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
Amirabad Port: The game changer in Indian foreign trade
Authors: Vahid Pourtajrishi & Mahdi Torabi
Seaports have played undeniable role in international and even local trade environment. To demonstrate this claim, we can refer the remained paintings from stone age which show how sea ports help man to feed from sea.
But along the many centuries this significance got more blurred. Specially after the industrial revolution, nobody can reject this significance in international trade. To understand the depth of this issue, just take a look at the condition of commerce and military power of Great Britain after 19th century.
Iran is one of the great geopolitical focal points of the world which connects Europe to Asia and Central Asian states to South of the old continent. In fact, Iran is the most important way for Russia and the Central Asian states to achieve the warm waters of the Persian Gulf and as the result, the main way for entering the free waters. This linkage is created blessing existence of various sea ports in south and north of Iran.
After fostering the idea of International North – South Corridor (INSC), development of the Iranian sea ports got more important. Also, Iran is working hardly on development of Chabahar Port in its South Eastern part of this country that is specially designated to carry the Indian cargos to the North.
Amirabad Port, the game changer for India
After serious focus on INSC by its participants since at least 10 years back, Iran also established Amirabad Port located in Mazandaran Province enhanced with up to date facilities, cranes and even Ro-Ro mode of rail. The train stops exactly at the seashore and this ability reduces the cost of multi modal transportation highly. This port could accept the various type of cargos from container to bulk. The ability of oil and agricultural products transportation is another option of this port which could be very attractive for those Chinese companies who take their cargos from Kazakhstan to West of this country.
As we know, China has focused heavily on BRI route as one of the determinant elements in Beijing national policy and foreign trade. This corridor starts from West of China and ends to Europe passing Kazakhstan in East of Caspian Sea and Azerbaijan, Georgia, Turkey (BTK Corridor) in West of this sea. So, we can assume that Caspian Sea is fully surrounded by the Chinese goods while India as the main competitor of China is fully absent in this region.
As India has focused on Chabahar Port construction project, the rail linkage between Chabahar and Amirabad could directly connect Indian goods to the South of Caspian Sea and this issue could to realize the old dream of Indian merchants to access central Asia and Russia market easily with the lowest cost. So, the Indian merchants could start a real challenge with their Chinese competitor in the region by meaningful reduction of transportation costs while the current access route which is mainly from East of Russia is very costly coz of the very ling distance between East and West of Russia and as the result, the total price is such high which could not be competitable with the Chinese goods price!
But unfortunately, the weak foreign policy of Narendra Modi’s government and his extremely conservative approaches regarding Iran following US sanctions has stopped the work in Chabahar Port. While the Iranian government still welcomes India to invest and construct the second phase of this port, but after withdrawal of India from this project, Iran has fulfilled the required fund to construct this unfinished project from its own national budget.
in the other hand, the controversial 25 years strategic deal between Tehran and Beijing has increased the danger of entering China to Chabahar Port project higher than past. If this issue happens, nobody recognizes it as the Indian government fault but this is the Indian nation who will lose the golden opportunity of leasing Chabahar Port forever.
At the same time, we have to point to this fact that Chabahar is the last chance for India to invest in a modernized Iranian port in order to access the vast market of Central Asia and Russia. It seems while the pressure of US sanctions against Iran is increasing, China is the only country who benefits this condition and is strengthening its political and commercial ties with Tehran everyday and in near future, there will be no chance for India remained to invest in Iran as the artery and gate of entrance to Central Asia and Russia.
Pandemic Recovery: Upskilling Government Saves Nations
Urgently needed are “scientific-based-econo-political-thinking” with proven pragmatic capabilities to execute, because embossed degrees, old-fashioned election expertise with “political-science” studies now appear Machiavellian rhetoric. What works on the election podium is often useless will applied towards pandemic recovery. Nation-by-nation, during pandemic recovery, uplifting midsize business economy is now a number one challenge. Nation-by-nation the absence of hardcore expertise in Public Sector is adding to global crisis. In certain regions, the commonalities of calamities may create a domino fall. For the first time during the last century, the ‘commonalities of calamities’ now shared by the populace of the world. Now, this creates a rare opportunity to demonstrate national and continent wide tactical deployments towards recovery, collaborate by saving the prolonged agonies of humankind. Billion displaced, billion to starve and hundreds of millions in serious quandary. This is far more intricate what any Tik-Tok upgrades and Teleprompter shows can handle.
Understanding ground realities: Those who recently attended many dozens of national or global zoom events on government programs and ideas on economic survival often witnessed serious lack of contents, expertise or experiences, most importantly inability of most presenters to debate or question existing broken down systems. Observe the 75th United Nation meetings, outside very few countries, most nations are only reading the laundry list of the problems without any specific solutions. It is also true, all are waiting for vaccines and this moves the date of ‘global normalcy’ to 2025. As economies start to crumble, seen as almost a national emergency by dozens of the 200 nations, the lack of special skills-sets and high-speed performance labeled a new crisis. A quick test of any top frontline leadership on any 10-government agencies, in any nation mandated to foster economic growth will provide the real picture to this challenge. Upskilling is about expected performance levels and for smart nations to adapt, survive and save nations now mandated nation-by-nation by pandemic recovery. There is no escape. Ask Augustus Caesar.
Understanding Simultaneous Synchronization: The art and science of upskilling frontline government teams to tackle pandemic recovery and economic survivals are normal progressions, but only once deployed with an agenda. Furthermore, to resuscitate fatally wounded economies special global age skills mobilized, like creating digital platform economies where entrepreneurialism dances, creating upskilling and innovative excellence mobilization in simultaneous synchronizations, where exports fly, creating a vibrant globally attractive economy where investments rain. Such upskilling of Public Sectors deployments are often not new funding dependent but rather execution hungry and mobilization starved. Study Expothon Strategy on Google for models.
The Facts: The world can easily absorb unlimited exportable ideas in unlimited vertical markets. Fact: The well-designed innovative ideas are worthy of such quadrupled volumes. Fact: The entrepreneurial and dormant talents of a nation are capable of such tasks. Fact: The new global age skills, knowledge and execution are now the missing links. Fact: fear of change is a false state of mind now corrected with upskilling mobilization.
The Warnings: The Shape of Pandemic Recovery is W: Depending on country, recovery spanning a year, a decade or even longer. Speed will save economies and avoid restless citizenry magnetized by populism. Study the specificity of your own regions and nations, identify voids on small medium business economy sectors and open debates. Follow the trail of silence and it may lead you to hidden conclaves and robed bureaucracies all afraid to change. Upskilling is a bright light in those dark tunnels. Discover the art of transformation and power on enlightenment. Start with high-level zoomerang events and encourage dialogue.
Understanding Upskilling of Public Sector: Across any single nation, Public Sector upskilling models work in simultaneous synchronization and can manage from 1000 to 100,000 participants. How local grassroots manufacturing uplifts small medium enterprises for sharper productivity and exportability? How foreign investments turn around economic performances. How ‘soft-power-asset-management’ the art of imagining things over ‘hard-asset-centricity’ where staying deeply stuck to old routines on old factory floors rewarded. This is when forbidden are the bicycle makers to dream of ‘drones’ or flying cars. Some 500 millions small and large plants and businesses around the world are badly stuck in old groves of decades old mentality, unable to transform, optimize to grow to new heights with new global age thinking and execution. Imagine all that wasted potential, talent and machinery, infrastructure under the dead weight of old concepts still logged into hard-assets based mentality. Pandemic recovery shows no mercy, therefore, understanding of the core proposition of any entrepreneurial venture is “extreme-value-creation” as a prime objective. Running wild on “extreme value manipulations” only creates hologramic economies and ponzy schemes. Quick study of any major financial publication will eliminate the need of any further proof.
The world just changed, the pandemic recovery will change the world repeatedly and do it very quickly. Upskilling at all levels of frontline economic development teams anywhere around a world critically missing link. What is needed are bold and open discussions with diversity and tolerance and national goals to turn around the economy; explore national mobilization of entrepreneurialism as new thinking, explore master upskilling agenda as savior towards stability and superior performances to stand up to new challenges.
If you like, share this with right parties and join our thought leadership. The rest is easy.
Long trends and disruption: the anatomy of the “post world” of the COVID-19 crisis
What will be the economic architecture of the world after the COVID-19 crisis? This question involves understanding the major trends at work for twenty years now.
The world that will emerge from this crisis will be marked by these major trends, which, for some, will be reinforced by this crisis. However, this crisis has created too specific disruptions, in particular in the field of transport and energy. It has also provoked an awareness of the centrality of sovereignty, and in particular of economic sovereignty. Finally, the economic and monetary policies that have been put in place to combat the economic effects of the epidemic and of containment will have long-term consequences on international financial balances.
An acceleration of the change of the world?
Since 2000, we have witnessed the rise of an “Asian bloc” to the detriment of what we might call the “Western bloc”, that is to say the United States, the European Union and the United States. Japan. This Asian bloc is heterogeneous, as is the Western bloc. In each of these bloc politics is the main factor of homogeneity. But, these blocs also correspond to an economic reality: that of the countries of old industrialization against the countries, which it is better to call new industrialization than emerging ones.
In 2000, the China-India-Russia combined represented only 15% of world GDP, while the United States, the European Union and Japan combined weighed more than 47%, or three times as much. In 2020, the two blocks are tied at around 31.5%. If we take into account the immediate effects of the COVID-19 crisis, this movement is even expected to grow. The IMF has made forecasts which indicate that China and emerging countries should recover much faster from the shock of this crisis than the so-called “advanced” countries, ie countries of former industrialization. The world should see the shift to Asia amplify in the coming years.
The death of oil has been greatly exaggerated… (bcc, Mark Twain)
The COVID-19 pandemic has had a profound influence on the energy market and on oil production. The persistence of the pandemic means that air transport, among other things, will not return to its 2019 level before, no doubt, 2024. This implies a weak demand for kerosene as estimated by the International Energy Agency Forecasts of global oil demand and post-crisis economic growth are determined by different assumptions. In the optimistic scenario, there is a rapid economic recovery in a more or less flattened “V” shape in the first half of 2021, but the demand for oil does not fully return to the pre-pandemic trend. In the more pessimistic scenario, oil demand will not reach 2019 levels until 2023, and its growth will remain well below the pre-pandemic trend. The current evolution of the pandemic suggests that we are closer to this pessimistic scenario. These two scenarios also assume that zero-emission vehicles will represent 60% of new vehicle sales by 2040, because investments are high in these technologies. Therefore, they both forecast a slowdown in demand for oil to peak in the mid-2030s at around 105-108 Mb / d. What will be the consequence?
In the medium term, OPEC will have to manage the probable return of part of the 5.7 Mb / d of unused production in OPEC countries (Venezuela, Iran and Libya) and non-OPEC countries (Syria and Yemen). OPEC will also have to deal with the resumption of US hydrocarbon production (particularly shale oil), a recovery that may be slow due to falling investment, as demand and the price of oil rise. US production of hydrocarbons has fallen by more than 2 million barrels / days, due to the closure of existing wells, reduced storage capacity and reduced demand.
The impact of COVID-19 on oil demand will therefore be profound, particularly in the event of a deep and long recession associated with a protracted pandemic. Without aggressive intervention by OPEC, the average crude oil price could thus remain below $ 50 / barrel until mid-2022. During the second half of this decade, supply and demand are expected to move closely towards equilibrium as non-OPEC production, especially from Russia, begins to decline and US hydrocarbon production reaches a low. tray. The price of oil is expected to rise to around $ 80-90 / barrel (optimistic scenario) or $ 70-80 / barrel (pessimistic scenario), even without OPEC intervention.
As we can see, however, despite all voluntarist proclamations one can hear here and there, oil will remain a major source of energy for at least the next thirty years.
The return of economic sovereignty
A more direct change brought about by the COVID-19 pandemic is the realization of the importance of economic sovereignty. Of course, a number of countries, China, Russia, but also the United States and India, were acutely aware of the importance of this sovereignty. The European Union, for its part, had adopted a very negligent attitude on this subject. The strong disruption of international trade caused by the pandemic caused a real shock on this point. Of course, there is no question of returning to more or less self-sufficient economies. But, the economic, social, and even strategic damage caused by free trade policies are globally more taken into account today.
This will accelerate the return of nations and the crisis of multilateralism that we could already observe. The economy is once again becoming a breeding ground for strategy. Through the policy of economic sanctions, which the United States has used and abused since well before the election of Donald Trump, we are witnessing an acceleration of the fragmentation of the world economic space. American pressure on Huawei, or on the Chinese social network “Tik-Tok” is an example. De-globalization had passed from the stage of possibility to that of concrete fact; with the effects of the pandemic it will pass from that of fact to that of major fact.
This return to economic sovereignty induces the great revenge of politics over “technology”, the triumph of decisions over the automaticity of standards. However, ” technology” is embodied today mainly in economics and finance. The pandemic heralds the return of sovereignty, and being sovereign is above all having the ability to decide. The countries will then be referred to logic of bilateral relations, or even to regional logic. It will then be necessary to seek allies.
The questioning of the “global” character of the companies linked to the INTERNET, the desire of several countries to build their “digital sovereignty” is an example of the struggle that is looming for economic sovereignty. This resurgence of politics does not mean that, in our societies, certain spaces are not governed by the technical order, and that there are spaces dominated by technical legitimacy. But, these dimensions will now become second in relation to the political, which will recover its rights. The economic and the financial will once again become instruments at the service of politics. What the political will do with it remains to be determined.
A Debt apotheosis or an end of debt?
A final point remains the explosion of both public and private debts due to the pandemic. In most countries, the COVID-19 crisis has resulted in the collapse of various barriers to the expansion of public debt.
The latter has therefore increased to finance the fall in tax revenues during the confinement period but also the considerable additional public expenditure generated by the crisis. In addition, there are liquidity facilities, consisting of guaranteed loans, equity investments and the like. The result of all this is that the indebtedness of states (especially in the Western bloc) and that of companies will increase considerably by 2021. This debt will not be covered by an increase in taxes because it would imply a deep recession. Reducing public spending beyond 2022 will hardly be a possible solution, for the same reason.
These debts will therefore be absorbed by central banks, in one form or another. The same will be true of a large part of corporate debt. What will then be the consequences for the currencies (mainly the US Dollar and the Euro) of these policies? What will also be the medium-term consequences on the equity and bond markets?
One of the most striking consequences will be the influx of liquidity as a result of central bank action, while production will remain relatively depressed and the outlook for investment will be uncertain for several years. Currencies should therefore experience significant fluctuations. The current downward trend in the share in central bank reserves and the US dollar and the euro in favour of the group of “other currencies” (Sterling, Yen, Australian and Canadian dollars, Renminbi) should therefore accelerate.
Its to be noted that the Euro share went down significantly under the level of older currencies included in the Euro and that the group of “other currencies” significantly increased their share since 2010.
The economy of the “world after” the COVID-19 epidemic will therefore present both the characteristics, in a more accentuated form, of that of the world before but also a certain number of ruptures linked to this epidemic. This combination of strong trends and ruptures will result in a “de-globalized” world which will reorganize itself on the basis of bilateral alliances or regional groupings.
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