Credit Rating Agencies

These Rules shall apply to all Market Intermediaries interpreted under Section 55 of the Securities and Exchange Commission of Sri Lanka Act No. 36 of 1987 (as amended) , as Market Intermediaries and have obtained a certificate of Registration under Section 19A of the said Act.

These Rules are supplementary to the terms and conditions set out in Part V of the Schedule to the Securities and Exchange Commission of Sri Lanka Act. As such Market Intermediaries are required to comply both with the terms and conditions set out in Part V of the Schedule to the Securities and Exchange Commission of Sri Lanka Act and these Rules.

1. Every Market Intermediary as defined by Section 55 of the SEC Act shall be bound to comply:
   • with these Rules and any amendment thereto ;
   • with the terms and conditions contained in Part V of the Schedule to the SEC Act;
   • with any additional requirement which may be imposed by the SEC from time to time by way of a directive, or guidelines.
2. No person shall engage in any activity of a Market Intermediary or hold himself out as doing so unless he is a holder of a certificate of registration issued by the Securities and Exchange Commission of Sri Lanka as a Market Intermediary belonging to the category of that regulated activity.
3. Without prejudice to Part V of the Schedule to the Securities and Exchange Commission Act No. 36 of 1987 (as amended) and the Rules stated herein, the Commission may impose such other conditions or restrictions to be followed by the Market Intermediaries whilst the certificate of registration is in force.
4. The SEC may waive compliance with any Rule on being satisfied that the attendant circumstances justify such waiver.

05. A Registered Market Intermediary shall pay such registration fee in respect of each regulated activity in such manner as may be specified by the Commission.

06. No holder of a Certificate of Registration as a Market Intermediary shall carry on any regulated activity in respect of the registration without the written consent of the Commission if the minimum financial requirements as may be specified by the Commission are not met.

07. All Registered Market Intermediaries shall comply with all general or special directives and guidelines issued to them by the Commission.

08. All Registered Market Intermediaries shall not contravene any written law enacted for the protection of the members of the public against financial loss by dishonesty, incompetence or malpractice.

09. All Registered Market Intermediaries shall always furnish true information to the Commission.

10. All Registered Market Intermediaries shall not act fraudulently or dishonestly in the performance of the regulated activity and shall not engage in any business practices appearing to the Commission to be deceitful or oppressive or otherwise improper ( whether unlawful or not) or which reflect in the opinion of the Commission discredit on its or his method of conducting business .

11. All Registered Market Intermediaries shall not engage or be associated with any other business practices in such a manner as to cast doubt on its or his competence and soundness of judgment.

12. All Registered Market Intermediaries shall always strive to act in the best interests of clients.

13. All Registered Market Intermediaries shall always strive to act efficiently, honestly and fairly.

14. All Registered Market Intermediaries shall ensure that all directors and individuals employed to carry on the registered activity shall be fit and proper persons as may be determined by the Commission and shall possess the requisite qualifications as required by the Commission.

15. All Registered Market Intermediaries shall maintain a register containing the names of the individuals referred in Rule 15 in such form and manner as may be specified by the Commission.

16. All Registered Market Intermediaries shall comply with the Rules, Directives and Guidelines issued by the Commission in respect of the carrying on of the particular regulated activity of the Market Intermediary.

17. Where the Commission appoints a person for purposes of supervising the compliance by a Market Intermediary of the Rules, Directives and Guidelines issued by the Commission, the Registered Market Intermediary shall;

(1) Furnish the authorized person with any information that the authorized person may require to determine whether the Market Intermediary has complied with the provisions of the SEC Act (as amended) or with any Rules, Directives or Guidelines issued by the Commission which are applicable to Market Intermediaries; and

(2) Take such steps as are necessary to ensure compliance with the provisions of the SEC Act or any Rules Directives or Guidelines issued by the Commission

18. A Registered Market Intermediary shall furnish such returns and provide such information relating to its business as the Commission may require.

19. The Commission may specify that any information required under the above mentioned section shall be submitted within such period , at such intervals , in such manner or in such form as the Commission may specify and the Registered Market Intermediary shall comply with such requirement

20. A registered Market Intermediary shall –

(1) Maintain or cause to be maintained , such accounting records and other books as will sufficiently explain the transactions and financial position of its business and enable true and fair profit and loss accounts and balance sheets in keeping with the Sri Lanka Accounting Standards to be prepared from time to time ; and

(2) Maintain or cause to be maintained such accounting records and other books in such a manner as will enable them to be conveniently and properly audited.

(3) Retain such accounting records or other books as may be required to be maintained by the Commission for a period of not less than 6 years.

21. It shall be the duty of all Registered Market Intermediaries to furnish to an auditor or to an independent auditor appointed by the Commission

(1) All the information within its or his knowledge or which it or he is capable of obtaining or

(2) Any information which the auditor or independent auditor requires to enable him to carry out his duties and

The Market Intermediary shall ensure that all the information which is furnished to the auditor or independent auditor as the case may be is not false or misleading in any material particular.

22. Where the Commission having considered that it is in the interests of the Registered Market Intermediary or those of its or his clients, appoints an independent auditor or such other person or a body of persons to examine, audit and report either generally or in relation to any particular matter , upon the books, accounts and records of, and assets held by the Market Intermediary, it shall be the duty of such intermediary

(1) To produce any books, accounts and records of, and any assets held by the intermediary relating to his business ; and

(2) Shall answer all questions relevant to an examination and audit which are put to him by the independent auditor or such other person appointed by the Commission.

23. A Registered Market Intermediary with intent to defeat the purposes of Section 23 above or with intent to prevent delay or obstruct the carrying out of any examination shall not

(1) Destroy, conceal or alter any books or property relating to the business of the Market Intermediary ; or

(2) Send or attempt to send or conspire with any other person to send out of Sri Lanka any such books or any property of any description belonging to or in the disposition of or under the control of the Market Intermediary.

24. A Registered Market Intermediary shall on the occurrence of any one or more of the following events shall give to the Commission written notice , not later than fourteen days setting out the particulars of the event;

(1) If the Registered Market Intermediary is in the course of being wound up or otherwise dissolved whether within or outside Sri Lanka or ceases to carry on the business to which the registration relates;

(2) Where the Market Intermediary has failed to comply with any requirement under the SEC Act or of any Rules , Directives or Guidelines issued by the Commission;

(3) where any information or document furnished to the Commission is false or misleading; or there is any change in any information or document furnished to the Commission

(4) where any execution against the Market Intermediary in respect of a judgment debt has been returned unsatisfied in whole or in part;

(5) where a receiver or an equivalent person has been appointed in respect of any property of the Market Intermediary

(6) where the Market Intermediary whether within or outside Sri Lanka has entered into a compromise or scheme of arrangement with its creditors being a compromise or scheme of arrangement that is still in operation ; and

(7) where the directors , or the chief executive officer has been convicted of any offence involving fraud or dishonesty , or a violation of securities law or

(8) Becomes an undischarged bankrupt.

25. Where a Registered Market Intermediary ceases to carry on the business in all or any of the regulated activities to which the certificate of registration relates, shall return the certificate of registration to the Commission within fourteen days of the date of the cessation.

26.

(1) Subject to subsection (2), a Registered Market Intermediary may surrender the certificate of registration by sending it to the Commission together with a written notice of its surrender.

(2) The surrender of a certificate of registration shall not take effect until the Commission is satisfied that adequate arrangements have been made to meet all the liabilities and obligations of the Registered Market Intermediary that are outstanding at the time when the notice of surrender was given by the Market Intermediary.

27. A Certificate of Registration of a Market Intermediary shall be deemed to be Revoked

(1) If the holder of the certificate of registration is wound up or otherwise dissolved whether within or outside Sri Lanka

(2) In the case of an individual holder of a certificate of registration, if the individual dies.

28. The words and terms defined in the Securities and Exchange Commission of Sri Lanka Act No. 36 of 1987 as amended by Act No. 26 of 1991 and Act No. 18 of 2003, shall unless the context so requires have the same meaning assigned to it in the said Act.

“Commission” means Securities and Exchange Commission of Sri Lanka;

“Connected Party” means the parent, subsidiary or an associate company of such party;

“Liquid Capital” means cash or investments which can be readily converted to cash such as bank/call deposits, re-purchase agreements with maturity of less than three months, commercial papers which are endorsed or guaranteed by a licensed commercial bank or licensed specialized bank with a term to maturity of less than three months and government issued securities with a term to maturity of one year or less;

“Net Capital” means,

1. The aggregate value of
1. Stated Capital
2. Reserves and
3. SEC approved subordinate debt or
2. Total assets minus total liabilities
   adjusted by deducting any other item as specified by the SEC from time to time.

“Rules” mean these Rules as may be amended from time to time;

“SEC” means the Securities and Exchange Commission of Sri Lanka;

“SEC Act” means the Securities and Exchange Commission of Sri Lanka Act No.36 of 1987 as amended from time to time;

“Single Client” in the context of a corporate body means the borrowing company its parent and subsidiary company and in the context of a natural person means the borrower, his/her spouse and dependent children.

01 (1) No person registered as a Credit Rating Agency or any Director thereof or any person involved in the rating process on behalf of a Credit Rating Agency shall have been:

(a) convicted by any Court of Law in Sri Lanka or abroad subsequent to a finding of guilt for the commission of any offence which involves fraud, deceit or dishonesty; or

(b) found to have committed or been connected with the commission of any act which involves fraud, deceit or dishonesty by anybody with regulatory or supervisory authority;

1. established by law in Sri Lanka or abroad; or
2. constituted under law as a commission of inquiry, tribunal or other similar body; or
3. by any professional body which in the opinion of the SEC is of an established and credible stature; or

(c) compounded in terms of the SEC Act (as amended) during the past 3 years preceding the date of the appointment; or

(d) found guilty of a capital market offence by a court of law in terms of the SEC Act; unless the prior approval of the Commission is obtained for such appointment.The Commission on an application made under this provision by a Registered Credit Rating Agency may grant approval for such person to be appointed notwithstanding the above said prohibition under exceptional circumstances.

01 (2)(a) A Registered Credit Rating Agency shall not allow an individual to continue as a director or a person involved in the rating process on behalf of a Credit Rating Agency, for a period as determined by the Commission, if such person, subsequent to his appointment as a director or a person involved in the rating process has been;

1. convicted by any Court of Law in Sri Lanka or abroad subsequent to a finding of guilt for the commission of any offence which involves fraud, deceit or dishonesty; or
2. found to have committed or been connected with the commission of any act which involves fraud, deceit or dishonesty by anybody with regulatory or supervisory authority;

1. established by law in Sri Lanka or abroad; or
2. constituted under law as a commission of inquiry, tribunal or other similar body; or
3. by any professional body which in the opinion of the SEC is of an established and credible stature; or
4. compounded in terms of the SEC Act (as amended); or
5. found guilty of a capital market offence by a court of law in terms of the SEC Act.

01 (2) (b) For the avoidance of doubt, the period in which a person described in 01 (2) (a) above shall be barred from functioning as a director or a person involved in the rating process for and on behalf of a Registered Credit Rating Agency may be ;

1. for a period of months or for a period of years with a right to reapply at the end of the said period; or
2. a permanent bar from the industry; or
3. for a period from acting in a supervisory capacity or from performing a particular duty;

depending on the gravity of the offence, the impact of such offence on the market or other factor which the Commission shall deemed to be relevant considering the circumstances surrounding the commission of such offence.

02. Every director and employee, involved in providing ratings on behalf of a Credit Rating Agency shall possess the qualifications and experience set out below:

1. Associate of the Institute of Chartered Accountants of Sri Lanka; or
2. Associate of the Chartered Institute of Management Accountants; or
3. Chartered Financial Analyst; or
4. Associate of the Chartered Certified Accountants; or
5. Associate of the Chartered Institute of Bankers; or
6. Associate of the Institute of Bankers of Sri Lanka; or
7. Degree in Accountancy, Economics, Finance or Business Administration from an accredited Sri Lankan or foreign university; or
8. An equivalent or higher professional and/or academic qualification acceptable to the Commission ; and
9. active experience in the financial/ securities market for a minimum period of two years.

or

(b) relevant and active experience in the financial/securities market for a minimum period of seven years.
Provided that experience for the prescribed duration per se will not fulfill the required qualification and the Commission shall consider the nature, scope and intensity of experience in determining its adequacy.

03. The applicant shall have at least two persons in its employment with the qualifications and experience set out in these Rules to act as rating analysts .

The SEC may direct an increase in the number of such qualified personnel if the volume of the business proposed to be undertaken or undertaken by such Credit Rating Agency increases.

04.

(a) The applicant shall always maintain adequate financial human and other resources sufficient to carry out the business as a Credit Rating Agency.

(b) A Credit Rating Agency shall appoint a Compliance Officer with qualification and experience set out in these rules who shall be responsible for ensuring compliance procedures and practices of the Credit Rating Agency.

05. A Credit Rating Agency shall keep the SEC informed of the percentage holding in it by its parent/owning company(s), subsidiary companies, associate companies and partnerships and of shareholders holding more than 20% or more of its equity.

06. (a) The Commission shall not consider an application made for the registration of a Credit Rating Agency unless the applicant is promoted by persons belonging to any of the following categories;

1. A bank regulated by the Central Bank of Sri Lanka
2. A foreign bank operating in Sri Lanka with the approval of the Central Bank of Sri Lanka
3. A foreign Credit Rating Agency recognized in the country of its incorporation, having at least five years experience in rating securities.

(b) The promoters of the applicant shall collectively hold at least 30% of the total paid up capital of the applicant for a minimum period of five years.

07. A person registered as a Credit Rating Agency shall ensure continued compliance with the following requirements:

(1) Financial /Disclosure Requirements

(a) Capital Requirements –

1. A Credit Rating Agency will at all times maintain the Net Capital stipulated by the SEC from time to time.
2. A Credit Rating Agency will at all times, maintain Liquid Capital as stipulated by the SEC from time to time..

(b) A Credit Rating Agency will at all times maintain a Professional Indemnity Policy with an approved insurer. The policy should cover legal liability for claims against the Credit Rating Agency arising out of its business as a Credit Rating Agency. Without prejudice to the generality the policy shall include the following:

(2) The Professional Indemnity Policy will be for a minimum amount of Rupees 15 Million or 20% of the annual revenue of the Credit Rating Agency rounded to the closest Rs.5 Million.

1. The excess under the policy will be for no more than 10% of the policy cover with a maximum excess of Rupees 2.5 Million.
2. SEC is to be notified of events reportable under the policy to the insurance company,
3. A copy of policy or cover note until issued is to be lodged with the SEC.

(c) A Credit Rating Agency shall at all times have appropriate staff and systems to monitor compliance and conflicts of interest. .

(d) All ratings completed are to be published on the Credit Rating Agency’s web site unless the rating is a result of a request for a private rating.

(e) All open ratings or changes thereto must be lodged monthly with the SEC. A copy of all listed securities’ rating is to be copied to the SEC when completed.

(f) A Credit Rating Agency will advise the SEC immediately if Liquid Capital is within 120% of required Liquid Capital and if Liquid Capital has fallen by over 50% since it was last reported to the SEC.

A Credit Rating Agency shall execute a written contract prior to carrying out any business for and on behalf of a client in its capacity as a Credit Rating Agency, containing the terms and conditions agreed to between the parties including the procedure to be followed in carrying out a rating, the fees to be charged by the Credit Rating Agency and shall ensure that such procedure is complied with uniformly in respect of all rating activities carried out by such company.

Such contract shall not be modified in any way other than in writing.

09.

1. The applicant shall have formulated in writing its rating criteria and any amendments made thereto from time to time. The rating criteria and methodology must be forwarded to the Commission together with the application for registration. Upon completion of the registration process this criteria must be made readily available to the public free of charge and shall be published on the company web-site.
2. Every Credit Rating Agency shall specify the rating process and any modifications to the process including the introduction of any new rating instruments.
3. Every Credit Rating Agency shall have a professional Rating Committee comprising minimum of three persons who are qualified in terms of these Rules to assign a rating.
4. At the time of applying for registration, the applicant shall give the names of all members of the Rating Committee and their current designations and qualifications.
5. All members of the Rating Committee shall each give an individual declaration (certified by an Attorney-at-Law) that they will not engage in the rating process of securities issued by companies in which they have any interest as shareholders or otherwise. The Commission has to be informed of the appointment of any new members to the Rating Committee.
6. The Credit Rating Agency shall ensure that members of the Rating Committee are independent of the entity subject to the rating and have no interest or connection that could be perceived as presenting a conflict of interest.

10. (a) A Credit Rating Agency shall engage solely in the business of operating a Credit Rating Agency;

(b) The directors and the employees of the Credit Rating Agency and the members of the Rating Committee shall not have transactions with companies whose securities are rated by them except for those entered into on an “arm’s length” basis;

Such “arm’s length” transactions would include transactions as a subscriber or consumer of a utility company and a holder of a current account with a commercial bank, or a holder of an insurance policy with an insurance company.

However, all such arm’s length transactions and the attendant terms and conditions of such transaction, inclusive of all such transactions entered into by the Credit Rating Agency itself as a body corporate, (i.e. instances where a Credit Rating Agency, a director or employee or member of the rating committee obtains a loan or borrowing facility from such company whose securities are being rated) shall be strictly disclosed to the Compliance Officer, who shall take note of same.

(c) A Credit Rating Agency’s disclosures of actual and potential conflicts of interest to the client should be complete, timely, clear, concise and specific.

(d) A Credit Rating Agency shall demonstrate the organization’s independence from the companies it rates if and when required to do so by the Commission;

(e) A Credit Rating Agency shall ensure that its rating analysts owning any shares in any corporate entity or business firm shall refrain from participating in the rating process of such corporate entity or business firm;

(f) A Credit Rating Agency shall ensure that they do not carry out any activities which could cause a conflict of interest in terms of its credit rating functions;

(g) No employee of the Credit Rating Agency with the “capacity to influence” a rating shall participate in or otherwise influence the determination of the Credit Rating Agency’s rating of any particular entity or obligation.

An employee shall be deemed to have the “capacity to influence” the same in circumstances which has potential to impair his independence which shall include the circumstances set out below, where he;

1. owns securities of the rated entity or any entity related and/or connected thereto;
2. has had employment or other significant business relationship with the rated entity within the six months immediately preceding such rating;
3. has an immediate relation (i.e. spouse, partner, child, sibling) who currently works for the rated entity; and
4. has any other relationship with the rated entity or any agent of the rated entity that could in the particular circumstances be perceived as presenting a conflict of interest.

(h) No Credit Rating Agency shall rate a security issued by an entity which is;

1. a borrower of its promoter, or
2. a subsidiary of its promoter, or
3. an associate of its promoter, if
   1. there are common Chairman, Directors between Credit Rating Agencies and these entities.
   2. there are common employees.
   3. there are common Chairman, Directors, Employees on the rating committee.

(i) No Credit Rating Agency shall rate a security issued by its associate or subsidiary rating agency or if its rating committee has a Chairman, Director or employee who is a Chairman, Director or employee of any such entity.

11. A Credit Rating Agency shall ensure that their Directors and staff act with due diligence and a reasonable degree of care in carrying out their function.

12. A Credit Rating Agency shall provide the information set out below:-

(a) (i) A’ Financial Report’ prepared on a quarterly basis. The report shall be submitted to the Commission by the twentieth day of the following month;

(ii) The Financial Report shall-

• conform to the Sri Lanka Accounting Standards In the case of a holding company financial information of the group and the said holding company shall be set out separately;
• be signed by a director and its Chief Executive Officer;
• be endorsed with a certification by the directors that ‘The information contained in the Report is accurate and is subject to audit’;

(b) Audited accounts prepared in accordance with the Sri Lanka Accounting Standards. The accounts shall be submitted to the Commission within a period of six months from the close of each financial year;

(c) All audit and non-audit services carried out by the Auditors of the Credit Rating Agency for the agency itself together with the fees and expenses charged should be disclosed separately in the relevant Audited Accounts; and

13. A Credit Rating Agency shall have an internal Compliance Manual applicable to its directors and employees which sets out adequate compliance procedures and practices to ensure that the directors and employees of the Credit Rating Agency do not contravene the provisions of the SEC Act or any rules or regulations made there under;

(a) A Credit Rating Agency shall be required to instruct the Compliance Officer in writing to immediately inform the Commission in writing where any member of the staff or a director contravene the provisions of the SEC Act or any rules or regulations made there under; and

(b) The Compliance Officer of every Credit Rating Agency shall make an annual Compliance Report setting out the extent of compliance with the Rules and Regulations laid down by the Commission and forward the same to the Commission.

14. (a) A Credit Rating Agency shall establish and implement good business practices and follow just and fair principles in the conduct of business.

(b) A Credit Rating Agency shall comply with Codes and Best Practices applicable to the activities of a Credit Rating Agency as may be issued by the Commission or determined by the Commission to be applicable.

(c) A Credit Rating Agency shall make full and material written disclosure to the public of the ratings carried out by them and the key elements underlying the decision and also the bases for the same.

(d) A Credit Rating Agency shall ensure that their rating analysts use reasonable care and exercise independent judgment when conducting credit analysis and also use reasonable judgment regarding the inclusion or exclusion of relevant factors and distinguish between facts and opinions in credit analysis reports.

(e) A Credit Rating Agency shall have internal practice manuals sufficient to ensure the continuity of its operational activities.

(f) A Credit Rating Agency shall maintain an effective complaints handling process.

(g) A Credit Rating Agency shall ensure that the credit rating analysts and the members of the Rating Committee refrain from soliciting or obtaining any benefits from anyone with whom the Credit Rating Agency does business.

(h) A Credit Rating Agency shall disclose in all its communications to the public, when its ratings are not initiated at the request of the issuer and whether the issuer participated in the rating process.

(i) A Credit Rating Agency shall refrain from rating any issue of a company in which:

a) it has any interest whatsoever, whether financially or otherwise and/or;

b) its Director(s) has any interest whatsoever, whether financially or otherwise.

(j) A Credit Rating Agency shall have its own Code of Conduct to be strictly adhered to by its Rating Committee, Directors, analysts and employees.

(k)In the event the Credit Rating Agency resorts to outsourcing of work, then the Credit Rating Agency shall include that fact in the Credit Rating Agreement entered into with the Client in order for the Client to be informed of same. The Credit Rating Agency shall obtain from the person to whom the functions are outsourced an undertaking to comply with all rules and regulations of Credit Rating Agencies particularly which prohibits conflict of interest situations.

15.(a) A Credit Rating Agency shall maintain the following records in its office:

1. all internal records to support its credit rating opinions for a period of six years;
2. all particulars relating to clients up to date at the rating agency office which shall include the name and registered address and contact numbers of such companies, names and addresses of its directors as at the date of rating, its issued share capital and the nature of business; and
3. a comprehensive written record of all complaints received from clients and action taken thereon by the Credit Rating Agency for a period of at least six years from the date of receipt of such complaint.

(b) A Credit Rating Agency shall have a suitable information recording and retrieval system and maintain such information for inspection by the Commission.

(c) A Credit Rating Agency shall ensure confidentiality at all times of all information relating to clients including such client’s identity and transactions carried out for such client; and

(d) The employees of the Credit Rating Agency shall be prohibited from engaging in transactions in securities when they possess confidential information concerning the issuer of such security.

16. (a) Credit Rating Agencies shall ensure that the content in advertisements promoting its services is accurate, materially complete and does not have the capacity to mislead the public.

(b) The Credit rating Agency shall submit the contents of all advertisements for the perusal of the SEC at least 5 days prior to its publication in the media.

(c) Credit Rating Agencies shall comply with any guidelines that may be issued by the Commission from time to time in respect of advertisements.