Insights Archives - S&R Associates

Building Bonds: The Mechanics of India’s Debut Sovereign Green Issuance

Insights | January 24, 2023 | Practice Area: Banking and Finance, Capital Markets, Clean Energy, Regulatory

India’s debut issuance of sovereign green bonds by auction provides a significant opportunity to ascertain the current market appetite for such sustainability-linked initiatives, including among institutional investors. Indeed, such bonds have been successful in the past in the context of an eclectic set of sovereign issuances. Among other things, standards established by such issuance may lead to welcome improvements in the Indian bond market in general terms. For instance, Indian companies may want to ride on enhanced credibility standards, as applicable, and seek to better address persistent concerns related to greenwashing. Such broad advantages notwithstanding, in this piece, we look at some of the finer details related to India’s debut sovereign green bond issuance.

Global Investigations Review: The Guide to International Enforcement of the Securities Laws (Second Edition)

Insights | January 23, 2023 | Practice Area: Anti-Corruption, Fraud and Investigations, Litigation and Arbitration

We are pleased to present the India chapter of the Global Investigations Review’s Guide to International Enforcement of the Securities Laws (Second Edition). The India chapter has been authored by Niti Dixit, Shahezad Kazi, Zahra Aziz and Gladwin Issac, all lawyers at S&R.
The India chapter provides information on relevant statutes and the government authorities responsible for investigating and enforcing them, conduct most commonly the subject of securities enforcement, and legal issues that commonly arise in enforcement investigations in India.

Renewed Challenges to the IBC Distribution Waterfall

Insights | December 28, 2022 | Practice Area: General Corporate, Mergers and Acquisitions, Regulatory, Restructuring and Insolvency

The Insolvency and Bankruptcy Code, 2016 (“IBC”) ushered in a new era in the Indian insolvency regime by introducing a distribution waterfall mechanism under Section 53 of the IBC. The waterfall mechanism prioritizes dues owed to financial creditors over dues owed to operational creditors and government authorities.
The waterfall mechanism in the IBC is based on the recommendations of the Bankruptcy Law Reforms Committee. The preamble to the IBC also highlights its objective of balancing the interests of the stakeholders, including by alteration in the order of priority of payment of government dues.
There has recently been a rising trend of courts and tribunals seeking to deviate from the distribution waterfall under the IBC. Unfortunately, this tends to put the success of an insolvency resolution process at risk. In this note, we examine three recent examples and discuss why any such deviation could disturb the delicate balance sought to be achieved under the IBC.

The Promise of ‘Virtual’ Power Purchase Agreements

Insights | December 9, 2022 | Practice Area: Clean Energy, Corporate Governance, Regulatory

In the US and elsewhere, ‘virtual’ power purchase agreements (VPPAs) have appealed to a wide variety of corporate buyers, including for the purpose of meeting renewable energy (RE) targets quickly. Further, compliance with ‘green’ mandates by procuring renewables through a VPPA has become an important element of business branding across the world. With regard to India, too, recent reports suggest that VPPAs are essential to meet corporate needs and wants, particularly in the country’s expanding commerce and industry (C&I) segment.
However, in response to investor demand with respect to environment, social, and governance (ESG) standards, if a company seeks to shift completely to RE, it may not be able to do so for various reasons, including on account of inherent risks in RE generation. Further, ‘physical’ PPAs are not viable for projects below a logistical minimum. Accordingly, C&I consumers with lower load requirements and/or fragmented demand may not yet have a cost-effective mechanism to procure RE, despite India’s newly democratized ‘open access’ regime. In this regard, VPPAs may still be the answer.
Nevertheless, given that your company needs/wants to acquire or generate RE – should, and can, you enter into a VPPA in India?

Bilateral Courts: Wooing Europe with Investor-friendly Free Trade Deal

Insights | December 7, 2022 | Practice Area: Litigation and Arbitration, Mergers and Acquisitions, Regulatory

Negotiations between the EU and India in respect of a significant trade and investment deal are currently ongoing. This EU-India deal involves three separate agreements: (1) a free trade agreement (FTA), (2) an investment protection agreement (IPA), and (3) an agreement on geographical indications. Of particular interest is the proposed investment court system (ICS) in the IPA. Although ICS marks a break from standard dispute-resolution mechanisms under investment treaties, it has been used by the EU in the past across FTA-plus deals signed with Canada, Vietnam, and Singapore. Previously, investor-state arbitration (ISA) was the standard template for resolving international investment disputes. Now, the EU wants to include ICS in all its future treaties. While it remains to be seen whether ICS offers a superior paradigm relative to ISA, the EU itself has argued, including before UNCITRAL, that ICS will ensure a more consistent jurisprudence and improve judicial accountability. Nevertheless, as India looks to export more capital in the future, whether ICS will be able to protect investors better in the long run is something that India needs to think about.

Liberalized Rules for Overseas Investment by Indian Entities: Laying the “Round Tripping” Ghost to Rest (or not just yet)

Insights | December 5, 2022 | Practice Area: General Corporate, Mergers and Acquisitions, Private Equity

Although the objectives of the erstwhile restriction on “round tripping” were laudable, such restriction had an unintended chilling effect on legitimate transactions. The new overseas investment regime introduced in August 2022 eases such restriction to a large extent. However, certain interpretational issues remain.

How Green is Your Money? Capitalizing on Indian Renewables

Insights | November 29, 2022 | Practice Area: Banking and Finance, Clean Energy, Mergers and Acquisitions, Private Equity, Regulatory

Consistent with India’s ambitious climate-related targets, significant investments are being made in the domestic renewable energy sector, driven largely by private sector activity. Acquisitions and bonds represent a large portion of this capital, along with foreign equity, traditional loans, and mezzanine financing. Enabled by an encouraging FDI regime as well as locally-targeted regulatory schemes – such as incentives introduced by the government to bolster domestic capacity and manufacturing – self-sufficiency and foreign capital now constitute an integrated ecosystem. Along with conventional means of financing, newer frameworks such as infrastructure investment trusts specifically set up in the renewables space could be better explored in the future, especially in light of the urgency with which India needs to catch up towards its climate targets. Legislative changes in respect of the power markets – such as those related to trading in renewable energy certificates (RECs) – may also be curated by appropriate regulatory bodies to expand upon existing revenue streams.

Vidarbha Industries v. Axis Bank: An Unsettling Literal Interpretation

Insights | November 25, 2022 | Practice Area: General Corporate, Regulatory, Restructuring and Insolvency

The enactment of the Insolvency and Bankruptcy Code, 2016 (“IBC”) marked a historic shift in India’s insolvency regime shifting the focus from recovery to resolution. The Bankruptcy Law Reform Committee (“BLRC”) reports highlighted the need for the legislative policy to initiate a resolution process at the instance of default to prevent erosion of value. Keeping this objective in mind, the IBC lays out a party driven process which places the creditors at the helm of the resolution procedure.
The Supreme Court of India (“Supreme Court”) has repeatedly held that keeping in mind the objectives of the IBC, the adjudicating authority at the stage of admission into the corporate insolvency resolution process needs to restrict its analysis to: (1) the existence of debt and (2) default in payment of debt. However, on July 12, 2022, the Supreme Court in Vidarbha Industries Power Limited v. Axis Bank Limited (“Vidarbha”), relying on the use of the word “may” in the relevant statutory provision, applied the literal interpretation test and held that National Company Law Tribunal has the discretion to admit an application after it is satisfied regarding the existence of debt.
This judgment, which departs from precedent, could have serious consequences for the insolvency regime in India. This note discusses the implications of a literal interpretation test in context of Vidarbha and highlights the need for an intervention to avoid the mistakes of the past.

The Continued Rise of Renewable Corporate PPAs in India

Insights | November 23, 2022 | Practice Area: Clean Energy, Corporate Governance, Regulatory

‘Corporate’ Power Purchase Agreements (PPAs) – as opposed to traditional models of energy procurement by state-owned electricity distribution companies – have proliferated over the past few years. With respect to renewable energy (RE) in particular, India appears to have witnessed one of the largest spikes in the world. Why are so many corporate PPAs getting signed here? Why now, and why specifically with respect to RE? Will this trend continue, and if so, what are the things to look out for? This note seeks to address such questions, including in light of recent (and anticipated) legislative and regulatory developments.

Great Expectations: India’s Tryst with Climate Change

Insights | October 7, 2022 | Practice Area: Clean Energy

India appears to be on the right track in respect of its accelerated pivot towards renewable energy (RE). However, going by present trends, national capacity-addition with regard to RE is not even close to the annual rate required for achieving its ambitious climate-related targets. Even as the country remains poised to witness a massive increase in electricity demand over the next few decades, in order to remain on a sustainable path, it needs much more funding than what is available in the current policy environment. Further, significant foreign investment is essential to address a developmental change as paradigmatic as achieving carbon-neutrality, especially given the country’s fundamental anxieties related to local industry and energy security. While its climate-related initiatives have mainly been funded through domestic capital so far, India now requires, in addition, both capital and technology from outside. Accordingly, sovereign and international development finance institutions, as well as foreign lenders and investors, need to play a key role towards funding India’s clean energy transition, over and above the government’s own legislative and regulatory interventions.