How serious is India about foreign investment as an engine for growth?

I will be spending next week in Mumbai and Delhi (with @singarbitration), and in preparation have been contemplating the impact of the recent budget proposals on foreign investment, and in turn the implications for the Indian economy.

Before going on any trip, I like to remind myself of some basic economic facts, so my trusty EIU ‘World in 2012’ guide tells me that India has:

  • GDP of $5,083 bn (PPP)
  • a population of 1,220 m
  • a per capital GDP of $4,170 (PPP)
  • GDP growth 7.8%
  • inflation 7.7%

Whilst these statistics are impressive, India’s growth rate has persistently been a couple of percentage points lower than that of China. The reasons for this are many, but commentators seem to agree that one factor is the barriers or impediments to foreign investment in many sectors of the Indian economy, which may help to stimulate competition and growth.

Regardless of sector, one key requirement of foreign investors in India is certainty over the rules for investment, and in that context recent attempts by India to levy retrospective tax charges are very (to put it mildly) unhelpful. I’ve blogged before on the Vodafone tax case, but since the helpful supreme court judgment rather unhelpfully the budget proposals published in March 2012 contains proposals that would change significant parts of Indian tax legislation with retrospective effect (back to 1962 in some cases) and reverse decided case law on many provisions.

There are 24 retroactive provisions in the bill designed, in the words of Revenue Secretary R S Gujral, to protect the government of India from returning taxes previously collected which it would otherwise be required to do to comply with Court decisions (in itself an extraordinary statement of disrespect for the Supreme Court of India and its position under the Indian Constitution).

Although presented as mere clarifications, the changes are clearly substantive changes in law and made as a direct reaction and in contradiction to various rulings and judgments of the courts in India. Specifically the changes are reinforced by a provision (s113) which grants the tax department wide ranging powers to demand, and collect and seize tax from taxpayers notwithstanding contrary judicial decisions. The changes go to the very heart of the constitution of India, the rule of law in India, and are likely to impact many Indian as well as international investors and businesses.

Specific international M&A aspects

The most prominent of the judgments proposed to be reversed is the January 2012 Supreme Court ruling relating to the 2007 Vodafone transaction, where it was held that an overseas share transfer cannot be taxed in India even if there is a consequent change in control of a lower tier company in India. The budget now seeks not only to overturn this ruling, which had been hailed both internationally and in India as a sign of the rule of law in India and a positive sign for investor certainty, but also to do so with retrospective effect. Numerous other companies would be affected, including AT&T, General Electric, Fosters, Sanofi-Aventis, Kraft-Cadbury, Cairns, Unilever, Accenture, Mcleod Russel and E-Trade as well as a reported 400 other transactions being investigated by the Indian tax office. As the legislation is retrospective to 1962 there may well be other transactions that can be targeted by the tax authorities which were completed decades ago.

In many of the cases, the targeted companies are purchasers who made no gain, but are being pursued for the tax on a gain realised by sellers. Doing this retrospectively is extraordinary; it is impossible to withhold retrospectively once the purchase price is paid.

Other aspects

In addition, other provisions included in the budget would expand the definition of ‘royalty’ retrospectively to 1 June 1976 aiming to nullify a number of recent rulings and court decisions, including cases involving Asia Satellite Telecommunications, Ericsson AB, Factset Research Systems, Infosys Technologies, Intelsat, ISRO Satellite Centre, Lucent Technologies, Motorola, TV Today Network, and Velankani Mauritius

Impact on Investors in India

The extreme nature of the retrospective changes is a significant departure from international norms and raises major concerns among investors and multinational companies in respect of their investments into India. It undermines public confidence in the judiciary and respect for the rule of law which is one of the fundamental principles of a democratic society. It further creates uncertainty on laws and unpredictability of the cost of doing business in India, and a perception that the revenue authority can act completely unchecked by the judiciary in India. If these proposals are enacted India would distance itself from other countries which are encouraging and bringing favourable reforms to encourage foreign direct investments.

The Watcher needs to make it clear that he has investors in India as clients, and this post should be read in that light.

Indian Supreme Court decision in Vodafone tax case good news for international investors in India

The judgement of India’s Supreme Court on 20 Jan in the Vodafone tax case, removes (at least for now) some of country-specific risk that has been holding back investment by multi-national companies in India. Reduction in perceived risk is likely to encourage more investment in India by multi-national companies, particularly as Indian growth is driven to a greater extent than many other economies by domestic demand, and so is less correlated with a Euro-zone slowdown (or, if things go really badly, Eurozone plummet).

In good lawyerly fashion I should start with a disclaimer – I am neither an Indian lawyer, nor a tax lawyer so anyone wanting to explore the finer points of Indian tax law should look elsewhere (a number of Indian law firm have produced useful detailed case notes).

At a business level the facts were very simple – the Indian tax authorities sought to levy tax on Vodafone in relation to its acquisition of an offshore company. The detailed arrangements were rather complex, and the tax authorities sought to ignore the corporate structure and to tax Vodafone as if it had directly acquired an interests in the underlying Indian telecoms business. The Indian High court supported the position of the Indian tax authorities, but this was decisively rejected by the Supreme Court.

For me, what stands out is not the finer detail of the legal analysis, but an appreciation by the Supreme Court of the requirement for legal certainty as a pre-requisite for international investment. In the concluding words of the Lord Chief Justice:

“FDI [foreign direct investment] flows towards location with a strong governance infrastructure which includes enactment of laws and how well the legal system works. Certainty is integral to rule of law. Certainty and stability form the basic foundation of any fiscal system. Tax policy certainty is crucial for taxpayers (including foreign investors) to make rational economic choices in the most efficient manner. Legal doctrines like “Limitation of Benefits” and “look through” are matters of policy. It is for the Government of the day to have them incorporated in the Treaties and in the laws so as to avoid conflicting views. Investors should know where they stand. It also helps the tax administration in enforcing the provisions of the taxing laws.”

This approach is refreshing and welcome to international investors. With India’s economic growth powered to a greater extent that other developing economies by domestic demand, I expect to see more investment.

Perspective, distance and why business still requires face to face meetings

Having recently relocated to Singapore to set up my firm’s first office in Asia, I have been rather quiet on the blogging front recently. This post serves as something of a reboot – the blog will continue with its theme of the intersection of business, law and regulation in the telecoms and technology sectors but in addition to continued coverage of the UK and Europe will have an increasingly Asian focus.

It has been an interesting time to be in the region with President Obama spending far more time at the APEC  and ASEAN summits that I can ever recall him spending at European meetings and with the US administration signalling a ‘pivot towards Asia’ in their policy focus. With the current turmoil continuing in Europe (and the Eurozone in particular), whilst the mood here is not wildly optimistic, I perceive that there is a quiet confidence that global growth over the medium term will be driven from the region, both from the powerhouses of China and India, and also from countries in the ASEAN group such as Indonesia, Malaysia and Thailand.  Whilst some of the immediate press headlines highlight the fall in growth rates in the region, with Hong Kong fearing recession, from the perspective of a newly arrived European what is most noticeable is the can-do positive business outlook, which contrasts sharply with attitudes in Europe.

It is now 16 years since Frances Cairncross’ original economist 1995 article and subsequent 1997 book,  ‘The Death of Distance’. Whilst it is certainly true that developments in technology and communications infrastructure have vastly changed the  communications, broadcasting and media industries and that (as I can attest) people are far more mobile, it has also been striking that despite easy access to video-conferencing and other communications tools that people (or at least those who give lawyers work!) are still hard-wired to do business with people that they have met, know and trust. Whilst I continue to work with clients in the Europe, it seems that there is no substitute for getting out and meeting people face to face if you want to do business with them. The good news is that once you have established a relationship, all the various communications methods make it much easier to keep that relationship alive and to stay in touch.