Sucheta Dalal :Dubious Regulator
Sucheta Dalal

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Dubious Regulator  

October 6, 2010

SEBI’s rejection of MCX-SX to start equity trading is the latest in a long list of sordid actions

That the Securities and Exchange Board of India (SEBI) rejected MCX Stock Exchange’s (MCX-SX) application to start the equity segment was no surprise. Nor is the MCX-SX’s decision to fight back. The regulation of demutualised bourses remains a contentious issue, despite being referred to several committees. But it is obvious that the narrow and illiquid Indian capital market urgently needs to get rid of a score of defunct, parasitic, regional bourses and permit fresh thinking, competition and innovation which MCX-SX can inject. Whether this happens or not will be decided by the courts, but there are some intriguing angles to the entire controversy.

For starters, does India, whose economic growth is attracting so much foreign attention, support entrepreneurship, or do we secretly revel in discrediting our own success stories? Will we ever support open competition or cripple businesses on the whims of self-serving netas and babus?

On 31st August, MCX launched the Singapore Mercantile Exchange (SMX). It should have been a proud moment, but the domestic war with SEBI cast a dark shadow. On 23rd September, SEBI rejected MCX-SX’s application to launch equity trading saying it was ‘not fit and proper’ and ‘dishonest’ to boot. Isn’t it ironical that India, which ranks a low 84th on Transparency International’s corruption perception index, took the high moral ground, to discredit a management that Singapore, which ranks No. 3 in terms of transparency, found fit enough to launch its first international, pan-Asian derivatives exchange? Singapore is not alone. MCX runs the multi-asset, multi-access Bahrain Financial Exchange. It is in the process of setting up multi-asset exchanges in Mauritius and Botswana (called Bourse Africa). It also successfully launched, and handed over, the Dubai Gold and Commodity Exchange.

There are domestic successes as well. The flagship Multi Commodity Exchange (MCX) is by far the market leader in commodity derivatives; MCX-SX was a leader in currency derivatives (jointly regulated by SEBI); it runs the National Spot Exchange Ltd which trades agricultural commodities; the Indian Energy Exchange which trades electricity and IBS Forex is its inter-bank forex exchange platform. No other exchange group has achieved so much so fast in a competitive environment. And there are no reports of other regulators having problems with MCX either.

None of this mattered to the SEBI’s whole-time member, while rejecting the case of MCX-SX with 68 pages of hair-splitting. He found that MCX and Financial Technologies were ‘acting in concert’. He discovered that the warrants issued to promoters (for the value they sacrificed by shrinking promoters’ capital to meet SEBI’s norms) had economic value even though such warrants earned no dividends, have no voting rights and cannot be converted into shares unless SEBI rules change. It is almost as if SEBI knows that its ridiculously low 5% cap on individual shareholding will have to be increased to the 15% or 26% that is permitted in the commodity and currency derivatives markets. Were that to happen, MCX’s promoters would legitimately want to convert warrants and enhance their holding. SEBI wants to kill any such possibility.

Interestingly, the National Stock Exchange (NSE), an opaque and secretive, virtual monopoly basked in high valuations that were possible because the regulator gave it plenty of time for equity dilution without imposing the restriction it did on MCX-SX. But MCX-SX was systematically cornered. First, SEBI allowed NSE to subsidise currency derivatives through the high fees charged in the equity segment. MCX-SX suffered huge losses, while the Bombay Stock Exchange (BSE) simply shut its currency derivatives segment within two months. The newly launched USE (United Stock Exchange) is also boasting market leadership without a revenue model. Neither the Reserve Bank of India (RBI) nor SEBI bothered to explain how they permitted a fourth currency derivatives exchange whose high trading volumes translate into direct losses since, like the NSE, it does not collect transaction charges. What happens when its net worth slips below Rs150 crore? USE must be hoping the Competition Commission will rescue it by ruling in favour of MCX-SX on NSE’s predatory pricing.

When the loss-making MCX-SX was denied permission to launch new segments, it couldn’t possibly find new investors and was forced to reduce capital to meet SEBI norms. Stunningly, the idea allegedly came from JN Gupta, SEBI’s executive director in charge of secondary markets, who used to be a commodity trader in Kazakhstan before returning to SEBI. The SEBI order simply ignores Mr Gupta’s role in ‘misleading’ MCX-SX into opting for capital reduction.

If SEBI had higher regulatory standards than Bahrain, Singapore and Dubai, its action against MCX-SX would have somehow seemed plausible. It appears malicious when we see how the same regulator buried the cases against the National Securities Depository Ltd (NSDL) in the IPO (initial public offering) scam of 2006, in order to absolve chairman CB Bhave of taint or even constructive liability in that scam (he was chairman of NSDL then). The SEBI board went so far as to discredit a two-member committee of its own board directors and declared their orders ‘void’. In the process, it also ignored a legal opinion by Justice JS Verma, one of India’s most respected Chief Justices of the Supreme Court. In throwing the rulebook at MCX-SX, SEBI is essentially saying, “show me the person and I will show you the rule.”

Why would SEBI be so determined to finish off MCX-SX? MCX has openly accused it of favouring NSE whose high valuation is at a serious risk (not to mention the stunning salaries of its top three executives) when up against a serious competitor. Remember, MCX has beaten NSE in every segment where they have been in direct competition: commodities, currency and energy.

Then there are the personal relationships. When CB Bhave was desperate to leave SEBI in the early 1990s, under chairman DR Mehta, NSE gave him a berth at NSDL. Mr Bhave was thus in the happy position of writing the statute that ensured that the depository was not entirely under SEBI regulation; he used it to his advantage to expand into other areas without seeking SEBI approval.

It may be clever to ensure that rules and ethical standards are flexible enough to be twisted at convenience. But it makes for dubious regulation. —
Sucheta Dalal

-- Sucheta Dalal