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Trust

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It’s all a matter of trust, and, frankly, the people don’t trust you. “You” refers to the government, big business and the media. The lack of trust applies to a huge assortment of entities.

It starts with the present federal government administration, including the President and his vast assortment of gurus. It continues with congress and the judiciary, state and local governments. It extends to big business concerns such as the defunct Enron company, some auto and oil industry firms, numerous banks, several Wall Street investment brokerages, behemoths including AIG, and specific claim-dodging insurance companies. The list goes on ad infinitum.

Government officials of all stripes, Chief Executive Officers (CEOs), their business executives and media moguls better wake up and change their ways. Past history has caught up with them. It’s a history reeking from failures, lack of oversight, corruption, fraud, greed, lies, shams, gimmicks and outright incompetence. The people grow weary of it all and are becoming angry. A restive populace indicates a desire for change, but this time people want the right kind of change.

Things folks would like to change run the gamut from the simple through the complex to the sublime. Let’s consider a few examples starting with a simple one like a typical ad offering a product on sale for $19.95. Why not say it like it is? The people know that the item is not really on sale in the first place, and that it is actually rounded off at an out-of-pocket cost of $20.00. They are not impressed with the ploys and gimmickry employed with slick sales tactics. In fact, they find these rather tedious and disgusting. Again, a newspaper subscription promotion offering the Sunday paper for $1.00 a copy per month for a full year sounds good, right? The catch is that one must pay for the subscription by allowing the newspaper to debit your credit card for payment. Otherwise the price increases from $4.00 to $6.25 per month. Of course, the promoter does not divulge this information until the potential customer is asked for their credit card information. Then the subterfuge becomes clear, and the client exhibits a degree of irritability at having been temporarily duped. It all ends in a waste of time, effort and no sale. Now some people would call these shrewd business tactics, gimmicks or ploys; others would label them as they are – deceit or outright lies.

There are other simple business gimmicks (let’s call them little lies) that people would like to change as well. The favorite deceptions of the business community are the rebate versus a straightforward, simple discount; the “plus postage and handling” ploy; and the usurious interest rates and excessive overdraft fees on credit cards by banks. We have all encountered these odious practices and have acquired a built-in aversion to them. The business community should reconsider these gimmicks and eliminate them. The majority of their potential customers have already done so in their own minds.

Some of the more complex things that folks would like to change might be exemplified in   the many pork barrel projects inserted into numerous hand bills passed by our politicians at the various levels of government. As any past president or governor can testify, the line item veto is needed here in order to defeat the pork barrel riders attached to valid legislation without vetoing the entire hand bill. Does the “bridge to nowhere in Alaska” or the “$600 toilet housing with seat” for U.S. Air Force aircraft ring a bell with anyone? Of course, our elected politicians would never consider allowing the line item veto to become law. That would ruin their pork barrel tactics; it would take the cover off their deceit and wholesale hypocrisy. Ah, but there is always the next election at which the electorate can level the playing field by eliminating those politicians deserving of censure and rebuke for their misdeeds. The hypocrites involved in such shenanigans seem to forget that they will ultimately pay the price. Admittedly, however, too many of them get away with their deceptions for too long a time before justice catches up with them, if it ever does.

Government is not the only culprit. What of the oil industry’s artificially inflated gasoline and oil prices, especially as a prelude to seasonal climate changes, long weekends and traditional holidays – are these prices possibly manipulated by oil company executives just as they are by the oil producing nations? This manufactured price inflation is only superseded by the outright greed exhibited at annual bonus or retirement times by industry CEOs.  

One of the things people would like to change that has been getting a lot of attention lately is the health care program. This issue and attempts to resolve it border on the sublime. Yes, all agree that health care reform is needed and that no one solution will satisfy all of the people. Yet we must ensure that in trying to correct the ills of the past, we don’t incur even greater flaws in the future program. Formerly, the insurance companies controlled too much; at present they still do; in future they better not. Additionally, hospital and doctor fees have been outrageously high and must be tempered and moderated. The people, too, must be educated to impose self-discipline so as not to abuse the new system that will eventually be established. And most important of all is that oversight must be established and enforced to keep everyone relatively honest.

The Obama Administration and Congressional Health Care Proposals all claim that their respective plans will be paid for out of savings from the current health care program, primarily MEDICARE. This is indeed a wild assumption, and there is no reason to believe that it will be so. Fraud, waste and abuse have not been stopped over all the past years of the currently existing program and won’t be stopped by implementing any new health plan. Why is this the case? Corruption, waste and abuse will continue because of human nature. Even if strict oversight is established, people in government, business and citizens-at-large will find ways to defeat the system and continue their wasteful, abusive and corrupt ways. Wherever people and money are involved, fraud, waste and abuse will follow. The best we can hope for is to keep some modicum of discipline and preventive control.

Equally sublime are unsubstantiated assertions of racial discrimination, liberal claims of conservative obstructionism, and conservative claims of democratic socialism regarding the health care issue. These are all balderdash. The liberal and conservative entities are simply pursuing their separate agendas rather than searching for ways to compromise and come to agreement. The liberals promote their relative agenda of universal health care for everyone and include a public option, complete coverage for abortion, contraception, sterilization, human embryonic stem cell therapy, euthanasia and assisted suicide. The conservatives want universal coverage as well but oppose the public option for economic reasons and all of the other dubious and controversial coverages on moral grounds. They do not want tax dollars used to promote those efforts which they consider to be morally wrong and intrinsically evil. The quest for compromise and agreement continues on the health care issue, as does polarization of liberal and conservative political and business positions. Sooner or later a solution will be reached through compromise. Hopefully, the compromise will overcome all the sublime arguments and will result in an improved, economical and morally acceptable health care plan for all with adequate oversight to prevent, or at least subdue, fraud, waste and abuse.

Now let’s get back to the primary issue of trust. It is not so much the President and CEOs that cause our disbelief, although they are not exempt. It is, rather, all the President’s men and corporate business executives in general that contribute to the public’s mistrust. It is the President’s corps of operatives and gurus with their past extremely liberal or even radical histories and their present hidden agendas that contribute to the public’s suspicions as to the administration’s true motives and goals. As a consequence, those same suspicions apply to President Obama himself, since he appointed his cabinet and collection of gurus. As for business in general, we the people have always been wary of its hypocrisy and sleazy, deceptive practices. Where else did the warnings “buyer beware” and “get it in writing and signed” originate? “By their works you shall know them.” Therein lies a clue to the people’s mistrust. A greater degree of transparency by all concerned would help to reduce or eliminate that mistrust.

In an effort to be transparent, the President tries to explain and clarify his position on each important issue facing the nation with frequent media events and public speeches. Yet these are unconvincing; they amount to overexposure and information overload. He is trying too hard. If his positions on the issues are so good for the people and the country, why aren’t they obviously so? Why does he feel that he must convince us of their worth? Why is it that half of this nation’s people don’t believe him?

They don’t believe him because it is a matter of trust. The people are suspicious and lacking in trust of President Obama’s administration, and he who leads it, because the final results of the administration’s initiated actions on the important issues are still pending. President Barack Obama talks a good story, but words are cheap. Shakespeare expresses it best: “. . . truth hath better deeds than words to grace it.” Earning the people’s trust depends on achieving positive results on critical problems such as health care, the economy, jobs, trade, the housing and credit markets, the deficit, and successful handling of the Afghan and Iraqi Wars, for example. These issues and their outcome will determine whether the people’s trust will be bestowed or withheld. All of these matters, and more, are currently unresolved. We shall have to wait and see how things work out regarding the critical issues of the day. Meanwhile, doubt and mistrust prevail.

Despite all the suspicion, fear and anxiety, the President and his administration, congress and the judiciary, CEOs, their corporate executives and the media must be given the benefit of a doubt – at least temporarily. They must be given time to prove that they are worthy of trust, once again. After all of the debacles and misfires of the past several years, this will be a monumental task. We wish them well in pursuit of their goals and the people’s trust, all the while keeping in mind the biblical admonition – “By their actions you shall know them.”

Amidst all the turmoil and doubt, one might be prompted to consider two possible prophecies – that of a young man pursuing his liberal vision, or one of an old man dreaming his conservative dream. Whichever prophecy is realized, we must not sell our souls to the devil, yet all must take a stand and abide by it. We, the people, must choose wisely. We must caution our government, big business, and the media to take heed lest past and present foul deeds incur the people’s wrath and lead to anarchy. The powers that be must beware of what changes they institute lest they reap the whirlwind. And reap it they will if they do not regain the people’s trust. They must remember the prophet Jonah’s warning to Nineveh to repent. Armageddon draws near.

Economy

What an ‘Impossibility Clause’ can make possible

Mehrnoosh Aryanpour

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Since the implementation of the JCPOA in January of 2016, and throughout the current period of accelerating investment by foreign enterprises in Iran, many participants have taken for granted that in the event of a “Snapback” or the reimposition of UN, U.S. and EU sanctions under the provisions of the JCPOA, foreigners must perforce exit all investments in Iran and Iran’s major industries would be relegated to the shadows as an unlawful destination for foreign capital.

The operative assumption has been that any such reimposition of sanctions under a Snapback scenario would make it “impossible” for such foreign participants to maintain, lawfully, their investments in the various projects within Iran, investment they have made a huge effort to structure and uphold in the still-new era of significantly relaxed sanctions.  In fact, the very idea of the impossibility of maintaining significant investments in Iran under such sanctions has become something of a fixation. To the dismay of Iranian partners in various ventures, their foreign partners tend to focus on securing their own interests, rights, and recompense under a Snapback. An efficient exit strategy is often sought.

In reality, those who are here on the ground in Iran know that, regardless of the whims of the American President or the vicissitudes of foreign capital flows, the continued development and renovation of Iran’s domestic economy, both in terms of absolute production, as well as in terms of sophistication, efficiency, and integration, will continue apace, and therefore, the wiser among the stewards of foreign investment in Iran understand that it is as much a question of ensuring business continuity for their Iranian-Foreign joint venture projects despite changing international sanctions regimes, which have been imposed by the West against Iran for decades.

As a result, the most basic and fundamental considerations for any prospective foreign project participant and its Iranian partner become:

1. How the foreign participant can, through appropriately drafted “Impossibility Clause(s)”, remain invested in the Iranian venture for as long as possible under the threat of renewed or reimposed sanctions, and without incurring unacceptable risk.

2. How the foreign participant can contractually envision the broadest range of adverse sanctions scenarios through a single and efficient impossibility mechanism.

3. How the foreign participant can provide for a gradual approach to any putative withdrawal procedure, as opposed to the simplistic solution of outright termination upon Snapback after a period of suspension.

4. How the foreign participant can, in the event of the extinguishment of impossibility, subsequent relaxation or obtained exemption of sanctions, reasonably provide for the right, or at least the option, for itself to reenter an investment project which it may have exited because of Snapback.

The legal thought process underpinning successful solutions which industry practitioners may be likely to embrace is beyond the scope of this article, but the conceptual summary can be a useful guide for all of us as we come to grips with what can be made possible by “Impossibility Clauses”.

1. Remaining invested, minimizing risk: Of course, it is true that for many projects, a direct investment by the foreign participant though its stake in an Iranian joint venture entity may be the most straightforward means of effecting the transfer of capital that allows the foreign party to have a stake in a project.  It also allows for the simplest mechanism by which a foreign party may apply for and successfully obtain an investment license in accordance with the Foreign Investment Promotion and Protection Act.

Nonetheless, such a direct investment may, particularly in the case of European entities which also do business in U.S. jurisdictions or in jurisdictions which have significant links with the U.S. financial system, provide little or no cushion under even the most benign reimposition of any form of secondary sanctions.  This is because the direct investment leaves the foreign party little room to maneuver by way of restructuring or otherwise allocating its participatory interest in the project as sanctions change.

For this reason, a more effective solution could include the formation of a foreign special purpose vehicle to act for the project entity.  In the case of a joint venture, an SPV incorporated in a jurisdiction less likely to be adversely affected by reimposition of sanctions would allow for a more flexible platform to facilitate intelligent solutions such as exit and re-entry options, trustee or agency relationships, and contingent sale-repurchase strategies to prepare for the worst outcome of a sanctions scenario which may force a foreign party to exit Iranian investment.

2.Knowing unknowns, counting uncountables: Even now, with the most recently issued ultimatum by the American President declaring that the end of the JCPOA as we know it is nigh (to be either amended or abrogated, if Mr. Trump is to be believed), there exists a wide variety of circumstances involving the reimposition of sanctions, ranging from those that would make the maintenance of an interest in a project by a foreign party merely inconvenient to those which would make maintaining such an interest lawfully untenable.   These may range from largely toothless, otherwise symbolic targeted secondary sanctions which apply only to the entities of specific countries, as we have continued to see since Trump’s October 2017 decertification, or those which may apply only to certain economic sectors or types of goods or projects, to those which render further financial flows in support of such a project functionally impracticable.  Most challenging of all would be the failure of the UN to continue to waive the imposition of sanctions against Iran.

Thus, a single mechanism to classify sanctions in some way as materially adverse changes and evaluate consequences seems a more pragmatic solution than contemplating what may constitute an “impossibility” event, and including it under grounds for termination.

Under a scenario in which the foreign party has made appropriate structuring preparations as suggested, the determining exit remedies depends on compliance with mandatory applicable laws of the project vehicle’s jurisdiction.  To put it another way, the most straightforward test of whether the foreign party may have to adjust, or exit from its participation, comes down to whether it can fulfill project obligations while abiding by all applicable regulations that may apply to it.  Beyond such a litmus test, imagining or prognosticating about the myriad complexities of a possible Snapback scenario may be fruitless and contractually inefficient.

3.Avoiding the black-and-white trap: Of course, a foreign project participant can easily avail itself of the opportunity to stipulate that under any kind of scenario of project impracticability caused by sanctions, certain or envisioned, termination shall be the one and only prescribed remedy.

But this is likely to disadvantage the foreign party in the context of negotiations over comprehensive project terms with its Iranian counterparty, and it may limit the scope of the project work itself and fail to allow for a more complex investment structure which cannot survive the threat of termination overnight due to a “Snapback” of one kind or another.

Aside from termination, and its precursor remedy, suspension, there should also be the possibility to contemplate a variety of concepts including assignment, agency and delegation, in order to benefit from the vagaries of sanctions regulations and their exemptions. In some cases, project obligations which would be in violation of sanctions for some foreign entities may not be so for others.  As has been shown by the agreements between foreign export credit agencies (“ECA”s) such as EKF, BPI and Invitalia, developments at an international level, especially where adequate sovereign support and sufficiently ringfenced banking facilities exist, are being contemplated to facilitate the kind of continuity required for the decades-long projects now underway in Iran.   In addition to these ECAs, other parties such as quasi-sovereign corporations, particularly those from less dollarized jurisdictions, can play a role as fallback transferees of the exiting foreigner’s project interest or shares under Snapback.  Moreover, it should always be noted that under even the most negative circumstances, the potential for a foreign party to obtain a waiver does exist and can be specified for the benefit of all parties.

4.Saving face, weighing options: Although some foreign entities have a checkered past derived from cutting and running under the threat of or the actual imposition of sanctions against Iran, time has shown that many of the same foreign parties which were forced, or chose, to exit their project ventures are the first ones to have returned since the JCPOA. Such is the compelling nature of Iran as a destination for foreign capital.

Iranian parties to a project know both this history itself and its implications. Foreign participants may wish to keep close to the exits, but foreign companies that have been victimized by their own government’s whims regarding sanctions, and the slippage inherent in exiting and reentering, cannot be understated.
For this reason, foreign project partners may choose to consider the solution of exit and entry “options” for themselves under adverse sanction scenarios, and thus it is important for all parties involved to understand what an “option” precisely means, and how to value such an option.

In financial speak, an option is defined as the right but not the obligation to sell (or buy) an asset in a fixed quantity at a fixed price on (or before) a fixed date in time.  In the case in question, the asset is the participatory interest of the foreign party in the Iranian project, and the date is that point in time at when the parties to a project agree that the foreign party must leave due to sanctions (or is able to re-enter due to easing of sanctions).

However, it is not obvious immediately what the fixed price should be for foreign project interest at the time of exit or re-entry, and, most importantly, what may be overlooked is the tremendous value that such an option has.  In finance, the greater the underlying uncertainty about an asset, the more valuable any option on that uncertain asset is. Similarly, the longer the life of an option on an asset, the more valuable that option is.  In the context of long term investments, any option to exit (or re-enter) should be linked with a significant premium (that is, the worth of the option), and the contract parties should ensure that they successfully negotiate an appropriately fair value for the flexibility the options offer. As an illustrative example, the alternative to any exit put option for the foreign party is a fire-sale in the face of illiquid conditions for its share interest under the menace of reimposed international sanctions, or more problematic still, the inability to exit its share interest altogether, which an option is supposed to protect against.

Absent a foreign investor’s legal immunity to the whims of the UN, OFAC, or other authorities, there is no perfect panacea for fool proofing long-term Iranian projects against the kind of uncertainty which the spectre of sanctions create.  But although this threat, to a certain extent, has forestalled the growth in Iran’s industry and economy despite the strengthening of Iran’s relationships with the international community, it is now apparent, moreso than ever before, that foreign parties can be expected to take an increasingly pragmatic approach in efforts to remain engaged with their Iranian projects for as long as possible.  They can effectively do so by allowing for the most flexible and broad classification of sanctions-related termination risks, by specifying a menu of contractually stipulated responses to reimposed sanctions (in conjunction with intelligent and pre-emptive project structuring) and by exchanging due consideration with the Iranian party for the invaluable options which allow them to remain confident that they can, if absolutely necessary, exit the project and someday re-enter, at a fair price.

Thus, it seems that the operative watchword for all foreign investors in Iran is continuity: continuity of the progression towards innovation, development and growth, and continuity of the participation of foreign interests in that process, bolstered by intelligent structuring solutions, both legal and financial, for dealing with the complicated reality of international economic sanctions.  With a measure of foresight, and a functional, flexible contractual framework, all participants in long-term, large-scale project joint ventures can move closer to the ideal of mitigating most, if not all, of the adverse consequences of sanctions regulations on investment decisions and risk management.

First published in our partner Tehran Times

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Economy

Creating Quality Jobs Crucial to Boost Productivity, Growth in Indonesia

MD Staff

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Indonesia must create good and quality jobs to help increase the country’s productivity and competitiveness for sustained and inclusive growth, says a new Asian Development Bank (ADB) study.

The study, titled Indonesia: Enhancing Productivity through Quality Jobs, takes an in-depth look at the challenges in creating better jobs and raising the country’s labor productivity, as well as the necessary skills needed for a youthful and increasingly better educated workforce to meet the demands of the digital age. The publication was launched today at an event in Jakarta hosted by ADB and the Coordinating Ministry for Economic Affairs.

“Indonesia has a tremendous potential to capitalize on its youthful workforce by addressing the country’s long-term challenges to job creation and inclusive growth,” said Rudy Salahuddin, Deputy Minister for Creative Economy, Entrepreneurship, and SME Competitiveness, Coordinating Ministry for Economic Affairs.

“Not only does the country need to create a more skilled workforce, but it also needs to adjust to new global patterns of technology and the demand for new skills,” said Bambang Susantono, ADB Vice-President for Knowledge Management and Sustainable Development.

The study provides three key messages on how to create good and quality jobs for Indonesia’s large workforce. First, improved education and skills development are necessary to create enough quality jobs to raise productivity. Second, as urban jobs are expanding faster, supportive public policies for sustainable cities are fundamental in generating quality jobs. Lastly, there should be continued efforts to improve labor market institutions and regulations that promote a wider range of employment options and better income security for workers.

The study identifies policy initiatives focused on creating better jobs in the labor market, raising labor productivity, and facilitating worker adjustment to the challenges of the digital age. These issues are addressed both from the supply side and from the demand side of the labor market. Policymakers should ensure that initiatives aimed at increasing productivity also target the poor, women, older people, and other disadvantaged groups.

Labor market institutions like private businesses, small-scale enterprises, and community groups also play a critical role in helping improve the employability of Indonesians. Combining new work opportunities with new technology, ideas, and organization will raise productivity and contribute to improved living standards.

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Economy

Agriculture Is Creating Higher Income Jobs in Half of EU Member States but Others Are Struggling

MD Staff

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Half of EU member states have leveraged the Common Agricultural Policy (CAP) to significantly reduce poverty and drive higher incomes in farming, while other countries are still lagging, according to the latest World Bank study.

The ‘Thinking CAP’ report details how new investments and services in farming, reinforced by the EU’s flagship agriculture policy, can drive down poverty and transform agriculture into a sector which can provide higher paying jobs for those who farm.

Hungary, Slovakia, Estonia, Denmark and the Netherlands are all examples of member states that have successfully modernized their agricultural sectors by providing advisory services, roads, secure property rights and access to education and health services in rural areas. Others, such as Bulgaria, Portugal, Romania, Slovenia and Greece, still have some way to go in reducing poverty and ensuring that agricultural work pays. They can do so by improving the basic conditions for a successful agricultural sector, which would improve the results of the financial investments available under the CAP. Other remaining member states fall in between these two categories – achieving a successful transformation or lagging behind.

“Agriculture and poverty in half of the member states of the EU no longer go hand-in-hand. It’s clear that the income gap between agriculture and other sectors is narrowing and in some countries, such as the Netherlands, agricultural work can pay more than jobs in other sectors,” says Arup Banerji, Regional Director for the European Union Countries at the World Bank. “Today, about half of EU member states recognize that farming can boost shared prosperity, while the other half still has some work to do to provide the basic conditions to bring about necessary structural changes.”

The World Bank report shows that the EU CAP is associated with improving employment conditions in farming. Decoupled payments – annual payments based on how much land a farmer uses – and the co-financing of on-farm investments do show clear links with improvements in agriculture. For instance, in the newer member states agricultural labor productivity growth increases from 3.1 percent to 4.7 percent per year with a 10 percent increase in this type of CAP spending. However, there are certain categories of subsidy – known as coupled payments, which reward farmers for producing a particular crop or livestock— for which the report could find no such association. In the past, these coupled payments also led to extreme overproduction and price distortion on global markets.

“Some countries are running before they can walk by issuing payments to farmers who don’t have the necessary infrastructure to effectively bring their products to market or to make the best use of their investment,” said Rogier van den Brink, Lead Economist at the World Bank. “However, the processes the CAP has put in place are impressive. The CAP casts a very wide net and reaches farmers in every far-flung corner of the EU. Because of this, improvements in the CAP along the lines of the recommendations outlined in our report will further strengthen its role as a powerful instrument of structural transformation.”

Going forward, the report says the monitoring of CAP funds should focus on delivering tangible results rather than confusing bureaucratic processes. This would also encourage the co-financing of private investment into CAP-supported projects which are in the public interest such as environmentally sound practices, organic farming and animal welfare.

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