herein below:
“(e) Single/Group investor-wise limit in corporate bonds
FPI investment in corporate bonds shall be subject to the following requirements:
(i) Investment by any FPI, including investments by related FPIs, shall not exceed 50% of any issue of a corporate bond. In case an FPI, including related FPIs, has invested in more than 50% of any single issue, it shall not make further investments in that issue until this stipulation is met.
(ii) No FPI shall have an exposure of more than 20% of its corporate bond portfolio to a single corporate (including exposure to entities related to the corporate). In case an FPI has exposure in excess of 20% to any corporate (including exposure to entities related to the corporate), it shall not make further investments in that corporate until this stipulation is met. A newly registered FPI shall be required to adhere to this stipulation starting no later than 6 months from the commencement of its investments.”
Prior to change, FPIs were only permitted to invest in corporate bonds with minimum residual maturity of three years or above. Pursuant to the recent amendment, FPIs are permitted to invest in corporate bonds with minimum residual maturity of above one year. Further, investments by an FPI in corporate bonds with residual maturity below one year shall not exceed, at any point in time, 20% of the total investment of that FPI in corporate bonds. Also, on a whole, the investment by an FPI including related FPIs cannot be more than 50% of any issue of corporate bonds.The major issues that need to be specifically emphasized on are –
- whether pass through certificates (PTCs) issued by special purpose trust (SPV), under a securitization transaction, would qualify to be a corporate bond,
- whether, residual maturity norms shall apply in case of SDIs, and
- whether investment made in the PTCs issued by the SPV be treated as an exposure on the originator and will it fall under the aforesaid concentration limits.
Firstly, it is pertinent to note that the concentration limits are for issuance of corporate bonds. In case securities are issued by an SPV, the same does not fall under the category of corporate bond. Para 21(1) of the SEBI (Foreign Portfolio Investors) Regulations, 2014 provides a list of instruments in which FPIs can invest. The list originally included corporate securities like non-convertible debentures/bonds, shares, securities etc. issued by an Indian company. However, subsequently the regulations were amended to include securitised debt instruments issued by SPVs. It can be argued, the very intention of including the SDIs was because the instruments were not originally covered under items provided therein. Therefore, it can be safely concluded that SDIs cannot be considered as corporate bonds.
Since, SDIs are not considered as corporate bonds itself, the residual maturity limit shall also not be applicable. Hence, investment by FPIs in securitised debt instruments shall not be subjected to the minimum residual maturity requirement.
Secondly, in securitization transactions, the originator sells the receivables to the SPV on true sale and non-recourse basis. The SPV issues PTCs on a private placement basis, backed by the receivables owned by the SPV and the investors subscribes to the PTCs. The exposure of the investor is on the SPV and ultimately on the underlying receivables and not on the originator, save and except for any credit enhancement provided for the transaction which puts an obligation on the originator.
Moreover, the priority sector lending (PSL) requirements of commercial banks are also fulfilled by investing in PTCs, wherein there is a see-through approach. The regulators do not look at the PTC as a security of the issuer, but consider it based on a see-through approach for complying with the PSL requirements. Therefore, investments made in PTCs cannot be considered as exposure on the originator.
The Reserve Bank of India (RBI) released its first monetary policy statement for FY 2018-19 on April 05, 2018 (‘Policy Statement’). The aforesaid statement sets out various developmental and regulatory policy measures for the financial sector. It aims at strengthening regulation and supervision; broadening and deepening financial markets; improving currency management; promoting financial inclusion and literacy; and, facilitating data management. Some of the major issues from the Policy Statement have been discussed herein below: Read more
RBI notifies FEMA regulations for inbound & outbound mergers
By CS Vinita Nair firstname.lastname@example.org
The Reserve Bank of India (‘RBI’) on April 28, 2017 proposed draft of Foreign Exchange Management (Cross Border Merger) Regulations, 2017 which covered regulations in relation to merger, demerger, amalgamation or arrangements between Indian company (ies) and foreign company (ies). These regulations were proposed in relation to section 234 of the Companies Act, 2013 notified by MCA w.e.f. 13th April, 2017, which provides for the merger of a foreign company with a company registered under the Act, 2013 or vice-versa. Rule 25A was inserted in Companies (Compromises, Arrangements & Amalgamations) Rules, 2016 in this regard. Read more