On 3-7-2023, the Security and Exchange Board of India (‘SEBI’) introduced the Securities and Exchange Board of India (Credit Rating Agencies) (Amendment) Regulations, 2023 to amend the Securities and Exchange Board of India (Credit Rating Agencies) Regulations, 1999. The provisions came into force on 3-7-2023.
Key Points:
Chapter IV A concerning solely the Environmental, Social, and Governance Ratings (‘ESG’) Rating Providers that mention rules for application, registration, confidentiality etc. has been inserted:
1. Rule 28 A (Application)– It says that the provisions of these regulations, except chapters II, III, and IV would be applicable to ESG rating providers. Further, the provisions of this chapter would apply only to ESG rating providers covered in the Fourth Schedule. Also, any reference to a “credit rating agency” under chapters I, V, VI and VII should also be construed as a reference to an “ESG rating provider”.
2. Rule 28 B (Definitions)– The following rule covers the definition and explanation of the words “client, environmental, social, and governance ratings or “ESG ratings”, ESG Rating Provider, Net worth, liquid net worth, liquid asset, issuer, promoter”.
3. Rule 28 C (Registration of ESG rating providers)– It says no person can act as an ESG provider unless he has obtained the certificate from the board.
4. Rule 28 D (Application for grant certificate)– Any person who intends to undertake business as an ESG rating provider, needs to make an application to the Board for the grant of certificate in Form A of Fifth Schedule Fifth Schedule. Rule 28 H mentions the conditions for the certificate.
5. Rule 28 E lays down the eligibility criteria for the purpose of the grant of certificate, accompanied by what further information, clarification and personal representation need to be furnished by the applicant given under Rule 28F.
6. Rule 28 L mentions the rating process and monitoring of ESG rating based on internal resources, incorporation of the environmental, social and governance aspects that are contextual to the Indian market.
• Have written policies, procedures and internal controls to ensure that the processes and methodologies are rigorous and systematic, are consistently applied, and are periodically reviewed and updated.
• Adopt and implement written policies and procedures to ensure the issuance of high quality ESG ratings based on publicly available information.
• Have efficient systems to track material developments related to environmental, social and governance factors to ensure timely and accurate ESG ratings
• Attempt to continually improve information gathering processes in respect of the issuers and securities rated by it etc.
• The ESG ratings would be reviewed frequently by the ESG Ratings provider following the procedure mentioned under Rule 28 M.
• Rule 28 O says that the ESG rating while disclosing ESG ratings, also needs to disclose the definitions of that ESG rating, along with the symbols; and explicitly state that the ESG ratings do not constitute recommendations to buy, hold or sell any securities.
7. Rule 28 N– It specifies the internal procedure and systems that need to be framed for monitoring the trading of securities by its employees in the securities of its clients, in order to prevent contravention of the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 2015, the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to the Securities Market) Regulations, 2003; and other laws relevant to trading in securities
8. Rule 28 P– It says that the ESG rating provider needs to furnish such information to the board as may be called for, by the Board including any report relating to its activities, within such period as may be specified by the Board and at the close of each accounting period, furnish to the Board copies of its financial statements.
9. Rule 28 Q– It says thatthe ESG rating provider needs to appoint a compliance officer who would be responsible for monitoring the compliance of all the applicable laws and who would immediately and independently report to the Board of any non-compliance observed by him or her.
10. Rule 28 R needs every ESG rating provider to keep and maintain, for a minimum period of five years, the following books of accounts, records and documents
• A copy of its financial statements as on the end of each accounting period.
• A copy of the auditor’s report on its accounts for each accounting period.
• A copy of the agreement entered into with each client.
• Information supplied by each of the clients.
• Correspondence with each client.
• ESG ratings assigned to various issuers or securities including up- gradation and down gradation (if any) of the ratings so assigned etc.
11. Rule 28 S provides that every ESG rating provider needs to take steps to rectify the deficiencies made out in the report.
12. Rule 28 T – It says that every ESG rating provider needs to treat the information supplied to it by any person as confidential and shall not disclose the same to any other person except where such disclosure is required or permitted by or under any law for the time being in force or the ESG rating provider has obtained the consent, in writing, of the provider of information.
• The ESG rating provider shall not use the confidential information, shared by any person for any purpose other than ESG ratings, for undertaking ESG ratings, unless the ESG rating provider obtains consent, in writing, from the provider of the information.
• Also, The ESG rating provider needs to adopt and implement written policies and procedures to protect all non-public information received related to their ESG rating products.
13. Rule 28 U (Restriction on shareholding in an ESG rating provider)- It says that an ESG rating provider shall not: (a) directly or indirectly, hold ten per cent. or more shareholding or voting rights in any other ESG rating provider, or (b) have representation on the board of directors of any other ESG rating provider. But it is provided that an ESG rating provider may, with the prior approval of the Board, in the interest of investors, market integrity and stability, acquire shares or voting rights exceeding ten percent. in any other ESG rating provider if such acquisition results in a change in control in the ESG rating provider whose shares are being acquired.
14. Rule 28 V– It says that entities connected with a promoter or a rating agency not to be rated.
