SEBI’s Stance on Crowdfunding Platforms

On 30 August 2016, the Securities and Exchange Board
of India (SEBI) issued a press release titled “SEBI
Cautions Investors
”. It covers various matters pertaining to the stock
markets. One issue pertains to the question of leagues/ schemes/ competitions that may involve distribution of prize
monies, which has been the subject matter of an earlier
post
on this Blog.
Another aspect of SEBI’s
press release pertains to electronic platforms used by companies for the
purpose of raising funds. The release states:
B.     UNAUTHORIZED ELECTRONIC PLATFORMS
It has also come to the notice of
SEBI that certain electronic platforms are facilitating fund raising on digital
platforms like websites and other internet platforms, which are similar to the
platforms of stock exchanges. These digital platforms are neither authorized
nor recognized under any law governing the securities market. The electronic
platforms are allegedly facilitating investment in the form of private
placement with companies, as the offer is open to all the investors registered with
the platform amounting to a contravention of the provisions of Securities
Contract (Regulation) Act, 1956 (SCRA) and the Companies Act, 2013. Only
recognized stock exchanges provide a platform where equity and other securities
issued by companies are listed and traded in accordance with the provisions of
the SCRA. The details of SEBI recognized stock exchanges are available on the
SEBI website www.sebi.gov.in.
This warning strikes at the heart of equity crowdfunding
whereby electronic platforms are utilized for fundraising by companies and also
for trading of securities already issued. As a news
report
in the Economic Times indicates, a handful of electronic platforms
facilitating equity crowdfunding already exist in India, and their continued
operation may come under SEBI’s scanner given its new thrust towards curbing
their efforts. The report also portends the downfall of the equity crowdfunding
market in India.
SEBI’s restrictive approach towards fundraising through
electronic platforms is not at all surprising. As Arjya Majumdar and I had
examined in a recent paper “Regulating
Equity Crowdfunding in India: Walking a Tightrope
”, the current legal
climate for equity crowdfunding does not facilitate the full utilization of
that concept. This is due to the fact that the Companies Act, 2013 as well as
the SEBI Act, 1992 carry considerably tight restrictions on the ability of
companies (including private companies) to offer securities. These come on the
back of episodes such as Sahara and others involving collective investment
schemes. SEBI’s approach in this press release is consistent with our findings
in the paper where we take a bleak view for the future of crowdfunding in India.
Although SEBI issued a consultation paper in 2014 to
discuss the possibility of introducing a market for equity crowdfunding in
India, there has been very little traction thereafter. Hence, unless there are
significant legal and regulatory reforms, crowdfunding may not receive much
impetus. While there is considerable emphasis on the “start up” sector in
India, the possible adverse effects of crowdfunding on investor protection seem
to constitute the higher priority of the regulators.

About the author

Umakanth Varottil

Umakanth Varottil is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and cross-border investments. Prior to his foray into academia, Umakanth was a partner at a pre-eminent law firm in India.

2 comments

  • @Anonymous. SEBI does not seem to have specified any specification provision that is alleged to be violated by the crowdfunding platforms. However, one may guess that the reference is to section 19 of the SCRA, which basically provides that only a recognised stock exchange may perform the functions of operating as a venue for trading in securities. At the same time, it could be an arguable case as to whether crowdfunding platforms are a stock exchange under section 2(j) of SCRA. These issues will require further detailed analysis.

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