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  • ESG Audit – Turning theory into Action

    Although some natural resources like the sunrays are infinite, other major parts of the environment are not renewable and cannot be used recklessly without any negative consequences. Companies also fail on the social and governance aspects. So, for any kind of business, existence of environmental, social and governance (ESG) risks are inevitable. These cannot be avoided but the preparedness of a business to face them is what gives them an edge over the others. Hence the importance of collection, managing and reporting of ESG data. Businesses will therefore incur some cost in this regard. They must take all these risks into account while making business decisions. In addition, an ESG audit will help evaluate the environmental, social and governance risks of a company’s operations, as also its products or services. Such audit can identify the potential risks so that the same can be addressed adequately before they go out of control. What is ESG Audit? ESG audit is an assessment of the risks a business faces in environmental, social and governance areas. It has nothing to do with the financial, secretarial or cost audit and the process is also entirely different. In such audit an organisation takes up both the external stakeholders and the internal employees to evaluate their performance in management of environmental, social and governance risks. An ESG audit would ideally seeks to answer the following questions: What environmental, social and governance issues are relevant for the organisation? What are the specific risks associated with these issues? What is the organisation’s strategy to manage these risks? Does the company have an ESG policy and risk management system? Good quality ESG audit will help an organisation to track progress of its ESG initiatives, improve on weak areas and identify opportunities. Importance of ESG audit Investors are no longer looking only for good financial returns. A large number of socially motivated investors now want their money to fund companies that are committed to creating a better world through a more sustainable business. In this way they want to encourage companies to act responsibly in addition to delivering financial returns. So ESG audit is important for them as it provides insight into the company’s approach towards these risks and how prepared they are to manage risk. It is also important for the public and helps attract better employees. Such audit is definitely beneficial for the companies as it helps them look at their supply-chain risks and risk management capabilities. Also, the consumers look for products and services that have complied with environmental, social and governance practices and reject those that have not. It is important for banks and financial institutions as before funding a business they would like to assess the risks associated with such funding. To use an economics term, ESG Audit has a definite signalling strength. A company that conducts a regular ESG audit without being mandatorily required to do so gives the message to its stakeholders that it is concerned about the ESG risks and is prepared for any emerging risks. Examples of areas evaluated in an ESG audit Here are some examples: Environment – Environmental standards, environmental management systems, energy saving initiatives, compensation for environmental damage. Social issues – Organisation’s performance on social issues like human rights, employee compensation, their working conditions, employee satisfaction, diversity and labour laws Governance – Corporate transparency and compliances Buildings – Construction in an environmentally friendly way Carbon footprint – Plan for monitoring carbon emissions. Recycling – water management and chemical management Reporting – How promptly and completely organisations report on activities impacting the environment and society. Waste management – Efforts towards reducing waste during all stages of production and management of waste generated. Hazardous materials – Usage of such materials in products and treatment of any hazardous waste generated. ESG Audit vs. Sustainability Audit While ESG audit focuses on the environmental, social and governance risks associated with doing business, sustainability audit is aimed at evaluating how environmentally friendly and socially responsible a company is. The latter doesn’t have anything to do with risks. Mandatory ESG audit – the position in India A study conducted by the European Corporate Governance Institution (ECGI) identified 25 countries that introduced different mandates for disclosure of ESG information between 2000 and 2017. So as on date ESG Reporting is mandatory in many countries but ESG Audit seems more voluntary in nature. For example in the European Union (EU) it is mandated under Directive 2013/34/EU. The Non-Financial Reporting Directive of the EU that came into effect in all the member states in 2018 requires companies to reveal all material environmental, social, and employee-related problems, like bribery, corruption, and human rights issues and how the same were dealt with. In the United Kingdom under the Companies Act 2006 (Strategic Report and Directors’ Report) Regulations 2013, listed companies are required to provide a report on annual greenhouse gas emissions, diversity and human rights issues. ESG Reporting is also mandatory under FRC’s Stewardship Code. In Australia ESG Reporting is mandated under ASX Corporate Governance Council’s CG50 Guidelines, in Canada under the IIRC’s Corporate Governance Guideline-2.1, in New Zealand under NZX’s Corporate Governance Disclosure Guideline, in Norway it is required under SSM’s Guidance on environmental reporting and in the United States it is mandated under SEC Regulation. China has as many as seven regulations mandating sustainability disclosures. In Indonesia, since 2020 the Indonesia Financial Services Authority has mandated all listed companies to publish Sustainability Reporting. In Brazil ESR reporting is mandatory under CVM Instrução 569, in Chile under CNMC Resolution N#105, in South Africa under PAS 55 and in Mexico under CNBV’s Recommendation on Sustainable Development. In India under SEBI’s BRSR mandate, ESG reporting will be mandatory for the top 1000 listed companies based on #marketcapitalisation from FY 2023-24 onwards. With this India has joined the worldwide ESG bandwagon. However, ESG Audit hasn’t been mandated yet. But ESG Reporting in itself will involve additional costs, time and effort and it totally makes sense for companies to spend a little more of all of that to get a voluntary #ESGAudit done in order to ensure that the steps taken are in the right direction and to correct any mistakes before they go out of control. Concluding observation In view of certain factors like increased urbanisation, increasing population, extensive usage of natural resources, climate change and depletion of forest cover around the world as also as a natural consequence of increasing concerns towards social responsibility of corporate citizens, the recent mandate on ESG Reporting by SEBI is in the right direction. However, such a requirement without any mandatorily prescribed audit runs the risk of ending up being a compliance only in letter and not in spirit. While many companies would definitely go for voluntary ESG Audit, if made mandatory such audit would increase the effectiveness of the ESG Reporting manifolds.

  • Board Diversity and its impacts: Lessons from global experience

    Board Diversity The board of directors of a company plays the pivotal role in making strategic business decisions. To make their decisions more effective, boards need to be diverse and have a more egalitarian approach — one that encourages different voices and opinions, integrates contrasting insights into its decisions and respects diverse background w.r.t. age, gender, culture and profession. In order to be more effective, board discussions need a breadth of perspective which essentially comes from diversity of composition. In this article, I will take up the diversities one by one. Gender Diversity While apparently it might seem so, but worldwide gender parity is not at all recovering, the least of all in India. This is evidenced by the Global Gender Gap Report 2022 issued by the World Economic Forum. The Report states that it will take another 132 years for the world to close the extant global gender gap. In this context it needs to be mentioned that the Global Gender Gap Index benchmarks the current state and evolution of gender parity across four key dimensions: (i) Economic Participation and Opportunity, (ii) Educational Attainment, (iii) Health and Survival and (iv) Political Empowerment. The index has been tracking the progress of different countries of the world towards closing the gender gap in these dimensions since 2006. In the index that lists 146 countries providing a strong cross-country comparison, India occupies the very disappointing 135th position ahead of Afghanistan and Pakistan, but much behind our other neighbours like Nepal (96), Myanmar (106), Srilanka (110) and Bhutan (126), and way behind Bangladesh (71). The Index measures scores on a 0 to 100 scale, where the scores indicate how close a country has moved to closing the gender gap. The cross-country analysis helps identify the most effective policies to close gender gaps. Worldwide Gender Diversity While no country in the world has achieved 100% gender parity till date, the list in Global Gender Gap Report 2022 is topped by Iceland (90.8% parity), followed by Finland (86%), Norway (84.5%) and New Zealand (84.1%). As against these parity percentages, India has achieved only 62.9% gender parity in all those years. The silver lining is that this year India has closed the parity gap by 0.3% over last year. In the 2021 index India stood at the 140th position out of 156. But the more discouraging fact is that in 2006, when the gender gap index was first released, India ranked 98th among 115 countries and the best rank the country has held in the recent years with greater participation of countries was in 2012 when it was placed 105th out of 135 countries. Gender gaps in the workforce as well as leadership roles are driven by many factors. Some of these are societal expectations, gender-biased employer policies, social infrastructure, prioritizing family and caregiving, health, traditionally existent structural barriers, education gap and so on. In the 2022 Report it has been seen that the countries that have fallen behind in the list, the parameters in which they have lacked are essentially (i) and (iv) mentioned above, i.e. (i) Economic Participation and Opportunity and (iv) Political Empowerment. With more women in political and industry leadership, there is not only the benefit of a powerful role model effect but decisions taken also represent broader section of the population. Gender Diversity in India The principle of gender equality has been enshrined in the Constitution of India in its Preamble, the Fundamental Rights, Fundamental Duties and Directive Principles of State Policy. But despite such unambiguous equal rights given to men and women, the Indian society has remained largely male dominated. The workplace is one area where gender inequalities are easily noticed. These are manifested largely through share in workforce, difference in pays for equal work and difficulties of working condition. However, there are a series of new legislations that seek to improve this situation. Board Gender Diversity The gender diversity in boardroom has several benefits and implications. Studies conducted around the world and the resulting growing literature on this links the composition of the board of directors to business outcomes. Surveys have shown that boards and senior management with board diversity perform better and have higher Return on Equity and Return on Capital Employed. Further diversity in board brings diversity of thought patterns. Women are known to be more democratic in their leadership style, they are good listeners, they encourage participative decision-making, they are proactive in anticipating risks and hence, can help strengthen risk management, they are better inclined towards CSR, they are generally more compassionate and so on. Legal position Worldwide, in the recent years, the corporations have come under great public pressure to increase the gender diversity on their boards and as a consequence, countries like Belgium, Spain, France, Iceland, Norway and Italy have passed legislations mandating more female representation in the board. Laws for listed companies in Norway, Spain, France and Iceland require a minimum of 40% representation in the board. In the US, there is no such law in general, but in California, law was passed recently requiring all locally headquartered public listed companies to have at least one female director by 2020. In India the following companies are required to have at least one Woman Director: - Every listed company - Every other public company having (i) Paid-up share capital of INR 100 crore (1 billion) or more, or (ii) Turnover of INR 300 crore (3 billion) or more. [Paid-up share capital or turnover is as per the last date of the latest audited financial statements] On fulfilment of any of the above conditions the Board must appoint a woman director within six months of the date of fulfilment or criteria. This is a truly revolutionary step initiated by the legislature for ensuring gender neutral nature of Board in the corporate world and seeks to recognize the important role of women in promoting economic welfare of the country. However, in a majority of companies to which this rule applies, woman directorship has largely been reduced to a token position. This narrative must change if the benefits of board diversity is to be reaped in the greater sense. Expanding the view of Board Diversity What indisputably follows from the above discussion is that Board diversity is very important. But the above discussion was largely focused on gender diversity alone. But Board diversity as a term has much bigger connotation and includes many types of diversity. One of its components is gender diversity for sure, the others are age diversity, professional diversity and cultural diversity. The impact of a diverse board on business are far-reaching, but concentrating on only one form of diversity is not sufficient. All these types of diversities increase the diversity of perspectives represented at the board level. Achieving gender parity has been the top priority worldwide, although as per the recent indices mentioned above, the world has a long way to go even in that regard. But imagining that with all regulatory and social pressures, gender diversity is achieved faster; even then just achieving this will not help the board of a company reach its full potential. The other types of diversities must be introduced and maintained. And this, should ideally be, in spirit and not just in letter, i.e., not just for the sake of mandatory compliance. For this, the company managements must come out of the ‘checking the box’ approach and spend time and energy towards achieving ‘real’ board diversity. Introducing a member of the board to enhance its diversity (whether gender, age, culture or profession) should not reduce that new person to a ‘token’. Nobody likes to be a token. Also a board with diversity just in ‘token’ form is like a vehicle with square wheels, that is incapable of doing its job. Age, Cultural and Professional Diversity There are no two opinions about the importance of having the board composition in such a manner that people of different age groups are well represented. While the aged persons will have an edge on their experience and expertise, the younger ones will beam with enthusiasm, energy, positivity, better technological knowledge and risk-taking approach. While the younger board members would like to jump at every new opportunity, the older ones can help keep them level-headed. When it comes to cultural diversity, this again is very important as diversity in background here can increase the perspective of board decisions. As for professional diversity, there is hardly any doubt that a board needs to be professionally balanced so that all aspects of corporate governance are given equal weightage and due compliances are done as required by law.

  • Greenwashing – the new Window Dressing

    To understand what ‘Greenwashing’ is, we must first know why at all we are talking about it today. Greenwashing is related to ESG disclosure. ESG is an acronym for Environmental, Social and Governance. It is a framework for understanding and measuring how sustainably an organization is operating. ESG takes the holistic view that sustainability extends beyond just environmental issues. Proper ESG disclosure helps stakeholders like investors, creditors, employees, prospective customers, etc. understand how a company is managing its ESG risks and opportunities. Wrong or misleading ESG disclosures would lead to #greenwashing. So what is Greenwashing? The term ‘Greenwashing’ means making outright false, vague, misleading or unsubstantiated claims about the sustainability of a product or service or even about the business operation of the organisation. Greenwashing is often done intentionally by an organisation to market its products or services. However, sometimes such greenwashing may also be unintentional or due to the management’s lack of knowledge or understanding about the same. In the heydeys of corporate sustainability as a buzzword, greenwashing would essentially mean false and misleading environmental claims or statements. Corporate Sustainability was often used by organisations only as a marketing tool to overstate or misrepresent its environmental initiatives and impacts. But now, with the advent of the new term ‘ESG’ in the corporate jargon, the expanded definition of greenwashing would essentially include false and unsubstantiated claims about the organisation’s social and governance factors as well. Greenwashing would take place when the management of an organisation would wish their disclosures to give the impression that they have engaged in proper ESG analysis and reporting but when in reality they have not. As stated earlier, this may be intentional or unintentional. So here lies the similarity between greenwashing and ‘window dressing’ of financial statement. In the latter, a much well known concept by now, the management of a company resorts to unfair means to improve the appearance of its financial statements before it is released to the public. It is an established menace, is illegal, and must be avoided at all costs. The same applies to greenwashing. Why would management tend to engage in Greenwashing? Today, there is a need of rigorous ESG analysis under the pressure of global business environment. Efforts towards greater sustainability have created the need for organisations worldwide to be more transparent about what initiatives they are taking to manage environmental, social and governance risks. Regulatory bodies and stock exchanges in most countries have mandated ESG reporting. In India also ESG reporting is going to be mandatory for the top 1000 listed companies by market capitalisation from FY 2023-24 onwards as per the SEBI’s newest BRSR framework. The management of these public listed companies are now required to disclose full information about the organisation’s environmental as well as social impact, and its corporate governance practices. Not making the ESG disclosure would not only result in loss of market reputation, but also result in non-compliance. Under this pressure, greenwashing may actually result from the reckless action of the management (that probably didn’t understand the difficulty level or seriousness level of the ESG disclosure). However, it is also highly probable that some organisations may intentionally include in their annual report false, vague or misleading claims about their initiatives towards sustainability in order to appear to be engaging in proper ESG analysis and disclosure. How to avoid greenwashing? Where the management wants to avoid the perception of greenwashing, it must present its ESG disclosures using a widely accepted global reporting framework like the Global Reporting Initiative (GRI), Principles for Responsible Investment (PRI), Carbon Disclosure Project (CDP) or Sustainability Accounting Standards Board (SASB). All these have a standardized system of presentation of ESG information and require organisations to include considerable data and metrics w.r.t. its E, S and G. The good news is that globally initiatives are also being taken to bring out a unified standard for disclosure of ESG. To understand how to avoid greenwashing better, let us take the individual elements one by one. (i) Environmental Sustainability – Under this parameter, one may undertake greenwashing by falsely making general claims about improvements in the organisation’s carbon footprint without any actual data to support the claim. (ii) Social Impact – A company may be charged of greenwashing if it falsely claims about employee training programmes, employee absenteeism, community support initiatives etc. (iii) Corporate Governance – Non-disclosure of any non-compliance may amount to intentional greenwashing. Examples of Greenwashing Some of the most talked about worldwide instances of greenwashing rep orted in the recent years are as follows: IKEA – In 2020 the Swedish giant that happens to be the largest wood consumer in the world was found to be using illegally procured wood from the forests of Ukraine that is home to endangered animals. The wood was certified by Forest Stewardship Council that is considered as Gold standard in forest accreditation. IKEA itself is known for its high sustainability standards. However, in this matter both had engaged in greenwashing. Ryanair – In 2020 this airlines company was charged of greenwashing when they falsely claimed themselves to be ‘lowest emissions airline’. McDonald’s – In 2019 McDonald’s introduced paper straws as a sustainability initiative. But the straws turned out to be non-recyclable. Not only that, the raw material for the paper for straws was procured by mass cutting down of trees. KLM Airlines – In 2021-22 a lawsuit was filed against this air carrier for their misleading ‘carbon emission free’ claims. Their slogans was ‘Be a hero, fly CO2 zero’. Volkswagen – In 2015 Volkswagen admitted to cheating emission tests by fitting its vehicles with a certain device that had a software to reduce emissions during tests. However in reality, the vehicles were emitting more than 40 times the allowable limit for pollutants. Nestlé – In 2018 this company was called out for greenwashing when it claimed its packaging material to be 100% recyclable and reusable by 2025. It was stated that this claim was ‘greenwashing baby steps to tackle a crisis it helped to create’.

  • Risk Management Committee: Now recommended under Company Law too

    Risk Management Committee is a committee formed to oversee the risk management policy and global risk management framework of a company. This committee helps the Board in identifying the risk exposure of the company and ensuring that proper framework relating to risk identification and its mitigation is in place. Under SEBI (LODR) As of now constitution of Risk Management Committee is mandatory for certain listed entities only. Regulation 21 of SEBI (LODR) provides for the constitution of a Risk Management Committee by a listed company. Clause (1) provides that the board of directors of such company shall constitute a Risk Management Committee. Applicability Clause (5) provides that constitution of such committee is mandatory for the following: Top 1000 listed entities on the basis of market capitalization as at the end of the immediate preceding financial year and a ‘high value debt listed entity’. It may be noted that initially the regulation was applicable to only the top 100 companies and later to the top 500 companies. Composition The Committee is required to have a minimum of 3 members, majority of them being directors including at least one independent director, and in case of a listed entity having outstanding SR equity shares, at least two thirds of the Risk Management Committee is required to comprise of independent directors. This implies that not all the members of the committee are required to be directors of the company and even senior executives of the listed entity may be members of the committee. However, the Chairperson of the committee has to be a director. Meeting of the committee While the earlier requirement was of a minimum of one meeting every year, at present, the risk management committee is required to meet at least twice a year. On a continuous basis not more than 180 days shall elapse between any two consecutive meetings of the committee. The quorum for the meeting is either two members or one third of the total members of the committee, whichever is higher, including at least one member of the board of directors in attendance. Role & responsibilities The board of directors of the listed entity is required to define the role and responsibility of the Risk Management Committee and may delegate monitoring and reviewing of the risk management plan to the committee and such other functions as it may deem fit such function shall specifically cover cyber security. Part D of Schedule II of SEBI (LODR) Regulations, 2015 requires the Risk Management Committee to formulate framework for identifying risks faced by entity, suggest measures for risk mitigation, overseeing implementation of scheme, evaluating adequacy of risk management systems. Under Companies Act, 2013 The Company Law Committee Report of 2022 has recommended many changes to the Companies Act, 2013 that are aimed at promoting greater ease of doing business in India. These include introducing many new concepts, structural changes, streamlining the process for audits, mergers etc., removal of ambiguities, improving the corporate processes as well as improving compliance procedures. Of the many recommendations of the Company Law Committee for Companies Act, 2013 one is for the constitution of Risk Management Committee by certain companies. One may note here that u/s 134(3)(n) of the Companies Act, 2013, the Board Report must contain a statement indicating the development and implementation of a Risk Management Policy for the company, including the identification of risks that may pose a threat to the existence of company. Further u/s 177(4)(vii) of the Companies Act, 2013 the Audit Committee has an obligation to evaluate the company’s internal financial controls and risk management systems. In addition to this, Part II of Schedule IV of the Companies Act, 2013 requires an Independent director of a company to bring an independent judgment to the board deliberations regarding the risk management systems of the company. So the CA, 2013 does not specifically contain any provisions with respect to constitution of a Risk Management Committee. In the light of the COVID-19 pandemic, it was felt that proper risk management allows a company to function efficiently and facilitates its development. Therefore, the Company Law Committee has recommended the inclusion of new provisions in the Companies Act, 2013 with respect to constitution of Risk Management Committee, as a separate committee of the board, for certain class of companies as may be prescribed by the Central Government. It will be interesting to follow further developments in this regard.

  • Issuing Restricted Stock Units and Stock Appreciation Rights to employees

    The latest Report of the Company Law Committee presented in 2022 has recommended numerous changes in the Companies Act, 2013. Apart from removing ambiguities, streamlining process for audit, mergers etc., tightening compliances and promoting further ease of doing business, the report has also introduced certain new concepts. Restricted Stock Units (RSUs) and Stock Appreciation Rights (SARs) are two such new concepts. These may be issued to employees of a company in addition to monetary remuneration. The report has recommended insertion of enabling provisions in the CA 2013 for issuance of RSUs and SARs. What are RSU and SRA? The committee was of the opinion that in addition to monetary remuneration, the employees a company may be paid compensation that is linked to its shares, thus granting the employees ownership rights in the company. These schemes allow employees to subscribe to the company’s equity capital. Restricted Stock Units (RSUs) have in the recent years become quite popular among venture companies as a hybrid of stock options and restricted stock. These, however, do not give the employee an option to purchase or subscribe to the company’s shares directly. Rather under this scheme there will be a vesting period and the employee will be entitled to the shares at the end of the vesting period, subject to the conditions related to the duration of employment and performance of the employee being met. In effect it is a promise by the employer to grant restricted stock to an employee at a specified point in the future in (delayed) recognition of the employee’s contribution. These are also known as restricted securities and are fully transferable from the issuing company to the receiving employee until certain conditions (or restrictions) have been met. Only upon satisfaction of those conditions, the restriction is removed, and the stock becomes transferable to the said employee. Stock Appreciation Rights (SARs), on the other hand, are incentive or deferred compensation tied to the performance of the company’s stock. This right provides the employees the monetary equivalent of the appreciation in the value of a specified number of shares over a specified period. It is like an award which provides the employee the opportunity to profit from the appreciation in share value of the company over a certain period of time. It may also be paid by way of shares of the company. It is like a bonus where the company performs well financially over period. Although SARs resembles employee stock options, unlike the latter an employee does not need to buy or hold shares of the company to benefit from an increase in the stock value. In many jurisdictions worldwide SARs is also referred to as phantom stock. But while phantom stock may pay dividends, SARs cannot. While SARs have been defined under the SEBI (Share Based Employee Benefits and Sweat Equity) Regulations, 2021, there is no existing definition or regulation for RSUs as of now. The Committee’s recommendation is to recognize both the concepts under the Companies Act, 2013. How to issue RSA and SAR? In order to make RSUs and SARs a reality, the Company Law Committee in its report has proposed amendment to section 62(1) of the Companies Act, 2013. The committee has proposed that if a company proposed to use these schemes, it will require the issue of further securities by the company. Such issuance can only be done after the approval of the shareholders by a special resolution. The enabling framework in the Companies Act, 2013 should also contain provisions of an annual omnibus approval by the shareholders of the company to avoid fresh approvals each time such allotment is planned. Accounting and Tax Implications These plans are like deferred cash compensation and have a lot of accounting and tax implications. As for accounting, the companies will have to figure out how to pay for the shares that the employees want to cash in. Further, the issuing company should not only make the promise to pay, it should actually put aside the funds. Worldwide, restricted stock has an edge over employee stock options, because of favourable accounting rules and income tax treatment. If the recommendations of CLC sees the light of the day, a lot of necessary amendments will also have to be made in the Income Tax Act.

  • Revisiting the provisions of ‘Independent Director’ in the light of recent cases

    An Independent Director, as the name suggests, is a third party individual who is supposed to be independent and not have any relations with the company, its holding, subsidiary or any associate company, either directly or through their relatives. The objective behind having the provisions of Independent Director in the Companies Act, 2013 is to ensure the independent decision making process by the #Board of Directors devoid of any undue influence of promoters or executive management in business transactions. The Board of directors of any company is the nucleus around which the entire company operates. It is therefore quite justified to expect the Board to exhibit integrity, responsibility, accountability, diversity and promptness. The directors of the company are the agents of the shareholder and are often described as the arms of the company through which decision is made and business is conducted. The various compliance requirements of the Board are laid out in the Companies Act, 2013. In order to ensure that the Board does not misuse its decision making power, the #CompaniesAct2013 mandates the need for independent directors in certain class of companies. Independent directors are required to exercise independent judgement during the deliberations of the board. Some of the important areas where independent directors must be vigilant are the financial reporting of the company, the transactions between related parties of the company being at arm’s length and so on. Requirement of Independent Directors (IDs) Every listed company shall have at least 1/3 of its total number of directors as IDs The following unlisted Public companies shall have at least 2 directors as IDs Paid up share capital equal to or more than INR 10 crore Turnover equal to or more than INR 100 crores Outstanding liabilities, debentures and deposits equal to or more than INR 50 crore; Since both listed and unlisted companies are required to have independent directors the Ministry of Corporate Affairs as well as Securities and Exchange Board of India (SEBI) have come up with detailed regulations governing the role and compliance requirement in respect of Independent directors. The Companies Act, 2013 lays down the definition, roles and responsibilities as also the liabilities of an Independent Director. Last year #SEBI overhauled certain provisions to strengthen the position of IDs in the Board. The appointment, reappointment and removal of an independent director can only be done through a special resolution passed be the shareholders (it requires 75% votes in favour as against ordinary resolution which requires only a simple majority). In addition to strengthening the working of independent directors, this rule also protects the interests of minority stakeholder. Other provisions include 2/3 majority of IDs in the Nomination and Remuneration Committee which selects IDs. These provisions came into effect from 1st January 2022. Definition of Independent Director: Independent director has been defined in section 2(47) and sub section (6) of section 149 of the Companies Act, 2013. The definition lays down that an Independent director is a director other than a managing director or a whole-time director or a nominee director who satisfies the following conditions: He/she is, according to the Board, a person of integrity and possesses the relevant expertise and experience; He/she is or was not a promoter of the company or any of its holding, subsidiary, or associate companies; He/she is not related to the promoters or directors of the company or its holding, subsidiary, or associate companies; He/she does not have any pecuniary relationship with the company, its holding, subsidiary or associates, directors or promoters for two preceding financial years preceding appointment and the current year; Does not have any relatives who have or have had pecuniary relationships with the company, directors or promoters for amounts exceeding rupees fifty lakhs or 2% of the paid up capital of the company; Does not have any relatives who have or have had pecuniary relationships with the company, its holding, subsidiary or associate company amounting to 2% or more of its gross turnover or total income; Does not have any relatives who is indebted to the company, its holding, subsidiary or associate company or has given guarantee for a third person’s indebtedness; He/she himself or any relative does not hold or has not held key managerial positions or have been an employee of the company, its subsidiaries, holdings, or associate companies during 3 immediately preceding financial years; He/she is not a member of the firm of auditors, company secretaries in practice, cost auditors or any legal consulting firm that has transactions with the company, and its subsidiaries, holdings and associate companies; He/she does not hold more than 2% voting power of the company; He/she is the CEO or director of an NGO that receives 25% or more of its receipts from the company, its directors, its holding subsidiary or associate company. Declaration of independence Independent directors must give a declaration of their independence in the following situations: First board meeting after induction into the Board First meeting of the board of directors in every financial year Arising of any situation that affects the independence of their role as director Duties of Independent directors With the level of expertise and experience that they come with the independent directors perform the role of a guide or mentor for the board. The duties of independent directors are many including the following: To act in interests of the company, shareholders and its employees. To review the performance of the non independent directors and of the Board as a whole. To determine the appropriate levels of remuneration of the executive directors, KMPs and the senior management. To be a moderator when there is a conflict between the interest of the management and that of the shareholders. To seek information or clarification and appropriate external professional advice and opinion at the expense of the company whenever situation demands so. To have active and constructive participation in the Board and committee meetings. To be vocal about their opinions and where they have concerns about the running of the company or a certain proposed action, to ensure that these are discussed by the Board and wherever the same is not resolved, to get their concerns are recorded in the minutes. To see that the related party transactions entered into by the company are at arm’s length and in the interest of the company and to ensure that sufficient deliberations are held before approving such transactions. To ensure that the company has adequate vigil mechanism to protect the interests of a person who uses such mechanism and to ensure that he/she is not prejudiced against for using it. To report concerns about unethical behaviour, fraud or violation of the company's code of conduct or ethics policy. Not to disclose confidential information, like technologies used, trade secrets, unpublished price sensitive information, sales promotion plans unless specifically pre approved by the Board or as required by law. Not to act like a rebel and obstruct the functioning of an otherwise proper Board or committee. In performing the above duties, the #IDs are expected to undergo appropriate induction training after joining the Board and regularly keep updating themselves and enhancing their skills and knowledge about the company and the industry in which it operates. They are also required to keep themselves well informed about the company and the legal and technological ecosystem in which it operates. They are also expected to have time for discharging their duties towards the company and strive to attend all meetings of the Board and the committees thereof of which they are a member. Liabilities of Independent directors The Companies Act, 2013 provides the situations in which an independent director can attract liability. It provides that an independent director can only be held liable if there is an act of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently. Even though this provision is crisp and clear, the topic of the liability of independent directors has been in the news time and again. Recent cases In a recent matter before the Bombay High Court, the liabilities of independent directors were once again evaluated. It related to the criminal proceedings that were initiated in a cheque bouncing case under the Negotiable Instruments Act, 1881 against the executive as well as the independent directors of #Tecpro Systems Limited in the #BombayHighCourt. #Elektromag Devices Private Ltd. had filed a complaint u/s 138 of the Negotiable Instruments Act, 1881 against all the directors of Tecpro Systems for the bouncing of a cheque worth Rs. 30 lakhs issued to them by the latter. While evaluating the day-to-day role of the independent non-executive directors, the Court observed that “Non-executive director not being a promoter of or key managerial persons shall be held liable, only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently.” The Court further observed that “Simply because a person is director of company does not make him liable under the NI Act. Only those persons who are incharge and responsible for the conduct of business of the company at the time of commission of the offence will be liable for criminal action. A director, who was not in charge of and was not responsible for the conduct of the business of the company, at the relevant time, will not be liable for offence by invoking Section 141 of NI Act”. In passing its judgement the Bombay High Court relied on the provisions of sub sections (6), (9) and (12) of section 149 of the Companies Act, 2013 and the decision of the Supreme Court of India in the case of Pooja Ravinder Devidasani v. State of Maharashtra. While quashing the criminal proceedings against the independent non-executive directors, the Bombay High Court has ordered an expedited trial against the rest of the executives of the company. Another major recent case that throws light on the role of independent directors in the board is that of e-commerce giant Amazon which alleged that independent directors of Future Retail had failed to exercise their statutory duties and that their ‘conduct and attitude’ were question able. In a very strongly-worded letter sent to the independent directors of Future Retail Limited, Amazon wrote that "You, the Independent Directors of FRL, have failed to exercise your statutory duties and functions independently in accordance with law. Moreover, you have failed to safeguard the interest of shareholders, and have in fact facilitated commission of fraud perpetuated by FRL …. Your conduct and attitude, as the Independent Directors of FRL, raises substantial questions on accountability, transparency and fairness regime for corporate governance in India". They further wrote “It is obvious that the letter from FRL’s independent directors was issued with the sole motive to obfuscate issues that the independent directors are obliged to answer.” The above letter came ahead of the #Tribunal’s order, which is expected anytime now, in a petition filed by the Bank of India seeking to start insolvency proceedings against Future Retail Limited. It may be noted in this regard that there has been a series of communications between the US based e-commerce giant and FRL's #independentdirectors prior to this letter and in one of those the former alleges that the IDs of Future Retail even ‘admitted’ to have entered into an illegal arrangement. The decision on this matter is awaited and once it is out this case will also probably shed some more light on the role and responsibilities of Independent directors.

  • Younger Boards and Start-ups: the role of professionals therein

    It was recently reported that nearly 30% of all the Director Identification Numbers (DIN) allotted by the Ministry of Corporate Affairs (MCA) in financial year 2021-22 was given to people aged less than 30 years. If we look at the total number of young applicants of DIN, about 73% of the total DINs were allotted to applicants less than 45 years of age.(1) Majority of these young directors have been registered from the states of Maharashtra (20,000), followed by Uttar Pradesh (13,000), Gujarat (7,050) and Karnataka (5,900). One may note that Maharashtra is a Fintech hub, Karnataka is the start-up hub and Gujarat is the manufacturing hub of India. The proximity to the national capital has probably led to the growth in Uttar Pradesh. It is interesting to see that the MCA has, for the first time, provided an age-wise data of registered directors.(2) While comparison of the above data with last year’s data is not possible as there is no such data as such, this definitely comes as a breath of fresh air. The data essentially shows two things – The increasing number of start-ups in the country; and The increasing number of younger professionals ready to take up the position of Independent Directors (ID) in the Boards of companies that have such requirement. Both go to prove that the boards of Indian companies are essentially getting younger. What is a DIN? DIN is an 8-digit Unique Identification Number that is allotted by the Central Government to any person willing to join the Board of Directors of a company. It is mandatory for a director to have a DIN number and a pre-requisite before joining the Board. So if a person opens a company of his own (and we all know the benefits of having a company over other forms of organization like partnership firms, sole proprietorship or LLPs), he needs a DIN. The concept of DIN was introduced for the first time when sections 266A to 266G were introduced in the erstwhile Companies Act, 1956 by the Companies (Amendment) Act, 2006. Section 153 of the present Companies Act, 2013 provide for the application for DIN and section 154 deals with the allotment of DIN. Rule 9 of the Companies (Appointment and Qualification of Directors) Rules, 2014 deals with the procedure for the same. Indian Start-up ecosystem In India the startup culture has, in the recent years, caught the fancy of the younger population. This has led to the increased number of new company incorporations. MCA data for FY 2021-22 shows that approximately 1,67,000 companies were incorporated in India during the financial year. This has raised the total number of registered companies in India to 23.18 lakhs. Today fresh graduates are seeing entrepreneurship as an attractive alternative to a regular job. In fact, the incubation centres in colleges and universities are seeing development of start-ups even before the students actually graduate. To a large extent certain Government schemes like the Start-up India, Digital India, Make in India and other schemes for the MSME sector has also provided the much needed fillip. Initiatives towards ‘Ease of Doing Business’ has also led to easier and faster incorporation of companies. Several regulatory requirements have also been relaxed for smaller companies [however as against this the regulatory burden of larger companies has been constantly on the rise]. Funding in start-ups has also become easier to get these days; in the last calendar year 2021 itself, Indian start-ups received US $11 billion in funding from private equity and venture capital firms. Role of Young professionals Increased number of companies incorporated implies increased compliance burden in the economy. The process of incorporation itself is a highly technical compliance work. Once incorporated, there are several regulatory requirements which have to be taken care of by companies in their day to day activities. Even though there are relaxation for smaller companies, but certain compliances are mandatory for all, big or small. This would mean increased engagement for professionals, and since most start-ups cannot pay a fat cheque, there will be more involvement of younger professionals in the compliance-related work of start-ups. Interestingly, many young professionals are also choosing the start-up path for their own innovative ideas of which edu-tech companies probably features at the top. Senior Professionals and start-ups In a recent survey it has been found that almost three-fourths of the senior professionals prefer to work for a startup over bigger companies for a variety of reasons of which the following are some: Better growth opportunities Diverse experience Possibility of better impact at the workplace Flexibility of work timings Flexibility of work location Politics free culture A flat hierarchy In addition to the above, new ideas and solutions that start-ups come up with are a big factor of attraction towards them. Further, start-ups provide scope for innovation and creativity. Senior professionals are being attracted to start-ups as a fresh start in their career paths due to the above reasons. Further, in India’s positive start-up environment there is a huge number of senior professionals who decide to go on the start-up path and become founders themselves. Independent Directorships A large number of the new applicants for DIN are probably the professionals who wish to take up the position of Independent Director (ID) in the Boards of larger companies. Total number of people that have registered with the Independent Directors Databank as on date is 20,189, of which a substantial majority comprises of young and senior professionals like Company Secretaries, Chartered Accountants, Cost Accountants and lawyers. Of this total number, only 5,655 are women. The databank is an initiative of the MCA to register high quality of candidates for filling up the position of IDs in various companies. It is mandatory for persons willing to be appointed as an ID to register themselves with the databank. It may be noted that every listed company is required to have one-third of its total number of directors as Independent Directors. Further certain unlisted public companies are also required to have independent directors as follows: (a) company with paid-up share capital of Rs. 10 crores or more; (b) companies with turnover of Rs. 100 crores or more; and (c) companies with total outstanding loans, debentures and deposits of Rs. 50 crores or more. 1 The analysis is based on the following data from MCA portal for the FY 2021-22: Total number of DINs issued – 4,20,000 approx DINs issued to people < 30 years – 1,23,000 approx DINs issued to people aged 31-45 years – 1,82,000 approx 2 One downside noticed in the data is the gender gap noticed in it. Of the new directors below 30 years, 75% were male and 25% were women and in the age group of 31-45, 67% were male and 33% were female.

  • Emerging concept of Special Purpose Acquisition Companies (SPACs) in India

    In line with its motto of ‘Ease of Doing Business’ an SPAC is one of the newest alternative fundraising option that is all set to be introduced by the Government of India. The Special Purpose Acquisition Company is a concept that is well-known globally and has been making rounds in high level discussions for a couple of years in India. Finally, the Company Law Committee Recommendations, 2022 provide for introduction of SPACs in India. What makes this new concept interesting is that under these amended provisions (as and when introduced) even a shell company can get listed in the stock exchange. This article digs deeper into the concept. Background A Company Law Committee was set up by the Ministry of Corporate Affairs in 2019 to make recommendations towards promoting ease of doing business in the country. The Company Law Committee which submitted its report on a fresh set of amendments to the Companies Act, 2013 earlier this year provided for introduction of SPACs in India with corresponding enabling framework in the Companies Act, 2013. What is an SPAC? SPAC is an investment vehicle that is used by institutional investors to fund their acquisitions. These are generally formed by private equity funds or financial institutions, with relevant expertise in a particular industry or sector. To explain in simpler terms, a Special Purpose Acquisition Company is an entity formed with the objective of raising investment capital through an Initial Public Offering (IPO). The basic idea behind floating such a company is to allow investors to come together to pool their resources to acquire one or more companies to be identified only after the IPO. After incorporation it goes straight away to the capital market to raise money through an IPO. Interestingly, as on the date of the IPO the company has no existing commercial operation (hence a shell company) or any target for acquisition but is formed strictly to raise capital through IPOs. The money raised through IPO is kept in an escrow account, which can be used only when making the acquisition after the target has been identified. Where the SPAC fails to make the acquisition within two years of the IPO, the money is returned to the investors and the SPAC is delisted and finally dissolved. The money as well as the assets in escrow is returned to the investors on pro-rata basis. Such an SPAC is also popularly referred to as a ‘blank-cheque company’. Recommendations of Company Law Committee In its recommendations made earlier this year, the Company Law Committee has recommended the introduction of listing of SPACs in India and for the MCA to come up with enabling framework in the Companies Act, 2013 for SPACs allowing entrepreneurs to incorporate an SPAC. The Committee has also recommended that for SPACs incorporated under the Companies Act, 2013 there should be an exit option for shareholders in case they do not agree with the choice of the target company. The provisions of #CompaniesAct, 2013 with respect to strike off has also been recommended to be modified in so far as they relate to SPACs as these companies do not have any business of their own. In fact, just like many provisions of the Companies Act, 2013 have been modified to accommodate the newest concept of One Person Company (OPC) therein, to make the concept of SPAC a reality necessary modifications will be required in many sections of the Companies Act, 2013. Global Experience It was reported that in 2020 about 250 SPACs were formed globally (mainly in the US) and the investment therein was about USD $80 billion. The next year, 2021, saw a hike with about 600 SPACs being listed globally. There are many US-based SPAC entities that are created by Indian promoters or which target Indian new-age tech companies. Stone Bridge Acquisition Corporation, one such SPAC, recently listed on the NASDAQ and raised USD $200 million in 2021. Another good example is the merger of Indian company ReNew Power Private Limited with US-based SPAC entity RMG Acquisition Corporation II and its listing on the NASDAQ and raising USD $8 billion. Advantages of an SPAC Raising of money through the IPO route is not only lengthy, but also involves heavy regulatory obligations. In contrast, by getting merged with a Blank cheque company, an entity can get listed on exchanges (even in foreign stock exchanges like the #NASDAQ) in a matter of days. Many companies prefer to choose to merge with or being acquired by an SPAC rather than going for an #IPO because of some inherent advantages of SPACs which are listed below: - Beneficial for target companies: SPACs provide better option of funding and liquidity to target companies. Compared to other IPOs they are valued higher with lesser dilution rates, lower fees and less regulatory hurdles. - Time and Cost Efficient: Even a private limited company can go public within few months by being acquired by an SPAC. Indian companies being acquired by foreign listed SPACs can get listed on foreign stock exchanges without incurring the huge costs involved. - Minimum Risk: For a target company, listing through an SPAC involves minimum risk since the entire process takes place within a well-defined agreement with assured security. - Opportunity of foreign listing and tapping foreign market: Some target companies prefer SPACs as a way of achieving higher valuation by tapping the foreign market and foreign consumer base where the demand for its products exist. - Safeguards dissenting shareholders: The recommendations provide for an exit route to #dissentingshareholders which ensures that their interests are safeguarded as they always have an option to sell their shares to the SPAC promoters if they are not in agreement with the choice of target of acquisition. Disadvantages of an SPAC The concept of a Special Purpose Acquisition Company also has its share of disadvantages as follows: - Less profitable to retail Investors: Most SPACs underperform in the long run and eventually stock prices fall below the IPO price. This makes SPAC more beneficial to acquired companies and less beneficial to retail investors in the long run. - Inability to attract target company: The SPACs are required to start looking for a target company soon after listing and complete the acquisition within two years of listing. This time-bound restriction cripples many SPACs who are unable to locate an attractive target company in that time frame. - Hasty Decision w.r.t. target company: The time restrictions for completing the take-over sometimes prompts the SPAC to take hasty decisions, which turn against the company in the long run. - Exit of dissenting shareholders: The option provided to dissenting shareholders to exit if they do not agree with the choice of the target company is another obstacle that limits the overall gains for investors. - Investors initiating Investigations: From the US experience with SPACs it has been seen that in many cases the disappointed investors initiate investigations or even class action suits against SPAC promoters. Concluding observation In India the concept of SPAC is only in a nascent stage and capital market regulator, the Securities and Exchange Board of India (#SEBI), is expected to come out with rules defining the scope of SPACs in the country and providing detailed regulations for their running. While SEBI is looking at the possibility of introducing an SPAC framework in India, the Ministry of Company Affairs (#MCA) will also have to modify several provisions in the Companies Act, 2013 should the SPACs become a reality in the country based on the recommendation of the Company Law Committee. Several amendments will also be required to be made in the tax laws in the country. In case SPACs become a reality in India, there will be a demand for the SPACs to be allowed to list in global Exchanges. This will enable Indian SPACs to target acquisition of foreign companies in order to achieve their fullest possible potential. However, foreign listing of Indian SPACs will attract the provisions of Section 23(3) and Section 23(4) of the Companies Act, 2013 which enables certain classes of companies to list their securities on stock exchanges in permissible foreign jurisdictions. However, one must remember that not all #SPAC experiences have been good. Globally, many cases of underperformance by SPACs have slowly begun to surface now. This is a cause for concern and only points towards the need to weigh the pros and cons before finalising the #SPAC regulations in the country. Regulations must be equipped with sufficient safeguards to protect the interests of retail investors. #CapitalMarket, #SPACs, #Specialpurposeacquisitioncompany, #easeofdoingbusiness, #blankchequecompany, #CompanyLawCommittee2022, #IPO, #ShellCompanies, #Escrow Account, #MCA, #SEBI

  • Mandatory ESG Reporting in India and COVID-19 as a catalyst for it

    Introduction The COVID-19 pandemic has affected every facet of the lives of people of this planet and at the same time brought to the fore many shortcomings in our economic, social and governance systems that seek immediate attention. As a result of the pandemic there has also been a huge impact on #ESG #investing globally and investors are now more aware of their role in mitigating issues like climate change and social inequality. The Securities and Exchange Board of India has mandated #ESGreporting by certain companies in the country starting from the next financial year. While this article is essentially about the new ESG reporting regime in India, it does not delve deep into the reporting framework and requirements as such, it rather explores as to what extent the new regulatory developments in this area are attributable to the recent global #COVID-19 crisis. Mandatory ESG Reporting in India The Securities and Exchange Board of India (#SEBI) in its circular dated 10th May 2021 has mandated Business Responsibility and Sustainability Report (#BRSR). Starting from the current financial year 2022-23 companies are expected to voluntarily disclose their Environmental, Social and Governance (ESG) performance through the new framework provided by the National Guidelines on Responsible Business Conduct (#NGRBC) issued by MCA in 2019. From the next financial year 2023-24 onwards this ESG reporting will be mandatory for the top 1000 listed Indian companies based on market capitalisation. The BRSR has three main components, viz., a) General Disclosure, b) Management and Process disclosure and c) Principle-wise performance disclosure through Key Performance Indicators (#KPIs). The role of COVID-19 as a catalyst for ESG During the COVID-19 pandemic the world economy was hit by lockdowns resulting in shutdown of businesses and operations. There is no doubt that the pandemic has brought about the greatest global recession since the Second World War, from the point of view of investors it was also seen as a ‘sustainability crisis’. It brought about renewed concern for issues like environment and climate change. This has awakened the decision makers from their slumber and made them prioritize a more sustainable approach to business. Globally it is being increasingly felt that this pandemic can truly become a catalyst for #ESGinvesting. Before the pandemic began, sustainability was already on its way to the mainstream business decision making. Asset managers around the world were already prioritising the integration of environmental, social and governance (ESG) considerations into their investment solutions. The 26th version of the United Nations #ClimateChange Conference (commonly referred to as #COP26) was scheduled to be held in 2020. It was delayed by a year and finally took place in Glasgow, Scotland from 31st October 2021 to 13th November 2021. Since many such climate change initiatives were postponed or cancelled, sustainability in investing approaches was delayed by at least a year. However, the pandemic impacted the environmental, social and governance factors in the following way: 1. Environmental factors Despite the short-term deferment of many important environmental issues, during the pandemic, there were many environmental gains that reminded investors once again about the importance of environmental sustainability. Worldwide lockdowns resulted in millions of people starting to work from home. As a result of commuting to work place reducing substantially, fuel consumption in vehicles as well as coal consumption for energy generation in offices came down drastically. There was a huge reduction in global pollution. 2. Social factors The pandemic opened a Pandora box of social issues that need addressing. Some examples are gross inequality between those who have the ability to work from home and whose children can access online education and those who cannot, between those having access to good healthcare facilities and those who don’t, between migrant workers and those who have the luxury of living and working in their own homes and so on. The pandemic increased the inequality in the society and hit the poorer countries very hard. These social factors are, in the long run, likely to increase the inequalities in society and lead to increase in labour cost; this in turn will impact the corporate profitability and delay the post-pandemic economic recovery. 3. Governance factors The pandemic brought forward the importance of good governance. The importance of reorganising the value chains and methods of interacting with employees and customers, given the sudden and unforeseen loss of income in many sectors, has been brought to the fore. Experience has shown that the companies with best governance have fared better during the pandemic. This implies that going forward the Boards of companies will need to focus on the organisation’s long-term sustainability. Boards have to find the optimum balance between shareholder perks and other stakeholders’ rights so that dividend pay-outs do not jeopardise the maintenance of sufficient cash balance in the organisation. From the above discussion we can see that the COVID-19 pandemic has brought to fore the fact that for long term growth and sustainability it is important for organisations to lay emphasis on material environmental (E), social (S) and governance (G) factors. All the three factors, E, S and G have been largely impacted by this global crisis. The pandemic delayed many important policy initiatives in this area. Initially there was temporary shifting of the ESG concerns by governments for focusing on immediate disaster control instead. But as governments are gradually recovering from the effects of this global crisis, focus is now shifting towards speeding up of the #ESGagenda worldwide. We as a country are also catching up with the global realisation. Conclusion Every problem brings along opportunities which need to be properly explored in the right direction. The COVID-19 crisis may have temporarily delayed many important agendas and initiatives, but it has brought with it many seeds of opportunities that have to be rightly sowed in order to reap the best results. While for governments this is a great opportunity to make regulations providing for #ESGcompliances, for companies it is the time to focus on sustainability not just in letter but also in spirit and for investors this may even be the beginning of a paradigm shift towards sustainable investing for long term benefits.

  • Re-Domiciliation of Companies

    This is a concept alien to us in India. Corporate re-domiciliation is the process of shifting the domicile of a company (i.e. its place of incorporation) from one country to another while maintaining its legal identity. It is often also referred to as re-incorporation. Due to increased focus of economies on globalisation, the ease and usage of re-domiciliation provisions has significantly increased worldwide in the recent years. Factors requiring a company to be re-domiciled During the lifetime of a company circumstances may change. For example, the existent rules and regulations in the country of incorporation, may change, hampering the company’s future business. Another situation may be the shifting of company’s owners to a different country for any reason whatsoever, or the depletion of major resources required for production. In many cases changes in tax structure in a country also leads to redomiciliation of many companies. For these and many other reasons, company law in many jurisdictions provide the option of transferring the domicile of a company from one country to another and thereby allow the company to continue its existence. Impact of re-domiciliation After re-domiciliation, the company ceases to exist in the country of its original incorporation and is deregistered there, but continues rest of its life in another country by getting incorporated there in the same form. The transfer process is generally very smooth and in most cases the company retains its original name only. Pre-requisites for re-domiciliation In order to re-domicile, the company law of both the existing jurisdiction (where the company is currently registered) and the target jurisdiction (where it is to be shifted) have to contain re-domiciliation provisions. Not all countries allow re-domiciliation. Take for example the Indian Companies Ac, 2013. It doesn’t contain any provisions for re-domiciliation of a company incorporated in India to a country abroad. However, most other common Law jurisdictions provide the option. Some civil law countries like Austria, Hungary, Latvia, Luxembourg and Liechtenstein also allow re-domiciliation of companies. In view of the increased globalisation this is one of the provisions that may be incorporated in the Companies Act, 2013 also.

  • Sustainable Investing approaches: ESG, SRI and Impact Investing

    Investing is no longer about only the financial returns. A large number of socially motivated investors do want their money to fund companies that are committed to creating a better world through a more #sustainable business. In this way they want to encourage companies to act responsibly in addition to delivering financial returns. As companies and #investors continue to increasingly prioritize investment decision-making that not only benefits the shareholders, but also other stakeholders like employees, creditors, government, consumers, society, environment and so on, new-age investment approaches are gaining popularity. This article deals with three such new concepts: ESG investing, SRI and Impact Investment. These sustainable investing approaches are gradually gaining popularity, yet these are often mistaken as one and the same thing. This article explains the differences in each approach. Environmental, Social and Governance (ESG) ESG, a new buzzword in the country, was first popularized in 2005. It refers to a broad range of environmental, social and governance criteria on which the performances of companies are measured. #ESG focuses on the company's environmental, social and governance practices of a company that have been rather neglected in the traditional system of financial reporting. Here’s a list of the various aspects that #ESGReporting focuses on: Environmental - Energy consumption, clean energy, pollution, climate change, waste production and treatment, natural resource preservation, animal welfare and so on; Social - Human rights, community engagement, child or forced labour, health, safety and welfare, employee relations and so on; #Governance - quality of management, Board diversity and independence, conflicts of interest, transparency, disclosure and timely compliance, shareholder rights and stakeholder relations. In India some form of basic ESG reporting was introduced for the first time in 2009 when the Voluntary Guidelines on Corporate Social Responsibility was issued by #MCA. This was later replaced it with a more comprehensive set of guidelines called the National Voluntary Guidelines on Social, Environmental and Economical Responsibilities of Business (NVGs) issued by the MCA in 2011. In 2012 SEBI mandated the Business Responsibility Reporting (BRR) as part of their annual report for the top 100 listed entities by market capitalisation. This has now evolved to the Business Responsibility and Sustainability Report (BRSR). Starting from FY 2022-23 Indian organisations are expected to voluntarily disclose their Environmental, Social and Governance (ESG) performance. Under SEBI’s BRSR mandate of #BRSR, ESG reporting will be mandatory for the top 1000 listed companies based on market capitalisation from FY 2023-24. ESG vs. SRI vs. Impact Investment The terms (and approaches to investment) Environmental, social and governance (ESG) Investing, socially responsible investing (SRI) and impact investing are often used interchangeably by not only industry people, but also by professionals as they think the three describe the same approach. The subtle differences are explained hereunder. In the following paragraphs we will discuss the various types of new-age investing approaches that aim at increasing levels of benefit for the society and environment. ESG Investing Driven by the greater concept of ESG, ESG investing is an evolution of the trend toward socially responsible investing. ESG investing is getting popular with investors who are concerned about companies adopting practices that will mitigate risk and ensure their long-term sustainability. ESG-focused investment gives priority to factors like accounting for climate and environmental risks [the ‘E’ aspects], investments in physical and human capital [the ‘S’ aspects] and better governance [the ‘G’ aspects]. This has prompted companies to do business with #ESGcompliances in mind. Socially Responsible Investing (SRI) Socially responsible investing is often also called Sustainable investing. #SRI goes a step further than ESG by including or discarding investments based on considerations of ethics and morality. Socially responsible investing allows investors to screen companies based on whether or not they are engaging in sustainable practices to make their investment decisions. Socially responsible investors might avoid companies doing business in products like weapons, drugs, alcohol, tobacco and other addictive substances, fast food, fossil fuel or those engaged in gambling or those that employ child labour, violate human rights and labour laws, or cause pollution or environmental damage. Under SRI an investor will be motivated to invest in companies that spend a large portion of their profits on charitable avenues. Impact Investing As compared with ESG and SRI, another type of investing that is getting popular and has also been encouraged by the 2019-20 Finance Budget of the country. #ImpactInvesting, also called thematic investing, is a type of investing that generates positive outcome in the form of a tangible social good. It aims at helping socially responsible businesses to achieve their goals that are directed towards benefiting the society or environment. Examples of impact investment would be fund an NGO that is carrying on R&D in drinking water in water scarce areas, or clean energy in polluted regions or those aiming to solve the problem of air pollution in Delhi and so on. ESG vs. SRI vs. Impact Investment from Investor’s standpoint From the point of view of investing, ESG and SRI are often used interchangeably. In reality the two are quite different and ESG investing is a competitive alternative to sustainable investing. Impact Investment is one step ahead. While ESG is all about making investment portfolio looking ‘less bad’, SRI is about choosing to invest in companies that are making a positive contribution in the world, and Impact Investment is about steering positive changes in the society in areas that lack attention. In #ESGinvesting investors base their investment decisions on the extent to which environmental, social and governance risks and opportunities can materially impact a company’s performance. Such investors manage to have a balance between investing sustainably and getting the same financial returns as they would with a traditional investing approach. SRI on the other hand focuses on companies that make a positive social change. While the financial return of companies is given the secondary importance, the ethical and moral value of the companies is given the primary importance in SRI decisions. Impact investing seeks to help socially responsible businesses to achieve their goals which aim at social or environmental benefit. Bottom line Sustainable investing approaches like ESG investing, SRI and Impact investing are gradually gaining popularity among investors. Study shows that the popularity of socially motivated and ethical investment is especially high among millennials. This shows the utmost importance for companies to incorporate ESG performances parameters in their businesses to start with. The move of #SEBI to introduce Business Responsibility and Sustainability Reporting (BRSR) for Indian listed entities on a voluntary basis from FY 2022-23 and mandatory reporting on Environmental, Social and Governance (ESG) performance for the top 1000 listed companies from FY 2023-24 is a step in the right direction and in time.

  • CSR Audit vs Corporate Responsibility Index

    The Government of India is in the process of overhauling the Corporate Social Responsibility (CSR) framework. To ensure better compliance of CSR provisions, it is planning to move to an audit regime soon. While traditionally the role of the Ministry of Corporate Affairs has been that of a Facilitator and a Regulator, with the coming of the CSR mandate, it has now become a Developer as well, and through CSR investments it is taking part in socio-economic development of the country. And in doing so, it now wants to move from the softer to the stricter regime. It may be noted that for CSR violations during the year 2014-15 only, 254 companies are facing prosecutions as of now. This shows the commencement of a stricter regime. The idea is to add quality dimension to CSR investment of companies to ensure that there is actually a social impact of projects undertaken. In the recent times a lot of changes have been introduced in CSR-related law in the country. Spending on CSR is now mandatory and any amount remaining unspent has to be mandatorily transferred to the Government-designated funds. Henceforth there is no escaping the liability to spend on social causes for companies hitting the eligibility criteria u/s 135 of the Companies Act 2013. In addition, Impact Assessment (which is very much in the nature of a social audit), has already been prescribed for certain companies. Further, CSR 1 and CSR 2 forms have been introduced in order to bring more clarity and transperancy and in order to ensure due diligence with CSR provisions by eligible companies. To add to all these, penal provisions have also been introduced for non-compliant companies. To further give a fillip to all these initiatives, SEBI has also proposed Social Audit and Social Stock Exchange to list social entities carrying on social developmental activities. Furthermore, there are also discussions about introducing a public rating-based evaluation of CSR performance of companies, which seems to be somewhat in the line of Corporate Responsibility Index. In this article I have discussed both CSR Audit and Corporate Responsibility Index in some detail. What is CSR Audit? Corporate social audit is an assessment of a company's performance on its corporate social responsibility objectives. In a company’s CSR activities bucket if there are measurable goals, the CSR Audit helps it measure the extent to which the goals were successfully achieved and how far the company succeeded in meeting the expectations of its stakeholders w.r.t. its social and environmental responsibilities. It helps measure the company’s actual social performance against the social objectives it had set for itself, and how the management’s decision making, mission statement and business conduct are aligned with social responsibilities. CSR audit also helps in discovering the interests and objectives of a company’s employees and stakeholders. In other words CSR Audit measures the social return on CSR investment. Companies that give importance to their social responsibility would like to know how well they have performed. In such cases CSR Audit can help it measure its actual social performance against the social objectives it had set for itself. Research has shown that integrating CSR in business strategy contributes to the following: Positive brand awareness Increased employee satisfaction Reduced operating costs Improved community relations Corporate accountability Enhanced investor reliance While day to day monitoring of CSR activities may be difficult for organisations, evaluation of its social responsibilities vis-à-vis activities undertaken are also important. This is due to many reasons. First, the management wants to assure itself that activities as planned are being rightfully taken up and effectively implemented. Second, because governmental priorities and social needs change, which calls for attention of corporate citizens. Third, social responsibilities and activities are open to intense public scrutiny. Fourth, it involves money and the investment in social responsibility should not go wrong. Hence it becomes important to do periodic evaluation to know whether the company is hitting the mark, or falling short of the expectations of stakeholders and its own objectives. Such periodic evaluation would be termed as CSR Audit. It is not mandatory in India, but many companies do voluntarily go for such evaluation and impact assessment of its social initiatives. How and where to start? As long as CSR Audit is not mandated, a company may choose to have the auditing process conducted internally by the employees. To have an independent opinion, a company may also go for audit by an outside consultant who has relevant expertise. This will also add value and bring credibility to the evaluation. Stakeholders and the public in general will also have more reliance on an outsider’s audit and opinion. CSR Audit stages The following would be the suggested steps for CSR Audit: Definition of the depth and scope of the audit assignment based on the goal of audit Launching the assignment to employee(s) or an external agency Interviews of all the CSR stakeholders to understand the impact Analysis of all the CSR activities and assessment of social performance Comparison with benchmarks laid by leaders in the industry as also companies in other industries that are complying with similar social responsibilities If some projects have failed, the reason therefor Where projects have been successfully executed, how they could be made better Delivery of the Audit Report Does Your Company ‘Walk-the-Talk?’ This would mean evaluating whether the company strictly follows the CSR guidelines and objectives laid by it (as also the legal requirements in the Indian context). CSR Stakeholders Government – Adherence to legislations, Information Disclosure, & Environment Protection Employees – Safety, Health & Environment Customers – Quality control & Customer satisfaction Shareholders – Proactive communication & Information disclosure Suppliers – market information exchange (valued business partners) CSR Audit framework To demonstrate good corporate citizenship, companies in India can voluntarily go for CSR Audit and in the absence of any specific Audit guidelines or auditing standards, companies may report in accordance with a number of globally accepted CSR reporting standards that include: AccountAbility’s AA100 standard Global Reporting Initiative’s Sustainability Reporting Guidelines Verite’s Monitoring Guidelines Social Accountability International’s SA8000 standard Green Globe Certification / Standard The ISO 14000 environmental management standard The FTSE Group – FTSE4GOOD Index The United Nations Global Compact – Communication on Progress (COP) Report The Audit Report On completion of the CSR audit, a company may choose to keep the report for use of the management only, or make it public. Some companies come up with a periodic CSR Report and they may choose to publish the audit report in it. The same may also be made available on the website for the knowledge of all the stakeholders in general. For listed companies this report is all the more important to make public. For some companies the audit report may be just a document helpful in monitoring and evaluating the company’s social performance, for others it may be a means of judging the external environment to find out as to how vulnerable the company is. For yet others the audit report is helpful in gaining an edge over competitors. Some companies may decide to exclusively use the Audit report for internal training purposes only towards the end of bettering its future social performances. Based on a company’s audit findings, the management may brainstorm on how to do the CSR projects better in order to have greater impact and how to select projects in order to strategically set the company apart. It may focus on areas that need improvement and those that may be carried on the way they have been done. The audit report may also focus on the community issues that are likely to affect the company’s business and what role the company would like to play in resolving them. The management may also like to rework the timeline for project implementation. Benefits of CSR Audit There are many benefits of getting a CSR Audit done, even if not required by law. Not only does CSR Audit provide information to analyse the performance of the company’s social projects it also helps to single out the areas that need improvement to achieve the desired organizational goals. The cost incurred in getting the audit done may thus be rightfully treated as business expenditure. The following are some of the key benefits a company may derive from the audit: Helps lower the chances of failure of CSR projects Helps plan the proper implementation of the programme Determines the long term impact of social projects Assesses the impact of the organization on the society Provides important data to communicate to the stakeholders for positive impact Enhances the efficiency of operations by lowering loopholes, bureaucracy and corruption Helps to ensure optimum utilisation of available resources including manpower Brings awareness among management and employees for using sustainable approach in their work Helps reduce the operation costs in the long term Serves as a way of communicating with various stakeholders Helps identify unproductive projects vis-à-vis the productive ones Ensures that CSR projects are not duplicated CSR Audit in India As of now the CSR Audit is not mandatory in India. But discussions are going on in this line for introducing CSR Audit. Audit of welfare projects have already been initiated with teams headed by eminent persons. A Government level CSR Committee is expected to be formed in this regard and it is expected to have eminent person, technology experts and NGO representatives on board. The Committee will ensure compliance of CSR law. Since discussions are at the very initial stage, it is not clear as to what type of audit will be proposed for CSR. It may be in the form of an audit by third party agencies (like Statutory Audit, Secretarial Audit and Cost Audit) or a Social Audit in the form of projects rating by the society. Further, it is yet to be seen whether the audit will be in the form of a compliance audit like the examples stated earlier, or will it be audit of impact assessment of projects only. Ideally, it should be a combination of both. What is Corporate Responsibility Index? It is a strategic management tool that is aimed at enhancing the capacity of businesses to develop, measure and communicate best practice in the field of corporate social responsibility. This is done through benchmarking corporate social responsibility strategy and implementation process. The CR Index was created by more than eighty leading businesses in the UK and Business in the Community, which is a unique movement of 700 member companies committed to continually improving their positive impact on society. Launched in 2002, the CRI provides a standardized method and question set through which companies can report on their ethical and environmental performance, and the extent to which responsible business is integrated into their strategy. It does not cover the normal business operations of the company. At present the CRI is in the form of an online questionnaire, where the index covers four areas: corporate strategy, integration, management and impact (which covers six environmental and social impact areas) with questions on everything from diversity policies to carbon emissions reduction goals. Points are awarded to companies for individual questions from which they are given percentage scores for each area. Then the total is drawn to find the company’s overall percentage score. Thereafter the performance bands, viz. Bronze, Silver, Gold, Platinum or Platinum Big Tick, are awarded to the companies. Continued high scoring year after year would suggest that a company is maintaining commitment to a responsible business agenda. The Questionnaire is devised in such a manner that it would encourage more and more companies to participate. It is a big challenge to keep the questionnaire detailed enough and at the same time not making it boring. While the existing CRI is a questionnaire-based, the same may also be made social audit-based. Similar data about a company’s performance may be gathered from the public which can rate the projects of companies on the lines of hotel or film ratings online. The government of India is probably looking at introducing this kind of a rating at the moment as per the latest reports published. Benefits of Corporate Responsibility Index Whether incorporating the Corporate Responsibility Index in Annual Financial Statements would be beneficial for a company or not needs to be seen. But apparently, the following would be the benefits of CRI: Simple exercise resulting in evaluation of CSR projects The index is easy for stakeholders to understand and have an idea about the company’s performance Involvement of the public at large indicates zero bias Companies will tend to be more responsible if the grading is in the hands of the society Duplicity, delay and inefficiency of projects may be checked Chances of failure of CSR projects will be lowered Long term impact of social projects can be assessed The impact of the organization on the society can be evaluated Optimum utilisation of available resources including manpower will be ensured There will be awareness among management and employees for using sustainable approach in their work. There will be reduction in the operation costs in the long term Conclusion For a country like India, mandatory CSR seems to be a step in the right direction. But the codification is definitely poor. We are in a Trial and Error phase with not much of specific guidelines to follow. The coming years will see a lot more stringency and clarity of provisions. If any monitoring mechanism like CSR Audit or Corporate Responsibility Index is introduced, CSR law compliance will also shoot up. Until then we can ‘Wait and Watch’.