India-U.S. BIT: Not A Done Deal Yet

India is revising the model draft agreement of its existing bilateral investment treaties. Some of the new clauses are unlikely to be accepted by either U.S. negotiators or U.S. corporations without substantial dilution

U.S. President Barack Obama’s second visit to India has resurrected hopes that the two countries will revive talks on the dormant but in-progress Bilateral Investment Treaty (BIT). A BIT is being eagerly sought by both sides—from the U.S., to provide comfort to American companies that they will not be treated unfairly, and from India in the belief that it will help increase foreign investment inflows into India.

But negotiating the many tripwires of the BIT will take time and effort. It may therefore be wise to rein in the optimism that is usually generated by high-profile state visits and the associated optics. More so because every significant India-U.S. bilateral visit in recent times—by Prime Minister Narendra Modi to Washington DC in September 2014, by U.S. Secretary of State John Kerry to India in June 2014 and January 2015, and by U.S. Trade representative Michael Froman in November 2014—has rekindled expectations about the abandoned BIT.

Talks on a BIT between the two countries have been on hold since February 2014. [1] Preparations to restart the conversation resumed in the backrooms soon after Modi’s swearing-in on 26 May 2014. Kerry discussed the pending BIT agreement with Modi on the sidelines of the Vibrant Gujarat Summit earlier in January. Diane Farrell, acting president of the U.S. Indian Business Council, confirmed this in a press statement. [2]

However, many hurdles will have to be cleared before any real progress can be made on the BIT. One of the obstacles is that India’s own BIT regime—the Bilateral Investment Promotion and Protection Agreement (BIPPA)—is in cold storage. India is currently reviewing the draft of the existing model agreement and is yet to produce a blueprint that is acceptable to all stakeholders, including different ministries (such as Finance, Commerce, Law and External Affairs). India has signed 83 BIPPAs since 1994 and enforced 72 of these agreements.

The existing text has been under review since early 2013 because many international companies have initiated overseas arbitration against the Indian government—17 new arbitration proceedings over issues as varied as Supreme Court’s cancellation of 2G licences and retrospective taxation notices were filed in the past two years alone. The companies which have sued the Indian government include Deutsche Telecom, Vodafone, and White Industries, under India’s BIPPAs with Germany, The Netherlands, and Australia, respectively.

Another speed-breaker is conflict within the government. The Department of Industrial Policy and Promotion (DIPP, in the Ministry of Commerce and Industry) is opposed to BIPPAs in general [3, 4]. The DIPP is responsible for framing India’s foreign direct investment (FDI) strategy, as well as promoting, approving, and facilitating FDI. The DIPP believes that a conducive economic and legal environment is sufficient to attract foreign investments. It also believes that the existing BIPPAs are likely to result in increased lawsuits and has suggested that the sunset clause in these agreements be invoked to annul them. On the other hand, India’s finance and external affairs ministries are both in favour of an overhaul of the existing template, which will then have to be applied to all existing 83 agreements.

The conflict also arises from the government’s duality in matters of foreign investment—while the DIPP is responsible for FDI, the Ministry of Finance is responsible for administering the BIPPAs.

Talks could face headwinds due to certain new clauses in the draft model agreement. There is a proposal to dilute the “investor-state dispute settlement” (ISDS) system. Unlike the existing contract, henceforth foreign investors will not be able to take the Indian government to international arbitration unless they have first exhausted all legal and administrative options within India.

Clearly, this is a reaction to the spate of offshore arbitration proceedings. It is likely that this defensive move was inspired by external developments. Brazil has eschewed ISDS and South Africa is likely to follow. Australia is under pressure from its civil society to drop ISDS from all its agreements (especially the one with U.S.) and not from a select few, as is the case currently.[5]

The entire ecosystem of perverse incentives built around the international arbitration system could have also compelled the Indian government to dilute ISDS—armies of highly-paid, ambulance-chasing lawyers who have created an entire business model out of arbitrations and arbitrators who keep dragging cases on because they get paid handsomely by the hour—all operating in a highly secretive system. [6] The reworked BIPPA draft tries to ensure a transparent arbitration system by stipulating certain conditions.

But a BIT bereft of ISDS is bound to be opposed by American negotiators and potential U.S. investors. The popular narrative has portrayed the Indian judicial system as slow and inefficient. Indian authorities, on the other hand, are wary of biases in the overseas arbitration tribunals. Achieving a consensus between India and the U.S. on this count is going to be tricky, but India seems to have global precedent set by Brazil, Australia and South Africa in its favour.

A deal-breaker could be intellectual property rights (IPR), a vexed issue on both sides. The U.S.’s private sector has been persistently lobbying with its government for extracting concessions from India, with the National Association of Manufacturers even pushing the U.S. Trade Representative to label India as a “priority foreign country”, an epithet reserved for the worst IPR offenders.

India’s counter-argument has been that its IPR regime is compliant with the World Trade Organisation’s TRIPS (Trade-Related Aspects of Intellectual Property Rights) multilateral agreement, and it considers the U.S.’s Special 301 report—an annual publication from the United States Trade Representative (USTR) identifying trade barriers to U.S. companies and countries which do not provide “adequate and effective” protection of intellectual property rights—unilateral.

Several other prickly issues could sabotage talks—a proposal to drop the most favoured nation status from the agreement, re-phrased expropriation clauses, and re-worded text that ensures that the BIT/BIPPA does not end up favouring foreign investors while discomfiting domestic ones.

Negotiations are all about give-and-take, ceding some strategic space while appropriating critical concessions. This is, admittedly, a time-consuming process. A lot will, however, depend on American corporations and their attitude to doing business in one of the world’s biggest and fastest growing markets in the world.

REFERENCES

[1] Parashar, Sachin, ‘India, U.S. Agree to Restart Talks on Bilateral Investment Treaty’, Times of India; 12 January 2015, <http://timesofindia.indiatimes.com/india/India-US-agree-to-restart-talks-on-bilateral-investment-treaty/articleshow/45846021.cms>

[2] US India Business Council, USIBC Members Brief John Kerry, Secretary of State, and Catherine Novelli, Under Secretary of State for Economic Growth, Energy, and the Environment at Vibrant Gujarat 2015, 13 January 2015, <http://www.usibc.com/press-release/us-india-business-council%E2%80%99s-delegation-vibrant-gujarat-hosts-us-secretary-state-john>

[3] Sidhartha, ‘Finance ministry to move Cabinet for clearing new BIPA text’, Times of India, 24 June 2014, <http://timesofindia.indiatimes.com/business/india-business/Finance-ministry-to-move-Cabinet-for-clearing-new-BIPA-text/articleshow/37108910.cms>

[4] Press Trust of India, ‘Finance & Commerce Ministry to discuss draft BIPA model tomorrow’, Business Standard, 13 August 2014, <http://www.business-standard.com/article/pti-stories/fin-min-com-ind-min-to-discuss-draft-bipa-model-tomorrow-114081300432_1.html>

[5] Chan, Gabrielle, ‘Bill to ban investor-state dispute settlements garners support’,The Guardian, 14 April 2014, <http://www.theguardian.com/world/2014/apr/14/bill-to-ban-investor-state-dispute-settlements-garners-support>

[6] The Economist, The arbitration game, 11 October 2014, <http://www.economist.com/news/finance-and-economics/21623756-governments-are-souring-treaties-protect-foreign-investors-arbitration>

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Reprinted with permission from Gateway House: http://www.gatewayhouse.in/india-u-s-bit-not-a-done-deal-yet/
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Quartz India: http://qz.com/332427/the-biggest-investment-deal-between-india-and-the-us-is-nowhere-close-to-completion/

After the billing & bustle, it’s time to retire... Indian style

THE concept of a corporate organisation, as a sociological construct, has its origins in the West. India Inc imported this notion from the early mercantilists and has changed it over the years to suit local cultures and customs. Even when the compelling forces of globalisation, in the form of scrupulous foreign portfolio investors, have forced Indian companies to adopt western, cookie-cutter systems and processes, Corporate India managed to retain some indigenous streaks. One of the manifestations is probably the age-old practice of 'Vanaprastha'!

Essentially this meant retreating from active work, family life and worldly trappings into a life of frugality and meditation, preferably deep in the forests, far from prying eyes. Call it the Indian idea of retirement, if you will. In fact, the concept of retirement varies from culture to culture. Sometimes it also depends on the loose change in the pocket to the snug cash balance with the bank. ET wrote about this inimitable itch ('Vanaprastha at 50') in its Cosmic Uplink columns about a week ago. Whatever the circumstances, 'Vanaprastha' has been a long-followed tradition in Indian society and is now becoming acceptable even to India Inc. Infosys co-founder NR Narayana Murthy wrote his own unique Vanaprastha software. Likewise, Bajaj Auto chief Rahul Bajaj decided to park himself in Parliament.

Sunil Bharti Mittal had announced in this newspaper a couple of years ago that he wanted to give it all up and do something completely new. In fact, as the first step towards achieving that goal, he has already decided to give up the grind of running the company on a daily basis and decided to instead focus on "mentoring, strategy and governance." So, here's some unsolicited advice to Mr Mittal on doing some nifty retirement planning.

And, a large part of that depends on the recently signed Vodafone-Essar deal. Here we go. The Ruia family threw a party on Thursday evening, on the lawns of their sea-hugging bungalow in South Bombay, to celebrate the completion of the Vodafone-Essar deal. Some old rivals, some old telecom competitors, some new players, bankers, consultants, promoters... they were all there. In the middle of the party came the time to make the formal announcements. Vodafone's Arun Sarin made a telling statement: "This deal is not for us, not for Shashi (Ruia) or Ravi (Ruia); this deal is for the future generation. It's for Smriti (Ruia, Ravi's daughter), Rehan (Ravi's son), Prashant and Anshuman (Shashi's sons)!" What was he saying?

Reading between the lines, Arun Sarin could be requesting the Ruia family to hang in there, and not get into a hurry to sell their 33% stake Hutch Essar. One reason could be the stretched finances. After having paid top dollar for a 67% stake in the Indian telecom service provider, Vodafone might need some time to breathe before it can cough up another $5bn-odd for the Ruia stake.

And, maybe in the meantime improve the valuation of the company.

So, where does Sunil Mittal fit into all this? Well, at some point in the future, it is inevitable that Vodafone-Essar (V-E, as Hutch is now called) will have to look at the consolidation game. So, will Bharti. With Vodafone being the common thread between the two companies (Vodafone also owns around 4.5% in Bharti), and with both Bharti and VE agreeing to set up a common company to share the infrastructure, it will make eminent sense for all the parties concerned to agree to a merger. The merger will also be driven by the need for large, and continuous, dosages of capital infusion.

The merger, as things stand today, is bound to happen. Not today, not tomorrow, not even the day after. It's going to take at least 2-3 years before the pot starts boiling. And, when it does, the valuations are bound to be higher than today. Under the exit agreement, Essar has the option to sell its 33% V-E stake for $5bn between the third and fourth year from today, or even a part of the stake at a price to be valued independently.

Given that the valuation would have soared by then, and with the Ruia family not actually running the company, it is quite likely that the Essar stake will be sold. That would clear the way for the merger to go ahead, Sunil Mittal's stake in the merged company will be immensely valuable. Post the merger, V-EBharti will easily become the Number One telecom company in the country. As the pecking order stands today, Bharti tops the league tables, with V-E coming in at No 4.

The interesting question is: if he does opt for "Vanaprastha", what will Sunil Mittal do with his stake? The mind boggles at the vast opportunities at his disposal. Mr Sunil Mittal, in effect, will be able to fashion his own Vanaprastha, with doses of entrepreneurship, stewardship and CSR. That's corporate retirement, Indian style, for you.