Monday, April 21, 2014

Capital controls against FDI in aviation: An example of bad governance in India

by Anirudh Burman, Ajay Shah and Arjun Rajagopal.

FDI in aviation was liberalised by the Reserve Bank of India on September 21, 2012 through a change in the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000 (link). Following that change, private players began putting together a number of complex transactions between Indian and foreign companies such as Jet-Etihad, AirAsia-Tata, and Tata-Singapore Airlines.

On November 20, 2013, the Directorate General of Civil Aviation (DGCA) revised its `Civil Aviation Requirements' or "CAR" (CAR 4.1.5 to 4.1.16) to state that a domestic airline company cannot enter into an agreement with a foreign investing entity (including foreign airlines) that may give such foreign entity a right to control the management of the domestic operator ( link). This change in regulations has major consequences for some of the transactions which are in progress.
There are two important deficiencies in this action by DGCA:

  1. The CAR makes repeated mention of the requirement of control, without clarifying what the term `control' means. This creates legal risk for transacting parties.
  2. No rationale has been offered to justify the use of the coercive power of the State via the CAR; no estimates of the costs or benefits of this regulatory action have been provided.

What does `control' mean?


Rule 4.1.8 of the CAR (link) states:

A Scheduled Air Transport Service/Domestic Scheduled Passenger Airline shall not enter into an agreement with a foreign investing institution or a foreign airline, which may give such foreign investing institution or foreign airlines or others on behalf of them, the right to control the management of the domestic operator.

However, the `right to control the management' has not been defined. This lack of clarity is compounded by two other regulatory requirements: (a) the directors appointed by the foreign entity cannot exceed more than one-third of the total (CAR 4.1.7), and (b) the substantial ownership and effective control of a domestic operator has to be vested in Indian nationals (CAR 3.1).

The new requirements must mean that `the right to control the management' involves a form of control over and above these two earlier requirements, but no definition of that form of control is offered. Such lack of precision in drafting of laws results in increased legal risk and should be avoided.

Lack of transparency


When the coercive power of the State is wielded by the executive, this should be accompanied by appropriate checks and balances. Good practice in regulatory governance requires that when regulators wish to make changes to regulations, and thus affect the rights of private parties, the regulators must furnish reasons for making those changes. This increases transparency, predictability, and accountability.

In the case of investments, an investor who commits resources would want an element of control in order to ensure his money is not stolen or wasted. A substantial investment in a company is thus often accompanied by rights regarding management and control of the company. If a regulatory requirement interferes with these rights of investors, the onus is on the regulator to explain why. The changes to the CAR affect the rights of investors and potential investors in the aviation industry, but DGCA has not furnished any reasons for its revisions.

Regulatory actions must not be arbitrary acts of God. They must be steeped in the rule of law. The Draft Indian Financial Code, when enacted, will ensure financial sector regulators make qualitatively better regulations by blocking these kinds of mistakes. All draft regulations will have to be accompanied by reasons for the proposed regulations, as well as a cost-benefit analysis of the proposed regulations. These will be made available for public comment, before the final regulations are adopted. This regulation-making process will result in clearer and better regulations, and will enhance the legitimacy of the regulations and of regulators. The adoption of a similar process by DGCA would have led to a better outcome.

Barriers to international economic engagement: A strategic view


Consider trade barriers. The Indian State has the power to introduce customs duties. A number of government bodies undoubtedly have a major stake in the design of customs duties, and may even have critical expertise in the matter. Nonetheless, the power to introduce and modify customs duties is vested in a single authority -- the Ministry of Finance. The Ministry of Textiles, for example, has no power to change the customs duty on imported cloth. This is a healthy arrangement: The Ministry of Finance is responsible for maintaining a unified strategic outlook on the question of trade barriers. The Ministry of Textiles can engage with the Ministry of Finance and suggest changes in tariffs, but responsibility for formulating and promulgating a coherent policy ultimately rests exclusively with Ministry of Finance.

This same strategy is required in the field of capital controls. If multiple regulators or government departments set about writing capital controls, we will have a balkanised mess.

Indeed, the current capital controls based framework is just such a balkanised mess. In the absence of a single governing law for foreign investment, a number of agencies have prescribed foreign investor regulations. The types of capital control restrictions and their rationale can be outlined as:

  1. Entry restrictions by financial regulators such as RBI and Ministry of Finance, usually to promote monetary policy and financial stability (under the Foreign Exchange Management Act, but not restricted to it);
  2. Entry restrictions imposed by DIPP and Ministry of Finance on grounds of national security (may include consideration of factors listed under FEMA as well); and
  3. Regulatory restrictions (including on control and ownership) imposed by sectoral regulators.

This multiplicity of regulations also leads to uncertainty of regulatory objectives. Investors have no idea of what criteria is used to assess their investments, and grant them business permissions. It is important to recognize that the justifications used to impose regulatory restrictions for relying on the distinctions between private and public, or domestic and foreign entities, is that these distinctions are reasonable proxies for the other characteristics (national security, systemic risk) that are a valid basis for differential treatment. As in so many areas of regulation, the misapplication of easy proxies for characteristics that are difficult to assess becomes a glaring reminder of regulatory uncertainty. It is important that regulatory objectives be identified clearly in relevant statues and regulations.

In addition to the legal and regulatory uncertainty created by such a multiplicity of regulators and regulations, the regulations themselves may violate India's obligations under various multilateral and bilateral investment treaties: Many, if not, most such agreements provide for national treatment of investment once it has been allowed to enter the domestic market. Regulators should not be allowed to impose regulatory restrictions after foreign investment has already entered the domestic market. Under this principle of competitive neutrality, there should be no difference in the conditions imposed on the State Bank of India and those imposed on Etihad, when they invest in Jet Airways.

This requires more than administrative changes. A reform of the legal framework is essential. For example, the restrictions in the CAR appear to be grounded in the expansive powers granted to DGCA under the Aircraft Act, 1934. Section 5 of the Act (link) states:

Power of Central Government to make rules. - (1) Subject to the provisions of section 14, the Central Government may, by notification in the Official Gazette, make rules regulating the manufacture, possession, use, operation, sale, import or export of any aircraft or class of aircraft and for securing the safety of aircraft operation.

Those same powers could ground preferential treatment in other areas of regulation. To the extent that other regulatory bodies with responsibilities for other sectors have similar powers, those sectors too are vulnerable to violations of the principle of competitive neutrality.

The report of the FSLRC proposes a cleaner, clearer regulatory framework for foreign investment, one which is consistent with these obligations. Section 2.5 of the report states:

The Commission envisages a regulatory framework where governance standards for regulated entities will not depend on the form of organisation of the financial firm or its ownership structure. This will yield 'competitive neutrality'. In this framework, the regulatory treatment of companies, co-operatives and partnerships; public and private financial firms; and domestic and foreign firms, will be identical.

The draft Indian Financial Code, which encodes the principles articulated in the report, explicitly requires all regulators to maintain competitive neutrality while framing regulations. Section 84 (Principles of consumer protection) and section 141 (Principles of prudential regulation) contain the following identical language:

[C]ompetition in the markets for financial products and financial services is desirable in the interests of consumers and therefore... there should be competitive neutrality in the treatment of financial service providers;

This will ensure that sectoral regulators in the financial sector will not be able to discriminate against foreign and domestic firms/investment.

Pending the introduction of the Code, it would be helpful to incorporate its underlying principles into the existing regulatory framework. For example, the BJP has suggested that they will block FDI in retail but they will remove all capital controls against FDI in other sectors. Any government wishing to carry out such a change would need all capital controls be defined at only one place, where a single policy decision is taken. After this, it should not be possible for any other department of government or a regulatory agency to introduce capital controls.

The required single-window system should have the following characteristics:

  1. A comprehensive definition of foreign investment;
  2. A rule-of-law based mechanism for the government to allow/prohibit entry of foreign investment in specific sectors;
  3. A single regulatory barrier for foreign investment before it can enter the domestic market. Currently FIPB is an example of such a barrier;
  4. Clear documentation of approval of foreign investment that must be binding on all government authorities;
  5. Clear enumeration of reasons for which foreign investment can be restricted, and who can impose these restrictions (without any catch-all provisions like "for any other reason");
  6. A positive obligation on the government to ensure competitive neutrality, OR a restriction preventing the government from discriminating against foreign investment once the investment has been allowed to enter India; and
  7. A review mechanism where foreign investors whose investment has either (a) been rejected, or (b) been subjected to discriminatory treatment compared to a domestic investor, can seek redressal.

Conclusion


There is great outrage in India today, against a capricious State that is a major source of risk for firms. These failures on capital controls are one important component of that problem. It is the right of politicians to interfere with international economic integration - e.g. to block FDI in retail or not or to have tariffs on import of apples or not. But there should be a single-barrier where this political decision is made.

Saturday, April 12, 2014

Leadership of State agencies in India requires engineers and not drivers

I recently wrote a column in the Economic Times titled Engineers, not drivers, about the problems of malfunctioning government agencies in India and the problem of constructing State capacity. 

Thursday, April 03, 2014

Opportunities at Macro/Finance Group, NIPFP

The Macro/Finance Group at NIPFP has openings in analytical economics and public policy work.

Economists


We require individuals with a Ph.D. in economics or finance, with an interest in original research in our fields. These would be contractual appointments for a period of two years. One or more publications in international journals would be helpful, as would be the ability to carry research from inception all the way to publication.

Policy research associates


We require people who can participate in large complex projects in the field of public policy, ranging from envisioning the future to implementing it.

Policy work is highly inter-disciplinary, spanning the fields of public economics, finance, economics, law, and public administration. Deep finance practitioner knowledge is important. Equally important is looking beyond the present and envisioning the future, with first principles reasoning that is informed by international experience. We welcome interest in these positions by people with strong capabilities in some of these areas, and curiosity about the others. The ideal candidates would have read the Percy Mistry, Raghuram Rajan and FSLRC reports, and have familiarity with the things being talked about in this blog.

Quantitative research associates


We require individuals with a Masters degree in economics, finance, public policy or statistics. The work involves participating in academic research projects in the fields of macroeconomics and finance, and practical macroeconomic policy analysis. Desirable features include: domain knowledge; knowledge of computer programming, ideally in R; experience with CMIE databases and datastream. Some of the people who have done this for a couple of years have gone on to do Ph.D. in economics or finance at top schools.

Research programmers


We require a senior person who would play a dual role. On one hand, he would be responsible for an existing system which includes linux desktops, linux servers, and a project management system based on redmine and svn. This is expected to take up roughly 20% of effort. The prime focus will be participating in development work of complex analysis of economic and financial data. This development work is primarily in R. It includes building internal tools and also packages released as open source, such as our R packages fxregime, eventstudies.

Such work could be particularly appropriate for a person who is at present a computer engineer but desires knowledge of economics and finance.

Generic features


The Macro/Finance Group at NIPFP is a conducive research environment including a modern office. Compensation is generally superior to that seen in government academic institutions. The policy and the quantitative teams are strongly interconnected with significant spillovers of knowledge. We are a research environment: non-hierarchical, low politics, high IQ, high intensity and high involvement.

Please look up our websites:




If this interests you, please contact Anurodh Sharma (anurodh54 at gmail.com) with your resume by 20 April 2014, where you clearly identify where your interests and capabilities lie.

Thursday, March 20, 2014

Financial reforms : What should the next government do?

Think India Foundation is setting up a series of TV shows on various aspects of public policy. Percy Mistry, Rashesh Shah, Dhiraj Nayyar and I were on their Financial Policy show, which was shot in English and Hinglish. I was impressed at the quality of the show; I had not thought this possible on television. And, my new ambition is to speak in Hindi like Dhiraj does.

It will air on the coming weekend (22 and 23 March, Saturday and Sunday), as follows:

CNN IBN
Sat – 12pm & 8pm
Sun – 10pm

IBN 7
Sat – 10am & 8pm
Sun – 11am & 6pm

CNBC AWAAZ
Sat – 7:30pm
Sun -1pm

CNBC-TV18
Sat – 8:30pm
Sun – 8pm

ETV UP, ETV MP and ETV Bihar
Sat – 6pm
Sun – 5pm

ETV Rajasthan and ETV Urdu
Sat – 5pm
Sun – 5pm

Monday, March 17, 2014

CBI preliminary enquiry on MCX-SX becoming a stock exchange

This is a good time to ruminate on the notion that CBI or Lok Pal should have independence. Underdevelopment is where the police are more dangerous than the criminals. Coercive power coupled with independence is a recipe for trouble. What is needed is far more thinking on how to do sound public administration, on the right mix of independence and accountability. Anger about corruption is not a useful source of good thinking in public policy.

This is also a good time to ruminate on the lack of rule of law in the determination of fit & proper.

Human capital will fuel high Indian GDP growth for the coming 40 years

In a recent column in the Economic Times -- My generation -- I argue that the outlook on human capital in India is bountiful for the coming 40 years.

Friday, March 07, 2014

12th research meeting of the NIPFP-DEA Research Program (correction)

The 12th Research Meeting of the NIPFP-DEA Research Program will take place at the India Habitat Centre in Delhi on 13 and 14 March.

The program design is up on the website.

The previous post which stated this had a mistake on the URL. Please ignore it.

Wednesday, February 12, 2014

The Bombay police: A failure story

A few days ago, I woke up at 4 AM under an onslaught of the shouting of large beefy men instructing a crew, using megaphones, in a movie shoot in Film City. I thought to myself "this must violate some law".

For a while, I tried to be a free rider, thinking "Someone else will complain". But it was 4 AM and clearly nobody had complained. So I thought I should call the police and complain.

  1. I used my (Airtel) cell phone and dialled "100". The cell phone said this was an imaginary number. I rotated the phone by 90 degrees but this also did not work.
  2. I tried to dial "022-100" but this gave the same error.
  3. Some websites said that 112 is an omnibus emergency number. I tried 112 and 022-112. Neither worked.
  4. I broke into cold sweat thinking that in Bombay, I actually have no means to call the police in an emergency using my cell phone.
  5. I hunted for other ways to reach the police. There is no rapid access mechanism using new technology: You cannot send in a complaint by email or IM. You can chat with an Amazon customer support person by IM or on email, but you can't do this with the Bombay police.
  6. I started hunting for a phone number for the police on the web. There were large numbers of websites. It was not clear which to use.
  7. If you google for "Mumbai police" and click on the first link -- http://www.mumbaipolice.org -- it takes you to a fashion store.
  8. I hunted more on the web and got hold of a few numbers and started trying. The first two shooed me away.
  9. The third one was willing to listen to me, but not in English. The only languages that he would speak were Hindi and Marathi. I happen to know some Hindi and some Marathi, but a large number of migrants to Bombay speak neither. It is not good to have government interface that does not grok the lingua franca of India.
  10. He heard me and said "okay". He did not say "This is illegal and we will shut it down". 
  11. He did not give me a ticket number. He made no attempt to take my phone number or email address. Nobody contacted me in the end to tell me what was the disposition of my complaint. I had no idea what happened. The noise blared on.
And I understood why free riding did not work. Nobody had complained because there is no mechanism through which anyone can complain.

There is no public good as fundamental as the criminal justice system, and we in India are simply not trying hard enough.