The Securities and Exchange Board of India (SEBI) issued a circular[i] exercising the powers conferred under s. 11(1) of the Securities and Exchange Board of India Act, 1992, read with reg. 25 (27) and reg. 77 of the Securities and Exchange Board of India (Mutual Funds) Regulations, 1996 (Mutual Funds Regulations). The circular introduces an institutional mechanism to effectively identify and deter potential market abuse, including front-running and fraudulent transactions in securities.
Overview of the Circular
The circular was issued following an amendment to the Mutual Funds Regulations. It outlines the comprehensive requirement for Asset Management Companies (‘AMCs’) to establish robust institutional mechanisms, including enhanced surveillance systems, internal control procedures, and escalation processes designed to identify and address instances of market abuse.
This direction has come after consulting with relevant stakeholders, including the Mutual Funds’ Advisory Committee (MFAC) and a public consultation process.
This circular will affect all Mutual Funds, AMCs, Trustee Companies, and recognised stock exchanges and depositories. It aims to improve the market's fairness and safeguard investors from malafide practices that can erode trust in the securities market.
Key Objectives
Accountability: The chief executive officer (CEO), the managing director (MD), or an equivalent senior executive, along with the chief compliance officer, will be responsible for implementing and maintaining the new mechanism.
Alert-based surveillance mechanism: AMCs must develop systems to generate and process alerts promptly. This includes creating mechanisms to identify suspicious trading activities.
Processing of Alert: During the processing of alerts, AMCs shall take into account all recorded communications, such as chats, emails, access logs of the dealing room, and CCTV footage (if available). Additionally, they should maintain entry logs for the AMCs' premises. AMCs must report all examined alerts to SEBI and the action taken in the compliance test report (CTR) and the half-yearly trustee report (HYTR).
Standard operating procedures: After approval from their board of directors (‘BOD’), the AMCs will have to formulate written policies and procedures for conducting examinations and taking action in case of potential market abuse.
Action on Suspicious Alerts: Upon becoming aware of any potential market abuse by its employees or brokers/dealers, AMCs shall take appropriate actions, such as suspension or termination.
Escalation Process: An escalation process must be established to inform the BOD and trustees about potential market abuse incidents and the results of the investigations.
Whistleblower Policy: To facilitate misconduct reporting, AMCs must have a documented whistleblower policy in compliance with reg. 25(29) of the Mutual Fund Regulations and the SEBI regulations.
Periodic Review: AMCs must periodically review and update their procedures and systems.
The SEBI circular further states that to ensure the smooth functioning of the institutional mechanism, the stock exchanges and depositories shall develop systems, in consultation with the Association of Mutual Funds in India (‘AMFI’), to enable data sharing with AMCs.
Lastly, according to the circular, AMFI, in consultation with the SEBI, shall provide a detailed implementation standard within fifteen days from the date of this circular to ensure uniformity in implementing the institutional mechanism across the industry.
Our Analysis
SEBI’s new circular is a significant move to strengthen the securities market’s integrity. It provides AMCs with better tools and procedures to prevent market abuse by implementing stricter internal controls and encouraging transparency. SEBI aims to protect investors and ensure a fair market. This effort highlights the SEBI’s commitment to maintaining market discipline and safeguarding investor interests, showing a proactive stance against financial fraud.
While it introduces necessary improvements in monitoring and compliance, AMCs might face challenges related to implementation cost, data management, and resource allocation. The success of the new mechanism will depend on the industry's ability to adapt to these changes effectively.
End Note
[i] SEBI/HO/IMD/IMD-PoD-1/P/CIR/2024/107 dated 05.08.2024.
Authored by Ritik Kumar Jha, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinions.