US IPR Group's Meeting with Indian Higher Judiciary Thwarted-Does it Augur Well?

   Business Economics & Services Team (BEST)              



 US IPR Group's Meeting with Indian Higher Judiciary Thwarted-Does it  Augur Well?

   The raging debate today is whether the pressure groups are allowed to meet the judiciary to explain their  views. The case in point is the effort of the US IP body -Intellectual Property Owners' Association -to meet the higher judiciary -Delhi High Court judges and the Intellectual Property  Appellate Board(IPAB) was postponed presumably because of the pressure exerted by  activist groups  in India  consisting of  patients groups, social and health activists and lawyers. The IP group from the US  has already met the officials deling with IP related issues in the government and is reported to have aired their views and perceptions about the working of IP legislation in India, the pitfalls and how they can be toned up to encourage flow of state-of-the -art technologies to India.

A lot of views have expressed in open for and against such meetings of pressure groups  with  the higher judiciary.A shade of Indian public opinion feels that such meetings are healthy since the industry representatives will be able to explain to the judiciary their side of the concern. Having regard to the fact that IP laws and rules are relatively of recent origin in India, they feel that such high level interactions will enable the judiciary to keep abreast of the latest thinking on the issues governing the laws. It is a  fact that   many in the higher judiciary  were  not sufficiently oriented or grounded in such laws during their  days in the law school. The same is the case with application of economic laws to legal conundrums. A large part of laws governing competition, anti-dumping, taxes, etc. have strong economic base. For instance, the methodology for measuring the injury in an anti-dumping case is purely on the basis of economic  calculations based on econometric models.

The new entrants to the judicial service or the new advocates passing out from the known law schools, undergoing the five year integrated course may be aware of  such techniques and postulates. But such people reaching the higher layers of judiciary may take some more time. In the given situation, there is no harm in allowing the existing people in the judiciary to pick up some knowledge through interactions either with the specific interest groups or taking part in seminars and workshops held in other places. I would go a step further in suggesting that the relatively younger judges should be given sabbatical leave for honing up their skills in areas where they did not get any orientation during their law school days.Another proposal worth considering is calling social activists also for such interactions, provided that the deliberations are free from verbal attacks on each other.

Understandably, there is a mistrust between social activists and the judiciary. Perhaps, this could be more on account of the lack of interface between the two. Social activists often quote the Novartis case decided in 2011, when a judge had to acquiesce himself when it was pointed out that he attended a seminar or workshop  abroad mostly funded by the pharmaceutical major was a sponsor. There is a solution for obviating such unsavory occurrences by state sponsoring such trips of the judges. The entrie expenses have to be borne by the state.
Undeniably, IPR issues will occupy a significant quantum of court time in the coming years. Awareness about patents, trademarks, copyrights etc. are gradually percolating to the grassroots. Pharma companies are not alone in their fight against the Indian IPR regime. Of late, electronics and telecom companies from the US have aired their concern  about the indiscriminate  use of compulsory licensing  and data protection. They are also taking their stand for a higher period of IPR protection in India. In the given environs, our judges should be oriented in these specialized laws and at the same time  reasonable measures should be taken to ward off the perception that the judiciary will be pressurized to take lenient measures, if  interactions take place between judiciary and the pressure groups.        

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FM's Romance with Middle Class

Business Economics & Services Team (BEST)



                                               FM's Romance with Middle Class

When the General Budget is round the corner, the vested interests have their own way to influence the finance minister. With little support from media, their wish lists can be played up to any proportion. That is happening every year. This year also it has started well in advance. First because the two states are going for election from 25th November this year onwards and it will be completed only by third week of next month. The government cannot be held responsible for that. It is the election commission that takes the call on elections and its schedules.  Secondly and more importantly, the Delhi State will go for election any time from now and many speculate that it can be February next year. In any case, most likely the event will take place before the presentation of the next Budget on 28th of February 2015.
The Finance Minister has to address three  constituencies of the mammoth vote bank : the business , middle class and the salaried  people. In an election year, for certain, it will be a populist budget. But this time around, election is taking place in certain isolated pockets. Barring Delhi, the rst of the two states  -J&K and Jharkhand-are not electorally significant from the present government's perspective. Delhi is important because a failure can cause embarrassment to the ruling party since the party they are mainly pitted against -AAP- is a new political formation and has formed the ministry here and ruled for more than a month and abdicated the chair on its own, which in its own admission is a grand strategic mistake.
 Here in the city of office goers, businessmen, middle men and shopkeepers, it is widely felt that AAP has made inroads into the vote bank of economically poorer classes, minorities and the groupings of such ilk because, there is a growing discontentment against the present government on account of still high prices, lack of civic amenities and the high talks when there is only very little  to show in their progress card.  Also,some of the ardent supporters of BJP among the government servants,   tell  in private that the stringent attendance rules and the perceived over play of  a few from a particular state as informers and watch dogs. This has created a sense of discomfiture among them. That group has to be humored and brought to the fold

.Fiscal incentives and more civic amenities can offset some of their misgivings. Importantly, the Delhi government has put on hold the proposal to increase the power rates keeping elections in mind.
But the finance minister will be loosing the theme, if he tries to ignore the hardships of economically poor people, retired lots without pension and other vulnerable sections, because they are the hard hit lots. The statistics that have been rolled out to prove that the inflation is under check is not sending right signals to the common man. Even now, the onions, tomatoes, potatoes, vegetables etc are beyond the reach of the common man. Lat year, at this time, potatoes cost only Rs 10 per kg and in certain days and places it came down to the level of Rs 10 for two kgs. This year price for the ordinary variety did not come down below Rs 25 a kg in many markets at least in Delhi. So also the case or other vegetables.  Common man does not believe in statistics, which can be  interpreted  in any way one likes. One can compare with the prices in the previous quarter if last year's price is not comparable or less etc.
At the end of the day, finance minister has to bear the responsibility for all these happenings.  The decibel of blame and passing on the bucks will be more prominent  if the election results go against the ruling party. The good part is that the like the previous FM, the incumbent is  a lawyer and articulate. He can reason out and silence the critics. But the pertinent point is: how long?       

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What Happens When Modi meets Obama in New Delhi on 26th January 2015?

                                  What Happens When Modi meets Obama  in New Delhi on 26th January 2015?

News reports are pouring about the forthcoming visit of US President Barak Obama to India to be the guest of honor for the Republic Day   parade of India, a ritualistic event held every year with a lot of enthusiasm and fanfare. Those who are known about Prime Minister Modi's penchant for event management will vouch that it will be a perfect show played to the prepared text and candor. Bereft of any  major business consultations, the event most probably will be marked by bonhomie and to an  extent some theatrics by both leaders  to gravitate towards the public. It will be tagged as an exercise to build people - to-people contacts and to cement the sentimental ties between the two largest democracies.
There are apparently some similarities between  the two heads of states. One was a tea boy and the other in his younger days carried the baggage of discrimination on several counts. Both are self made people who worked their way up despite discrimination and apathy from the so called elite class. Both are people who had fought the system from within and every mental agony perpetrated unto them  honed up their fighting skills and sagacity and perseverance to face adversities. Importantly, both of them are crowd pullers and to a very great extent made to the top through their oratory and organizing power.
There are  marked differences between the two. Prime Minister Modi had the advantage of growing up in a family along with his siblings in a poor yet comfortable family confines. But President Obama had faced the vicissitudes of life right from the beginning. He was born into a multi-racial and religious family, his father a Muslim and mother a Christian,  his early separation from his father, his sojourn in Indonesia along with his mother and step-father, his return to the US to continue his studies under the supervision of his grand parents having diametrically opposite characters (see his autobiography), his early disdain with studies and the signs of a rebel are well documented by him.
President Obama was born in a land of opportunity and that way he could work his way up once he made up his mind to shun the past and look towards the future. From a social organizer, who worked at the grassroots fighting for the rights of the underprivileged and underdogs, when opportunity presented, he quickly grabbed it and made most of it by enrolling himself  at the best law school in the world - Harvard  Law School- and from there there was no looking back.

Prime Minister Modi' that way was not lucky to get education from ivy league. Drafted into the cultural wing of the BJP at an young age( that time it was known as Jansangh), the RSS, Modi  from his own accounts graduated to a  Prachark  (an organizer of sort) from  a tea boy, and got himself intensely involved in the activities of the organization. Whatever education he could get was through correspondence courses. There is a mismatch between his political acumen and known scholastic achievements. He would have made up that deficit  by traveling across the country and beyond and  actively participating in the social outreach programs.

Like Prime Minister Modi, President Obama has sentimental attachments to his roots. His visit to Kenya in the later part of his life, his association with his half siblings, step-father and a few unknown step-mothers, his paternal grand mother  and close relatives in Kenya are reminders of his sentimental touch that go beyond the  comprehension of  a suave, urbane and  highly educated person. That also highlights his capability to connect with the people. One looming picture that comes to mind is Prime Minister Modi visiting his mother in a nondescript house in Ahmadabad to seek  her  blessings surrounded by his relatives  after getting the mandate to  rule the largest democracy in the world.
Interestingly, President  Obama had realized that fighting against discrimination needed support from all sections of the people including those who vehemently perpetrated that in their action. His idea was to fight against the mindset and not the man. In his struggle towards that goal, he took the support of all - whites, browns,blacks, Hispanics, gays, single parents etc. That is why he had become the first elected black President of the United States. His is a treatise that will be remembered for ever and emulation was that is near impossible.  
President Obama, for some strange reason, has a culinary affinity with India. In his autobiography,  he mentions about our poor samosa several times and if my memory is right   there are narrations of him gorging that poor man's delicacy either in US or in Kenya. While I do not know whether Prime Minister Modi likes burgers or hotdogs, I am reasonably sure tat some delicacies of  Gujarat may find place in the exclusive menu card crafted for President Obama.
 Importantly, as days roll by, President Obama may  be inching towards the  end  of his career as the President of the United Sates of America, whereas Prime Minister Modi has just started his run. Does it portend anything significant?                   

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Will China’s Interest Rate Cut Impact India?

Business Economics & Services Team (BEST)

                                          Will China’s Interest Rate Cut Impact India?

The good news is that the People’s Bank of China has decided to cut its bench mark one year lending rate by 40 basis point (0.4%) to 5.6% from 6 % and the one year deposit rate by 25 basis point (0.25%)to 2.75 % effective from today. This has come close on the heels of its decision to inject US$ 81 billion into the banking system to support credit growth.

Everyone is asking will this cut influence RBI decision on interest rate. Expectation of a turnaround of the Indian economy is widely expected. With the fall in the rate of growth of whole sale and retail inflation, the corporates are expecting a rate cut around first week of December 2014, when the RBI will review the monetary ecosystem. Apart from the fall in the rate of inflation, the protagonists of interest rate cut say that the economy is expected to clock a growth rate closer to 6 %, which will be an all-time high in the recent years. Coupled with the softening of oil prices and a consistent recovery of the US economy, policy watchers  predict that the RBI cannot delay the interest rate cut for long. Significantly, none other than the Finance Minister of the country has put his weight behind the increasing number of corporates, business associations and others for a rate cut. It is also important to note the cautious reaction coming out from the RBI sources that mere demand for a cut in interest rate alone will not hold good: there should be a conductive eco system that supports the rate cut.

In the meantime, the corporates have upped their demand for a sizeable rate cut. Any reduction in interest rate less than one percent, according to them, will not help in stimulating the economy. The reasons are that the cost of capital is very high as compared to that is available domestically for competing countries. This has led to a complete jolt on Greenfield projects. Even implementation of some of the projects already underway, is struck at various stages on account of higher cost of credit. This trend has to be reversed: earlier the better.

Another cause  of worry is the increasing non-performing assets (NPAs) with the public sector banks.  According to reports, NPAs of at least five PSU banks have gone worse and they have been embarking on a massive restructure to hide the increasing ratio. In certain cases, the NPAs are as high as one-fifth of their loan book. The restructuring measures include conversion of debt into equity, extending the repayment cycle of loan etc. Along with restructured loans, which  are not counted along with NPAs, in some banks the non-performing assets is high as 20.5%. On an average, across the PSU banks, this works out to over 12%, which is definitely a worrisome indicator.

The worst of all these developments, as reported in media, is the rising share of NPAs in home loans, which always bucked the trend and had a mellowing effect, unlike the corporate lending. The data in the public domain reveals that the NPAs in the housing loan segment have grown up to 1.5% in September, this year   from 1.4% estimated in March. On the top of it, for three PSU banks, the NPAs in the house loan sector is  5% of advances. Not many years ago, the trigger for the world economy to enter a recessionary phase was the sub-prime lending crisis in the US, which had a snowball effect. Against the backdrop of  standstill in the realty sector for quite some time ( there are reports  that realty  sector prices  in most of the cities and towns have come down), we have to ward off a US like situation in India, when the people will rather forego property rather than paying the increased burden of  EMI.

All said, RBI has its own system to monitor the state of the economy. Some of the reports appearing in newspaper columns may be colored or being planted by the vested interest. The decisions of the RBI should be balanced  since there are a whole lot of honest people who are depending on their hard earned money in fixed deposits and similar instruments to  make their both ends meet. Any reduction in deposit rate will reduce their income considerably. The worst thing is that their voice is seldom heard in the public domain.

  

The People´s Bank of China decided to cut its benchmark one-year lending rate by 40 bps to 5.6 percent on November 21st. It is the first rate cut in more than two years as the economy slows.

The one-year lending rate was cut by 40 bps to 5.6 percent and the one-year deposit rate by 25 bps to 2.75 percent, effective November 22nd. Policymakers also decided to increase ceiling for deposit rates to 1.2 times the benchmark rate from the previous 1.1 times.

China’s central bank is said to be injecting CNY 500 billion (USD 81 billion) into the banking system, aiming to support credit and growth. Published on 2014-09-17

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More On Shell Decision-A Follow Up Story

Business Economics & Services Team (BEST)

     A follow Up Story                                                       
                                         More On Shell Decision


It is being reported that the Union Government has sought the opinion of the Attorney General,the highest law officer of  the country  to look into the recently come out  delivered Bombay High Court decision on Shell company regarding applicability of  transfer   pricing  rules to its transaction of shares to its group company abroad. As per the report, te government's future course of action of filing an Special Leave Petition  (SLP) in the Supreme Court will be heavily dependent on the opinion of the Attorney General.

Insiders say that there will  be little chance of the Government going against the decision since there is an attempt on the part of the government to project a positive image about the investment climate in India. There is a widely held perception that India is heavily litigated country, thus creating a lot of delays in the project implementation once the project is caught up in litigation.
The other view is that the government has already set up an empowered committee, as  proposed  in the Budget 2014-15 to look into the transfer pricing issues in general and applicability of the retrospective tax triggered by the ongoing debate on Vodofone case. The government has already clarified that in future it will deist from introducing such taxes.
There are also reports that reconsideration of the government's stand, if at it all it happens, will be triggered by the stiff stand taken by RSS, the cultural wing of the ruling BJP, which is famously known for its cautious stand against FDI. Since the revenue loss on account of Vodofone and Shell cases are huge, some people in the know of things observe that RSS is firming up their stand against such concessions.
A few political watchers scotch this view arguing that for the next one year or so, there may not be any stiff resistance from the RSS on account of the promise that had given that they will not upset the government policies for at least for an year. Also, the present government is well set in power for the next five years and even if they have to cross with RSS on ideological ground, they can make up in the next five years, when the country again goes to  polls. 

For more information and feedback: jthac1234@gmail.com,jthac1234@yahoo.com  

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SAARC Free Trade Zone -More Hype, a Non Starter

 Business Economics $ Services Team (BEST)





                                        SAARC Free Trade Zone -More  Hype,  a Non Starter

Ahead of the forthcoming Summit of the South Asian Association for Regional Cooperation (SAARC) to be held in Kathmandu shortly, a lot of news are in the public domain speculating on the agenda, outcome and things of that nature. Most hotly debated issues are the likely conclusion of two agreements -SAARC Motor Vehicle Agreement and pact on Railways. This is nothing new and has been going on for several years with almost zero results.
As a concept SAARC  had caught up with the imagination of many leaders from the region. During Prime Minister Gujral's time, he took it as his pet subject and created a special cell in the PMO to deal with the SAARC region. His short stint at the helm of affairs was one among the several reasons for not making any headway in that direction. That time also a road route through Pakistan for exporting Indian goods to CIS countries was preferred. Lack of  road connectivity forced Indian exporters to use Bunder Abbbas  in Iran as a transhipment point for exporting to CIS, adding up to their transaction costs considerably. The project was shelved on account of the passive resistance from Pakistan.

Similarly, another plan was formed to bring the natural gas from  Bangladesh to India to provide uninterrupted feedstock to Indian companies. Many grand plans were formulated and a number of US companies were keen to tap the gas from Bangladesh and to bring them through pipe into  India for finding lasting solutions to India's energy defict. The project had to be shelled or remained as a non-starter allegedly due to the pressure exerted by China on Bangladesh.
Another project was floated for trapping the hydel resources in Nepal for electricity generation to be used by the Indian companies adjoining that area and the surplus to be sold to Bhutan, which has to depend on energy from Indian sources. Some of the hydel projects were identified. But the work did  not start on account of the high cost of generation. Also, that was the time, many companies like Dabhol, Cogentrix etc had withdrawn from India on account of the high generation cost, which would  translate into higher cost of energy for the consumers.
India  had grand plans for Sri Lanka and many Indian companies had started their operations in that island country. Because of the huge availability of natural rubber, a few Indian Tyre companies had either evinced their interest in launching their operations and one or two among them really started their operations. Later these operations were wound up for one reason or the other.

Admittedly, all these concepts  were floated during a time when regional cooperation was the talk among diplomats, economists, policy makers and political higher ups. NAFTA, ASIA Pacific Rim, ASEAN,Caribbean Cooperation Agreement etc. were exotic terminologies, close on the heels of  formation of European Union (EU). Many thoughts that was the trend that would sustain. SAARC also inked the concept of free trade and prior to that, to increase the intra-regional investment and trade, SAPTA was evolved giving prefrential access to countries in the region for each others market. India unilaterally cut the tariff of many items to facilitate more imports from other SAARC countries, which were constantly complaining about  the limited market access to the Indian market. A free trade zone was created between Sri Lanka and India for limited products like tea and rubber. Border trade was allowed between India and Pakistan to circumvent the smuggling and  switch deals of Indian products through Dubai to Pakistan, increasing the transaction cost considerably.  But that did not increase either the intra-trade or investment, which is roughly calculated at 5 to 6 percent of the total trade from the region. Whereas such figures for EU is more than 60 percent and ASEAN close to 40 percent.

Now the SAARC has come in focus again. What is important to keep the target and road map realistic. The first attempt should be to plug the trust deficit among the nations, which has not shown any marked improvement. Trade  and investment flow only when there is peace in the sub-continent. Major diplomatic breakthroughs are needed in this regard   particularly between India and Pakistan, two major players in the sub-continent. Basic to that is the evolution of a consensus for dealing with terrorism in an iron-fisted manner. Two, focus on low lying fruits initially rather than coming out with grand plans. The lowest lying fruit in this regard is promotion of intra-toursim, which is easier tap and will be beneficial to all countries in  an equitable manner.
For more information and response: BEST E mail:jthac1234@gmail.com,jthac1234@yahoo.com
     

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Escalating Indo-US Trade War

Business Economics &Services Team (BEST)

                  Escalating Indo-US Trade War


Like the real war, the trade wars are also  an interplay of assertions, strategies, moves, counter moves, double talks and what have you. There are also trappings of deceit, conceit, arm twisting etc. in this game from both sides. But the powerful between the two wins the game. But unlike in the real war, there are no bloodshed, arms, weapons etc. In effect, it is a war of wits that can be won by a combination of factors like business acumen, foresightedness and the like.
The US has fought this war with Japan, EU, China and now with India. Sometimes, the trade wars can give strange results-a win-win situation or a lose-lose situation. Most of these wars follow a predictable trend and a goal-increased market access. Let us take stock of the current dimensions of the trade war between India and the US.
1. The pharmaceutical  sector. There are a number of areas ranging from patent protection, copy rights act, data protection, compulsory licensing, incremental innovation etc that have come to occupy the center stage in the US demand profile. The US Congress is putting pressure on Obama Administration to take steps against India and to keep India always in the radar for violation of trade related intellectual property rights. The latest is the forthcoming visit from the US a delegation  to , assess  how far India's pharmaceutical sector is complying with WTO norms. Basic to these assertions are that  the  US wants to have protection of intellectual property rights for a longer duration and better price for its pharma products in India. India is resisting the pressure by maintaining that whatever actions that it has taken are in compliance with the WTO rules. In a country, where there are a large number of poor people, India can ill-afford a runaway price  for its medicines. The present increase in the prices of medicines  has put the government in a mat, both from opposition and within the ruling coalition.

Telecom Sector: Not long ago, the US Vice President visited India. Among his top priority was to dissuade India from resorting to compulsory licensing or indigenization of the manufacturing  of telecom, which in policy apparatus is called phased manufacturing process. This was mainly about certain telecom equipment. The ban on imports of these items  imposed by the Indian government  was on account of the possible malware and spyware that can be built into the equipment. The US could succeed in partially getting the ban relaxed. A few days back, the US business body -US India Business Council -has represented to the office of the US Trade Representative (USTR) about the violation of  India on the WTO monitored International Telecom Agreement (ITA) by imposing customs duty on electronics products imported into India. They also complained that India is increasingly resorting to compulsory licensing of certain electronic items. The Indian counter was that the ITA was signed in 1997 and many electronic products have not come inot being after that cut off date. Naturally, the products which  are introduced  into the market after the cut off date will not be covered under the ITA, which stipulate that the imports should have only zero duty. Also, India's assertion is that the compulsory licensing is resorted only when the production of an item, be it electronics or pharma  product, is only when it was absolutely required as allowed under WTO. Also, the foreign  manufacturers/ importers   are  informed about the decision well in advance.

Double Taxation Avoidance Treaty (DTAT): The US has many complaints in this regard ranging from opaque nature of India's tax system, unpredictability of the system and on issues like retrospective tax, transfer pricing etc. Several rounds of discussions were held at both official and political levels. India' s has clear cut stand on bringing back the laundered money  from tax havens. But the laws in several countries stipulate that the names of the people involved in stashing away funds abroad should be revealed only after a proper inquiry was conducted and a prosecution case is charged against them. India also is against routing money into the country through tax havens taking advantage of the tax laws in these countries. But foreign investors especially foreign institutional investors (FIIs) and the countries having liberal tax regimes are against such changes.

Financial Sector: The US wants India to liberalize further its financial sector, particularly insurance and banking. The Bill introduced  in  Parliament for increasing the threshold  limit of the FDI in insurance is facing a lot of resistance from the left parties and also a group within the ruling party called RSS, the cultural wing of BJP. The public sector banks in India is dead against the demand of the foreign banks in India to expand their network. Presently, there is restriction on them  on the number of branches which they can open. The fear of the public sector banks is that once the multinational banks  are allowed to go into small towns and villages, they will be able to mop updeposits, at  their own cost. far in excess what  they  can.
Visa Issues: India wants a liberalized visa regime from the US to enable the large talent pool to take advantage of the emerging opportunities in the US. Apart from software and medical services, professionals  like advocates, nurses, technicians, architects, management consultants, financial experts etc. can get contracts - short or long -  in the US. This will help India to improve its services exports to increasingly offset the deficit in the merchandize trade. But the US insist on opening up the services sector in India. That would mean that legislation governing   professions like lawyers, chartered accountants, doctors, architects etc should be amended to allow foreign professionals to practice in India. A large segment of professionals across the board are against this  proposition
Totalization Agreement:. A closely linked up matter is the India's plea  for  early conclusion of the Totalization Agreement between the two countries, the negotiations for that has been going on for a long time. This would mean that social security tax need to be paid only in  one country. Now such tax is levied in both countries.   The US rules stipulate that the social security tax has to be paid by any employee the moment he starts working there. But the benefits of the tax, such as unemployment or old age pension, medical expenses etc can be availed only when the employee works in the US for a minimum period of 10 years. Most of the Indian IT &ITeS employees work there for lesser duration  and they forfeit their contributions. Unofficial estimates, put this figure around US dollar one billion a year. Conclusion of the Totalization Agreement will help these employees and their employers save a lot of money since they will be expected to pay tax only in one place.                            

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