The Need for a Dividend Disclosure Policy

[The following guest post is contributed by Soham Roy & Akhil Nene, who are 5thyear students at the National Law University Odisha]
In a recent Board meeting, SEBI provided an in-principle nod to mandating the top 500 listed companies in India (according to market capitalization) to disclose a dividend disclosure policy. Such a policy may include circumstances under which their shareholders can or cannot expect dividend, financial parameters that will be considered while declaring dividends, internal and external factors that would be considered for declaration of dividend, policy as to how the retained earnings will be utilized, and provisions with regard to various classes of shares.
Lately, this issue has gained a lot of importance because of excessive payments of dividends just before an initial public offering (IPO) of shares. In 2015, as Inter Globe Enterprises was readying for an IPO, it trebled the value of its dividend in 2015 over what it paid in the previous year. Inter Globe Enterprises increased its dividend expenses per share from Rs. 12,299 for year ended 2014 to Rs. 35,169 for the year ended 2015. This decision was taken by Inter Globe Enterprises eleven days before it filed its Draft Red Herring Policy (DHRP) with SEBI.
The larger question here is the importance of dividend payment for investors. Very simply put, there are essentially two ways in which investors obtain returns: dividend and capital gain. The declaration and payment of dividend is one of the most important decisions for a company as the company has to strike a balance between the percentage of earnings it should utilize to finance its operations and the percentage it should use to distribute dividends to shareholders. This decision has ramifications on the business as the payment of large dividends reduces the ability of the company to fund large projects and often under such circumstances the company will be forced to access the capital markets to fund such projects.
Under Indian company law, there is complete discretion in the hands of the board of directors as to whether dividend is to be paid or not, and also as to the amount of dividend to be paid.  Research on dividend policy has also shown that dividend policy per se will have an impact on the price of a company’s stock price independent of earnings.[1] Therefore, announcement of a dividend policy can only be helpful for investors to make investment decisions. Spelling out a clear dividend policy will help investors make a more informed choice. 
However, the proposal to extend it to only top 500 listed companies by market capitalization is not welcome. Mandatory disclosure of dividend policy should also be extended to companies who are in the process of making an IPO. Another concern is that companies might circumvent this policy of mandatory disclosure by using broadly drafted statements, which will leave a lot of discretion in the hands of the Board. 
In November 2015, the Financial Reporting Council’s (hereinafter FRC) Financial Reporting Lab had come out with the report titled “Lab project report: Disclosure of dividends – policy and practice” which relates to the dividend disclosure policies and how it can be made more relevant for the investors. This was undertaken because many of the FTSE 350 companies in their annual reports failed to provide information relating to distributable profits. As Stated in the Lab project report: “Only 23 FTSE Companies disclosed the distributable profits balance (of the parent company) in their 2014 annual report and accounts (annual report)”. This report was made with the contributions from 19 companies and 31 investors. The aim of this report is to investigate into the issues and to look at the best practice.
The report states the methods by which the dividend disclosures can be improved by the companies. The main aim of the report is to facilitate the listed companies to provide relevant information to the investors. The FRC in its report has also identified the issues that relate to determining the profits levels and the profits that the company can legally distribute and also that the kind of disclosure that is made would be dependent on the level of resources a company has compared to its proposed dividends.
It was stated by the investors that they wanted the companies to disclose the circumstances under which the companies would pay special dividends or buy back shares and to show the step taken by them is in the interest of the shareholders.
All investors consider that the disclosure of dividend resources, i.e. cash and the amount of the company’s reserves legally available for distribution under company law (distributable profits), is helpful in circumstances where the ability of the company to pay dividends is, or might be, insufficient relative to the level of dividends indicated by the policy. Some investors believe that distributable profits are always required to be disclosed. The FRC understands that as per the Companies Act 2006 the companies are not required to separately identify the distributable profits on their balance sheet.
We can conclude that the report tries to facilitate the investor’s issues in following ways:
1.         The report provides all the listed companies with some guidance on disclosure of dividends and distributable profits; it is applicable to all the listed companies and does not depend upon their size.
2.         In the report it is noted that when the companies disclose information relating to dividends they usually do so by spreading over the financial statements, shareholder information sections and the strategic report. To avoid that, the companies must link the dividend disclosures to important information which is included in the annual report and also include the risk disclosures as was requested by the investors; this would go on to make the annual report much more concise and clear and would also help avoiding the repeating of information and that would also increase coherence.
SEBI should use this report and prescribe certain guidelines to ensure that companies do not try to circumvent the policy by using broadly drafted policy and generic disclosures. The purpose of this disclosure is not to coerce companies to make dividend payments, but it is to ensure that investors make more informed choices.
– Soham Roy & Akhil Nene

[1]Law and Economics of Dividend Policy-Daniel R. Fischel, Virginia Law Review, Vol. 67, Issue 4 (May 1981), pp. 699

Guest Post: Public Policy of India and the Arbitral Award: Fighting the Unending Battle

(The following guest post is contributed by Amrit Mahal, a fourth-year student at the National University of Juridical Sciences, Kolkata)

The Indian Arbitration and Conciliation Act, 1996 (hereinafter, “Act”) was enacted with a view to bring the Indian arbitration regime in line with international practice. Providing for a limited judicial review of arbitral awards, Section 34(2)(b) and Section 48(2)(b) of the Act permit a court to set aside an arbitral award which is found to be in conflict with the “public policy of India.” The Act however, shirks from defining a clear ambit of public policy, leaving its interpretation to the judiciary. This loophole in the statute has proved to be a recurring worry. The judiciary has adopted an expansive approach to its interpretation, and opened a floodgate of litigation seeking to set aside binding arbitral awards that are in alleged conflict with Indian public policy. Twenty years later, the Arbitration and Conciliation (Amendment) Act, 2015 has put a cap on the width of this expression based on the recommendations of the Law Commission. While the move is a welcome step, the cap seems to be a minimal restriction, still leaving interpretation in the hands of the judiciary.

Navigating the meaning of “public policy”
The Supreme Court first interpreted the expression “public policy” in Renusagar Power Co. v General Electric Co. (hereinafter, “Renusagar”), noting that the enforcement of a foreign award could be refused on the ground of public policy onlyif such enforcement was contrary to a) the fundamental policy of Indian law, b) the interests of India, or c) justice and morality. The most notable case on “public policy” however is Oil & Natural Gas Corporation Ltd v Saw Pipes Limited. The Supreme Court expanded the definition further, observing that in addition to the three grounds listed in Renusagar, the court would also check whether the award has a “patent illegality,” i.e. an illegality that went to the root of the matter. Such a situation could arise where the award was contrary to the substantive laws of India or where the tribunal did not record proper reasons for its decision. The decision had the effect of permitting Indian courts to examine the “root of the matter” and set aside an award where it was unsatisfied with the evaluation or reasoning undertaken by the arbitral tribunal. This created a stepping stone for losing parties to have their case reviewed again on challenge. In this manner, the approach compromised the “final and binding” nature of an award, and rendered arbitration an ineffective system of alternative dispute resolution.

In the absence of a clear meaning of “public policy of India” and a permitted review on merits, a regressive trend had been set for arbitration in India. Not only does such a regime make arbitration an unreliable system, but excessive judicial intervention also erodes the faith of Indian and foreign businesses to commit to business in India. In a regime where arbitration is likely to end in long drawn legal battles that cost time and money, large business commitments are dis-incentivized. Further, an unreliable and unfriendly arbitration regime also impacts India’s ability to become a hub for commercial arbitration, contrasted with the growing legal services market in other Asian hubs like Singapore and Hong Kong.

The Recommendations of the Law Commission
In August 2014, the Law Commission submitted its 246th Report to the Central government recommending several amendments to the Act. The Commission tightened the interpretation of “public policy” under both Section 34 and Section 48, recommending that the award would be in conflict with public policy only if it was induced by fraud or corruption or was opposed to the “fundamental policy of Indian law” or “most basic notions of morality or justice.” It removed “interests of India” as well as “patent illegality” from the definition, both of which permitted judicial overreach.

The Law Commission also observed that under the statute, grounds for setting aside an award and conditions for refusal of enforcement are in pari materia and as such, both domestic and foreign awards are treated the same way. However, the legitimacy of judicial intervention in a purely domestic award is far greater than in cases where the court is examining a foreign award. The Commission thus recommended that Section 34 (2A) be inserted to permit setting aside purely domestic awards on the ground of “patent illegality appearing on the face of the award.” At the same time, to avoid excessive intervention, a proviso was recommended stating that the award would not be rendered defective merely “due to erroneous application of law or by re-appreciation of evidence”. Thus, not only did the Commission prescribe an exhaustive definition of public policy, but also expressly prohibited a plain review on merits.

Separation of patent illegality from the definition of public policy ensures that it is not applicable to any international arbitrations, be it for challenge to the award or for its enforcement. This was a much needed step to regulate judicial intervention and help build trust towards the Indian arbitration regime in the international community. In contrast, the expression “public policy” while formally defined, leaves interpretation of fundamental policy of Indian law and basic notions of justice and morality in the hands of the judiciary. Within a month of the recommendation, the ambiguity of the term “public policy” struck the Law Commission (and the arbitration regime) again.

In September, the Supreme Court in ONGC Ltd. v Western Geco International Ltd.(hereinafter, “Western Geco”) observed that the term “fundamental policy of Indian law” had not been expounded upon. Thus noting, the Court held that the expression would include first, adopting a ‘judicial approach,’ which involves giving a reasonable and non-arbitrary decision, second, adhering to the principles of natural justice, and third, rendering a decision that adheres to a high threshold of reasonableness (Wednesbury principle) i.e. the decision must not be “so perverse or irrational that no reasonable person would have arrived at the same.” To determine whether the decision was reasonable, the Court would necessarily involve itself in the facts of the matter and the evidence available (which was also undertaken in Western Geco). Thus, one again, the Court empowered itself to adjudicate upon whether the reasoning and conclusion of the tribunal is satisfactory.

Responding to this development, the Law Commission published a Supplementary to Report No. 246 in February 2015 detailing this development, and noted that the Western Geco had expanded the Court’s power to review an award on merits. Such a review was “contrary to the object of the Act and international practice.” The Report recommended that an explanation be added to Section 34(2)(b) stating that “fundamental policy of Indian law shall not entail a review on the merits of the dispute.” The Law Commission has thus, attempted a second time to shut the gates to routine challenges to arbitral awards by losing parties. In January 2016, all of these recommendations took form in the Arbitration and Conciliation (Amendment) Act, 2015.

The Battle Continues
Arbitration is sought-after as a private, faster and cheaper means of dispute settlement. However, excessive and unpredictable court intervention has rendered the Indian arbitration regime unreliable. With the amendments in place, the Act has expressly prohibited a review on merits under “fundamental policies of Indian law” or “patent illegality.” While this proves to be a welcome move, there still remains ambiguity in what these expressions entail. The three-pronged approach to the interpretation of fundamental policy of Indian law prescribed in Western Geco leaves little understanding of how judges will determine whether the tribunal applied a “judicial approach” or whether the award is reasonable, especially in light of the prohibition on a review on merits. The Act has ensured a minimal standard of protection by preventing such review, but the building blocks of conflict with public policy remain undefined. Further, another judicial bench may very well alter the approach in Western Geco and expand or narrow down the meaning of the “fundamental policies of Indian law.”

It may also be pertinent to consider how appropriate it is to draw principles of administrative law into arbitration and to what extent it may be permissible. The same question has been answered in the negative in Singapore in Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd, where the Wednesbury principle was categorically rejected “as a matter of principle and authority” by the court as a ground for review of awards. The Court observed that there was no appropriate analogy to draw between administrative and arbitral decisions. The former is subject to judicial scrutiny on the Wednesbury principle because it is presumed that when the Parliament gives an administrative decision-maker some discretion, it will be exercised reasonably. In contrast, parties to an arbitration contractually agree to abide by the decision of the tribunal and consent to the finality of the award. Further, even if the award is so unreasonable as to be perverse, it will still be an examination of the error of law or fact. The Court however, cannot sit in appeal on a final and binding arbitral award. Thus, an import of administrative law principles into public policy, and in particular, the Wednesbury principle may be questionable.

The unpredictability of the Indian arbitration regime has been especially cumbersome for international businesses who fail to have any clarity and assurance of dispute settlement here. Excessive judicial intervention reduces trust in arbitration as a system of adjudication within India and abroad, and the legislature must take more responsibility in setting clear outlines to the expressions devised by the judiciary. Until then, the “public policy of India” remains to some extent, a threatening dark sea in Indian arbitration.