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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

Assessing the trends of Globalization in the Covid Era

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coronavirus people

Coronavirus largely represents acceleration in existing globalization trends, rather than a full paradigm shift.

Globalization has ebbed and flowed over the years, but the event panelists agreed that the 2007-08 global financial crash marked a turning point and kicked off a trend “slowbalization”. Falling income, increasing unemployment and inequality proved fertile ground for the rise of nationalism and anti-immigration rhetoric. One of the most potential shifts towards domestic production, which is well underway before corona virus, can accelerate, as rising barriers to the free movement of goods, people and capital that underpin globalization. Technology is at the heart of this unilateralism. In the past two decades, we have seen a shift in the global economy, from a reliance on tangible to intangible assets such as software, which does not require complex supply chains. The rise of artificial intelligence could also displace cheap labor and drive restoring in advanced economies. COVID-19 lockdowns have only accelerated such digitization. Another rise in populism could be on the horizon as well, the whitepaper noted, as millions of people around the world are plunged into poverty. And the reputation of international organizations such as the World Health Organization has been weakened, which may further reduce global cooperation.

Compounding this is the deterioration in US-China relations and an escalating trade war. The resulting uncertainty is delaying companies’ investment decisions and curbing the global capital flows which are a key pillar of globalization.

It will categorize the globe in losers and winners. The most successful countries in the near future are likely to be those that can generate social consensus on policies; small economies that are protected by nearby large markets like China or Europe; and countries with strong public finances that can prop up their domestic economy, such as Switzerland. Exporting countries that cannot rely on domestic markets will be the big losers, such as India and many African nations. Oil exporting countries may also run into trouble because of growing sustainability concerns. So-called green policies will become a key differentiator for countries, as will taxation to finance the post-pandemic recovery.

Globalization has proved to be game changer for whole world in terms of mobility of people resources and capital; flow of people and resources has also made the flow of diseases especially viral diseases through global interconnectedness. Since the occurrence of Covid-19 on December 2019 in China, the world has totally changed and it has left strong impacts on global security as states have faced many challenges in health, domestic and economic sector. The Corona virus was reported in China initially and later due to free movement of people across borders and lack of availability of  knowledge on its symptoms and causes it spread to almost all over the world and hit the states from highly developed states to least developed states and alarmed the Global Health and Security.

According to World Health Organization, the total number of covid cases registered is 162773940 and 3375573 people died due to Corona. The pandemic has also posed a great impact on health care systems and huge burden on world economy and social set-up and contributed to the shift in Globalization trends.

Although globalization has ensured economic and cultural growth in recent past but as mobility of people across borders become easier, the spread of diseases also became easier as the bubonic plague was transmitted from China to Europe through trade routes and influenza pandemic spread during WW1 due to movement of armies and Asian flu of 1957 was spread via land and sea travel. Hence, the phenomenon of globalization has amplified global transmission of diseases and there is link of how the close integration of people and flow of trade and commerce also causes disease transmission. The year 2019 proved to be fatal for whole world as novel coronavirus (SARS-Cov-2) observed in Wuhan city of China spread so rapidly that in March, 2020 WHO declared COVID-19 as pandemic and by October 2020, over 41 million confirmed cases and 1.13 million deaths have reported worldwide.  The lockdown measures adopted by states to counter the spread of virus during the global pandemic in has not only impacted our livelihood but also affected economy in terms of supply and demand as market places were closed most of the time and decelerated the economic growth of affected countries which reduced trade and increased poverty. As with all forms of volatility, there are both losers and winners as discussed above, and the case of COVID-19 is no different. While globalization may be negatively impacted in the form of the trade of goods and certain services such as travel, other sectors may experience heightened demand. More remote forms of work will only spur on the cross-border flow of data and of dispersed but easily exchanged professional services. As such, not only the suppliers of these services but also the enablers such as Zoom and broadband providers will be the beneficiaries.

Moreover, the low and middle income countries like Pakistan have faced a collapse in health care systems. The lockdowns and restricted movement has put pressure on transportation systems resulting in loss of income, disruption of global trading and halt of tourism sector, decrease in production, consumption, employment and supply chain. Globally centralized supply chains in low labor-cost countries are also being challenged by the increased use of robotics and automation, allowing firms to keep production in relatively expensive countries. COVID-19 has highlighted the importance of automation, as the threat to operations posed by “non-essential” business closures is based on the need to keep people at home. As such, operations that leverage robotics will be less affected. Ironically, among those countries that have weathered this pandemic the best are many with high levels of robotics usage such as South Korea.

Moreover, unemployment has become major issue with 14% decline in jobs related to industry. Moreover, globally over 140 million people are estimated to face extreme poverty along with food insecurity. Along with economic system, countries with active corona cases are vulnerable like Ireland, UK, and Italy despite having good health care facilities. In African continent, the countries that are more vulnerable are South Africa and Egypt, In Europe, Germany, Russia and Italy are more vulnerable and in Asia and Oceania, Pakistan, India and Saudi Arabia and Turkey and in America Brazil, Chile, USA, Mexico and Peru. The Covid came in three different waves and posed more challenge for states like India where the whole health system collapsed and people were helpless.

In Addition to Health care system and economy, the education sector has been affected too mostly in developing and under-developing states. For example, initially when the schools, colleges and universities were closed the students as well as teachers couldn’t adapt immediately to online mode and that made it difficult to acquire quality education. Moreover, the states like Pakistan where internet availability is limited and there are many household that lack access to internet especially rural areas, education could not be provided through online mode. Although the studies at University level continued through online mode, but primary and secondary education sector were severely affected. And this is clear , that the learning acquired by attending institutions and learning at home through online mode are very different and the later requires self-regulation that is very less in today’s youth who have various other distractions in terms of electronic gadgets, social media and mobile phones.

 COVID became a global issue in past two years and all the states and international organizations were active to cooperate and spread awareness and adopted measures that could halt its spread. It affected all states and posed challenges on economy, health, education and has exposed the urgent need to revisit disaster preparedness and health care systems as health care capacity of powerful nations have been tested during pandemic. The developed states like US have faced difficulties in controlling the spread of epidemic and less developed have been further unable to respond to and control the situation.  The Covid has not only posed challenges to economic and health system but the trends of globalization have also shifted. The states adopted counter strategies where institutions were closed, lockdowns were implemented, travel banned and people have to restrict movement.

In short, Covid has been and still is a challenge that states are facing and all states and international organizations have cooperated to fight this evil through research on its causes and effects. The Global community has been successful to produce vaccine that will control the spread of Corona in future and generate immunity for Virus among people.  The fight against corona is still there and future hold secrets of this Global Virus that has changed the whole global structure and posed challenge to developed and under developed sates equally as no one was prepared for this deadly outbreak.

We are shifting to a new model of globalization that is more localized, focused on services, less capital and energy intensive. Globalization will survive in the COVID-era, but it will look vastly different.

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Economy

How has Russia’s economy fared in the pandemic era?

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Authors: Apurva Sanghi, Samuel Freije-Rodriguez, Nithin Umapathi

COVID-19 continues to upturn our lives and disrupt economic activity across the world. The World Bank estimates that well over 100 million people would be pushed into extreme poverty by the end of this year alone. Global food insecurity is on the rise, and the pandemic is expected to leave long-term scars, world over. How has Russia’s economy fared in the global “pandemic-onium”? What about jobs, food prices, and poverty?

First, the economy. In our most recent World Bank Russia Economic Report, we examine how Russia’s GDP fell by 3% in 2020 compared to larger contractions of 3.8% in the world economy, 5.4% in advanced economies and 4.8% in most commodity-exporting economies. Several factors helped Russia perform relatively better. Well-known ones are Russia’s sizeable fiscal buffers and supportive monetary policy. This allowed for a substantial countercyclical fiscal response (about 4.5 percent of GDP, on par with benchmark countries). Lesser-known factors, perhaps, are a relatively small services sector and a large public sector that buffered against unemployment.

Russia’s pre-pandemic advances in digitization also paid off and enabled Russian society to operate reasonably effectively during lockdowns. And closer and growing ties to a relatively fast-growing China, stabilization in new COVID-19 cases, loosening of OPEC+ production cuts – all helped. Indeed, the economic recovery is gathering pace — and with all the caveats of uncertainty around the evolution of the pandemic – we now project Russia’s GDP to grow at 3.2% in 2021 and 2022.

Second, when it comes to jobs, although employment remains below pre-pandemic levels, the labor market is improving. The unemployment rate in March 2021 was 5.4%, down from 6.4% in last August. Interestingly, most jobs were created in the informal sector: about 828,000 in the 2nd half of 2020. Job losses have not been the same across economic activities. Total losses of 1.78 million jobs were concentrated in four sectors: manufacturing, construction, retail and hospitality, and health/social services.

Job losses in manufacturing, construction, and retail and hospitality can be explained by the lockdown measures and the difficulty of tele-work in these sectors. However, the fall of employment in health and social services during a pandemic, is more difficult to explain. It could be because of increased mental and physical fatigue of health workers, increased infections in this segment of the workforce, or the fall in employment in social care facilities (including the private ones), which were hit by the pandemic.

Third, turning to food prices, both cyclical and structural factors are behind the rise for items such as sugar and eggs. Higher global demand, global supply disruptions due to bad weather, and lower domestic harvest such as for sugar crops and oilseeds, along with the sizeable ruble depreciation last year, have contributed to this rise. Structural factors stem from the 2014 food embargo, which reduced competition in the domestic market, as domestic production has been unable to respond fully to demand.

At the same time, short-term (cyclical) policy responses to rising food prices have been geared towards export restrictions such as bans, quotas, tariffs, and price caps and subsidies. While politically attractive, and administratively easily implementable, these measures are economically distortive. A recent Higher School of Economics study found that consumer losses amounted to 2000 rubles per Russian citizens, each year, with the beneficiaries being Russian producers and non-sanctioned importers, such as Belarus. Moreover, it is the low-income families and poor who are disproportionately affected by food price increases, as they spend nearly half of their income on food. Therefore, a better approach to help those most affected by food insecurity would be to improve the targeting of Russia’s social safety nets in order to reduce food insecurity and poverty.

Finally, this brings us to poverty.

Russia has admirably contained additional spikes in the COVID-19 induced poverty rate. This success, in large part, is due to various compensatory social policies, such as the increase in unemployment benefits, child allowances, and support to single parent families. With the economic recovery now gathering pace, and assuming effective implementation of announced policies, we forecast Russia’s poverty rate by end-year 2021 to decline to 11.4 from the pre-pandemic poverty rate of 12.3%. However, double-digit poverty remains stubbornly high, and strong growth will play an important role in achieving Russia’s goal of halving it by 2030.

That being said, we believe that growth will not be enough – it will need to be complemented by a social safety net system that is more scalable and inclusive (the current welfare system transfers around only 10% of the total social assistance budget to the poor). Successful implementation of Russia’s strategic directive (Послание Президента Федеральному Собранию) will also require a safety net capable of addressing the complex financial, health, labor market and long-term care needs of the poor and vulnerable.

A concrete example of how a scalable and inclusive safety net could be weaved is through a national program, which aids people who fall below the poverty threshold. They would be provided with an income-gap-filling payment combined with incentives to graduate them out of poverty through labor activation support. With many caveats, such as excellent targeting, we estimate the lower-bound cost of such a program to be around 0.3% of GDP. As Russian policymakers tackle the goal of halving poverty, at least based on our analysis, accomplishing this laudable goal is within reach.

First appeared in the print version of the Kommersant newspaper via World Bank

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Economy

Is Bangladesh falling into a China’s Debt-Trap Like Sri-Lanka?

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President Xi Jinping meets with Bangladeshi Prime Minister Sheikh Hasina in Beijing on Friday. [Photo by Feng Yongbin/China Daily]

Bangladesh is the second highest investment destination for China in South Asia. Referring to the incident of Sri Lanka, lease of Hambantota port by China, critics say that greater dependency of Bangladesh on China will make the country a victim of Chinese debt-trap. Is Bangladesh really going to be a victim of China’s debt-trap?

Bangladesh reached lower-middle-income country status in 2015. Bangladesh has met, for the second time, all the three criteria for graduating from the Least Developed Country (LDC) and if everything goes right, will finally be graduated in 2026.

Sri Lanka became middle income country in 1997. The country is facing economic downturn due to wrong economic policies. Recently, Bangladesh has agreed to lend $200 million to debt-ridden Sri Lanka which is struggling to maintain a moderate foreign exchange reserve. Undoubtedly, it is matter of pride for Bangladesh. At the same time, Bangladesh should take lessons from Sri Lanka for upcoming days to avoid unexpected economic crisis.

Bangladesh and Sri Lanka have similar economic weak point. In both countries, the Tax-GDP ratio is not at expected percentage. The economy of both countries depends on a single product, for example- Bangladesh’s economy is dependent on RMG and Sri Lankan economy is dependent on tourism industry. The good news for Bangladesh is that, though Sri Lanka is struggling with its economy but Bangladesh has enough time to confront the upcoming challenges.

The benefits, such as lowest interest rate; longer grace period, that Bangladesh receives as a LDC from different donor organizations like World Bank (WB), International Monetary Fund (IMF), Japan International Cooperation Agency (JICA) etc. will be available till 2027. Now donor agencies like WB, IMF etc. lend Bangladesh with 2% interest rate. These loans have very long tenure, 25-40 years, and the grace period is almost 10-12 years. After 2027, Bangladesh will have to pay higher interest rate.

As Sri Lanka is a middle-income country, it has to pay higher interest rate and gets lower grace period for the loan from donor agencies. Besides, Sri Lanka also borrows from international market through bonds with almost 6 percent interest rate. According to the Central Bank of Sri Lanka, the loan borrowed by Sri Lanka through Sovereign bond was almost 50% of its total external debt.

There are sharp differences between the loans from Donor agencies and loans through Sovereign bonds. Donor agencies offer loans with low interest rates and long tenure. They also come with flexible terms and conditions such as grace periods of around 10-12 years. When the grace period matures, the repayment takes place for next 30-40 years.  On the other hand, loans through bonds come with high interest rates, short tenure and no grace periods. Generally, these loans have to be paid within 10 years and the interests are also payable from day one.

Bangladesh needs precise plans for its graduation journey from LDC to Developing country. Plans are also crucial for post-graduation phase for proper implementation of development projects. Otherwise, Bangladesh may also have to face economic crisis like Sri Lanka in near future.

There is a common misconception that Bangladesh is burdened with foreign loans. But the reality begs to differ. According to Economic Relations Department’s (ERD) ‘Flow of External Resources into Bangladesh’ report, in 2019-20 fiscal years, total external debt outstanding of Bangladesh was USD 4409.51 Crore which is equal to BDT 3,74,898.35 crore in local currency. According to this figure, the per capita loan is BDT 23,425 considering the total population as 16 crores.

According to IMF and World Bank’s Standard, it is only dangerous for an economy if its external debts exceed 40% of GDP. Currently, Bangladesh’s total external debts is less than 15% of GDP which is far from danger mark. Interestingly, USA has the world’s largest external debt which is almost 102% of its GDP. However, the country’s economy is still vibrant because of the strength of US dollar.

There is propaganda against Bangladesh that, it is burdened with Chinese soft loans and soon the consequences will be like Sri Lanka. External debts are mostly used in Bangladesh to cover the budget shortage. In current fiscal year, Bangladesh has taken 38% from World Bank, 24.5% from Asian Development Bank, 17% from Japan, 3% from China and 1% from India as external debt. Bangladesh has taken 80% of total external debt from WB, ADB and JICA.

In 2016, Bangladesh and China transformed their bilateral relations to ‘Strategic Partnership’. In the recent time, like other parts of Asia, Chinese funding is also rising rapidly in South Asia. This has created a good opportunity for fast growing economies like Bangladesh as Chinese Development Finances (DFIs) are offering alternative sources of loans. Chinese DFIs are also creating a competitive and sustainable alternative funding source for Bangladesh since now other countries like India and Japan are also focusing on providing flexible conditions while financing Bangladesh. Based on the analysis, it can be concluded that the propaganda that Bangladesh is going to fall in the Chinese debt-trap is nothing but a myth.

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