[aaykarbhavan] SC judge, ex- Sebi chief rap new Companies Act

New Delhi, 21 August

The Companies Act, 2013, was made in undue haste and exposes Parliament's
lack of expertise in law making, said Supreme Court judge A K Sikri here on
Thursday.

He wasn't the only eminent person who criticised the new law, at a book
release function. MDamodaran, former Securities and Exchange Board of India
( Sebi) chairman, termed it " an excellent piece of badly drafted
legislation".

All speakers before him, noted Sikri, agreed that this was a law " made in
haste".

Each word in a law should be thoroughly explained, he said. Adding: "
Ninety per cent of parliamentarians don't even know what are the
intricacies of law. So, where is the will of Parliament?" "Of course, such
a law is not an exception," he said. " One good example has been last week,
one law which has been made. I won't say much about that," implicitly
criticising the way the National Judicial Appointments Bill, 2014, was
passed in Parliament last week.

On the new Companies Act, Sikri said this was a case where we'd been trying
since 1999 to bring a new law. " And, after so much of exercise, what have
we got ultimately?... that there is no thinking behind it," he regretted.

He also sounded a word of caution that one should be careful of relying too
much on the National Companies Law Tribunal ( NCLT), yet to be notified
after enactment of the Companies Act. " I dread that there would be so much
given to NCLT and whether it can handle it or not," he said.

"Tribunalisation of justice is the order of the day but whether we are
delivering on it or not must be debated," he added.

Sikri, also a former head of the Punjab and Haryana high court, also
expressed disappointment between the differences over the law between the
ministries of finance and corporate affairs.

As for Damodaran, he said laws should be clear and concise, "so that every
morning we do not wake up knowing of regulations and laws, each drafted
worse than its predecessor, and providing proof of old statement...

that language was given to man to conceal his thought, not express it."

MDamodaran, former Sebi chief, said various provisions in the Companies Act
2013 require more consistency and clarity, especially those related to CSR
norms and role of independent

directors. BS PHOTO



Related- party rule dilution panned as anti- investor


NSUNDARESHA SUBRAMANIAN

New Delhi, 21 August

Two rounds of dilution to the rules governing related party transactions (
RPTs) under the new Companies Act are loaded against small investors. And,
subvert the legislature's intent to regulate such transactions, many of
which often end up enriching promoters at the cost of small investors.

Governance firms and institutional investors have criticised the ministry's
move and have demanded a review.

The Companies Act, 2013, enacted in August last year had made RPTs a focus
area. The ministry of corporate affairs (MCA) had come up with stringent
rules governing these, in March this year. These rules provided for several
rounds of approval and disclosures of a wide range of transactions that
companies enter into with relatives of promoters, entities controlled by
promoters and entities controlled by relatives of promoters. Governance
activists and small investors celebrated these moves as empowerment of the
small guy.

However, their joy was short lived. Following representations from the
companies, which claimed that these rules will hamper the ' ease of doing
business', the ministry made substantial changes to the rules, not just
once but twice.

The first such change came on July 17, when the ministry in alengthy
circular clarified the definition of what constitutes a related party for
the purpose of voting. Through this circular, MCA clarified that a
shareholder will be considered a related party only with reference to a
contract/ arrangement for which the ' said special resolution' is being
passed.

"This has led to a more aggressive interpretation being applied by
corporates who now take it to mean interested parties.

This enables a large set of shareholders who are likely to benefit but are
not " related" in alegal sense, to vote their shares," proxy advisory firm
Institutional Investor Advisory Services ( IiAS) said in a note.

This was not all. On August 14, the ministry came up with a fresh round of
dilution, wherein it revised the thresholds for approvals through special
resolutions.

JN Gupta, managing director, Stakeholders Empowerment Services, said, " I
feel RPTs are misused by companies and the new law was a welcome change.
However the two dilutions we have seen in recent past would make the law
ineffective specially the defining the related party as the person
interested in transcation. This would facilitate all family owned companies
using it effectively to thwart the law. Relaxing the rules relating to
definition of RPTs, unless there are serious procedural issues the same
shall not be diluted. A new law always brings teething problem, solution
lies in facilitating teething rather than taking teeth out." Navneet Munot,
director, advocacy, Indian Association of Investment Professionals, said: "
Significant dilution would not go down well with the investors." Munot, who
is also the chief investment officer at SBI Funds Management, one of the
largest mutual funds in the country, added the regime was intended to build
the trust of investors in the market and such moves would be detrimental to
the trust.

Minority investors, including institutional investors, had successfully
blocked a resolution proposing high remuneration for top executives of Tata
Motors in July this year. However, following the dilution of the rules, not
many such efforts would be successful.

Both Gupta and IiAS pointed out how in recent annual general meetings of
JSW group firms, the dilution of rules came to the rescue of a proposal to
pay a significant sum as brand royalty to an entity owned by wife of the
promoter.

In the AGM of JSW Energy, the promoters voted only 0.1 per cent of their
holding. By July 31, when JSW Steel's AGM came, the promoters were able to
absorb the changes of the July 17 circular better and voted 85.4 per cent.
This was because under the new rules, only the wife's firm did not vote,
whereas all other firms could.

IiAS has called for the ministry to review its stand. " In passing the 2013
Act, the MCA promised to raise the bar on corporate governance, with RPT
being an area of focus. This tweak tilts the balance significantly against
investors and away from the goals the MCA set for itself. " The ministry
needs to review its current stance, and renew its promise to investors," it
said.



--




A.Rengarajan

Company Secretary

Chennai

93810 11200

"
LET US SUPPORT COMPANY SECRETARY BENEVOLENT FUND FOR COMMON CAUSE


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