Tuesday, July 19, 2011

Miscellaneous

The following developments and readings may be of interest:

1. Sahara: Public Offering vs. Private Placement

We have been following the Sahara case as it involves the crucial question of what differentiates a public offering from a private placement of securities under Indian company law and securities regulation. Newspaper reports (here, here and here) indicate that the Supreme Court has now asked the company to approach the Securities Appellate Tribunal (SAT) for a determination rather than the High Court of Allahabad (as it has done in the past).

The Supreme Court is said to have underscored the importance of the issue:
We are asking for an early hearing because this is a very important matter. It [is] a fundamental question of law.
This development at least indicates that the dispute is likely to be resolved in a more focused manner. Since SAT is the appropriate authority to examine appeals from SEBI, the matter should perhaps never have been taken to the High Courts in the first place from SEBI’s initial order (although that may have been due to the company’s challenge of SEBI’s jurisdiction).

2. SEBI Actions

Mobis Phillipose has an interesting analysis on the tough stance adopted by SEBI in the Sahara case as well as in the public offering process involving another company, Vaswani Industries Ltd.

In terms of due process, SEBI has begun the practice of permitting alleged offenders to cross-examine witnesses.

3. SEC’s Actions Against Outside Directors

The Harvard Law School Forum on Corporate Governance and Financial Regulation has a detailed post on recent actions initiated by the US SEC against outside (independent) directors of public corporations. Although the discussion largely pertains to relevant US securities regulation, there are some general ideas regarding possible mitigating steps directors may undertake at the time of joining public company boards and during their tenure.

4. Infrastructure Finance

A number of new ideas are being floated for filling the current gap in financing infrastructure development. One that is fructifying is the infrastructure development fund, although that is subject to shortcomings. Some have even lamented the conversion of developmental financial institutions (DFIs) (that earlier performed this role) into banks.

5. FDI in Retail

The discussions to allow foreign direct investment (FDI) in multibrand retail seem to be advancing at a rapid pace, with expectation of some kind of policy pronouncement from the Government in the near future. This post in the Critical Twenties Blog contains a recent analysis.

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