New framework for default loss guarantees to boost digital lending

The Reserve Bank of India (RBI) on 8 June 2023, published a new regulatory framework, permitting the issue of default loss guarantees in digital lending (DLG guidelines). This is a significant departure from the RBI’s previous position of restricting default loss guarantees (DLGs) by lending service providers (LSP) in favour of regulated entities (RE), typically banks and non-banking financial companies.

In the digital lending world, a first loss default guarantee (FLDG) is a risk-sharing arrangement in which the non-regulated LSP agrees to absorb any losses, up to an agreed amount, should there be a default by an identified pool of underlying borrowers who have come together through such LSP. The original recommendations of the working group on digital lending in August 2022 completely prohibited all forms of FDLGs. The RBI issued a more comprehensive set of regulations for digital lending in September 2022, disallowing most common forms of FLDGs, especially structures similar to synthetic securitisation. Synthetic securitisation is a structure where the credit risk of an underlying pool of exposures is wholly or partially transferred through credit derivatives or credit guarantees, hedging the credit risk of the portfolio remaining on the balance sheet of the lender.

The DLG guidelines now provide a framework for issuing, monitoring and disclosing DLGs issued by LSPs. Interestingly, implicit guarantees or contractual arrangements providing credit enhancement or off-balance sheet support to REs that are linked to the performance of the RE’s loan portfolio will be treated as DLGs.

The DLG guidelines prescribe key elements that must be included in an express and legally enforceable contract between the RE and the DLG provider. These include:

1. 1. Extent of DLG cover (aggregate DLG cover amount for any outstanding portfolio which is specified upfront cannot exceed 5% of the total loan portfolio amount identified upfront);
   2. DLG cover that is to be maintained with the RE can only be in the form of cash deposited directly with the RE, fixed deposits held with a scheduled commercial bank and with a lien created in favour of the RE, or a bank guarantee issued in favour of the RE;
   3. The time limit for REs to invoke DLGs is 120 days from the date of a continuing default.
   4. REs must establish systems ensuring the LSPs with which they have a DLG arrangement publicly disclose on their website the number of portfolios and the amount in each portfolio on which DLGs have been extended. While this will ensure greater transparency, it will also pose practical challenges for LSPs as they will have to disclose their commercial DLG arrangements with all partners.

Before concluding any DLG arrangement, REs must establish a board approved policy. This policy must include essentials such as the eligibility criteria for DLG providers, the scope and nature of DLG coverage, procedures for monitoring and evaluating DLG arrangements and the details of any fees payable to DLG providers.

Whenever REs enter into a new DLG arrangement or renews an existing one, they must collect sufficient information to ensure that entities offering DLG are capable of fulfilling their obligations. This should include, at a minimum, a declaration from the DLG provider, verified by its statutory auditor, of total outstanding DLG amounts, the number of REs involved, the number of portfolios covered by DLGs and historical default rates on similar portfolios.

The DLG guidelines mark a significant shift in the RBI’s stance towards DLGs. Under the previous guidelines, several digital lending players began restructuring their businesses. These regulations will be a lifeline for LSPs and for borrowers not traditionally serviced by REs because of a lack of collateral or sureties. The cap of 5% on DLGs on an upfront identified portfolio will need some reworking as several LSPs usually provide and calculate this cap on a running basis on the outstanding portfolio at any given point in time.

The RBI’s decision to allow limited forms of DLGs and to establish comprehensive guidelines demonstrates a more nuanced approach to balancing risk and innovation in the digital lending sector. The guidelines should enhance transparency, enforceability and stability, to the ultimate benefit of lenders and borrowers in the digital lending ecosystem.

Shubhangi Garg is a partner and Arjun Khandelwal is an associate at Shardul Amarchand Mangaldas & Co.