The (Un?)Enforceability of investor rights in Indian private equity

Majumdar, Arjya B. (2020) The (Un?)Enforceability of investor rights in Indian private equity. University of Pennsylvania Journal of International Law, 41 (4). pp. 981-1030. ISSN 19380283

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While Private Equity (“PE”) funding is a preferred vehicle for corporate growth in India, due to the ubiquitous role played by company promoters, extant laws, and a complex regulatory and compliance environment, PE funds prefer to take up a minority shareholding in Indian companies. As a result, PE funds invest in Indian companies in exchange for participation in the company’s profits either through equity or convertible preferred stock or convertible debt. The PE fund typically also requires a number of investor control rights to be negotiated as part of the investment, keeping in mind concerns related to minority shareholding in India. While these contractual rights typically do not interfere with the day-to-day management of the company, they serve as a check and balance against promoter opportunism. These rights include provisioning for the investor to participate in the governance of the company through board nomination, quorum requirements and veto powers. Investors may also require downside protection in the form of anti-dilution and pre-emptive exit rights and preferred payments upon liquidation.However, the nature of these investor control rights are departures from the default provisions under Indian company law. These rights, which are borne out of a contractual arrangement between the investor and the company/promoters, are also subject to Indian contract law under which, contracts in variation of applicable law are void. Additionally, due to excessive delays in the Indian judiciary, any disputes that may arise are not referred to the courts, but are privately arbitrated or settled. Consequently, the enforceability of these contracted rights have never been tested in court. This paper seeks to qualitatively identify the investor control rights typically negotiated by PE funds using a sample of 158 privately held Indian companies which have received investments from non-Indian PE funds in the last five years. This paper will go on to analyse the limitations that Indian corporate and contract law place upon parties’ freedom to contract, thus raising the question as to whether the rights negotiated by PE investors are enforceable at all. It is hypothesized that some of these rights may not be enforceable in their customary form.

Item Type: Article
Keywords: Corporate Law | Corporate Finance | Private Equity | Company Law | Venture Capital
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 29 Dec 2021 08:55
Last Modified: 29 Dec 2021 08:55
Official URL:
Funders: O.P. Jindal Global University, Haryana, India


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