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Dollar-earning listed companies should be incentivised

02 Jun 2022

Looking back at the year 2021, it could be said without doubt that it has been a year of extraordinary success for the securities market of the country. Let me begin by saying that the All Share Price Index (ASPI) witnessed a significant growth of over 80% in comparison to the year 2020. The growth signified by the ASPI has been the highest growth rate witnessed since 2011.  The same could be said about the S&P SL 20 index which indicated a growth rate of over 60%. All of this growth led to the Colombo Stock Exchange (CSE) being recognised as the second-best performing market in the world. To add to this, the daily average turnover of the country’s securities market amounted to Rs. 4.8 billion in comparison to Rs. 1.8 billion was recorded in the preceding year.  The twofold increase in the daily average turnover could be attributed to both the new CDS account openings which took place in the market as a result of the digitalisation initiative carried out by the CSE together with the Securities and Exchange Commission (SEC) and the renewed interest shown by local investors in the securities market.  Furthermore, exchange market capitalisation as a percentage of gross domestic product (GDP) surpassed 35% for the first time in the past 10 years thus signifying the contribution made by the securities market to the country’s economy. Due to the increase in the daily average turnover levels of the market, the turnover to market capitalisation grew up to 40% in comparison to the 16% recorded in 2020. The rapid increase in activity levels could be largely attributed to local investor contributions which approximately amounted to 95%.  As you may be aware, capital markets play a pivotal role in ensuring that issuers meet their fundraising requirements. As such, 2021 witnessed a rapid increase in Initial Public Offerings (IPOs) in the equity market which amounted to 13. Such a surge in equity IPOs was last seen in 2011. The surge in equity IPOs was a result of the proactive role played by the SEC by introducing several proposals to the Government Budget such as the proposal to grant a 50% tax concession for local companies which are to be listed on the CSE before 31 December 2021 and the introduction of the corporate tax rate of 14% for the subsequent three years for such companies. All of these resulted in equity IPOs raising over Rs. 12.7 billion from the market.  It is not only the equity market but also the debt market which contributed to the raising of capital via debt IPOs amounting to over Rs. 84 billion for the year under consideration. Over the past year, we have witnessed an increased interest shown by small and medium entrepreneurs to utilise the Empower Board.  With all of these statistics indicating a growth mindset, the market also witnessed a foreign net outflow, the negative impacts of which were mitigated by the role played by local investors who stepped up to the occasion. Upon examination of the market, one cannot disregard the positive influence of the low interest rates prevalent in the economy on the market and its performance.  However, as I write this review, the country is facing renewed economic and social pressures, which is amply reflected in the market. To live up to the challenge and overcome this financial and economic predicament, it is critically important to understand what needs to be done and take swift and drastic action to make them happen.  Yet, it is important to stress that the country’s stock market alongside the listed companies have returned record growth last year despite the uncertainty. In fact, the uncertainty in the ongoing turbulent economic condition can be an opportunity for the country to push forward policies that will revitalise the private sector which will enable the country to build back better with stronger measures to attract much needed foreign investments.  However, in many ways, nothing has changed due to the current situation, among others, the country’s rich natural resources, strategic location, highly capable workforce and promising opportunities for investment in tourism, IT enabled services, logistics, high value added apparel and food and agricultural services remain the same. For that matter, it is correct to say that the country is capable of meeting its import bills and growth targets if proper policies and practices are pursued to help the companies to strengthen their exports and foster production which will in turn assist the country to put its external debt on a more sustainable footing.  Therefore, once again the stock market has a critical role to play to boost the economy and to raise capital to revitalise the private sector. Thus, it is the time to pick the winners from our dollar earning listed companies by looking at their potential, drive and commitment. Secondly, we need to incentivise and nurture such winners.  Thirdly, we need to free such winning companies to go out and compete with global giants to make headway in economic development, which would change the whole complexion of our country; it will convert us to a dynamic entrepreneurial state and will help the country to realise its true potential. Therefore, the SEC can no longer be restricted to its traditional role of market regulation and take the conventional approach to boost the confidence of investors.  In this backdrop, I consider it an honour to recount in the following parts of this review, the successes of the SEC achieved in extraordinary circumstances.  Enactment of the SEC of Sri Lanka Act, No. 19 of 2021: A paradigm shift  On 21 September 2021, the much awaited Securities and Exchange Commission of Sri Lanka Act, No. 19 of 2021 (SEC Act) came into force after being certified by the Speaker. By it, the Securities and Exchange Commission Act, No. 36 of 1987 was repealed and replaced.With the enactment of the SEC Act, the SEC enables effective regulation aimed at achieving efficiency, predictability and consistency in regulation and market development.  The SEC Act is futuristic. It envisages developments in keeping with those of other developed markets. The regulatory regime brought about by the SEC Act provides greater clarity in terms of the law applicable to the market and is inclusive of numerous salient features. This new piece of legislation is coherent and ensures and promotes a level playing field both on the regulatory and market development fronts.  Amongst the numerous infrastructural reforms, the establishment of a Central Counterparty System (CCP) intended to mitigate counterparty risks is key, and the enabling provisions provide for better risk management in the securities market. The progressive provisions in the Act such as those that enable structured borrowing and lending, regulated short selling mechanisms would undoubtedly cater to the much needed liquidity requirements in the market. Additionally, the Act would enable the introduction of a vast array of new products to the securities market. For instance, the introduction of market makers would ensure that the market has adequate levels of liquidity. I believe that you all are already aware of the salient features of the SEC Act given that there has been a great amount of discussion revolving around it. However, it would be remiss on the part of this review if I do not briefly touch upon some of its key features in addition to what has been said above.  The SEC Act comprising seven parts, among others, provides for market intermediaries, which now include several new categories, market institutions, and supplementary service providers, whilst it also provides for an enforcement mechanism that enables criminal offences to be dealt with differently in comparison to the previous Act.  Why I say this is because now, the law embodies all offences whilst the conduct that would amount to an offence have been spelt out with clarity. The exceptions and defences available too have been specifically stated, thus taking away any ambiguity that prevails at present. All offences categorised as “prohibited conduct” (false trading and market rigging, stock market manipulation, false or misleading statements, fraudulently inducing persons to deal in securities, use of manipulative and deceptive devices) and “insider trading” are now to be tried by the High Court.  As per the provisions of the Act, a person convicted of such an offence is liable to a fine no less than Rs. 10 million or to imprisonment for a term not exceeding 10 years or to both such fine and imprisonment.  Having said this, it is pertinent to note that the Act also enables the imposition of civil remedies in the Commercial High Court to recover damages or to seek the imposition of a penalty. Such proceedings could be instituted against a person who has committed a contravention under the part titled “market misconduct”.  This being said, it is of utmost importance to keep in mind that the decision of the commission to institute such proceedings ultimately depends on the prerequisites set out in the Act itself, i.e., “the nature and manner of the contravention, the impact it has on the market and the extent of the loss caused to any investor”.  Another noteworthy feature that has been provided for by the Act is the power conferred on the Commission to impose “administrative sanctions”. Thus, the Commission has now been given the discretion to impose a wide array of administrative sanctions that can be imposed on any person, once again depending on the nature and manner of the contravention, the impact it has on the market and the extent of the loss caused to any investor.  To add to the above, the Commission has also been vested with the power to protect assets of investors by issuing freezing orders valid for a period of seven days subject to the subsequent confirmation of court during the course of conducting investigations or an inquiry and the power to apply to court seeking certain orders in situations of imminent violations (for a declaration that a securities transaction is void, directing a person to dispose of any securities etc.)  The new law facilitates different risk return profiles for investors. For example, the introduction of accredited investors would enable issuers to issue high-risk securities while allowing investors who are able to bear higher risks to reap the benefits of such issuances. The introduction of provisions relating to whistle blowers is also worthy of attention as it would act as a safeguard to those who come out with information capable of shedding light on market offences. By this, what would ultimately be achieved is the smooth application of the present law.  State-of-the-art infrastructure for an efficient and reliable market  The introduction of the Delivery vs. Payment System (DVP) would enhance the risk management framework of the depository. The mitigation of asset commitment risk via the DVP would result in the growth of investor confidence in the market. It is with much satisfaction that I say that the establishment of the DVP would result in the country’s securities market fulfilling one aspect/requirement unique to emerging markets.  In order to venture beyond, the SEC together with the CSE formed a joint committee to facilitate the establishment of the Central Counterparty (CCP) System. Significant headway has been made with this initiative and it is my belief that the establishment of the CCP would come to fruition in the near future.  The introduction of the multi-currency board which allows local companies to meet their funding requirements by issuing foreign denominated securities would allow those companies which have a significant exposure to export/import businesses to hedge their currency related risks. Given the current situation in the country, it is my belief that this initiative would facilitate the inflow of foreign currency to the local economy.  The finalisation of a policy structure pertaining to Repurchase Agreement Transactions on corporate debt securities through an Over The Counter (OTC) platform of the CSE would provide a wider choice to investors in making their investments. Moreover, it is with much pleasure and satisfaction that I state that the expansion of the listing framework applicable to IPOs has become fruitful as we witnessed a wide array of companies with diversified business interests being listed.  Moving forward with end-to end digitalisation  Moving onto the subject of digitalisation, during the year under consideration, the joint committee appointed by the Chairman of the SEC, under the direction of the Commission Members Naresh Abeysekere and Manil Jayasinghe, has taken steps to revolutionise the market and the CSE has gained significant headway in terms of end-to-end operations of the CSE.  I say this because we have now reached the third phase having completed phase two, which led to the introduction of the CSE mobile application to open new accounts for local companies, CDS e-connect and e-Initial Public Offerings. Furthermore, Chat Bot and Google Assistant intended to enhance investor experience were also introduced under phase two. I believe that these initiatives would enhance the accessibility of the market given the ease by which an investor would be able to invest in securities.  Under phase three of the digitalisation initiative, it is envisaged that the CSE mobile app would enable foreign individuals and companies open to investing in the country to open CDS accounts devoid of any inconvenience via the app. Further to what I have said before, let me expand on some of the other features which are to be introduced under phase three. They are e-rights issue, e-repurchase/mandatory offer, margin trading (seamless transfer of funds between asset classes) etc.  An array of choices for investors and issuers  It is well known that the Sri Lankan investor in general gives much value to gold and real estate. In recent times, the Commission granted in-principle approval to facilitate the trading of paper gold through the CSE’s OTC platform. Currently, the framework to implement this initiative is being formulated by the CSE and the intention behind this initiative is the generation of a source of income to investors while simultaneously acting as a new source of revenue for the country.  The SEC by way of gazette published the rules on Real Estate Investment Trusts (REITs) giving it the force of law. As a result, stakeholders have been given yet another opportunity to make most of this investment avenue.  Expanding on the Unit Trust Code of 2011, the Collective Investment Schemes Code (CIS) is being drafted to provide for a wider array of schemes such as exchange traded funds, and hedge funds. Once again, investors and issuers would be able to reap the benefits of the numerous investment avenues which would come into being upon the Code’s enactment.  Special Purpose Acquisition Companies (SPACs), a policy framework intended to enhance new listings in the market was launched by the SEC in consultation with the CSE and other stakeholders. At present, the CSE is in the process of formulating the regulatory policy required by it.  With the objective of increasing capital raising avenues for small and medium enterprises and for start-ups via the capital market, the Commission has granted in-principle approval for equity crowdfunding platforms. Technical assistance required for this initiative is being provided by the Asian Development Bank (ADB). These platform providers are capable of being recognised by the SEC as market operators and as such, rules will be drafted to facilitate such entities.  In order to achieve sustainability and drive the nation towards attaining the goals revolving around sustainability, the Commission has also granted in-principle approval for Green Bonds to the securities market. Like in the case of SPACs, the ADB will be providing the required technical know-how to ensure the implementation of the said initiative and the proceeds emanating from such Green Bonds are to be exclusively used for the promotion and development of renewable energy, sustainable waste management projects, sustainable land use (forestry and agriculture), clean transport systems, clean water projects etc.  Additionally, the SEC is also in the process of developing the policy and regulatory framework for the introduction of Structured Warrants and Islamic Capital Market Products with the assistance of the ADB.  The SEC’s enforcement mechanism  By now, it is apparent that the number of investors willing to invest in the country’s securities market have increased resulting in a remarkable rise in the number of transactions. This in turn has resulted in the need for a more stringent surveillance and supervision mechanism.  In keeping with this requirement, the SEC has taken all possible efforts to strengthen the surveillance, supervision, and investigations divisions where enforcement was made through a lens of pro-action, prevention and prudence with a view to eliminate any possibility of the occurrence of any market misconduct that has come to its attention.  For instance, surveillance flagged over hundred observations on day to-day trading and took enforcement action ranging from including referrals, informing the compliance officers or a higher authority, issuing warnings to investment advisors, suspension of online trading facilities, calling parties to show cause and instituting criminal suits or proceedings. Such proactive measures proved to be highly effective in significantly reducing market misconduct. I need not say much about the pandemic and its effects. It is indeed a blessing that we as a country have been able to curtail the spread of the virus with the assistance of the vaccination programmes carried out in the country. We at the SEC like everyone else were made to experience its effects. Thus, engaging in some of the activities to enhance the knowledge had to adapt according to the change in times and thus embrace virtual platforms to ensure the continuity of its programmes. Such platforms were used to raise awareness among market participants and the SEC continues to do so even to date.    (The writer is the Director General of the Securities and Exchange Commission of Sri Lanka [SEC])

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