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Brazil India Investment Cooperation and Facilitation Treaty (2020)

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During a recent visit to India (24th – 27th January) as a chief guest of the Republic Day celebration, Brazilian President Jair Messias Bolsonaro sketched an ambitious plan to revitalisation their faltering economy. This new strategic partnership will expand cooperation in key sectors of the economy such as oil, gas, and mining, while it was setting the target of USD 15 billion in bilateral trade by 2022. While approaching to WTO against India for extending support to her sugarcane farmers, Brazil penned investment cooperation and facilitation treaty. This is Brazil’s 10thand India’s 4thbilateral investment agreement since both nations had adopted their Model Bilateral Investment Treaty. Previously, India has managed to conclude bilateral investment treaties with Belarus, Kyrgyzstan, and Cambodia after scrapping down all 83 existing bilateral investment treaties. The object and purpose of this short write-upare to critically analyse and compare the new Brazil-India Cooperation and Facilitation Treaty (Brazil-India BIT) with the Model BITs of India and Brazil. It will be discussed who deviates from Model BIT and to what extent to sign the investment agreement. Moreover, the author will evaluate whether both countries have compromised their interest to strike a deal and who wins the deal or to what extent.

The Definition of Investment

Definition of investment is one of the essential elements in any investment agreement as this is the first thing a disputant has to establish before an investment tribunal to avail the protection. Brazil-IndiaBIT under Article 2.4 incorporates the meaning of investment. Here we see that enterprise-based definition is adopted where an enterprise is taken together with all of its assets. Both Brazil and Indian Model BITs have adopted the same enterprise-based definition approach. The BIT definition of investment is coupled with some other characteristic such as the commitment of capital, objective of establishing a lasting interest, expectation of gain or profit, and the risk assumption. In this, the BIT commensurate with Indian Model BIT as Brazil BIT lacks these elements in the definition of investment. A slight difference remains with the Indian Model BIT as the BIT does not require the “significance for the development of the host-state” characteristic in investment. Prof. Ranjan rightly pointed out that the requirement “investment should be significant for the development of the host-state” is a subjective requirement which is very much challenging for the foreign investor to prove the same before an investment tribunal.

Novelty in Expropriation Clause

A novelty of the new Brazil-India BIT is its expropriation clause which completely excludes indirect expropriation from the scope and purview. Article 6 only talks out “Direct expropriation” as the heading of the article proposes. Article 6.3 incorporates a provision which clearly states that the treaty only covers direct expropriation. The direct expropriation takes place in the time of nationalisation or when expropriation is made directly through formal transfer of title or when a downright seizure is made. Thus Brazil-India BIT does not cover indirect expropriation of investment. After a thorough reading of both Model BIT, it is observed that Brazilian Model BIT does not have any provision related to indirect expropriation while Indian Model BIT covers the same under Article 5.3. Thus, this can well be said that this novel idea of excluding indirect expropriation, Brazil wins while India deviated its Model BIT. As this rule allows investors to bring indirect expropriation claims on imperceptible grounds. Brazil has been critical to indirect expropriation for some time. According to the Brazilian approach, this provision allows foreign investors to make abusive claims and shrink regulatory spaces of the host-state, which helps host-state to protect public interest such as public health, environment, public security etc. Since direct expropriation of foreign investment is very much rare in the modern economic affair, it is unexpected that the Indian side departed from its earlier practice. Even recently concluded Indian BIT with Belarus provides rules of indirect expropriation under article 5.3A thorough reading will reveal that not only those BITs provide for protection from both ends but also laid down formulae of determining indirect expropriation which could be a great guide for investment tribunals. Host-states regulatory powers which emanate directly from its sovereignty puts a prodigious test for the investors. The regulatory measures are taken in public interest frequently creates hardships and might upset investment adversely. Although there is a possibility of abusing power under the blanket of indirect expropriation, the entire removal of the system of indirect expropriation is not a welcome step. In the words of professor Ranjan, “leaving indirect expropriation outside the scope of the BIT creates a yawning gap in the protection of foreign investment.

Prevention and Settlement of Dispute Clause – A New Horizon

Settlement of dispute is a vital portion of any investment agreement. It is observed that Brazil-India BIT used the phrase “dispute prevention and settlement” instead of the word dispute settlement only. Settlement of dispute comes under Part IV Institutional Governance, Dispute Prevention and Settlement. This highlights that both countries emphasise on the prevention of disputes resorting to the principle “prevention is better than cure”. Ostensible novelty is established in this BIT as Brazil has been very critical to the Investor-State Dispute Settlement System (ISDS) which gives an investor a right to approach an investment tribunal directly against a State. There is no provision of ISDS in this new Brazil-India BIT. Article 13 calls for the creation of the Joint Committee for the administration of this Treaty comprising of government representatives of  both parties. This Joint Committee shall oversee the implementation and execution of the treaty, coordinate and facilitate, and resolve the dispute amicably between the parties. In pursuant to Article 14 Each party has to establish National Focal Point or Ombudsman who will be responsible for following recommendations of Joint Committee and consult with other party’s Ombudsman. Concisely, Ombudsman shall work closely with the other party’s Ombudsman, Joint Committee, and relevant government authorities at the state and local level to address differences and helping in preventing disputes. A unique dispute prevention mechanism is provided under Article 18. Under this article, if a party considers that a specific measure adopted by the other party constitutes a breach of this treaty, the party may initiate dispute prevention procedure within the Joint Committee. If the Joint Committee fails to resolve the dispute within a specified time of two months, the party may submit the dispute to the arbitration in according to article 19. Article 19 envisages State to State Dispute Settlement (SSDS) mechanism. This article says when dispute prevention mechanism fails to address and resolve the differences between parties, either party may refer the dispute to arbitration tribunal under this article. Article 19.2 says in explicit language that the purpose of the arbitration is to decide on the interpretation of the treaty or the observance of the terms of the treaty by a party. Furthermore, it spells out that the tribunal does not have any power to award compensation. Indian Model BIT provides both ISDS and SSDS mechanisms while Brazilian Model BIT excludes ISDS procedure, instead they devise SSDS system of dispute settlement. Thus, it is more than clear that India compromised its stand and agreed to adopt the SSDS system put forward by Brazil. However, in the absence of ISDS, the foreign investor has to depend entirely upon the home-state. If home-state does not wish to protect the interest of the investor, the investor will have no remedy available to the foreign investor under general international law.

Non Discrimination Clause

Non-discriminatory clauses in BIT protects investors from losses which may incur due to war or other armed conflicts, civil strife, national emergency etc. If any investment is adversely affected due to any above-stated reasons the state has to compensate the investor. The BIT stipulates the ways of compensation. Typically, it includes restitution, indemnification, and other forms of compensations. Article 7 of the Brazil-India BIT incorporates such rule. It says, if investment suffers losses in the territory of other party due to war or other armed conflicts, revolution, state of emergency, civil strife or any other similar events, shall enjoy restitution, indemnification, or other forms of compensations. Moreover, the clause attached with MFN clause. So, the adversely affected investor has the option to avail the most favourable treatment under the MFN clause, which is awarded to a third-party than the treatment the host-state accords to its own investors. Both Model BITs have featured this non-discrimination clause. The Indian Model BIT only includes National Treatment clause not MFN clause whereas Brazilian Model BIT incorporates MFN clause. Thus, once again, India compromised its stand to Brazil and agreed to embrace the MFN clause to article 7 of Brazil-India BIT. However, one may find this kind of attachment of the MFN clause is standard protocol and nothing new to the investment lawyers.

Commonalities with Indian Model BIT

Although most of the BITs do embrace MFN clause as a standard procedure, the Brazil-India BIT does not include the same. Brazil conceded not to include MFN clause although its Model BIT provides for the same under article 6. There is no provision of the MFN clause in the Indian Model BIT. Taxation related regulatory measures have been put outside the purview of the treaty under article 20 of Brazil-India BIT. The same is offered by Indian Model BIT under article 2.4 with a minor variance that host-state’s decision on the impugned measure is taxation related, is final and non-justiciable. Whereas article 20 of the Brazil-India BIT does not use the word non-justiciable as such. Both Brazil-India BIT and Indian Model BIT have adopted General Exceptions clause under articles 23.1 and article 33.1 respectively. One may find that article 23.1 of the Brazil-India BIT is a reproduction of article 33.1 of Indian Model BIT. In terms of Security Exceptions clause, both Brazil-India BIT and Indian Model BIT have encompassed under article 24 and article 33 respectively. Again the Security Exceptions clause of Brazilian-Indian BIT is influenced from Indian Model BIT. Article 24 is almost a reproduction of article 33 of the Indian Model BIT with an insignificant alteration in article 24.3. 

Conclusion

After analysing Brazil-India BITs with Model BITs, the present author opines that newly concluded BITs between two nations rests mostly on Brazilian Model BIT. Although two countries have compromised on certain aspects. As it does contain SSDS system excluding the ISDS system of dispute settlement and the indirect expropriation clause.  We witness the Brazil-India BIT is based on the principle of dispute prevention rather than the prevalent notion of dispute settlement. It is designed in such a way that it will be productive in preventing disputes more effectively. This unique dispute prevention tactic needs appreciation. The modern economic affairs hardly witness nationalisation or the direct takeover of foreign investment. As a result, in the absence of rules of indirect expropriation, it could well be expected that a certain degree of foreign investment protection would be weakened.  After White Industries Arbitration case, asluicegate was opened for foreign investors’ claims which put at risk Indian government. Recently, India had terminated a close to 60 investment agreements which were based on the investor-centric approach of 2003 Indian Model BIT. In 2016, India published its new model BIT and started negotiation with other states, which is state-centric. After thorough analysing of the provisions, one can certainly reach to the conclusion that Indian Model BIT2015 gives precedence to host-state’s right to regulate over investment protection. This new Brazil-India BIT is even more placed on host-state’s sovereign right to regulate. As Indian Model BIT has been compromised most of the time while inking the Brazil-India BIT, the question remains to see in future BIT negotiations; whether India sticks to its own Model BIT or pay heed to the terms advances by the counterparts; hesitatingly or readily.

Swargodeep Sarkar studied Law at the University of Calcutta & holds a Master in international law & organisations from Tamil Nadu Dr. Ambedkar Law University, Chennai, India. Currently, he is a PhD candidate in international law at the Indian Institution of Technology, Kharagpur. His research area includes.public international law, international investment law, peaceful settlement of international dispute.

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Economy

Rebalancing Act: China’s 2022 Outlook

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Authors: Ibrahim Chowdhury, Ekaterine T. Vashakmadze and Li Yusha

After a strong rebound last year, the world economy is entering a challenging 2022. The advanced economies have recovered rapidly thanks to big stimulus packages and rapid progress with vaccination, but many developing countries continue to struggle.

The spread of new variants amid large inequalities in vaccination rates, elevated food and commodity prices, volatile asset markets, the prospect of policy tightening in the United States and other advanced economies, and continued geopolitical tensions provide a challenging backdrop for developing countries, as the World Bank’s Global Economic Prospects report published today highlights.

The global context will also weigh on China’s outlook in 2022, by dampening export performance, a key growth driver last year. Following a strong 8 percent cyclical rebound in 2021, the World Bank expects growth in China to slow to 5.1 percent in 2022, closer to its potential — the sustainable growth rate of output at full capacity.

Indeed, growth in the second half of 2021 was below this level, and so our forecast assumes a modest amount of policy loosening. Although we expect momentum to pick up, our outlook is subject to domestic in addition to global downside risks. Renewed domestic COVID-19 outbreaks, including the new Omicron variant and other highly transmittable variants, could require more broad-based and longer-lasting restrictions, leading to larger disruptions in economic activity. A severe and prolonged downturn in the real estate sector could have significant economy-wide reverberations.

In the face of these headwinds, China’s policymakers should nonetheless keep a steady hand. Our latest China Economic Update argues that the old playbook of boosting domestic demand through investment-led stimulus will merely exacerbate risks in the real estate sector and reap increasingly lower returns as China’s stock of public infrastructure approaches its saturation point.

Instead, to achieve sustained growth, China needs to stick to the challenging path of rebalancing its economy along three dimensions: first, the shift from external demand to domestic demand and from investment and industry-led growth to greater reliance on consumption and services; second, a greater role for markets and the private sector in driving innovation and the allocation of capital and talent; and third, the transition from a high to a low-carbon economy.

None of these rebalancing acts are easy. However, as the China Economic Update points out, structural reforms could help reduce the trade-offs involved in transitioning to a new path of high-quality growth.

First, fiscal reforms could aim to create a more progressive tax system while boosting social safety nets and spending on health and education. This would help lower precautionary household savings and thereby support the rebalancing toward domestic consumption, while also reducing income inequality among households.

Second, following tightening anti-monopoly provisions aimed at digital platforms, and a range of restrictions imposed on online consumer services, the authorities could consider shifting their attention to remaining barriers to market competition more broadly to spur innovation and productivity growth.

A further opening-up of the protected services sector, for example, could improve access to high-quality services and support the rebalancing toward high-value service jobs (a special focus of the World Bank report). Eliminating remaining restrictions on labor mobility by abolishing the hukou, China’s system of household registration, for all urban areas would equally support the growth of vibrant service economies in China’s largest cities.

Third, the wider use of carbon pricing, for example, through an expansion of the scope and tightening of the emissions trading system rules, as well power sector reforms to encourage the penetration and nationwide trade and dispatch of renewables, would not only generate environmental benefits but also contribute to China’s economic transformation to a more sustainable and innovation-based growth model.

In addition, a more robust corporate and bank resolution framework would contribute to mitigating moral hazards, thereby reducing the trade-offs between monetary policy easing and financial risk management. Addressing distortions in the access to credit — reflected in persistent spreads between private and State borrowers — could support the shift to more innovation-driven, private sector-led growth.

Productivity growth in China during the past four decades of reform and opening-up has been private-sector led. The scope for future productivity gains through the diffusion of modern technologies and practices among smaller private companies remains large. Realizing these gains will require a level playing field with State-owned enterprises.

While the latter have played an instrumental role during the pandemic to stabilize employment, deliver key services and, in some cases, close local government budget gaps, their ability to drive the next phase of growth is questionable given lower profits and productivity growth rates in the past.

In 2022, the authorities will face a significantly more challenging policy environment. They will need to remain vigilant and ready to recalibrate financial and monetary policies to ensure the difficulties in the real estate sector don’t spill over into broader economic distress. Recent policy loosening suggests the policymakers are well aware of these risks.

However, in aiming to keep growth on a steady path close to potential, they will need to be similarly alert to the risk of accumulating ever greater levels of corporate and local government debt. The transition to high-quality growth will require economic rebalancing toward consumption, services, and green investments. If the past is any guide to the future, the reliance on markets and private sector initiative is China’s best bet to achieve the required structural change swiftly and at minimum cost.

First published on China Daily, via World Bank

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The US Economic Uncertainty: Bitcoin Faces a Test of Resilience?

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Is inflation harmful? Is inflation here to stay? And are people really at a loss? These and countless other questions along the same lines dominated the first half of 2021. Many looked for alternative investments in the national bourse, while others adopted unorthodox streams. Yes, I’m talking about bitcoin. The crypto giant hit records after records since the pandemic made us question the fundamentals of our conventional economic policies. And while inflation was never far behind in registering its own mark in history, the volatility in the crypto stream was hard to deny: swiping billions of dollars in mere days in April 2021. The surge came again, however. And it will keep on coming; I have no doubt. But whether it is the end of the pandemic or the early hues of a new shade, the tumultuous relationship between traditional economic metrics and the championed cryptocurrency is about to get more interesting.

The job market is at the most confusing crossroads in recent times. The hiring rate in the US has slowed down in the past two months, with employers adding only 199,000 jobs in December. The numbers reveal that this is the second month of depressing job additions compared to an average of more than 500,000 jobs added each month throughout 2021. More concerning is that economists had predicted an estimated 400,000 jobs additions last month. Nonetheless, according to the US Bureau of Labour Statistics, the unemployment rate has ticked down to 3.9% – the first time since the pre-pandemic level of 3.5% reported in February 2020. Analytically speaking, US employment has returned to pre-pandemic levels, yet businesses are still looking for more employees. The leverage, therefore, lies with the labor: reportedly (on average) every two employees have three positions available.

The ‘Great Resignation,’ a coinage for the new phenomenon, underscores this unique leverage of job selection. Sectors with low-wage positions like retail and hospitality face a labor shortage as people are better-positioned to bargain for higher wages. Thus, while wages are rising, quitting rates are record high simultaneously. According to recent job reports, an estimated 4.5 million workers quit their jobs in November alone. Given that this data got collected before the surge of the Omicron variant, the picture is about to worsen.

While wages are rising, employment is no longer in the dumps. People are quitting but not to invest stimulus cheques. Instead, they are resigning to negotiate better-paying jobs: forcing the businesses to hike prices and fueling inflation. Thus, despite high earnings, the budget for consumption [represented by the Consumer Price Index (CPI)] is rising at a rate of 6.8% (reported in November 2021). Naturally, bitcoin investment is not likely to bloom at levels rivaling the last two years. However, a downfall is imminent if inflation persists.

The US Federal Reserve sweats caution about searing gains in prices and soaring wage figures. And it appears that the fed is weighing its options to wind up its asset purchase program and hike interest rates. In March 2020, the fed started buying $40 billion worth of Mortgage-backed securities and $80 billion worth of government bonds (T-bills). However, a 19% increase in average house prices and a four-decade-high level of inflation is more than they bargained. Thus, the fed officials have been rooting for an expedited normalization of the monetary policy: further bolstered by the job reports indicating falling unemployment and rising wages. In recent months, the fed purview has dramatically shifted from its dovish sentiments: expecting no rate hike till 2023 to taper talks alongside three rate hikes in 2022.

Bitcoin now faces a volatile passage in the forthcoming months. While the disappointing job data and Omicron concerns could nudge the ball in its favor, the chances are that a depressive phase is yet to ensue. According to crypto-analysts, the bitcoin is technically oversold i.e. mostly devoid of impulsive investors and dominated by long-term holders. Since November, the bitcoin has dropped from the record high of $69,000 by almost 40%: moving in the $40,000-$41,000 range. Analysts believe that since bitcoin acts as a proxy for liquidity, any liquidity shortage could push the market into a mass sellout. Mr. Alex Krüger, the founder of Aike Capital, a New York-based asset management firm, stated: “Crypto assets are at the furthest end of the risk curve.” He further added: “[Therefore] since they had benefited from the Fed’s “extraordinarily lax monetary policy,” it should suffice to say that they would [also] suffer as an “unexpectedly tighter” policy shifts money into safer asset classes.” In simpler terms, a loose monetary policy and a deluge of stimulus payments cushioned the meteoric rise in bitcoin valuation as a hedge against inflation. That mechanism would also plummet the market with a sudden hawkish shift.

The situation is dire for most industries. Job participation levels are still low as workers are on the sidelines either because of the Omicron concern or lack of child support. In case of a rate hike, businesses would be forced to push against the wages to accommodate affordability in consumer prices. For bitcoin, the investment would stay dormant. However, any inflationary surprises could bring about an early tightening of the policy: spelling doom for the crypto market. The market now expects the job data to worsen while inflation to rise at 7.1% through December in the US inflation data (to be reported on Wednesday). Any higher than the forecasted figure alongside uncertainty imbued by the new variant could spark a downward spiral in bitcoin – probably pushing the asset below the $25000 mark.

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Platform Modernisation: What the US Treasury Sanctions Review Is All About

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Image source: home.treasury.gov

The US Treasury has released an overview of its sanctions policy. It outlines key principles for making the restrictive US measures more effective. The revision of the sanctions policy was announced at the beginning of Joe Biden’s presidential term. The new review can be considered one of the results of this work. At the same time, it is difficult to find signs of qualitative changes in the US administration’s approach to sanctions in the document. Rather, it is about upgrading an existing platform.

Sanctions are understood as economic and financial restrictions that make it possible to harm the enemies of the United States, prevent or hinder their actions, and send them a clear political signal. The text reproduces the usual “behavioural” understanding of sanctions. They are viewed as a means of influencing the behaviour of foreign players whose actions threaten the security or contradict the national interests of the United States. The review also defines the institutional structure of the sanctions policy. According to the document, it includes the Treasury, the State Department, and the National Security Council. The Treasury plays the role of the leading executor of the sanctions policy, and the State Department and the NSS determine the political direction of their application, despite the fact that the State Department itself is also responsible for the implementation of a number of sanctions programmes. This line also includes the Department of Justice, which uses coercive measures against violators of the US sanctions regime.

Interestingly, the Department of Commerce is not mentioned among the institutions. The review focuses only on a specific segment of the sanctions policy that is implemented by the Treasury. However, it is the Treasury that is currently at the forefront of the application of restrictive measures. A significant part of the executive orders of the President of the United States and sanctions laws imply blocking financial sanctions in the form of an asset freeze and a ban on transactions with individuals and organisations. Decrees and laws assign the application of such measures to the Treasury in cooperation with the Department of State and the Attorney General. Therefore, the institutional link mentioned in the review reflects the spirit and letter of a significant array of US regulations concerning sanctions. The Department of Commerce and its Bureau of Industry and Security are responsible for a different segment of the sanctions policy, which does not diminish its importance. Export controls can cause a lot of trouble for individual countries and companies.

Another notable part of the review concerns possible obstacles to the effective implementation of US sanctions. These include, among other things, the efforts of the opponents of the United States to change the global financial architecture, reducing the share of the dollar in the national settlements of both opponents and some allies of the United States.

Indeed, such major powers as Russia and China have seriously considered the risks of being involved in a global American-centric financial system.

The course towards the sovereignty of national financial systems and settlements with foreign countries is largely justified by the risk of sanctions.

Russia, for example, is vigorously pursuing the development of a National Payment System, as well as a Financial Messaging System. There has been a cautious but consistent policy of reducing the share of the dollar in external settlements. China, which has much greater economic potential, is building systems of “internal and external circulation”. Even the European Union has embarked on an increase in the role of the euro, taking into account the risk of secondary sanctions from “third countries”, which are often understood between the lines as the United States.

Digital currencies and new payment technologies also pose a threat to the effectiveness of sanctions. Moreover, here the players can be both large powers and many other states and non-state structures. It is interesting that digital currencies at a certain stage may present a common challenge to the United States, Russia, China, the EU and a number of other countries. After all, they can be used not only to circumvent sanctions, but also, for example, to finance terrorism or in money laundering. However, the review does not mention such common interests.

The text does propose measures to modernise the sanctions policy. The first one is to build sanctions into the broader context of US foreign policy. Sanctions are not important in and of themselves, but as part of a broader palette of policy instruments. The second measure is to strengthen interdepartmental coordination in the application of sanctions in parallel with increased coordination of US sanctions with the actions of American allies. The third measure is a more accurate calibration of sanctions in order to avoid humanitarian damage, as well as damage to American business. The fourth measure is to improve the enforceability and clarity of the sanctions policy. Here we can talk about both the legal uncertainty of some decrees and laws, and about an adequate understanding of the sanctions programmes on the part of business. Finally, fifth is the improvement and development of the Treasury-based sanctions apparatus, including investments in technology, staff training and infrastructure.

All these measures can hardly be called new. Experts have long recommended the use of sanctions in combination with other instruments, as well as improved inter-agency coordination. The coordination of sanctions with allies has escalated due to a number of unilateral steps taken by the Trump Administration, including withdrawal from the Iranian nuclear deal or sanctions against Nord Stream 2. However, the very importance of such coordination has not been questioned in the past and has even been reflected in American legislation (Iran). The need for a clearer understanding of sanctions policy has also been long overdue. Its relevance is illustrated, among other things, by the large number of unintentional violations of the US sanctions regime by American and foreign businesses. The problem of overcompliance is also relevant, when companies refuse transactions even when they are allowed. The reason is the fear of possible coercive measures by the US authorities. Finally, improving the sanctioning apparatus is also a long-standing topic. In particular, expanding the resources of the Administration in the application of sanctions was recommended by the US Audit Office in a 2019 report.

The US Treasury review suggests that no signs of an easing are foreseen for the key targets of US sanctions. At the same time, American business and its many foreign counterparties can benefit from the modernisation of the US sanctions policy. Legal certainty can reduce excess compliance as well as help avoid associated losses.

From our partner RIAC

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