ESG ratings and third-party data products have played an important role in the ESG ecosystem so far, especially in the absence of consistent and comparable issuer disclosures. Even though investors are increasingly relying on the ESG ratings to determine a company’s performance on ESG issues and to gauge the ESG related risks, the current rating systems have low reliability due to the lack of transparency and inconsistency in rating methodologies. To address these deficiencies, the International Organization of Securities Commissions (“IOSCO”) tabled a report on ESG Ratings and Data Products Providers (“IOSCO Report”), encouraging individual jurisdictions to adopt a global reporting baseline for investor oriented ESG rating system. The Securities and Exchange Board of India (“SEBI”) has released a consultation paper dated January 24, 2022, on ESG Rating Providers for Securities Markets (“Consultation Paper”) taking into account the recommendations made to the regulators in the IOSCO Report. This note aims at understanding the concept of ESG ratings and the need for their regulation. This note further explains (i) the issues in the current system of ESG ratings being provided by ERPs as identified by SEBI in its Consultation Paper; and (ii) the framework being proposed in the Consultation Paper to develop a legal regime for regulation of ERPs in India.
The need for addressing Environmental, Social and Governance (“ESG”) related aspects, has never had more prominence than now. There is growing recognition of the financial and economic impacts of ESG risks across the globe and the investors are increasingly relying on ESG as an important metric to guide their investment decisions. Internationally, regulators and enforcement agencies are taking greater cognizance of ESG related issues and a more stringent view of non-compliances or greenwashing by any business regarding their ESG credentials. The impact of climate change, requirement of good governance and protection of interest of various stakeholders are increasingly forming part of various formal and informal dialogues, particularly in the post COVID era. At the 2021 United Nations Climate Change Conference (“COP-26”) held in Glasgow, United Kingdom, India, along with 196 other countries made enhanced commitments towards mitigating the risks associated with climate change. The recent legal developments have demonstrated that the regulatory landscape for ESG in India has developed at a measured but regular pace and the Indian regulatory authorities are now catching up on the ESG trends that have been ongoing at a global level. With so much being said and done in relation to ESG on a day-to-day basis, it is sometimes difficult to focus on the real issue. This note aims to explain the concept of ESG and provides a brief overview of the Indian regulatory landscape in relation to ESG.
Governmental authorities in India have, from time to time, implemented various measures to facilitate ease of doing business for companies operating in India including, inter alia, by way of amendments to the Companies Act, 2013 (the “Act”). In the past 1 (one) year, these reforms have focused on introducing new mechanisms for swift adjudication of offences, and decriminalization and rationalization of criminal penalties, particularly in relation to minor, technical or procedural non-compliances under the Act.
The objective of decriminalization and recategorization of offences that was introduced by the Companies (Amendment) Act, 2019 is now sought to be augmented by the Companies (Amendment) Bill, 2020 (the “CAB 2020”) which was recently presented in the Lok Sabha on March 17, 2020. CAB 2020 has, amongst other matters, proposed amendments in respect of decriminalization of various compoundable offences and rationalization of penalties prescribed under the Act. CAB 2020 is currently awaiting legislative consideration.
In this note, we discuss the continuing efforts of the Indian governmental authorities towards streamlining the processes for dealing with certain non-compliances under the Act, and analyze if the critical changes proposed by CAB 2020 for further decriminalization of offences and alteration of penalties under the Act is a step in the right direction.
Following the outbreak of COVID-19 pandemic, the role of directors and senior management in taking appropriate measures, addressing concerns of various stakeholders and ensuring business continuity has become more important than ever. Directors and senior management should not only be cognizant of their duties and responsibilities during these turbulent times but also be mindful of the immediate and long term repercussions of their decisions on their respective businesses.
In recent times, there has been a deluge of orders, guidelines and notifications that have been issued by the Central government, state governments and various regulators in India to guide its citizens and the business corporations through the issues evolving in the course of COVID-19 pandemic. This note briefly sets out the key corporate governance and other related matters that the decisions makers should consider when responding to the COVID-19 pandemic and guiding their businesses through the lockdown and thereafter.