Financial Intermediation: The Future Will Test What the Past Has Taught

Pearls of Wisdom from Dr Frank Fabozzi

Read the trascript from the Mahattva session with Dr. Frank Fabozzi. See the full video on our YouTube channel here.

Vinod Kothari

Good day, everyone, and today our guest is Dr. Frank Fabozzi. If you are in finance, I don’t need to introduce who Dr. Fabozzi is, because anyone who has studied finance would have gone through some of his books. If you are in the financial world, you would probably go through some of the institutions where he started. If you are in one of the leading financial players, you would have probably heard or benefited from his lectures or writings. Author of over 150 books. Over the last 60 years of teaching and writing history, Dr. Fabozzi is a leading, pioneering name in the world of finance, and today it’s sheer good luck that we have him. He has taught in leading institutions in the world, including the MIT, including City University of New York, including Yale University, plenty of academic institutions all over the world he has taught Dr. Fabozzi, it’s our indeed a great pleasure that despite your extremely busy schedule, you could find time to address us and our participants today. Dr. Fabozzi.

Dr Frank Fabozzi

Thank you for that kind introduction, I appreciate it.

Vinod Kothari

Okay. Dr. Fabozzi, the first that I have for you is quite generic, and I’m trying to talk or get some sense from you about financial intermediation in general. Now, you are a veteran, and you’ve seen the financial intermediaries evolve over the last, roughly about 60 years, and you’re, I mean, interacted and written with a lot of scholars all over this time. Could you tell us what are the key trends that you were able to identify, and going forward, how do you see these trends emerging? Dr Fabozzi.

Dr Frank Fabozzi

Well. I’ve been around, as you mentioned, in this market for 50 or 60 years, and, you know, if we’re talking about how financial intermediation or financial markets have changed over that period, I mean. I’ll give you some general information about it, but it’s very interesting. It’s hard to appreciate how the market has changed until you actually were involved in that market and saw how those innovations were important. But if we were looking at, like, thinking about several long-term trends that stand out over the last 50 to 60 years, I can think of, like, 3 themes that would help me think about how capital markets have changed. The first one is what we call the transformation from what is called “originate and hold” to “originate and distribute”. We’ll talk about that. Second, the impact of technology and data, and that’s often overlooked. And the growing inter-connectedness of the financial system. 

So let me just take them one at a time. 

First is, if we’ve seen a shift from bank-centered finance toward market-centered finance. So we know historically what a bank would have done. They’ve gathered deposits, they made loans, they largely held those loans on their balance sheet until maturity. Today, capital markets perform many functions that were once dominated by banks. For example, developments such as securitization, which you and I know very well, given a book on that area, syndicated lending, private credit. even ETFs and derivatives. They’ve expanded the role of markets in allocating capital, and managing risk. So the broader significance is really not what a lot of people think: the creation of new products. But it is a change in how financial intermediation is organized. The financial system has moved from, as I mentioned before, the originate and hold model, towards originate and distribute model, where origination, funding, risk-bearing, servicing, and distributions, can be performed by different specialized participants. 

The second trend, I believe, is that information technology has fundamentally changed the economics of financial intermediation. Traditionally, banks possessed significant informational advantages because they knew their customers, and they knew their local markets better than anyone else. Credit decisions then, often relied on personal relationships, local knowledge, and accumulated experience. Today, we know there is a vast amount of financial, operational, and behavioral data that can be collated, analyzed, and transmitted almost instantly. Information that was once difficult to obtain and largely confined to local institutions has become far more accessible. As a result, this competitive advantage increasingly comes from the data, analytics, and technology, rather than proximity alone, or factors like understanding local markets. This has, if we think of the implications, lowered the information barriers, increased the competition, and enabled new entrants. 

Vinod Kothari

New entrants, such as?

Dr Frank Fabozzi

FinTech companies, and firms that lend to private entities, and private credit in general. These all compete in an area that was once dominated by traditional banks. 

And the third trend I see is regulation has played an important role in shaping the evolution of financial intermediation. You know, historically, after every major financial crisis, regulators get wiser.. They make sure that their regulated entities tighten up on their credit. improved liquidity, and they develop risk management requirements. So these reforms generally made the banking system safer and more resilient; but what they’ve also done is they’ve altered the economics of certain activities that go on in the financial markets. So as a result, some lending and risk-taking activities migrated to other parts of the financial system as a result. And the risk that disappears, that’s the important thing, we always think about, you know, these innovations as better handling of risk. But it’s the handling of risk, not risk disappearing. What we see is risk is now redistributed among the key participants in the financial market. 

So, one of the enduring lessons of financial history is that regulation often brings changes where risk resides, who bears that risk, rather than eliminating the risk itself. So, looking ahead, here’s what I expect. Financial intermediation is going to become increasingly interconnected. The traditional boundaries between banks, asset management firms, technology firms, even the exchanges and data providers, are already becoming less distinct, and that trend is going to continue. 

And at the same time, some of the things are unlikely to change, and this is important to emphasize. Finance is ultimately built on trust. Institutions can adopt new technology, business models, delivery channels, but still, they must earn the confidence of customers, investors, and markets. Those are the tools that’ll continue to continually evolve, but the core functions of finance: allocating capital, providing liquidity, managing risk – they fundamentally remain the same.

Vinod Kothari

Sir, thank you very much for the perspective, and you talked about three key trends which you say have changed the shape of financial intermediation over the years. You talked about, number one, the originate- to-distribute the model having taken over the originate- to-hold the model. And then you talked about the role of data technology. And then you talked about the increasing interconnectedness in the financial system. Extremely important, sir. 

My second question flows from what you just mentioned; It’s actually an offshoot of what you just elaborated, and therefore comes naturally. You talked about the role of financial intermediaries from changing from the aggregated model: originating to hold, to continue to fund it, and continue to keep it, and to manage the risk of the lending transaction. And you’re saying that this is now getting kind of broken into several subcomponents. Now, does it mean the so-called concept of universal banking, where one bank does it all, is gradually giving way to more itemized or atomized functions, with each intermediary focusing on core competencies? There are some who do underwriting, some who do processing, there are some who do data keeping, there are some who do recoveries or risk management, and there are some who do funding. Do you see, therefore, that universal banking is going to be a thing of the past?

Dr Frank Fabozzi

Well I don’t know if it’s going to be a thing of the past. I do think the traditional concept of universal banks is under increasing pressure, although I don’t believe that they’ll disappear, and let me just explain why. Historically, if we think about it, universal banks offered all of the functions that you mentioned, [and it’s a little difficult for me to hear you, if you could put it a little louder, but I think I got what you said.] But, you know, you know, all of those things you mentioned, there were clear advantages to do that in one structure, because what can a bank do? A bank could share information internally, develop customer relationships, which could spill over to multiple products. and large balance sheets provided stability and funding capability. Now, let’s look at what has changed. Okay, first, technology dramatically lowered the cost of specialization. All those little things the banks did, today, different firms can excel at, for example, acquiring customers, credit assessment, payments, custody, investment management, servicing, data analytics. And they can all be done now by specialized firms. As a result, many activities that were bundled together in a universal bank can now be performed more efficiently by specialized providers. However, I don’t think that the coordinating function has disappeared. Financial services ultimately, and I’m coming back to this concept of depends on trust, accountability, and relationship management. Someone still needs to understand the customer, aggregate information across multiple activities, manage risk holistically, and provide a seamless experience. Those responsibilities become even more important as the underlying financial system becomes more fragmented, more participants. For that reason, I see universal banks evolving. Rather than disappearing. Their role’s likely to shift from being vertically integrated manufacturers of every financial product to becoming platforms that coordinate a network of specialized providers, and by platform, just to be clear, I mean an organization that brings together and coordinates multiple providers and customers through a common interface, rather than producing every service itself. The customer may continue to interact with a single institution, but what goes behind the scenes is : There are multiple firms that may be contributing different components to the overall service. For example, a wealth management client may receive investment advice through a brand, we see this bank brand platform, while portfolio management is provided by an asset management that could be a subsidiary to the bank. Securities are held by custodians. Trades are executed through external market makers and exchange. Risk analytics are supplied by specialized technology firms, and the underlying infrastructure operates on a third-party cloud computing platform. And similarly, if we look at the mortgage customer, they may deal exclusively with a bank, even though who all are actually involved ? Credit scoring by another entity. Property valuation. Nowadays we have these drive-by inspections in the United States. But you have specialized people who do that. You have fraud detection, documentation verification, then you have loan services. All provided by separate specialized providers. So, in this environment, the competitive advantage of universal banks will increasingly rely on their ability to integrate and oversee the specialized services. Well, from the customer’s perspective, they don’t see this. They just see one entity. 

So, this evolution creates both opportunities and challenges. Specialization can improve efficiency. innovation and customer choice. At the same time, it makes risks harder to identify, because exposures are distributed across a network of institutions rather than concentrated on the balance sheet of just one entity. So understanding how these connections interact will become increasingly important, not only for market participants, but, really regulators also. 

So I don’t think the concluding response here is whether universal banks will survive. The more important message is they adapt. My expectation is that the most successful institutions will be those that combine the trust, the balance sheet strength, and relationships of traditional banking with the flexibility of platform based business models. So in that sense, the universal banking of the future may look less like a financial conglomerate and more like an orchestrator of a financial ecosystem.

Vinod Kothari

Extremely wonderful comment, sir. 

So, my next flows from the point that you mentioned some time back. Where you were talking about the evolution of the regulations focusing on risk management. And, given that, you also mentioned that, there is an increasing risk-based regulation by the financial regulators across the world. Now, we also see that there is a development which is very clearly visible, and for this, concerns have been expressed by the Financial Stability Board as well. The development of unregulated or less regulated financial intermediaries, which are not banks. For example, talk about private credit funds. Now, roughly about $1.5 to $2 trillion are sitting with private credit funds, which are non-banking financial intermediaries. They are not banks. They’re doing functions which are similar to banks. And at the same time, there is obviously no prudential regulation applicable to them. Do you see any concern in this development where non-banking financial bodies, such as private credit funds, accumulate a substantial extent of wealth. They do a function which is quite close to the traditional banks, and yet not be subjected to the banking regulations.

Dr Frank Fabozzi

We’re talking about the rise of non-financial intermediaries, NDFIs, and actually, I think it’s one of the most significant developments in modern finance. These entities include asset managers, private credit funds, hedge funds, money market funds, insurance companies, and other entities that perform important intermediation functions without operating as traditional banks, as you pointed out. But to me, their growth is just a natural evolution of the financial systems. They’ve expanded access to capital, they’ve created alternative funding channels. They’ve brought specialized expertise to different market segments, and they’ve increased competition. So, in many cases, they’ve helped make financial markets broader and more efficient. To me, the key is not whether they’re good or they’re bad. They’re now an essential part of the financial system. The more important, I think, is whether we fully understand the risks that they create, and how those risks interact with the broader financial system. 

So, if I were to focus on three areas, the first would be leverage. It can be more difficult to identify and measure risk of leverage in parts of the non-banking system. In banks. Leverage is generally visible. We could look at the balance sheet, and report to regulators, and they’re subject to extensive regulatory oversight. Now, when we talk about non-bank institutions. Leverage may arise through taking it away. They can securitise. You have derivatives, you have repo financing, you have borrowing arrangements, or you have other structures, but they’re not as transparent as the risks that we see as we can identify in banks. So as a result, risk can build gradually and remain largely unnoticed on these non-bank institutions. Until market conditions deteriorate. 

The second is liquidity risk, and that remains a significant concern. Some investment vehicles offer frequent liquidity while holding assets that may be difficult to sell and value, during periods of market distress. Under normal conditions, that mismatch may not be apparent. During periods of uncertainty, however, it can create pressure for asset sales, and I think, create market instability. 

And third, the financial system has become interconnected, as I’ve emphasized, everything across the board. If I didn’t mention clearinghouses, we have that same thing. They’re all linked through funding arrangements, collateral relationships, all having shared risk exposure. As a result, risks that originated in one sector can rapidly spread to others. Financial shocks rarely remain confined to the institutions where they first appeared. And this is particularly concerning really in private markets. 

We talk about private credit and private equity, and those are the two major areas in alternative investments that we’re concerned with. And they’re key, also, to the role of development of startup companies. I don’t view NBFIs as a source of weakness, nor do I view them as a substitute for traditional banking. They become permanent and important components of the financial ecosystem. The challenge for regulators, in my opinion, and not only regulators, but investors, is to focus less on where risks are located, and more on how leverage, liquidity pressures, and this interconnectedness can interact across the system. So, in the future, financial stability will depend not only on the resilience of individual institutions, but also on our ability to understand the networks that connect them.

Vinod Kothari

That’s an extremely important observation, and you mentioned, the three significant risks of private credit, or private equity for that matter, are leverage, liquidity, and interconnectedness. Would you also take opacity as one of the significant risks? Opacity because they are not governed by any specific reporting requirements, and they are not governed by any specific valuation requirements as well?

Dr Frank Fabozzi

Yes, I agree, yeah.

Vinod Kothari

So, that brings me to the fifth question relating to artificial intelligence, and the entire world today is talking about artificial intelligence. So far as financial intermediaries are concerned, it’s quite obvious that most of them are currently relying on AI, and I’m sure you would agree that going forward, they rely more on use of AI, either for decision making, and obviously for managing their business. Now, one of the risks which is quite commonly pointed out when you rely on artificial intelligence is that human thinking could be different. Every human mind can think differently, but artificial intelligence, ultimately, the way it’s structured, it might probably lead to or give the same answer in given situations. So hundreds of thousands of people thinking alike, or thinking exactly the same because all of them are relying on the AI tool, might result in a homogenized action. And therefore, there might probably be more volatility in the system because of reliance on AI. Is that a risk that you perceive, or do you see any other risk in the increasing dependence of the financial world on financial technology, including artificial intelligence? Sir.

Dr Frank Fabozzi

Well, it’s the first time someone asked me about AI, mostly when people say, well, I lost my job due to AI? But, that’s a different answer, and for this one, and I’ll have a different answer. I think the concern that you mentioned is very real, although perhaps not for the reasons that some people often assume. Most discussions about AI and finance focus on whether AI can make better predictions, improve efficiency, reduce costs. or process information faster than humans can. And those are important, but let’s look at it from a financial stability perspective. I think the more important issue is whether AI changes what you just mentioned, the diversity of decision-making within the financial system. Financial markets function best when the market when participants hold different views.

Every time someone says, oh, great minds think alike, I would say, no, great minds should think differently. Every transaction , think about this, every transaction that we see going on in the marketplace reflects some disagreement about value, risk, or future outcomes. Historically, that diversity emerged because of different investors, institutions, investment committees brought different experiences, incentives, and judgments to the decision-making. So, the concern to me is that widespread adoption of AI can unintentionally reduce that diversity. If a large number of institutions rely on similar models, data sources and training methods, and they may begin to reach conclusions at roughly the same time, the same conclusions, at the same time. In normal markets. That may improve efficiency. During periods of stress, however, it can amplify market movements, because many participants are reaching, or they’re reacting in the same direction simultaneously, based on what AI provides. So, in many ways, this is not an entirely new phenomenon. If we look at financial history, it contains numerous examples of institutions relying on similar risk models, credit ratings, or forecasting frameworks. So, one lesson from a past crisis is that a system can become fragile when too many participants make decisions based on the same assumptions. Even if each individual institution appears to be prudent when viewed in isolation. 

If we go back and we tear apart the global financial crisis, we could see the assumptions that were made. Just a simple example. You know, people generating their models assuming, their risk models assuming, a normal distribution.

We’ve now learned a lot more about probability distributions of outcomes, particularly extreme events, but people did that only after the crisis. 

So at the same time, I don’t believe that the solution is to reject AI. Not that you could really reject it; that’s an impossibility. But the real challenge to me is governance. I didn’t spend a lot of time talking about governance. Now with AI and a few other events, I see that as becoming increasingly important. Because as AI becomes more deeply embedded in financial institutions, it’s essential that the responsibility for a decision remains with human professionals. Models can provide insights, recommendations, but accountability cannot be delegated to a computer programmer. You can’t get it from algorithms. So, decisions that affect clients. portfolios and institutions, they require human oversight, something I think we’re not seeing. Not only human oversights, judgment, and the ability to consider factors that may not be captured by the data. The goal should be Judgment enhanced by AI rather than judgment by AI.

By the way, look at the World Cup, since I imagine you have a global audience here. There’s a human that’s coaching that team. They have all the data and all the statistics. If you ever looked at the accumulation of information, statistics, on every moment. On a court, you know, whether it’s a basketball court, a soccer field, or a base they have all the statistics they want. We still have a human coach managing those teams, or coaching those teams. 

So, in fact, I think the greatest risk is not that AI makes mistakes, because we all make mistakes. The greater risk is that large institutions begin making the same mistake at the same time, because they’re relying on similar models and similar recommendations. A single bad decision: no problem. That’s manageable. But thousands of institutions making the same bad decision simultaneously has systemic consequences. 

So I think, to wrap it up, I think about AI in terms of financial stability. The key is not simply whether a model is accurate. The more important question is whether widespread adoption of that model makes the financial system, to use the term you said earlier, more homogeneous. Efficiency is valuable, but resilience often comes from diversity.

Vinod Kothari

Fantastic comments. I think it’s extremely wonderful to hear your thoughts on this, that ultimately it’s human decision, human governance, which can mitigate the risk of the homogenized behavior that might result from reliance on artificial intelligence. Extremely valid comment. 

Sir, I cannot resist the temptation but to ask you about this book that we wrote immediately after the global financial crisis. [Shows Introduction to Securitization, by Dr Fabozzi and Vinod Kothari] It’s your book Introduction to Securitization. So, where do we stand today? What do you think about securitization and credit derivatives? Are these the products which were designed for good times? But now that we have volatile markets, are these products still going to be relevant? What’s your futuristic thinking on these instruments?

Dr Frank Fabozzi

It’s very funny. You know as well as I, at that time, securitization was considered a gimmick and all that. As soon as the global financial crisis hit, though, the major agencies in the U.S. kept writing to emphasize the importance of securitization. If we think of it, there’s certainly periods when investors become more willing to take risks in search of higher returns. During those periods, you know, financial innovation often accelerates. Products become more complex, market participants sometimes focus more on yield than on the risk required to achieve the return. So financial history contains many of these examples, and, you know, we talk about securitization and credit derivatives. They’re such examples. 

You know, it’s very difficult to see how the scenario changed. I’m 79. I’ll give you an example: When I tell you about securitization, how important it is, it is so difficult for most of the people listening to understand that. Let me put it in perspective. And this is no exaggeration at all. In 1972 or 73, prior to securitization I went to get a mortgage loan for a house. I went to my local savings and loan association, I walked in there, and I said, I’d like to get a house. I need money to buy this particular house, and I gave them the address. They said to me, first thing is, oh, do you have an account here? And I would say, yes, I did. Because I knew they were going to ask that.

Then they said to me, okay, you want to buy the old Phillips property? I know him, he’s a great guy, I used to golf with him on weekends, and we’d have dinners together, I know his kids, and all that. He knew all about the house. He said, oh, a couple of months ago, they just added an enhancement to their basement and all that. So he [banker] knew everything about the house. He knew everything about the seller. He didn’t know that much about me, because I just moved into the area. Now, what happened then? He said, I can evaluate your credit. He did. He said, we approve you for the loan. I said, great, when can I close? He said to me, you can close when other people who we’ve made loans to pay off their loans! Now, I couldn’t believe that I couldn’t get a loan until other people paid off their loans or defaulted. 

So what happened? There were parts of the country where banks had a lot of money. There were other parts of the country, and I was in the other one. Parts of a country where money was very tight. 

In comes securitization. And then, at the same time, there was the savings and loan crisis. Banks had 30-year mortgages on their books. During a period of rising interest rates, these banks were technically underwater, but the government kept them alive. And I mean, these institutions were savings and loan institutions.

So what then happened? Someone came up with a bright idea and said, Why keep the mortgage loans on the books? A bank doesn’t want to hold a loan for 30 years, because they’re worried about interest rates fluctuating up and down. When rates fluctuate up and down, a bank’s margin, will either decrease, or increase, and become negative, as it did during the savings and loan crisis1. So they developed securitization. What they did, they said, is take these illiquid loans. And pull them together, And then create securities based on these loans, that are backed by these loans. 

And all of a sudden, you now created a capital market for these instruments alone, these mortgage-backed securities. And that helped resolve the savings and loan crisis, and make mortgages readily available. Nowadays, you want a mortgage? And you don’t have that much time. You have gone to fill up your gas tank. May not be the gas tank of a small car, but if you have a big truck, by the time you fill up that truck with gas, they will give you a mortgage. 

So, to me, even though securitization sounds like a horrible thing, you could see in the context that I described why it was very important. 

Credit derivatives did the same thing. Credit derivatives, and by the way, securitization, have gone beyond mortgages. We have student loans. You can even get municipalities doing securitization, their traffic tickets, everything, nowadays. And in fact, you may be an athlete in a certain sport. You can securitize your future royalties. Almost all the major entertainers, particularly musicians and other artists, securitized their future earnings. 

So both credit derivatives and securitization, they were both developed to address legitimate economic needs. And they make economic sense. What they’re doing is separating the origination of risk from the ownership of risk. And that improves efficiency, expands access to capital, and enhances, certainly, risk management. When corporations do it, this securitization is a risk management tool for them. So, the difficulty arises when market participants begin to confuse risk transfer with risk elimination. Moving risk from one institution to another doesn’t make the risk disappear. It simply changes who bears it. So, that’s my view on the two. I don’t see them as being gimmickry at all.

Vinod Kothari

Thank you very much, sir. It’s an extremely pertinent comment. Your thoughts are extremely important for the market participants. And your time today, I know, is extremely precious, so thank you very much for giving your time today, and wish you health and happiness, sir. Thank you very much.

Dr Frank Fabozzi

Thank you, thank you for the opportunity.

  1. Readers may note US mortgages are typically fixed rate mortgages. ↩︎

The Sale That Was Never About the Product

Why RBI’s New Directions on Responsible Business Conduct Could Change Financial Services More Than Any New Technology

– Guest Contributor | Dr. Aneish Kumar (aneishk@yahoo.com)

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Other Resources on the topic:

SOP for FDI approval rationalised for Border- Country Investment

– Saloni Khant, Senior Executive | corplaw@vinodkothari.com

– Prescribes 60 days approval timeline for critical sectors, format for reporting LBC investments and more

After liberalising the receipt of FDI from countries sharing land-border with India (LBC Amendment) [read our article here], the DPIIT issued a revised SOP for applications seeking government approval to receive FDI w.e.f. May 4, 2026. The revised SOP brings significant changes with new reporting guidelines for LBC investments with non controlling stake under automatic route, a 60 days timeline for government approval for critical sectors etc. as discussed below.

Brief Highlights of the amendments

  • Reporting guidelines for LBC investments with non-controlling stake under automatic route [Para I of Annexure VII]
    • The LBC Amendment brought about a significant amendment that where a citizen or entity of LBC has non-controlling stake in an Indian investee entity, such FDI can be routed through the automatic route. Previously, such FDI was under the government approval route.
    • The Amendment provided that receipt of such FDI must be reported. The SOP provides the format and manner for such reporting.
    • The onus of reporting is on the Indian Investee entity or resident Indian transferor/transferee.
    • Schedule I of the SOP provides the format for reporting requiring extensive documents about the investor, Indian investee entity, other details including underlying agreements, details of downstream investments and a declaration by the reporting entity.
    • Manner of reporting
      • The form must be filed online through the FIF / NSWS[1] portal and no physical copies shall be required.
      • The reporting is to be done prior to the inward remittance of foreign capital.
      • In case of other transactions, this shall be done prior to execution of the relevant transactions, including issuance/transfer of capital instruments. 
  • Fixed 60 days timeline for government approval for FDI from LBC in critical sectors [Para II of Annexure VII]
    • In line with the proposals made in the CG press releasedated March 10, 2026, the SOP reduces the timelines for grant of approval from 12 weeks to 60 days for receipt of FDI from LBC with the following conditions:
      • The LBC investor investing individually or cumulatively, whether acting together or otherwise, holds up to 49% of the capital or voting rights of the Indian Investee entity.
      • The Indian Investee entity is engaged in manufacturing in specified sectors/activities [as detailed in the image]
      • The majority shareholding and control of the Investee entity is with a resident Indian citizen/ an entity owned and controlled by resident Indian citizen(s) at all times. 
  • Specific approval of the Ministry of External Affairs (MEA) for FDI from LBC [Para II.2]
    • Investments from LBC now specifically require comments/ approval from the MEA. Previously, all the proposals were sent to the MEA for information and it could send its comments to the concerned Ministry.

  • Stricter adherence to timeline for Ministry of Home Affairs [Para II.4]
    • Where the authorities do not provide comments within prescribed timelines, it is presumed that they have no comments. Previously, where MHA could not meet the timelines, it was required to intimate the relevant department of the revised timeframe. This liberty for MHA is now omitted providing for faster approvals.

  • Committee for expeditious approvals dissolved [Para I.4]
    • An inter-ministerial committee constituted to decide delayed FDI proposals and proposals escalated by relevant Ministry/Department for quick disposal has now been discontinued. Further, to simplify and expedite the approval process, the DPIIT has retained its previous instruction to the authorities to not replicate these kinds of structures.       

  • Closure of application gets more structural clarity [Para II.9]
    • Where the FDI applications are incomplete or the applicant has not responded to the relevant authority’s queries, the application may be closed with liberty to reapply.
    • Previously, in case the applicant is sent ‘repeated reminders’, the application may be closed.
    • The amended provisions require the Competent Authority to scrutinize the application within 1 week and issue clarifications, if any. The applicant may respond within 1 week failing which 2 reminders at a gap of 7 days shall be sent.
  • Other Changes
    • An entirely paperless approval system [Para I.3]
      • Previously, the concerned Ministry/ Department could call for physical copies of the original documents in case authenticity of any scanned documents is in doubt. This power has been removed.
    • Alignment of documents required for FDI proposal with LBC Amendment [Annexure-I]
      • The requirements of details related to the beneficial owner (BO) have been updated to enable identification of the BO pursuant to the amendment.

[1] Foreign Investment Facilitation / National Single Window System

Refer to our other resources:

  1. Open but Guarded Gates: Relaxations for Border-Country Investments
  2. RBI rationalises Guarantee regulations
  3. Resource Centre on FDI

Dividends Denied: Why InvIT SPV CashFlows Don’t Flow Up

Simrat Singh | Finserv@vinodkothari.com

REITs and InvITs are often discussed together as parallel innovations in India’s capital markets, reflecting a push towards deploying capital in real estate and infrastructure. Both frameworks were introduced in 2014, share a trust-based structure and are subject to broadly similar regulatory principles, including mandatory cash distribution requirements and both also have a common tax provision in section 115UA of Income Tax Act, 1961 (section 223 in the 2025 Tax Act). Comparatively, InvITs have witnessed a significantly stronger growth, largely driven by the government’s sustained push towards infrastructure development. The data clearly reflects this divergence. As of April, 2026, there are 6 registered REITs and 28 InvITs in India, managing an AUM of ₹2,50,000 Crores and ₹6,20,000 Crores respectively. Among the InvITs, Road sector InvITs dominate the total AUM. (see our write-up on distribution of AUM of InvITs here). Notable, the national monetisation pipeline 2.0 proposed monetization of approx ₹3,35,000 Crores worth of highway assets under InvIT/TOT models (see our write-up on this here). 

While InvITs are required to distribute 90% of their cash flows, the underlying SPVs, mandated to be in company form, are constrained by dividend distribution rules that rely on accounting profits rather than actual cash generation. In sectors such as roads and power, where assets are finite-life concession rights or long term power purchase agreements, such assets are subject to heavy amortisation which leads to SPVs report book losses despite generating steady cash flows. As a result, cash exists within the SPV but cannot be upstreamed efficiently as dividends. This issue stems from treating InvITs on par with REITs despite differences in investments and nature of assets and from disallowing flexibility in the legal form of SPVs.

Industry workaround has been towards debt-heavy (thin capitalisation) structures, enabling distributions through interest and loan repayments, though these might raise tax issues (discussed below). Beyond such workarounds, more durable solutions are explored in line with international models like US Master Limited Partnerships and Singapore Business Trusts such as permitting dividend declarations based on cash flows rather than accounting profits, reconsidering the mandated company form of SPVs to allow more flexible structures such as trusts or LLPs etc.

Nature of investments by REITs and InvITs

REITs and InvITs are different in the sense that one invests in a property and looks at long term appreciation/rentals. The other looks at an infra asset which gives cash flows only for a certain period

REITs hold income-generating real estate assets with no fixed economic life. These assets can be retained, redeveloped/renovated or replaced over time. At the SPV level, there is no restriction on holding multiple assets and the portfolio of assets can be managed through acquisitions and divestments.

In contrast, InvITs, particularly in the road sector, hold assets that are inherently finite. These assets are in the form of concession rights and are intangible assets where the concessioning authority (usually NHAI) grants a right to operate and collect revenue for a defined period, say 15 to 20 years. Note that the road asset is not the asset that is taken on the balance sheet of the SPV, rather it is the intangible right to collect revenue on the road that is capitalised. At the end of the concession period, the asset reverts back to the concessioning authority, leaving no residual economic value. At this stage, the SPV merely becomes a shell entity, holding in itself only residual litigations or tax demands awaiting its eventual outcome of being wound-up.

Moreover, there are certain constraints imposed by the concession agreement entered into between the SPV and NHAI. Under standard concession agreements, each road project is required to be housed in a separate SPV. Which is why the name of the SPVs are in the style “[Name of Road Stretch] Tollway/Toll Road Private Limited”. The “one project, one SPV” model prevents aggregation of road assets within the same SPV and keeps the rights, obligations and risk allocation clearly demarcated. While this mandatory housing of each project in a separate private limited entity has its advantages, such as lender protection, bankruptcy remoteness and clarity in enforcement of contractual rights, it also creates rigidity for the InvIT. 

The inability to pool assets or recycle assets within the SPVs prevents capital recycling. Unlike REIT SPVs, InvIT SPVs cannot recycle capital either by selling assets or acquiring new ones within the same entity. As a result, while REITs can operate vehicles with a perpetual asset base, InvITs function as portfolios of wasting assets that are depleted over time and cannot be replaced within the same SPV. 

Distribution requirement and the dividend constraint

Both REITs and InvITs (and their SPVs/HoldCos) are required to distribute at least 90% of their net distributable cash flows. This distribution can occur through interest on loan, loan repayment or dividends from the SPVs. The challenge for InvITs arises at the SPV level, in the case of dividend distribution. Under Section 123 of the Companies Act, a company can declare dividends only out of distributable profits or accumulated reserves. The books of such SPVs are loaded with high upfront capitalisation of construction costs and subsequent recognition of a concession asset. This asset is depreciated (or amortised in case of intangible assets such as concession right) over the concession period along with the amortization of the earlier capitalised expenditure, leading to significant non-cash expenses in the profit and loss account which continues to hit the Profit and Loss account even when the SPV starts collecting cash. As a result, even when the SPV generates operating cash flows from toll collections, it remains in ‘book losses’ for a portion of the concession life. The consequence is that such SPV is unable to declare dividend distribution to the InvIT despite the availability of cash.

Depreciation on a non-replaceable asset?

Accounting principles require allocation of asset cost over its useful life. This is conceptually sound for assets that are expected to be replaced or reinvested in. A machinery may be required to be replaced once its useful life is over, therefore, it is only prudent to set aside a part of the cost so there is enough cushion when the entity goes to replace the machinery. 

In the case of REITs, this logic holds good. Depreciation reflects the wear and tear of the replaceable asset and the entity has the ability to reinvest/replace the asset over time (i.e. purchase a new rent yielding building in the same SPV). The economic cycle supports the accounting treatment.

For InvIT SPVs especially in the road sector, the asset is not replaced at the end of its life; it is handed back to the concessioning authority. The SPV has no ability to deploy accumulated depreciation (or amortization in case of an intangible asset) towards acquisition of a new asset. Its economic life is co-terminus with the concession period. This creates a disconnect between accounting profits and economic cash flows. Depreciation suppresses book profits without corresponding economic relevance in terms of asset replacement within the SPV.

International comparisons 

Singapore’s Business Trusts

Singapore offers the clearest analogy to and resolution of this problem. The Business Trusts Act 2004 (BTA), administered by the Monetary Authority of Singapore (MAS), created a hybrid structure that combines features of a company (separate legal personality, professional management) with features of a trust (cash-based distributions). The defining advantage of the Singapore Business Trust (BT) is stated explicitly in the legislation and was articulated in the MAS’s explanatory brief for the Business Trusts (Amendment) Bill 2022:

“A key advantage of a BT structure is the ability of a trust to pay dividends to unitholders out of its cash profits. In contrast, a company can only pay dividends out of its accounting profits (i.e. after deducting non-cash expenses such as depreciation). The BT structure is thus particularly suited to businesses with stable growth and high cash flow.”

Singapore listed 15 Business Trusts as of 2026, covering assets including power generation, toll roads, and shipping. For infrastructure BTs, the cash-based distribution right is central to the investment proposition. Critically, the BT does not interpose a company-form SPV between the trust and the infrastructure asset; the trust itself holds the operational assets. This avoids the Section 123-equivalent constraint that would arise if a company-form subsidiary were the operating entity.

The Singapore model, however, is not directly transplantable to the Indian road sector context for the reason explained above ie NHAI’s requirement for a company-form concessionaire. 

The US Master Limited Partnership Model

In the United States, the Master Limited Partnership (MLP) structure, originally developed for oil and gas pipelines and subsequently applied to other infrastructure sectors, avoids the dividend constraint through the partnership form. Partnerships are not subject to corporate dividend restrictions; distributions to limited partners (akin to unitholders in InvITs) are made based on cash available for distribution, a metric that is equivalent to NDCF and adds back non-cash charges including depreciation and amortisation. Interestingly, MLPs typically grant the General Partner (GP is somewhat analogous to the investment manager in an InvIT), a share in the distributable cash flows through Incentive Distribution Rights (IDRs). These rights are structured on a tiered basis, such that as distributions to Limited Partners increase, the GP becomes entitled to a progressively larger share of incremental cash flows. This creates a performance-linked incentive for the GP to enhance distributable cash. At the same time, the GP retains discretion over the quantum of cash to be distributed versus retained.

Possible approaches

In the original consultation process leading to the introduction of InvITs, SEBI did take note of international structures such as the Master Limited Partnerships in the United States, which allow cash-based distributions without being constrained by law dividend rules. However, there was no discussion on the legal form of the SPV and the final regulations settled on a company structure for underlying entities. Had there been flexibility to allow SPVs to be structured as trusts and/or LLPs, the present issue may not have arisen in the first place.

Thin capitalisation

A commonly adopted workaround is to maintain a thinly capitalised SPV, with the bulk of funding structured as loans from the InvIT rather than equity investment. In such cases, distributions are routed primarily through interest payments and loan repayments instead of dividends, a structure widely used in InvIT arrangements. However, this approach may attract limitations under Section 94B of the Income Tax Act, 1961 (section 177 in the 2025 Act), which operates as a Specific Anti-Avoidance Rule (SAAR) on excessive interest deductions. The provision applies where an Indian borrower incurs interest expenditure exceeding ₹1 crore in respect of debt from a non-resident associated enterprise (or even third-party debt backed by such an enterprise). In such cases, the deduction for interest is restricted to 30% of EBITDA or the actual interest payable to associated enterprises, whichever is lower and any excess interest is disallowed. Accordingly, in InvITs where non-residents usually hold the majority of the units, thin capitalisation may lead to disallowance of interest deductions for SPVs.

Allowing Dividend Declaration Based on NDCF

A more targeted solution would be a targeted regulatory relaxation by the Ministry of Corporate Affairs, permitting dividend declaration by InvIT SPVs based on NDCF rather than accounting profits. This would essentially create a sector-specific carve-out from Section 123’s profit test for companies that are 100% subsidiaries of registered InvITs or HoldCos of InvITs. 

Tweaking the legal form of the SPV

One possible approach is to reconsider the legal form of SPVs. Allowing SPVs to be structured as trusts could align the distribution framework more closely with cash flows rather than accounting profits. However, this would require a shift in regulatory and contractual frameworks as SEBI and NHAI both need to be onboarded on this. This solution seems far-fetched as Road assets vesting in a trust is a scenario which NHAI will not be comfortable with.

Conclusion

The principle is clear: regulation must follow the nature of the asset, not force the asset into an ill-fitting form. To mandate distribution without enabling it is, as in the tale of King Canute, to command the tide to rise while forbidding it a shore. An instruction complete in form, but wanting in effect. India’s InvIT framework is, without a doubt, a notable financial innovation, a bridge that has opened public infrastructure to private capital and supported the National Monetisation Pipeline. But the task is not merely to invite capital but to also ensure that the channels through which it flows are kosher. The present framework, in treating REITs and InvITs as parallel structures, overlooks divergence. While REITs rest on perpetuity of assets, InvITs are built on finite-life concessions that steadily deplete. This mismatch, compounded by accounting norms, contractual structures of NHAI and the Companies Act, creates a distribution bottleneck, where cash is generated but cannot be cleanly upstreamed. Industry has found workarounds, principally by way of intercompany loans. But the issue warrants policy attention. We can take guidance from comparative regimes, such as the Singapore Business Trust framework and U.S. MLPs and recognise infrastructure as a cash-flow distribution business and permit distribution mechanisms that reflect this reality. It is therefore imperative that SEBI, MCA, and NHAI act in concert to resolve this misalignment. Only then can InvITs evolve from a promising innovation into a durable pillar of India’s infrastructure architecture.

See our other resources on InvITs:

  1. InvITs and REITs: Regulatory actions for more enabling environment
  2. PPT on InvITs
  3. Roads to Riches: A snapshot of InvITs in India
  4. CG norms for REITs and InvITs aligned with equity-listed entity

Presentation on Corporate Laws (Amendment) Bill, 2026

– Team Corplaw | corplaw@vinodkothari.com

Watch our webinar on the same here.

Read more:

Corporate Laws Amendment Bill: Recognizing LLPs in IFSCA, decriminalisation  and easing compliances for AIF LLPs

Corporate Laws Amendment Bill: Easing, Streamlining and  Updating the Regulatory Framework 

External Commercial Borrowings (ECB) Framework

– Heta Mehta, Senior Executive | corplaw@vinodkothari.com

Watch our video here: https://youtu.be/XaS6Eh3Ekd4

See our other resources:

  1. Resource Centre on ECB
  2. ECBs become Easy: RBI liberalises norms for external commercial borrowings
  3. Presentation on ECB

Open but Guarded Gates: Relaxations for Border-Country Investments

Vinita Nair, Joint Managing Partner and Ankit Singh Mehar, Assistant Manager | corplaw@vinodkothari.com

Updated on May 4, 2026

A 15th March 2026 Press Note from Department for Promotion of Industry and Internal Trade (DPIIT) implements the cabinet decision to align investments from land-border countries (LBCs) with “beneficial owner” definition of PMLA. Accordingly, where investments come from a non-LBC, where beneficial ownership traces back to LBC, either to a citizen of LBC or an entity set up there, the investments will be allowed only in approval mode. In our view, even if there are multiple such citizens or entities, the amendment requires an aggregation of the investments of all LBC citizens or entities.

The 15th March DPIIT Press note 2 (‘PN2’) was preceded by a decision of Central Government, on March 10, 2026 (‘CG press release’) relaxing the restrictions placed in 2020 on FDI from countries sharing land-border with India (LBC) by (a) prescribing a strict approval timeline of 60 days in case of specified sectors/activities of manufacturing in capital goods, electronic capital goods, electronic components etc and (b) by allowing certain investments under automatic route where the investors have non-controlling LBC Beneficial Ownership of up to 10%. The objective is to facilitate ease of doing business and attract FDI inflows especially in critical sectors. 

Effective date of amendment

DPIIT issued Press Note 2 of 2026 dated March 15, 2026 (PN2) amending the Consolidated FDI Policy with respect to eligible investors (Para 3.1.1). PN2 shall take effect from the date of notification of amendment in NDI Rules. A corresponding amendment in Rule 6 of the FEMA (Non-Debt Instruments) Rules, 2019 (‘NDI Rules’) was notified and published in gazette on May 2, 2026. Accordingly, the amendment takes effect from May 2, 2026.

Background

Since April 2020, in terms of rule 6 of NDI Rules and FDI Policy, prior approval of the government is required for any investment made by an entity from LBC  or where the beneficial owner of an investment into India (a) – is situated in LBC; or (b) is a citizen of such LBC. Likewise, any transfer of ownership of existing or future FDI that results in the beneficial ownership of the investment shifting to a person who is a citizen of, or situated in, a LBC also requires prior government approval. 

These requirements were notified pursuant to Press Note No 3 dated April 17, 2020 and subsequent notification of FEMA (Non Debt Instruments) Amendment Rules, 2020. Refer to our earlier write-up titled India seals its borders to corporate acquisitions dealing with the said press note. Our earlier you-tube video covering the overview of FDI can be accessed here.

In order to meet the objectives of Aatmanirbhar Bharat and increase FDI inflows, India has decided to revisit the restrictions placed during Covid pandemic to curb opportunistic takeovers/acquisitions by Chinese companies. In this article we discuss the changes approved and notified by way of PN2 and amendments made in NDI Rules effective May 2, 2026.

  1. Investments received from LBC

Prior approval of the government is now required for any investment made by an entity or citizen from LBC.  The approval requirement also extends to investments made in India where the beneficial owner of an investment into India is a citizen of LBC.

The restriction arising on account of being ‘situated in LBC’ has been deleted. This relaxes the requirement for individuals of different nationalities situated in LBC investing in India or receiving ESOPs from Indian companies, as they will no longer require government approval.

Accordingly, the amended position is as under:

  1. Investments received from non – LBC with BO of investments based in LBC

Prior approval of the government is now required for any investment by PROI from non-LBC, where the beneficial owner of an investment into India is a citizen/entity of LBC.

Meaning of ‘beneficial owner of an investment into India’:

Let us first understand the meaning of “investor entity”. 

It means the beneficial owner(s) of the investor entity incorporated or registered in a country other than LBC. Manner of identifying the beneficial owner(s) of the investor entity will be as discussed below in Clause 4.

  1. Applicability in case of transfer of ownership

Prior approval is required for any direct or indirect transfer of ownership of existing or future FDI in an Indian entity that results in the beneficial ownership of the investment into India shifting to an entity or a citizen of LBC.

  1. Scope of ‘beneficial owner’ (BO)

As per PN 2 and NDI Rules, the manner of identifying BO is aligned with Section 2(1)(fa) of the Prevention of Money-laundering Act, 2002 read with Rule 9 (3) of Prevention of Money Laundering (Maintenance of Records) Rules, 2005 (PML Rules). The reference to PML rules is mainly for the thresholds (refer below). 

BO will be construed as vested with the LBC if the citizen(s) of LBC or entity (ies) incorporated/ registered with LBC  has/ have the ability to hold rights/ entitlements in excess of thresholds under PML rules or exercise control over the investor entity or ultimate control over the investee i.e the Indian entity in any manner:

  • directly or indirectly, 
  • individually or cumulatively, 
  • independently or collectively, 
  • whether acting together or otherwise.

Whether holdings by different citizens or entities of LBC to be aggregated?

In our view, yes. The intent is to allow investments from entities where the investors from LBC hold a non-controlling interest. Therefore, one will have to consider all investments put together.  The approval requirements have been further clarified by way of following illustrations:

Illustration 1

Illustration 2

Illustration 3

Illustration 4

One might argue that if neither of the persons referred above i.e. Mr. X or Mr. Y or Entity incorporated in LBC, are qualifying as ‘beneficial owners’ under PMLA Rules on a standalone basis, then why do we need to aggregate their shareholding? 

Here, reference needs to be made to the language of the proviso to Para 3.1.1.(c) of the FDI Policy and Explanation 2 to NDI Rules, which requires considering the rights/entitlements held – directly or indirectly, individually or cumulatively, independently or collectively, whether acting together or otherwise. The language seems to indicate that aggregation needs to be done irrespective of whether the person in question is acting independently or collectively or whether they are acting together or otherwise. Hence, in our view, one has to consider if investors of the Non-LBC with BO from LBC cumulatively hold in excess of the prescribed thresholds. 

  1. Ambit of ‘beneficial owner’under PMLA
  1. Investments with non-controlling stake permitted under Automatic route 

As per Para 3.1.1(d) of the amended FDI Policy, investments from an investor entity having any direct or indirect ownership by a citizen or an entity of LBC not requiring prior government approval shall be subject to reporting requirements as per the SOP laid down by DPIIT and prescribed by RBI.

  1. Investments by Multilateral Bank or Fund of which India is a member

The amended proviso to Rule 6 (a) of the NDI Rules clarifies that any Multilateral Bank (like World Bank, Asian Development Bank, Asian Infrastructure Investment Bank, New Development Bank etc.) or Fund (like International Monetary Fund, International Fund for Agricultural Development etc) of which India is a member shall not be treated as an entity of a particular country, nor any country would be treated as beneficial owner of any investments made by such Bank/Fund in India.  This was not provided in PN2 and clarified vide amendment in NDI Rules.

  1. Other proposals approved in the CG press release pending notification 

Fixed 60 days timeline for government approval for critical sectors

Presently, the timeline for obtaining government approval for FDI ranges between 12–14 weeks.

Source: Annexure V of SOP for Processing FDI Proposals

In cases where the investee entities are engaged in the specified sectors / activities concerning manufacturing of Capital goods, Electronic capital goods, Electronic components, Polysilicon and ingot-wafer etc. a timeline of 60 days shall be adhered to for government approval, in view of the criticality. The list will be provided by DPIIT. The majority shareholding and control of such Investee entities should be with the residents. 

The Government will continue to assess the proposals on a case to case basis and accord approval. Recently, an electronics manufacturer company received MEITY approval for receiving investment of 26% in a joint venture from a Chinese investor.

Way forward

As discussed in the CG press release, the existing restrictions to cases where LBC investors only have non-strategic, non-controlling interests were seen as adversely affecting investment flows from investors including global funds such as PE/ VC funds. By loosening the said restrictions cautiously, greater FDI inflows and speedier fundraising can be encouraged, particularly into startups and deep techs while protecting the nation’s security interests. The relaxed norms aim to increase access to technology, facilitate ease of doing business for Indian entities and strengthen India’s position as an attractive destination for investment and manufacturing. 


Refer our other resources on FDI here

Not a Broker, Not an Insurer: Welcome to the world of MGAs

Introduction

The insurance industry globally has witnessed the emergence of several hybrid operating models that do not fit neatly within traditional regulatory classifications. One such model is that of the Managing General Agent (‘MGA’), an entity that performs significant insurance functions such as underwriting and risk assessment, pricing of insurance products, binding of policies, etc on behalf of the insurer.

While MGAs are well-recognised in mature insurance markets such as the USA, UK and Canada, their position under Indian insurance law has recently begun to take shape. An MGA typically acts as a middleman between the insurer and the insured.

In this article, we dive into the functioning of an MGA and how it differentiates from the existing insurance intermediaries, prevalent in the insurance sector in India. 

Read more

The NBFC that doesn’t have to be: CICs and Principal Business paradox

– Dayita Kanodia, Assistant Manager | finserv@vinodkothari.com

Holding Companies whose primary intent is to invest in their group companies have lately faced a paradox with respect to the requirement of registration as a  Core Investment Company (CIC). 

CICs are entities whose principal activity is the acquisition and holding of investments in group companies, rather than engaging in external investments or lending exposure outside the group. Para 3 of the Reserve Bank of India (Core Investment Companies) Directions, 2025 (‘CIC Directions’) prescribes the quantitative thresholds for classification of an NBFC as a CIC. In terms thereof, an NBFC that holds not less than 90% of its net assets in the form of investments in group companies, of which at least 60% is in equity instruments, is classified as a CIC and is required to obtain registration from the RBI, unless exempted.

Conceptually, a CIC is a sub-category of a Non-Banking Financial Company (NBFC) (para 3 of the CIC Directions), just like Housing Finance Companies, Micro Finance Institutions, etc. The threshold criteria that NBFCs are required to satisfy is the principal business criteria (PBC), pursuant to which at least 50% of the total assets of the entity must consist of financial assets and at least 50% of its total income must be derived from such financial assets. 

The PBC has historically served as the foundational threshold for determining whether an entity is an NBFC. Once the entity satisfies this principal requirement of carrying out financial activity, the sub-category is to be determined based on its line of business, which, lately, has seen quite a varietty – fron tradtional variants such as investment and lending activities (ICC), to housing finance (HFC), to financing of receivables (Factoring companies), the more recent inclusions are account aggregators (AA), mortgage guarantee companies (MGCs), infrastructure finance compaies (IFC), etc.  Each of these NBFCs first, and then they fall in their respective class. For instance, HFCs are a type of NBFCs that primarily focus on extending housing loans and hence, must have a minimum housing loan portfolio of 60% and an individual housing loan of 50%. 

Accordingly, all categories of NBFCs must first be ascertained to be carrying out financial activities as their primary business, and thereafter, the specific product helps to determine the category. Consequently, holding companies or CICs should ideally also adhere to the 50-50 criteria first and thereafter meet the 90-60 criteria for CIC classification. 

However, there is a common perception among the market participants that CICs, irrespective of meeting such PBC, in case they reach the 90-60 criteria, will be required to obtain registration as a CIC. Several news reports also note this perception. 

This perception among the market participants that CICs are not required to adhere to the PBC criteria stems from para 17(3) of the CIC Directions, which explicitly provides that:

CICs need not meet the principal business criteria for NBFCs as specified under paragraph 38 of the Reserve Bank of India (Non-Banking Financial Companies – Registration, Exemptions and Framework for Scale Based Regulation) Directions.”

It may be noted that the above-quoted provision, which has recently been made a part of the CIC Directions pursuant to the November 28 consolidation exercise, was earlier included in the FAQs released by RBI on CICs.  FAQs are RBI staff views; whereas Directions or Regulations are a part of subordinate law; however, in the consolidation exercise, a whole lot of FAQs and circulars became a part of the Directions.

Going by the intent of the NBFC classification and categorisation, the above-quoted provisions seem more relevant for registered CICs, implying that CICs once registered need not meet the PBC on an ongoing basis. CICs predominantly hold investments in group companies and therefore satisfy the 90–60 thresholds, but often do not derive any financial income from such investments. Group investments, being strategic in nature, are rarely disposed of, and the dividend income from such investments depends on the dividend/payout ratio, which may be quite low. In several cases, such entities continue to earn income, say, by way of royalty for a group brand name. Even the slightest of non-financial income will seem to breach the PBC criteria, which may challenge the continuation of registration of the CIC as an NBFC. In order to redress this,  the provision under para 17(3) of the CIC Directions provides that CICs need not meet the PBC criteria on an ongoing basis. 

What is the basis of this argument? The definition of a CIC comes from para 3, which says as follows: “These directions shall be applicable to every Core Investment Company (hereinafter collectively referred to as ‘CICs’ and individually as a ‘CIC’), that is to say, a non-banking financial company carrying on the business of acquisition of shares and securities, and which satisfies the following conditions.” Para 17 (3) is a note to Para 17, which apparently deals with conditions of continued registration. 

Given that CIC is a category of NBFC, it would be counter-intuitive to say that the regulatory requirement requires holding companies to go for registration as a CIC even if they do not meet the PBC for an NBFC. In fact, if an entity is not an NBFC because it fails the principality of its business, it would not even come under the statutory ambit of the RBI by virtue of section 45-IC.

Accordingly, without going by just the text of the regulations, in our view, considering the regulatory intent, the following could be inferred:

  1. If there are group holding companies which have intra group investments, but also have operating income from one or more sources, such that the operating income is more than finanical income, these companies are not NBFCs at all. If they are not NBFCs, they cannot be CICs irrespctive of the extent of investment/loans as a part of their asset base. As we say this, we emphaise that the operating income shoudl be substantive and should be indicating a strategic business intent, rather than a pure one-off or passive income.
  2. CICs are a type of NBFC.
  3. Holding companies will be classified as a CIC in case they first meet the 50-50 criteria for NBFC and thereafter the 90-60 criteria as well. The registration requirement may then be ascertained based on the asset size and access to public funds by the CIC.
  4. A CIC (registered or unregistered) need not meet the PBC criteria on an ongoing basis. 

Other Resources:

  1. New regulatory framework for Core Investment Companies: RBI means to exempt: will there be any takers?
  2. Can CICs invest in AIFs? A Regulatory Paradox
  3. RBI introduces stringent norms for Core Investment Companies