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Change in FDI Norms

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Authors: Navya Bhandari and Ayush Mehta*

Recently, Donald Trump was heard accusing China of “spreading” the Novel Coronavirus. Of late, there are sources which show that China initially hid information about the virus, which strengthen the claim that it’s a Chinese virus. COVID-19 has changed all dimensions of business, making it all the more uncertain. With crashing markets, stagnant growth, and job layoffs, the global economy is hard hit. Among such business uncertainties, it seems that China has emerged as the winner. The strength of this statement lies at the fact that while nations all over the world are at an all-time low, the Chinese economy has started to recover and so much that 96.6% of China’s large and medium sized firms have resumed operation.

In such a scenario, the Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India, with a view to curb “opportunistic takeovers/acquisitions of Indian companies due to the current COVID-19 pandemic,” took a strong step and recently amended paragraph 3.1.1of the Consolidated FDI Policy, 2017. This article analyzes the said change in law and its repercussions thereof.

What strained the government to take this step?

On 12th April, the Chinese Central Bank increased its stake in HDFC bank by 1%. This led to widespread uproar among the Indian investors and public, and the Indian government was driven to the realization that Chinese firms may take advantage of India’s fragile economic condition and undertake similar actions. Taking hands on approach, the government, forced by the fears of hostile takeovers, decided to change the existing norms related to Foreign Direct Investments to protect investor interest.

Since a lot of sectors in India are open to 100% foreign investment, it compelled the government to act preemptively. Though the change has been made for investments from all land neighbours of India, it mainly hints at hijacks by Chinese firms.

Changes in the Legal Position Regarding FDI Norms

The government via a Press Note, introduced strategic changes in the FDI policy to curb takeovers and acquisitions of Indian companies in light of the falling stock prices on account of the COVID – 19 pandemic. However, this amendment in norms, though in action, is yet to be confirmed by the Reserve Bank of India (RBI) under the Foreign Exchange Management Non-Debt Instruments Rules, 2019 (Non-Debt Rules) which govern foreign investments in India. It is pertinent to note that under the FEMA Rules, 2019, only RBI has been vested with the power to make regulations. Therefore, because the aforesaid notification was given out by the Ministry of Commerce, it is yet to be confirmed by the RBI.

FDI Policy in India

As per the FDI Policy in India, foreign investments can be done via two routes:

  1. Automatic route – Under the automatic route, the threshold for investments has been capped as per different sectors and it can be done without prior government approval.
  2. Government route – Under the government route for foreign investment, governmental approval is required.

Non-resident entities can invest in India, subject to the FDI Policy except in those sectors/activities which are prohibited. However, a citizen of Bangladesh or an entity incorporated in Bangladesh can invest only under the Government route. Similar restrictions are also placed on Pakistani entities and individuals.

Revised Policy

The revised policy is designed taking cue from other European nations like France, Italy and the United Kingdom. Under the revised policy the government has narrowed the scope of investment, by placing it under strict governmental scrutiny in order to protect Indian interests.

Under Para 3.1.1 (a), “A non-resident entity can invest in India, subject to the FDI Policy, except in those sectors which are prohibited.” The change in the policy now brings investment from all those countries which share land borders with India or where the beneficial owner of an investment is situated in any such country or is a resident, under the government route.

 Government approval is required not just for the future investments but also for the transfer of ownership of existing FDIs.

Paragraph 3.1.1 (b) reads, “In event of transfer of ownership of any existing or future FDI in an entity in India, directly or indirectly, which results in beneficial ownership falling within the restriction of clause (a), such subsequent change shall also require prior government approval.

Additionally, the use of the word ‘or’ between ‘directly’ and ‘indirectly’ in the norm makes the amendment inclusive and covers all modes through which any investment may be made.

While this decision will help India monitor hostile and opportunistic takeover of Indian companies, the fear of such takeovers is not just from neighbouring countries but from the world at large. The change in policy, which is narrowly focused on China, still leaves room for such actions from other parts of the world, though they are highly unlikely. 

Analysis of the Amendment – Is it foolproof?

It is pertinent that the above changes have been made to FDI, and not to Foreign Portfolio Investment (FPI). To the contrary, the recent HDFC bank stake increase was made through the FPI route.

In October, 2019, the Securities and Exchange Board of India (SEBI), had reclassified FDI and FPI with a view to widen the scope of regulation. The new rules state that any investment below 10% stake through any route will be classified as FPI. This means, even direct investments below 10% stake will be classified as FPI, thus escaping the change in paragraph 3.1.1, which is only for FDI.

Moreover, there are certain aspects in which the norms are unsettled. The norms do not define what “beneficial ownership” means. Neither is the term defined in the FEMA or the Companies Act, 2013. Adding on, the regulation does not list the countries in particular. This leads to ambiguity regarding the fact that, whether investments from Hong-Kong will be treated differently or same as the investments from mainland China. Foreign Exchange Management (Establishment in India of a branch office or a liaison office or a project office or any other place of business) Regulations, 2016 treat the two differently.

After the dissolution of the Foreign Investment Promotion Board, it is also unclear as to who will be responsible for granting the required permission for foreign investments.

Impact of the amendment on the economy

These pre-emptive changes have been made to take care of round – tripping of investment. However, there will be other significant impacts of the decision, especially on startups.

While the move to prevent China from taking advantage of the economic predicament is welcomed, it may have far-reaching implications on Indian startups, for whom Chinese investment has been paramount. Chinese investment is the stimulus for the impressive growth of Indian startups and of late Chinese venture capital funds and giants like Alibaba and Tencent have ramped up their investment in this sector to an extent that without their investment the future of Indian startups looks bleak. Currently at least 18/23 Indian unicorns, such as Paytm, Snapdeal, OYO, Ola are backed by Chinese investors.

The notification can be an impediment to growth. The new policy would force companies who depend on investments from China, to find new investors in this time when there would be none. The flow of capital from Europe and the US would also dry up due to their own economies heading towards a recession. The change in policy will not only affect the growth-stage startups but also unicorns who depend on such investment to keep the cash flowing.

While we agree that some measures are necessary to prevent India’s advantage being taken, a sectoral implementation of the policy would have been better. Given the plight of the Start-up industry in India, a liberal approach for this sector of the economy would have been more beneficial.

The restriction on investments will also impact the Make in India plan, as it had been luring Chinese manufacturers to set their units in the country and reducing imports to reduce the balance of trade deficit. However, as there are no exemptions mandated by the government in this regulation, it could very well dampen such initiatives.

China and WTO: The new conundrum

A Chinese spokesperson claimed that the barriers India has set, violate WTO’s principles of non-discrimination and are in contravention with the general trend of liberalization and facilitation of trade and investment.

However, China’s claims can be refuted by the fact that there is no denial of permission to invest, rather a change in the approval process. The policy does not result in any restriction of Chinese investment and hence cannot be considered as an impediment to facilitation of trade.

Way Ahead: Suggestions and Conclusion

It is the government’s duty to take every possible step to protect the interest of Indian companies. While the prompt actions of the Indian government are appreciated, it is expected that another notification by the government clears the ambiguity in relation to the list of countries, who a beneficial owner is and specifying the authority for granting permissions.

Another aspect that has to be taken care of is the booming startup industry in India, which is heavily dependent on Chinese firms for funding. In the already collapsing economy, smaller startups who are not financially strong need more capital injection to stay afloat. Whilst altering rules for FDI and FPI, the government should lay a clear roadmap and provide some relief or alternate measures.

The government should also consider excluding sectors which have prospects to create a huge number of jobs and companies with existing 100% Chinese ownership. An exemption of investments by ‘pooled companies,’ in which Chinese companies do not have controlling capacities would also be beneficial.

India being an attractive investment destination for Chinese investors, is vulnerable to hostile takeovers at this point. Therefore, although this decision hinders and is an impediment for all such investments, it surely will go a long way to protect hostile takeovers. In toto, the regulation is a welcomed move.

*Navya Bhandari and Ayush Mehta are pursuing 5 year law from National Law Universiry Jodhpur. 

Economy

Future Economy: Micro-Manufacturing & Micro-Exports

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Recovery now forces economies to emerge as dynamic entrepreneurial landscapes; today, the massively displaced working citizenry of the world may not return to old jobs, but with little help slowly shifting towards entrepreneurial startups as new frontiers to create economic independence and increased local grassroots prosperity. Today, the latest global influences of trendy entrepreneurialism optimizing available options like high quality “Micro-Manufacturing” and high value added “Micro-Exporting” now common discussions on the main streets of the world.  Although, this is not an easy task, but still very doable for so many and promises local uplifts. Smart nations are awakening to such bold notions and entrepreneurial driven agencies mandated to foster local economies are using virtual events to rise up with global rhythm and rich contents.

 Therefore, the blueprints and new models of today on upskilling SME exporters and reskilling for better-designed manufacturing, nation-by-nation and city-by-city are mobilization ready ideas to optimize abandoned talents. Nevertheless, such upskilling and reskilling of masses demands already skilled leadership of most of the gatekeepers of local economic development venues. 

Furthermore, global competitiveness has raised the bar and now only high quality value added goods and services traded for the wide-open world. The conveyer belts of technology and zoomerang culture of virtual connectivity flourishes platform economies. Missing are the advanced skills, complex problem solving and most importantly national mobilization of entrepreneurialism on digital platforms of upskilling to foster innovative excellence and exportability. SME and Startups must advance on global thinking, optimize access, and maximize image and quality superiority to reach the farthest markets with deeper pockets.

This is not an easy task. Methodical progressions needed. Study how Pentiana Project tabled advanced thinking on such trends during the last decade. Export Promotion Agencies, Chambers of Commerce, Trade Associations and most SME and midsize economic developments bodies all called for bold and open debates. For fast track results, follow the trail of silence and help thought leadership to engage in bold and open debates and give them guidance to overcome their fears of transformation.

Small enterprises must now open to new world of 200 nations and 10,000 cites

Micro-Exporters: Upskilling Startups to think like global exporters; the pandemic recoveries across the world coping with a billion displaced all have now critical needs of both upskilling and reskilling. Upskilling is the process of learning new skills to achieve new thinking. Reskilling is the process of learning new skills to achieve new performances. What is exporting, how to start at micro-levels and how to expand globally with technology are new challenges and promising options.

Micro-Manufacturers: Reskilling Startups to think like smart manufacturers; the real goals for startups to enlarge and base thinking on reskilling for “real value creation” becomes mandatory. How to start by thinking better, design quality with creative global age strategies and advance?  Advanced Manufacturing Clusters in various nations will greatly help, but understanding of global-age expansion of value offerings with fine production is a new art and commercialization to 200 nations a new science.

The future of economies, The arrival of Virtual leadership and Zoomerang culture is a gift from pandemic recovery, although at infancy, the sector will not only grow but also alter global commerce for good. Once successful the traditional advertising and marketing models dying, direct access live interaction is now far superior to mass-mailing and social media screaming.  The zoomerang impact of global thought leadership now forcing institutions to become armchair Keynote speakers and Panelists to deliberate wisdom from the comfort of their homes round the clock events has arrived.

The Difficult Questions: Nation-by-nation,when 50% of frontline teams need ‘upskilling’ often 50% of the back-up teams need ‘reskilling’ so how do you open discussions leading to workable and productive programs? Each stage challenges competency levels and each stage offers options to up-skill for better performances. Talent gaps need fast track closing and global-age skills need widening. New flat hierarchical models provide wide-open career paths and higher performance rewards in post pandemic recovery phases. When executed properly such exercises match new skills and talents with the right targeted challenges of the business models and market conditions. The ultimate objective of “extreme value creation” in any enterprise must eliminate the practices of ‘extreme value manipulations”.

First Three Steps:  In order to mobilize a startups revolution along with a small medium business economy, start by identifying 1000 to 10,000 high enterprises anxious to grow for national global markets. To quadruple exportability, select a small leadership team, from local trade Associations, Economic Development Bodies and Chambers of Commerce responsive to calls of upskilling and reskilling as critical steps. Suggest roundtable discussions to reach local, national or global audiences to spread the message. Explore such superior level debates to mobilize local businesses.  Most importantly, such mobilizations are not new funding dependent they are deployment hungry and execution starved. Futurism is workless, uplifting mental powers towards better value-added production of goods and services will save economies.  Optimize zoomerang culture and use virtual events to raise the bar on thought leadership. The world is moving fast and best to join the pace.

The rest is easy

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Economy

Portugal’s crisis management: “Economic patriotism” should not be tied to ideological beliefs

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The economic policy of the Hungarian government has provoked fierce criticism in the last decade, as it deviated from the neoliberal mainstream and followed a patriotic path, putting Hungarian interests in the foreground. While many link this style of political economy to the conservative position of the Orbán-government, in Portugal, a left-wing administration followed a similarly patriotic line to overcome the symptoms of the Eurozone crisis, showcasing that economic patriotism is not tied to ideologies, but is merely responsible thinking.

The catastrophic path of austerity

According to the theory of austerity, the government by implying austerity measures, “puts its finances in order”, hence the state does not become indebted and consequently investors’ confidence in the economy returns. However, if we think about what we really mean by austerity (tax increases, wage cuts, budget constraints, etc.), even the theory itself sounds counterproductive. Not surprisingly, this theoretical counter productivity has been demonstrated in practice in several cases.

One of the best examples is the case of Portugal, which along with Greece and other Southern-European nations was probably hit the hardest by the financial crunch. While all of the “GIPS” (Greece, Italy, Portugal, Spain) entered a steer recession, Portugal somehow managed to overcome it more successfully than its regional peers, but before that, it felt the bitter taste of neoliberal structural reforms.

Although the case of Portugal was not as traumatic as the ones of its Southern-European counterparts, in order to keep its debt under control, stabilize its banks and introduce “growth-friendly” reforms, Lisbon negotiated a € 78 billion bailout package in 2011, in exchange for a rigid austerity program aimed at the 2011-2014 period, orchestrated by the European Commission (EC), the International Monetary Fund (IMF) and the European Central Bank (ECB), the infamous “Troika”.

The neoliberal recipe did not differ much from that of Greece, and the then ruling Passos Coelho conservative government faithfully followed the structural reforms demanded by the “group of three”: working hours increased, number of bank holidays fell, holiday bonuses were abolished, wages and pensions have also been cut by 20 per cent, while public spending on health and education was drastically cut, and due to escalating privatizations, public assets have also been sold off quickly.

Despite the fact that by 2014 the country’s budget deficit as a share of the GDP had fallen to 4.5 per cent from the staggering11.2 per cent recorded in 2011 and the current account showed a surplus – as domestic demand fell apart, forcing companies to export –Portugal was still on the brink of social and economic collapse.

Public debt soared to more than 130 per cent of the GDP, tens of thousands of businesses went bankrupt, unemployment rose to 17 per cent and skyrocketed to 40 per cent amongst the youth. As a result, many talented Portuguese fled abroad, with an estimated 150,000 nationals emigrating in a single year.

The post-2015 turnaround

Things only began to change in 2015, when the Portuguese elected Anotnio Costa as Prime Minister, who was the mayor of Lisbon under the years of the crunch. Shortly after his election, Merkel encouraged the center-left politician to follow the neoliberal prescription proposed by the “Troika”, while her Finance Minister, Wolfgang Schäuble, underlined that Portugal would make a “serious mistake” if it decided not to follow the neoliberal doctrine and would eventually be forced to negotiate another rescue package.

Not being intimidated by such “threats”, Costa ditched austerity without hesitation, restored working hours, cut taxes and raised the minimum wage by 20 percent in the course of just two years. Obviously, his unpopular position made him crush with Brussels, as his government allowed the budget deficit to reach 4.4 per cent, compared to the agreed 2.7 per cent target. However, in May 2016, the Commission granted Costa another year to comply, and since then Portugal has consistently exceeded its deficit targets.

Tourism also largely assisted the post-15 recovery, to which the government placed great emphasis, so that in 2017 the number of visitors rose to a record high, reaching 12.7 million. Concurrently, Portugal has significantly improved the international reputation of its businesses and products, which contributed to increasing the country’s export revenues and attracting foreign investment.

Furthermore, Costa has raised social spending and at the same time planned to invest state revenues in transport, environmental infrastructure and energy, initiatives that could be extremely beneficial, as they would not only significantly improve the country’s sustainability, but also boost job creation, something that yet again indicates how important public investment is to an economy.

Additionally, Portugal has become an undervalued tech-hub, with plenty of start-ups offering good employment opportunities in addition to fostering innovation. The government with several initiatives, seeks to create a business-friendly ecosystem for them, under which they can thrive and boost the economy to the largest extent. It is thus not surprising, that Portugal has been the fastest growing country in Europe when it comes to the number of programmers.

Finally, one of the Costa’s top priorities, has been to lure back emigrated Portuguese who moved abroad during the crisis. To this end, tax cuts are offered to Portuguese citizens who choose to return home.

In a sum, since Costa stepped into office, Portugal has undergone a rapid recovery: economic growth has returned, unemployment has fallen radically, the public debt was also set on a downgrading path, while the budget remained well-balanced despite the increased spending, with Costa himself explaining that “sound public accounts are compatible with social cohesion”. Even Schäuble acknowledged Portugal’scrisis management, by actually calling Mário Centeno – the finance minister of the Costa government – the “Cristiano Ronaldo” of finance ministers.

Of course, not everything is bright and wonderful, as the country has emerged from a large crisis, the effects of which cannot be eliminated in just a few years. Public debt is still amongst the highest in the EU and several other challenges lie ahead for the South-European nation, especially by taking into consideration that the world economy just entered yet another crisis.

Furthermore, according to many, it was not Costa who led the recovery, but Portugal passively benefited from a strong recovery in Europe, falling oil prices, an explosion in tourism and a sharp drop in debt repayment costs. Indeed, it has to be taken into account that Portugal entered the recession in a relatively better position than many of its spatial counterparts and the relatively high quality of its domestic institutional infrastructure and policy-adaptation capacity aided the previous government to efficiently complete the memorandum of understanding (MoU) as early as 2015. Nevertheless, this is not a sufficient reason to discredit the post-2015 government’s efforts and justify the harsh austerity measures implied by the Troika. Taking into account that austerity never really provided decent results, it becomes evident that Costa’s policies were quite effective.

Economic patriotism should not be connected to ideologies

While in the case of Hungary and Poland “economic patriotism” has been fiercely criticized despite its prosperous results, this spite tendency has been an outcome of strong politicization in economic policy analysis. Even though the political context is verily important, it is also crucial to interpret economic policy independently, in order to take away valuable lessons and identify mistakes. Political bias is not a fortunate thing, as it is absolute and nullifies debate and hence development.

The case of Portugal is a perfect example, as it provides sound evidence, that a patriotic economic policy can be exercised by governments from all across the political spectrum and that the notion should not be connected to political and ideological beliefs. The left-wing Costa-government with its policy-making demonstrated that a solution always exists and that requires a brave, strong and decisive government, that pursues its own plan in the interests of the ‘patrie’, regardless of its positioning.

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Economy

The Question Of Prosperity

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Galloping economic woes, prejudice, injustice, poverty, low literacy rate, gender disparity and women rights, deteriorating health system, corruption, nepotism, terrorism, political instability, insecure property rights, looming energy crisis and various other similar hindrances constrain any state or country to be retrograded. Here questions arise that how do these obstacles take place? How do they affect the prosperity of any country? No history, geography, or culture spawns them. Simply the answer is institutions that a country possesses.

Institutions ramify into two types: inclusive and extractive. Inclusive political institutions make power broadly distributed in country or state and constrain its arbitrary exercise. Such political institutions also make it harder for others to usurp rights and undermine the cornerstone of inclusive institutions, which create inclusive economic institutions that feature secure property rights, an unbiased system of law, and a provision of public services that provide a level playing field in which people can exchange and contract; it also permits the entry of new businesses and allow people to choose their career. On the contrary, extractive political institutions accord clout in hands of few narrow elite and they have few constrains to exert their clout and engineer extractive economic institutions that can specifically benefit few people of the ruling elite or few people in the country.

Inclusive institutions are proportional to the prosperity and social and economic development. Multifarious countries in the world are great examples of this. Taking North and South Korea; both countries garnered their sovereignty in same year 1945, but they adopted different ways to govern the countries. North Korea under the stewardship of Kim Il-sung established dictatorship by 1947, and rolled out a rigid form of centrally planned economy as part of the so-called Juche system; private property was outlawed, markets were banned, and freedoms were curtailed not only in marketplace but also in every sphere of North Korea’s lives- besides those who used to be part of the very small ruling elite around Kim Il-sung and later his son and his successor Kim Jong-Il. Contrariwise, South Korea was led and its preliminary politico-economic institutions were orchestrated by the Harvard and Princeton-educated. Staunchly anticommunist Rhee and his successor General Park Chung-Hee secured their places in history as authoritarian presidents, but both governed a market economy where private property was recognised. After 1961, Park effectively taken measures that caused the state behind rapid economic growth; he established inclusive institutions which encouraged investment and trade. South Korean politicians prioritised to invest in most crucial segment of advancement that is education. South Korean companies were quick to take advantage of educated population; the policies encouraged investment and industrialisation, exports and the transfer of technology. South Korea quickly became a “Miracle Economy” and one of the most rapidly growing nations of the world. Just in fifty years there was conspicuous distinction between both countries not because of their culture, geography, or history but only due to institutions both countries had adopted.

Moreover, another model to gauge role of institutions in prosperity is comparison of Nogales of US and Mexico. US Nogales earn handsome annual income; they are highly educated; they possess up to the mark health system with high life expectancy by global standards; they are facilitated with better infrastructure, low crime rate, privilege to vote and safety of life. By contrast, the Mexican Nogales earn one-third of annual income of US Nogales; they have low literacy rate, high rate of infant mortality; they have roads in bad condition, law and order in worse condition, high crime rate and corruption. Here also the institutions formed by the Nogales of both countries are main reason for the differences in economic prosperity on the two sides of the border.

Similarly, Pakistan tackles with issues of institutions. Mostly, pro-colonial countries are predominantly inheritors of unco extractive politico-economic institutions, and colonialism is perhaps germane to Pakistan’s tailoring of institutions. Regretfully, Pakistan is inherited with colossally extractive institutions at birth. The new elite, comprising civilian-military complex and handful aristocrats, has managed to prolong colonial-era institutional legacy, which has led Pakistan to political instability, consequently, political instability begot inadequacy of incentives which are proportional to retro gradation of the country.

Additionally, a recent research of Economic Freedom of the World (WEF) by Fraser Institute depicts that the countries with inclusive institutions and most economic freedom are more developed and prosperous than the least economic free countries; countries were divided into four groups. Comparing most free quartile and least free quartile of the countries, the research portrayed that most free quartile earns even nine times more than least free quartile; most free quartile has two times more political and civil rights than least free quartile; most free quartile owes three times less gender disparity than least free quartile; life expectancy tops at 79. 40 years in most free quartile, whereas number stands at 65.20 in least free quartile. To conclude this, the economic freedom is sine quo non for any country to be prosperous, and economic freedom comes from inclusive institutions. Unfortunately, Pakistan has managed to get place in least free quartile.

In a nutshell, the institutions play pivotal role in prosperity and advancement, and are game changer for any country. Thereby, our current government should focus on institutions rather than other issues, so that Pakistan can shine among the world’s better economies. For accomplishing this highly necessary task government should take conducive measures right now.

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