Designing the law

The flow of foreign capital has become one of the main drivers of business in Mexico and has principally arrived through privatisations of public companies, investment in already existing Mexican subsidiaries by their foreign parents, and M&A. For example, during 2008, Mexico obtained $18.59bn direct foreign investment, with the US as the main source of capital. In 2007, the nation obtained $27.167bn direct foreign investment, the largest amount in six years and the second highest amount ever received by Mexico, surpassed only by the level of direct foreign investment reached in 2001, the year in which Citigroup acquired Banamex.

Although the financial and economic crisis in the US (upon which Mexico’s economy depends to a great extent) has affected Mexico, business continued satisfactorily. During 2008, M&A transactions were not affected by the crisis, but currently M&A activity is diminishing as a consequence of the resulting recession. Direct foreign investment and the growth of international production have taken place mainly via cross-border M&A.

It is expected that many investors will continue to invest in Mexico during the next two years due to the fact that Mexico conserves its solid position as one of the main investment destinations in Latin America and that it has a close commercial relationship with the United States.

The US recession is affecting Mexico with the contraction of the GNP, an increase in unemployment, a reduction in oil production revenue, the slump in the value of the Mexican peso with respect to the US dollar, and the fall in the stock market, among others.

Basham, Ringe y Correa has taken part in different M&A transactions for 2007 and 2008, such as the purchase of a logistic company, including advising on senior secured financing for $270m the dissolution of a joint venture between Desc, now Grupo Kuo, and Dana of an auto parts business, as well as the purchase of a portion of the shares in the capital of the Toluca International Airport. The firm also participated in a joint venture between Grupo Kuo and Grupo Herdez for the production and sale of food, the acquisition of a 49 percent stake in the capital of the holding company of a steel producer, and the acquisition of 100 percent of the shares of a tyre manufacturer, among others.

M&A activity has been implemented either through bids (public or private) or purchase or sell offers (even through takeovers). Either structure represent some pros and cons; however, every day becomes more common to implement M&A transactions through bids, mainly with the participation of investment or brokerage firms acting as managers of the process.

Mexican reforms
Over the past few years, many political, economic, and social changes have occurred in Mexico. This has led to many reforms and proposals for reforms, some of which have been adopted and some of which have met with political opposition which has forced them to be delayed or withdrawn. Public and private sectors of the economy agree, however, that if Mexico is to continue to advance, to continue to receive a large share of foreign investment, and to take full advantage of its potential, it is necessary for the country to continue the process of reform.

Some of the areas of concern are the following: (i) antitrust; (ii) judicial; (iii) transportation; (iv) economic support program; and (v) education.

Civil
The Federal District legislature approved the Ownership Extinction Law for the Federal District which provides that the ownership of or possessor rights over property located in the Federal District (Mexico City) that are obtained from proceeds from the following crimes may be confiscated by the government: (i) organised crime; (ii) kidnapping; (iii) vehicle robbery; and (iv) human trafficking. In the event that the illegal source of funds to acquire or use real or personal property is proved, no consideration or compensation will be given for the confiscation.

Energy
After a review by Congress of several legislative proposals made by the president and several political parties to amend and enact new laws dealing with the energy sector, on November 28, 2008 energy reforms were published in the Federal Official Gazette and entered into force the day after. The constant low level of oil extraction and production, as well as decreasing market prices, contributed to motivating Congress to approve the series of legislative proposals that will give Pemex tools to be more efficient.
The energy reforms are intended to modernise and improve the gas, oil, and bio-energy industries in Mexico, allowing greater participation by the private sector, and strengthening the organisation and operation of Petróleos Mexicanos, the Mexican state-owned oil company also known as Pemex.

The amendments and new laws may be summarised as follows:

a) Amendments to several articles of the Law Regulating Article 27 of the Constitution with respect to Petroleum.

b) Amendments to Article 33 of the Federal Public Administration Organisational Law, granting additional authority to the Department of Energy to establish and manage energy policies.

c) Passing of the National Hydrocarbons Commission Law which contemplates the creation of such a commission with the technical capacity to regulate and supervise the exploration and extraction of hydrocarbons.

d) Amendments to several articles of the law that Establishes the Energy Regulatory Commission, providing it with greater authority and technical, operational, managing, and decision-making independence.

e) Passing of the Sustainable Use of Energy Law to seek to optimise the careful use of energy, from production to consumption.

f) Finally, passing the Mexican Petroleum Law which will regulate the organisation and the operation of Pemex. This law will control the contractual involvement of Pemex with private companies interested in taking part in the hydrocarbon sector. In addition, the Mexican Petroleum Law is supposed to strengthen the Pemex Board of Directors by giving it full authority to conduct Pemex’s business and allowing the participation of independent directors and the hiring of private contractors through a more simple and expedited process, different from that applicable to all other government entities.

The new board of directors is composed of 15 members, six appointed by the president, five members appointed by the Oil Workers Union, and four professional members nominated by the president and proved by
the Senate. To strengthen the operation of the board of directors this new law also establishes mainly the following committees:

• Evaluation of Development.
• Investments and Strategy.
• Acquisitions, Leases, Works, and Services.

Notwithstanding the foregoing and although the energy reforms give Pemex more autonomy, new regulations, manuals and commissions will have to be created to complement the energy reforms. It will not be possible to truly know their reach and benefits for at least one and a half to three years.

Infrastructure
The creation of the National Infrastructure Trust Fund (the “Fund”) constitutes a financing strategy for the modernisation and expansion of Mexico’s infrastructure. This fund operates as a public trust which the National Public Works and Services Bank acts as trustee. The trust will have a duration of 50 years.

It is a key to encouraging competitiveness, sustained growth, job creation and providing equal opportunities. One of the purposes of the fund is to turn Mexico into a leader in infrastructure development in Latin America. It functions as a venture capital fund in infrastructure and channels resources through different financial instruments such as guarantees, subordinated debt and venture capital. Projects are financed by the federal budget, private sector investment, and resources drawn from the fund’s assets.

It operates as a project assessment centre that will help establish investment priorities in the following areas, among others: (i) highways, roads and bridges; (ii) water, irrigation, drainage and sanitation; (iii) railroads, ports, airports, urban and interurban transport; and (iv) projects designed to preserve the environment and biodiversity, such as handling of solid waste and natural resources, as well as generation of renewable energy.

On the other hand, on January 26, 2009, the government published an amendment to the basis for taking part in public bidding for the multimodal project in Punta Colonet, Baja California.

The aforementioned bidding includes the granting of the following concessions:

• The construction, operation and use of a railway, as well as for the provision of railway public service.
• A concession for the administration of the port facilities.
• A concession for the use of governmental owned property in the port facilities for the construction, operation and use of a commercial terminal.

Punta Colonet is located in Baja California, near to the border with the United States. The project will require an initial investment of $4-7bn dollars. Its main purpose will be to serve as a relay port for United States imports from Asia, due to the fact that there is heavy demand for the use of ports in the United States (Long Beach and Los Angeles) and in Mexico (Manzanillo) but limits to their capacity.

Labour
The reform of Mexico’s labour laws, currently deliberately biased in favour of employees, is considered necessary in order to create more employment in the formal sector of the economy, create quality jobs, improve the labour conditions and promote a more competitive economy to encourage economic growth. To help produce a workable reform in this area, it is necessary for a tripartite grouping of labour authorities, employers, and employees’ organisations to be used to develop policies capable of obtaining sufficiently broad support to become law. Unfortunately, no proposed changes to labour laws have become law yet.

This reform has become even more important in order to create employment, due to the fact that as a result of the world recession, a considerable number of employees have been fired and in the coming months, the number of fired employees will continue in increase.

Some of the proposals made by the Department of Labour, labour unions, Congress, and the private sector are, among others, the following:

a) To regulate outsourcing companies.
b) To facilitate access to employment and improve the performance of employees with disabilities.
c) To create new ways of hiring employees.

Basham, Ringe y Correa, SC
Basham, Ringe y Correa is one of the largest and one of the leading international full-service law firms in Latin America. Established in Mexico in 1912, Basham draws upon nearly a century of experience in assisting its clients in conducting business throughout Mexico. The firm’s clients include prominent international corporations, many of them in the Fortune 500 list, financial institutions and individuals.

The firm’s group of lawyers and support staff are committed to maintaining the highest professional and ethical standards. Constantly exposed to the international legal system, many of Basham, Ringe y Correa’s lawyers have completed graduate studies at foreign universities and have worked at companies and law firms abroad. The firm received the ‘Client Choice Awards 2006 and 2008’ from International Law Office and the “Who’s Who” recognition as the Mexican firm for the years 2007 and 2008.

Among the main areas of practice of the firm, are the following: administrative/biddings/privatizations, antitrust, arbitration, banking and finance, litigation, corporate and contracts, criminal litigation, energy, environment, franchising, health, immigration, intellectual property, international trade and customs, labour, land aviation and maritime transportation, mergers and acquisitions, real estate, social security and telecommunications.

For further information email: delrio@basham.com.mx; serra@basham.com.mx;

Website: www.basham.com.mx

Contacts: Daniel del Río (delrio@basham.com.mx)
Juan Carlos Serra (serra@basham.com.mx)

Sailing seas

Eurobank EFG Private Bank Luxembourg SA has a history in Luxembourg, beginning in 1986 as Banque de Dépôts. It provides a full range of private banking and wealth management services.

As a member of the EFG Group, the second Swiss Banking Group, Eurobank EFG Private Bank Luxembourg SA is integrated into a solid and broad network. This membership means amongst others, stability, long term vision, a clear strategy that does not change when the board changes and also entrepreneurial spirit shared and supported by the other members of the group which allow the bank in Luxembourg to attain success and sustainable growth while retaining its identity and remaining independent.

The senior management of the bank, composed of Lena Lascari and Vincenzo Lomonaco, is committed to implement the strategy defined by the group which wants to position its Luxembourg entity as the centre of excellence for its international private banking and wealth management activities. The bank will develop and propose tailor made and high quality services to its clients.

To reach that objective the bank has consolidated its teams by recruiting the new Head of International Wealth Management, Robert Berbee, and the Head of Investment Advisory and Discretionary Portfolio Management, Michel Oosterhaven. Both recently joined Eurobank EFG Private Bank Luxembourg SA where they will implement the private banking and wealth management strategy of the bank. To ensure the success of this implementation the bank will also recruit the best relationship managers. “The key success factor in this industry is the relationship with the clients. In the past years many banks, especially the larger ones, were involved in selling funds and structured products or hedge funds to their private banking clients. The success of a relationship manager was usually measured by the revenue that was made by selling products. It will take some years before giving up this concept. In our organisation we cherish the relationship with our clients. We never forget that they are the heart of everything we do and that their interest prevails on everything else. We want to become their trusted advisors”, says Robert Berbee.
The current turbulent times for the banking industry represent a real opportunity for a bank like Eurobank EFG Private Bank Luxembourg SA. “We meet new clients who are dissatisfied with their current portfolio which clearly are the result of a product pushing client approach , instead of an individual approach that matches the clients’ own requirements and/or investment profile.”

New era for private banking
As a direct result of the financial crisis clients will have a different approach for selecting or evaluating a private banking organisation. “Transparency will be a very important word in the coming years. One of the problems in this crisis is actually the lack of transparency on many different levels. We believe that clients would like to understand what we do and what we propose to them. Apart the more traditional Private Banking services that are more linked to investments, we also advise and assist our clients on many different topics as fiduciary structures, financing of yachts, art and real estate, leasing of jets, structuring family wealth in order to preserve and transfer it to next generations. These are just a sample of the important things we do for our clients. These services are usually complicated and we can make a difference by making sure our clients understand why they need certain things and what they get.”

Open architecture
“In our organisation we will have an even stronger focus on full open architecture in the coming years compared to the current situation.” The number of business partners for all aspects of the business will increase in order to be able to better serve the clients. When it comes to best execution one should not only think about a transaction on the stock market but also have a much broader view. ”Our organisation will therefore operate more like a family office within a bank to service our clients the best way we can. We have experience in offering services in a sustainable way. Clients appreciate that and, on the longer term, this is the best way to do business and to become our clients’ trusted advisors.”

Commitment from the bank’s board and management
“We clearly are not the biggest or the most famous, but we are continuously growing and improving. We have the commitment from our board and the whole Eurobank Group to become the centre of excellence for international wealth management within our organisation. This year, we will continue and expand our infrastructure investment program and implement a new state of the art portfolio management system. Other supporting systems will be upgraded were necessary. Indeed, in these difficult times, many banks are trimming their operations, focusing on cost cutting etc instead of investing for further developments. If you can afford it, we believe it is now, it is the right time to adopt the opposite approach. Prepare the organisation carefully now so you will be able to benefit more from the good times that will come.”

Expanding
Besides developing the potential of its current markets and clientele, one objective of the Eurobank EFG Group strategy is to expand its private banking and wealth management activities in other parts of Europe with a particular focus on Eastern Europe.

“We have a focus on Eastern Europe. Even with the knowledge that the financial crisis will curb GDP growth; these countries are interesting from a Wealth Management perspective. We have a network in some of these countries, which gives us the competitive advantage to easily access entrepreneurs and UHNW clients” added Robert Berbee and Michel Oosterhaven.

“To reach these objectives our private banking and wealth management will have to grow. We are in the process of recruiting senior people with knowledge and experience in wealth management and tax advice” says Mr Berbee.

Luxembourg
Mr Berbee believes that Luxembourg is very well positioned to face and undertake the changes that are inevitable in the banking industry. Indeed, Luxembourg offers a stable, sound and flexible national environment reacting and adapting quickly to business changes. It is an ideal European hub for financial services offering a very broad range of services provided by professional multilingual staff. The combination of privacy and discretion together with the right structures to preserve wealth and reach tax optimisation is an important aspect for the success of Luxembourg. Although the financial industry is suffering from the financial crisis and assets under management from banks have dropped severely, Luxembourg is indeed still very well positioned for the future. The momentum will most probably be somewhat slower due to the crisis but to the contrary of what we see in other financial centers, this country will still gather new assets and attract more clients.

“Again, the personal relationship is the most important aspect in wealth management but, next to that, the content of your ‘advise’ to the clients is also crucial. The Luxembourg proposed advantages combined with the professional services and open architecture of our Bank create a unique environment for our UHNW clients. Despite the financial crisis we see a very bright future with many opportunities.” added Mr Berbee.

For further information tel: +352 42 07 241; email: l.lascari@eurobankefg.lu; website: www.eurobankefg.lu

Repressive ends

Reconciling global economic growth, especially in developing countries, with the intensifying constraints on global supplies of energy, food, land, and water is the great question of our time. Commodity prices are soaring worldwide, not only for hea

dline items like food and energy, but for metals, arable land, fresh water, and other crucial inputs to growth, because increased demand is pushing up against limited global supplies. Worldwide economic growth is already slowing under the pressures of €85-per-barrel oil and grain prices that have more than doubled in the past year.

A new global growth strategy is needed to maintain global economic progress. The basic issue is that the world economy is now so large that it is hitting against limits never before experienced.  There are 6.7 billion people, and the population continues to rise by around 75 million per year, notably in the world’s poorest countries. Annual output per person, adjusted for price levels in different parts of the world, averages around €6,000, implying total output of around €42trn.

The trade cavern
There is, of course, an enormous gap between rich countries, at roughly €25,000 per person, and the poorest, at €634 per person or less. But many poor countries, most famously China and India, have achieved extraordinary economic growth in recent years by harnessing cutting-edge technologies. As a result, the world economy has been growing at around five percent per year in recent years. At that rate, the world economy would double in size in 14 years. 

This is possible, however, only if the key growth inputs remain in ample supply, and if human-made climate change is counteracted. If the supply of vital inputs is constrained or the climate destabilised, prices will rise sharply, industrial production and consumer spending will fall, and world economic growth will slow, perhaps sharply.

Many free-market ideologues ridicule the idea that natural resource constraints will now cause a significant slowdown in global growth. They say that fears of “running out of resources,” notably food and energy, have been with us for 200 years, and we never succumbed. Indeed, output has continued to rise much faster than population.

This view has some truth. Better technologies have allowed the world economy to continue to grow despite tough resource constraints in the past. But simplistic free-market optimism is misplaced for at least four reasons.

Tightening the belt
First, history has already shown how resource constraints can hinder global economic growth. After the upward jump in energy prices in 1973, annual global growth fell from roughly five percent between 1960 and 1973 to around three percent between 1973 and 1989.

Second, the world economy is vastly larger than in the past, so that demand for key commodities and energy inputs is also vastly larger.

Third, we have already used up many of the low-cost options that were once available. Low-cost oil is rapidly being depleted. The same is true for ground water. Land is also increasingly scarce.

Finally, our past technological triumphs did not actually conserve natural resources, but instead enabled humanity to mine and use these resources at a lower overall cost, thereby hastening their depletion.

Looking ahead, the world economy will need to introduce alternative technologies that conserve energy, water, and land, or that enable us to use new forms of renewable energy (such as solar and wind power) at much lower cost than today. Many such technologies exist, and even better technologies can be developed. One key problem is that the alternative technologies are often more expensive than the resource-depleting technologies now in use. 

For example, farmers around the world could reduce their water use dramatically by switching from conventional irrigation to drip irrigation, which uses a series of tubes to deliver water directly to each plant while preserving or raising crop yields. Yet the investment in drip irrigation is generally more expensive than less-efficient irrigation methods. Poor farmers may lack the capital to invest in it, or may lack the incentive to do so if water is taken directly from publicly available sources or if the government is subsidising its use.

Similar examples abound. With greater investments, it will be possible to raise farm yields, lower energy use to heat and cool buildings, achieve greater fuel efficiency for cars, and more. With new investments in research and development, still further improvements in technologies can be achieved. Yet investments in new resource-saving technologies are not being made at a sufficient scale, because market signals don’t give the right incentives, and because governments are not yet cooperating adequately to develop and spread their use.

If we continue on our current course – leaving fate to the markets, and leaving governments to compete with each other over scarce oil and food – global growth will slow under the pressures of resource constraints. But if the world cooperates on the research, development, demonstration, and diffusion of resource-saving technologies and renewable energy sources, we will be able to continue to achieve rapid economic progress. 

A good place to start would be the climate-change negotiations, now underway. The rich world should commit to financing a massive program of technology development – renewable energy, fuel-efficient cars, and green buildings – and to a program of technology transfer to developing countries. Such a commitment would also give crucial confidence to poor countries that climate-change control will not become a barrier to long-term economic development.  

© Project Syndicate, 2009. www.project-syndicate.org

Looking for deals

In the year to date, worldwide deal volume is down 36 percent to US$475.6bn from a high in 2006 of US$746.7bn. While deal value actually increased last year in the UK by £92.3bn year on year to March this year, this was largely due to the UK government’s bailouts of several of the UK’s leading banks. The same is true of Germany, which chalked up deals worth US$33bn – one of which was the government’s US$13.6bn acquisition of Commerzbank, the fifth largest M&A deal globally.

While the US is still ranked as the most targeted nation with total deals worth US$165.8bn, this is down 27 percent from US$227.8bn in 2008 year to date. William Vereker, co-head of investment banking at Nomura, has said that the M&A outlook for 2009 was the worst for many years. “The combination of falling earnings, the absence of credit, lack of confidence and ongoing market volatility will deter activity,” he said. “Cash transactions will be rare – stock for stock transactions in consolidating industries are likely to emerge as the main sources of activity.”

The declining trend in M&A activity has also hit some emerging economies hard. India has plummeted from being one of Asia’s most lucrative markets for share offerings and mergers and acquisitions to one of the least active this year, with investment bank revenues in the country plunging to about one quarter of their levels a year earlier.

But despite the sharp falls in volume, bankers expect deal flow to revive in the coming months as India’s largest conglomerates restructure to reduce debt, and entrepreneurs, who over-supped on credit during the liquidity boom, are forced to sell out.

M&A involving Indian companies has fallen 47 percent to US$5.5bn so far this year against the same period last year and equity capital market (ECM) deals are down 95 percent to US$280m, their lowest since 2003. It is no wonder that investors and banks have been shocked by the decline. India’s conglomerates have been some of the most aggressive acquirers in emerging markets in the past few years after launching deals such as Tata Steel’s £6.7bn (US$9.7bn) purchase of Anglo-Dutch steelmaker Corus.

However, there are signs of recovery on the horizon for dealmakers anxious to get deeper into the Indian M&A market. Bankers expect activity to pick up in the second half of this year. The Tata group is expected to sell some assets seen as non-core, bankers say, while its rival Aditya Birla conglomerate is also expected to undertake some restructuring to manage the debt burden from its acquisition of Novelis, a North American aluminium group. A number of smaller Indian companies are also expected to sell controlling stakes.

Added to that, more Asian financial services companies say they will make acquisitions this year in spite of the global economic crisis as they plan to take advantage of the downturn to expand, according to a survey by Big Four accounting firm PricewaterhouseCoopers (PwC). Among Asian financial groups, Taiwanese and Chinese companies are the most likely to undertake merger and acquisition activity in the next 12 months while Indonesia and Vietnam have overtaken China and India as the most popular places to do deals.

The reasoning is simple: with relatively stronger balance sheets, Asian financial institutions are seeking to use the crisis as an opportunity to snap up cheap assets and grow their businesses. According to PwC, 42 percent of the 215 Asian financial institutions polled forecast that they will do a deal this year, up from 38 percent in last year’s survey.

However, deal activity still may not be as strong as in previous years. The value of transactions for this year was set to fall to the level of 2005 and 2006, which reported US$38.7bn and US$64.5bn worth of deals respectively, as companies are more likely to carry out smaller transactions. Asian financial institutions struck US$99.1bn worth of deals last year, down from US$125.9bn in 2007, due to notable declines in Japan and South Korea and Taiwan. Nearly half of the companies surveyed said expanding their businesses was their key strategy this year. Only 22 percent have frozen investment and just 2 percent said they would exit Asia.

In China, deals flow is expected to remain strong although it is forecast to be shy of last year’s US$34.6bn. Nearly 70 percent of companies expect to enter new markets this year, although they remain cautious after a few major international investments, such as the US$5bn investment by China Investment Corp, the country’s sovereign wealth fund, in Morgan Stanley, had turned sour.

Even Africa’s leading economy is beginning to buck the trend and show signs of a recovering M&A market. While in line with the rest of the world, South Africa has seen a marked decrease in the number of deals announced so far this year, it has recently seen two mega-deals take place which has boosted its deal value.

With only14 announced transactions in the first quarter, deal numbers in the region were down 58 percent from the fourth quarter of 2008 (33 deals) and 60 percent from the first quarter of 2008 (35 deals). However, two deals worth over US$2bn between them have given South African M&A a solid boost to the start of the year. While the rest of the globe saw its worst first quarter in six years in terms of total deal values – with a 29 percent global decrease on the total value of M&A compared to the first quarter of 2008 – the total value of South African M&A announced in the first quarter of 2009 (US$2.8bn) is greater than the equivalent quarter in 2008.

Two major acquisitions announced so far this year account for this increase: US-based hedge fund Paulson & Co’s US$1.3bn stake acquisition in the mining company AshantiGold Ashanti Limited, valuing the entire equity capital at US$11.32bn; and South African property company Redefine Income Fund’s US$928m offer for ApexHi Properties.

The Middle East’s deal market is also beginning to show signs of recovery, which is likely to rekindle investor optimism. An increase in the number of deals in the region’s debt capital markets over this April helped to prevent a near complete collapse in investment banking revenues in the region, which have more than halved during April following a sharp decline in mergers and acquisitions activity. Expecting the global economic crisis to prompt a spate of mergers and acquisitions, the Abu Dhabi Investment Company (ADIC) has hired a senior investment banker from Rothschild to build a team to give advice on cross-border investment.

Others are also hopeful that the Middle East and North Africa ramps up its deal activity. According to a recent survey by law firm Norton Rose of nearly 1000 senior executives, half the companies surveyed in the region plan at least one M&A deal in 2009. According to Nazeem Fawaaz Al Kudsi, chief executive of ADIC, “the Middle East is not only a source of capital, but also a region of investment opportunities”. Dealmakers will certainly be hoping so.

Assessing the US Treasury’s bail out plan

It had to happen. In the face of catastrophic losses, massive unemployment and an economy that is still scratching its head as to how the whole crisis unfolded, the US government has stepped into the breach in an effort to bail out the country’s banks, protect consumers, and restore investor confidence so that the economy can pick up some momentum and leave the dark days of the sub-prime mortgage crash behind.

In February Treasury Secretary Timothy Geithner unveiled his raft of measures aimed at restoring investor and consumer confidence in the country’s banking sector, while also curbing executive pay in those financial institutions which the government was forced to bail out.

Mr Geithner’s Financial Stability Plan aims to assure taxpayers that every dollar used in the bank bail out is directed toward lending and economic revitalisation, and that there will be a new era of accountability, transparency and conditions on the financial institutions receiving funds.

He said: “The American people will be able to see where their tax dollars are going and the return on their government’s investment, they will be able to see whether the conditions placed on banks and institutions are being met and enforced, they will be able to see whether boards of directors are being responsible with taxpayer dollars and how they’re compensating their executives, and they will be able to see how these actions are impacting the overall flow of lending and the cost of borrowing.”

“We believe that access to public support is a privilege, not a right. When our government provides support to banks, it is not for the benefit of banks, it is for the businesses and families who depend on banks… and for the benefit of the country. Government support must come with strong conditions to protect the tax payer and with transparency that allows the American people to see the impact of those investments.”

A key aspect of the plan is an effort to strengthen financial institutions so that they have the ability to support recovery. This will be achieved through a number of measures. Firstly, the plan will create a comprehensive stress test, which is a forward-looking assessment of what banks need to keep lending even through a severe economic downturn. Mr Geithner believes that the test will succeed for a number of reasons. Firstly, increased transparency will facilitate a more effective use of market discipline in financial markets. The Treasury Department will work with bank supervisors and the SEC and accounting standard setters in their efforts to improve public disclosure by banks.

Secondly, all relevant financial regulators – the Federal Reserve, the Federal Deposit Insurance Corporation (FDIC), Office of the Comptroller of the Currency (OCC), and the Office of Thrift Supervision (OTS) – will work together in a co-ordinated way to bring more consistent, realistic and forward looking assessment of exposures on the balance sheet of financial institutions. And thirdly, all banking institutions with assets in excess of $100bn will be required to participate in the coordinated supervisory review process and comprehensive stress test.

Testing stress
As well as a bank stress test, the US financial stability plan will create a capital assistance programme. Once a financial institution has undergone a comprehensive “stress test” it will have access to a Treasury-provided “capital buffer” to help absorb losses and serve as a bridge to receiving increased private capital. Added to that, any capital investments made by the Treasury under the capital assistance programme will be placed in a separate entity – the Financial Stability Trust – set up to manage the government’s investments in US financial institutions.

The US government says that the plan will also herald a new era of transparency, accountability, monitoring and conditions as firms will be required to show how assistance from the financial stability plan will expand lending. The new rules state that all recipients of assistance must submit a plan for how they intend to use that capital to preserve and strengthen their lending capacity. This plan will be submitted during the application process, and the Treasury Department will make these reports public upon completion of the capital investment in the firm.

It also states that firms must detail, in monthly reports submitted to the Treasury Department, their lending broken out by category, showing how many new loans they provided to businesses and consumers and how many asset and mortgage-backed securities they purchased, accompanied by a description of the lending environment in the communities and markets they serve. This report will also include a comparison to their most rigorous estimate of what their lending would have been in the absence of government support. For public companies, similar reports will be filed on an 8K simultaneous with the filing of their 10-Q or 10-K reports.

Furthermore, all information disclosed or reported to Treasury by recipients of capital assistance will be posted on www.financialstability.gov – the government’s dedicated website on the issue – because taxpayers have the right to know whether these programmes are succeeding in creating and preserving lending and financial stability.

The plan also aims to put strict limits on the “bonus culture” that is seen by many as being at the root of the crisis. The government says that limiting common dividends, stock repurchases and acquisitions provides assurance to taxpayers that all of the capital invested by the government under the Financial Stability Trust will go to improving banks’ capital bases and promoting lending. All banks that receive new capital assistance will be restricted from paying quarterly common dividend payments in excess of $0.01 until the government investment is repaid. That presumption will be the same for firms that receive generally available capital unless the Treasury Department and their primary regulator approve more based on their assessment that it is consistent with reaching their capital planning objectives.

Shackled assets
Banks will also be restricted from repurchasing any privately-held shares, subject to approval by the Treasury Department and their primary regulator, until the government’s investment is repaid. They will also be restricted from pursuing cash acquisitions of healthy firms until the government investment is repaid. Exceptions will be made for explicit supervisor-approved restructuring plans. Firms will also be required to comply with the senior executive compensation restrictions announced on February 4, including those pertaining to a $500,000 total annual compensation cap plus restricted stock payable when the government is getting paid back.

Mr Geithner has stated that transparency and greater accountability are at the heart of the newly launched plan, which has prompted the Treasury Department to announce measures to ensure that lobbyists do not influence applications for, or disbursements of, Financial Stability Plan funds, and will certify that each investment decision is based only on investment criteria and the facts of the case.

Added to that, the Treasury Department will post all contracts under the plan on its website within five to ten business days of their completion. Whenever the Treasury makes a capital investment under these new initiatives, it will make public the value of the investment, the quantity and strike price of warrants received, the schedule of required payments to the government and when government is being paid back. The terms of pricing of these investments will be compared to terms and pricing of recent market transactions during the period the investment was made, if available.

However laudable Mr Geithner’s efforts, his plans have received a very mixed response. The main problem with the financial stability plan is that it does not come clean to the American public about how the losses from the financial meltdown will be divvied up, say critics. The plan is deliberately short on detail, they say, especially on the much anticipated public-private partnership. While the Obama Administration hopes to get private investors to start buying up the toxic mortgage-backed securities that are clogging up banks’ balance sheets, it is not clear what would make those private investors suddenly want to buy assets that until now they have treated as radioactive. “I don’t see how you’re going to get confidence in the markets with a plan that’s so difficult to penetrate,” says Harvard University economist and occasional World Finance contributor Kenneth Rogoff.

Although Mr Geithner repeatedly promised that the new plan would be transparent, it was precisely the lack of detail of how the plan would work and be financed that contributed to the stock market’s negative reaction. US stock averages fell as Mr Geithner was speaking, and were down four to five percent in late trading.

“It was scary watching him,” says R Christopher Whalen, Managing Director of Institutional Risk Analytics, a consulting firm. “The markets are tough. As long as they sense that there’s bull – and indecision – they’re going to reject it.” Investors on both sides of the Atlantic immediately expressed disappointment following the announcement, sending markets into freefall. The FTSE 100 index closed down 2.2 percent or 94.53 points at 4,213.08 and the FTSE 250 index fell back 2.5 percent or 164.02 points at 6,495.66. “They were going to have to say something pretty special to kickstart trading today,” said a London-based trader.

Even the plan’s supporters are sceptical about how well it may work in practice – precisely because the Treasury has been so scant on details. Moody’s, the credit rating agency, supports the plan, but thinks that it may be of more benefit to larger banks than to smaller ones in the US. “Despite the lack of specifics… Moody’s views the Financial Stability Plan (FSP) positively for major banks’ depositors and debt holders, as it reflects the US government’s commitment to providing bridge capital and liquidity support to these institutions until the economy and capital markets recover,” it said in a statement.
Chairman and CEO of UMB Financial Corporation, a multi-bank holding company headquartered in Kansas City, Mariner Kemper, says that the plan remains too vague and lacks essential details on how the $2trn will be put to good use. As seen from the first round of the Troubled Asset Relief Program (TARP) devised by former President George W Bush and former Treasury Secretary Henry Paulson, actions taken to promote loan growth have essentially been ineffective as lending remains stagnant, he says.

“As is, the premise for the plan calls for pumping more capital into the system. However, this is somewhat flawed logic as financial institutions primarily loan against deposits, not capital,” says Mr Kemper. “More capital dollars won’t necessarily increase loan demand because the root of the problem is the fragile state of the economy that has people pulling back on consumption. By injecting capital, the plan does more to promote unsound lending practices than addressing the systemic problem.”

“To truly be productive in solving the economic crisis, it must be realised that the core issue is that we, the government, businesses and consumers, have overextended for several years. It’s counterintuitive to solve a leverage problem with more leverage. The principles that guide the free market must be allowed to unfold by letting the ‘problems’ within the system fail and the ‘successes’ thrive.”

As a result, Mr Kemper suggests that the Treasury should seek counsel for solutions in moving forward from those who operated soundly rather than from those who broke the system, and offer incentives rather than penalties for those not taking “oversized risks for oversized rewards”. He also believes that government intervention should become more of a last resort than an immediate backstop.

Many economists argue that some of the biggest US banks are in such bad shape that the only reasonable alternative is to nationalise them, which would mean getting rid of their top executives, wiping out their shareholders, and forcing creditors (other than government-insured depositors) to take a big hit. Once in full control of the banks, the government could strip out their bad assets for sale later, give them a huge injection of public funds, and then spin them back out to the public.

However, unlike the UK, this is not an option that the US wants to explore. But private investors remain well aware of the possibility; and as a result, they are unwilling to put more capital into banks if they fear they could lose it in future government takeovers. This means that the US plan may stall, or at least not create the desired economic stimulus, say some.
Charles Calomiris, a Columbia University economic historian who has studied banking crises, says that the key mistake of the Obama Administration is trying to come up with a plan that emphasises political palatability over economic reality. To buy support, Mr Calomiris says, the plan emphasises “very careful investments over a period of time with a lot of upside potential for taxpayers, and with all sorts of limits on what bankers can do.”

The problem with that approach, Mr Calomiris says, is that it does not do enough to really make the banks truly healthy, and just prolongs the crisis. He favours taking strong action to improve banks’ health dramatically and quickly by guaranteeing them a floor price on their real estate assets, even though such action would be criticised as a giveaway. Says Mr Calomiris: “What makes sense economically doesn’t make sense politically, so I’m not very optimistic.”

UK government seeks to prevent cost claims

As part of the UK government’s latest plan to curb taxpayer-funded legal spending, companies and directors cleared of criminal charges in the UK could be barred from recovering their defence costs – potentially leaving businesses and individuals acquitted of fraud, price-fixing, corporate manslaughter and other serious offences with legal bills ranging up to several million pounds.

The Ministry of Justice is considering whether the public should be “subsidising” the legal fees of defendants that choose to hire teams of high-priced lawyers to defend them, as opposed to solicitors working on more reasonable legal aid rates. For example, the ministry points out that although criminal prosecutions against defendant companies are rare in the Crown Court, amounting to 0.12 percent of the total in 2005 (105 prosecutions from a total of 85,165 cases), if these firms are acquitted, the payments from central funds can run into millions of pounds. For example, in one recent high profile case, had payment been restricted to legal aid rates, the cost would have been approximately £10m rather than the actual cost of £21m.

But companies and lawyers have reacted angrily to the ministry’s proposals, saying  that the government “wants others to pay for its own mistakes” when its prosecuting agencies, such as the Serious Fraud Office (SFO), waste millions of pounds attempting to bring “poorly prepared” and “reckless” prosecutions that they often do not win.

Rod Fletcher, Head of Business and Regulatory Investigations at law firm Russell Jones & Walker, says that “the government is looking at the issue the wrong way round. It’s not the fault of the company that it is acquitted – it is the fault of the prosecution that it did not prepare its case properly, or that it made the wrong decision to prosecute in the first place.”

Forensic investigations
As an example, last December the SFO suffered a huge defeat with the collapse of its £25m, six-year investigation into alleged price fixing among drug manufacturers after the Court of Appeal in London rejected the SFO’s appeal against the striking out of its earlier indictment against five pharmaceutical companies.

The investigation dwarfed any other undertaken by the office. At one stage it involved every lawyer and every accountant at the SFO, its entire forensic computing unit and 100 police officers from the National Crime Squad, as well as the entire Metropolitan Police fraud squad.

The SFO’s new director, Richard Alderman, has since indicated that he would prefer to focus resources on pre-emptive and preventative measures.

Prosecutors had alleged that the defendants – Goldshield, Ranbaxy, Norton Healthcare, Kent Pharmaceuticals and Generics UK – conspired to defraud the NHS of £120m by fixing the price of drugs, including the blood thinner warfarin and antibiotics. Criminal charges were brought after raids on 30 homes and offices in 2002.

Price-fixing was not a specific offence in the UK until the Enterprise Act 2002 came into force. Because the allegations referred to the period 1996-2001, the charges were brought instead under the common law offence of conspiracy to defraud. However, the law lords ruled that price-fixing alone did not amount to conspiracy to defraud. The SFO returned to the Crown Court seeking to amend and represent its case in the light of the House of Lords ruling that cartels were not illegal at the time of the alleged offences. This was rejected in July. The total costs – both of the SFO and of the companies – are estimated to have run to more than £50m.

Under the present system, defendants found not guilty of criminal charges are compensated for “reasonable” legal defence costs. But the ministry’s plan says public legal spending is vulnerable to high cost, one-off cases where privately funded defendants, often in circumstances where a company has been accused of a criminal offence, are acquitted. Engineering firm Balfour Beatty and Network Rail, the organisation that is responsible for the UK’s rain infrastructure, for example, recovered £21m in legal costs from the government’s central funds pool after being cleared of manslaughter charges in connection with the 2000 Hatfield rail crash, despite being fined a combined £11m for related health and safety failings.

Cost structures
In a consultation document that closed on January 29, the Ministry of Justice proposed several reforms to the system of payment of acquitted defendants’ legal costs. One such option would mean that individuals who fail to apply for legal aid in Crown Court cases, and then instruct lawyers privately, would no longer be eligible for their legal costs from central funds if acquitted. Another option being considered is to cap central funds payments in all cases for acquitted defendants, including companies, to the relevant legal aid rates.

It has been the practice in the UK that those found innocent of charges brought by the state are compensated for the costs they have incurred in defending themselves. Under the Prosecution of Offences Act 1985, if an individual pays for their defence privately – either because they choose to do so or because they do not qualify for legal aid – they can usually reclaim their “reasonable” costs and expenses from central funds if they are acquitted. Companies, which do not currently qualify for representation under legal aid, can similarly claim from central funds.

But in an effort to cap spending, the ministry is currently considering three options for the reform of central funds payments. The first option is to keep the present system as it is. The second option is to restrict access to central funds, which would mean that individuals who fail to apply for legal aid in Crown Court cases would no longer be eligible for central funds payments if acquitted. The third option is to cap central funds payments in all cases for acquitted defendants, including companies, to the relevant legal aid rates.

In particular, the ministry is looking at whether it is counterintuitive to pay for higher privately funded rates in cases when the existing legal aid system pays both sustainable fee levels for practitioners and ensures a sufficient level of quality for clients. “While some individuals or companies may in the future be willing to pay a premium to a particular firm based on their local reputation, this is a financial choice that should not necessarily be subsidised by the taxpayer,” it says.

In a similar vein, the government wants to put a halt to funding the defence costs of a company in cases that take a long time to resolve, such as fraud, price-fixing and corporate manslaughter cases. Because of the length of time involved in prosecuting such cases, claims from central funds under private rates can run into several million pounds for one case if the company is acquitted. As a result, the consultation says that “given the huge cost of many of these cases, coupled with the need to target resources effectively, we are considering whether these rates should also be capped to their legal aid equivalent.”

Such sweeping changes would affect both private paying individuals and companies. For cases in the Crown Court, for example, this approach would mean that all cases were paid at the levels outlined in the relevant remuneration scheme, such as the litigators’ and advocates’ graduated fee scheme. Using expenditure from 2007/08 as a baseline, and excluding any high cost cases, the ministry believes that this could generate savings of £20m to the central funds budget, with £12m coming from the magistrates’ court and £8m from the Crown Court.

Unlike individuals, companies prosecuted under criminal legislation do not face the risk of imprisonment and may also have access to insurance to protect them against actions relating to, for instance, corporate manslaughter. Just as companies do not have access to legal aid in civil cases, the government is exploring whether they should not have access to publicly funded defence costs in criminal cases above those offered at legal aid rates. “As with privately paying individuals, we are of the view at this stage that companies should be in a good position to negotiate favourable rates with their legal teams given the number of providers available and the evident sustainability of legal aid rates. Any additional ‘gold plating’ that a company may wish to fund would then be subject to a clearly defined business decision, taken in full knowledge of the rates available from central funds,” says the ministry in its consultation document.

Severe impact
Under the current system, companies can already have their private cost claims assessed downwards in high cost cases. For example, in one recent case, the defence costs paid from central funds were reduced to £2.64m from an original claim of £3.5m. However, lawyers say that this arguably builds uncertainty into the system for companies, their defence teams and potentially insurance companies about the level of remuneration to which they are entitled. It also runs the risk of inconsistency between cases due to the subjective nature of some elements of the assessment.

Jonathan Grimes, a solicitor at law firm Kingsley Napley and a member of the London Solicitors Litigation Association (LSLA), an organisation that represents the interests of a wide range of civil litigators in London, says that the proposals are likely to mean that companies will bear greater costs. “If the Ministry of Justice’s proposals are enacted it is likely that there will be an effect on the cover that insurers are willing to offer and the cost of that cover since insurers will no longer be able to recover if their insured is acquitted or the case discontinued,” he says.

“A similar situation may arise for company directors, many of whom have the benefit of Directors’ & Officers’ (D&O) policies that cover their legal costs in respect of criminal action brought against them relating to their employment,” adds Mr Grimes. “The range of potential criminal offences facing directors is already large and is increasing with penalties becoming more severe. The Health and Safety (Offences) Act 2008, for example, (which is shortly to come into force) will increase from a fine to a custodial penalty the maximum sentence available for certain health and safety breaches. These developments in the law – in combination with the potential for insurance cover to become unavailable or prohibitively expensive – may result in some directors choosing more carefully the areas of corporate responsibility in which they are prepared to be involved,” he says.

Furthermore, says Mr Grimes, “parties to criminal litigation never choose to be in that position and it is unfair, in circumstances where defendants (whether corporate or human) are acquitted or against whom proceedings are discontinued, that they should be unable to recover the cost of their legal representation.”

“The proposals, if adopted, will impact more severely on companies with more meagre resources. Large companies will have the funds to pay for their defence or to pay increased insurance premiums that may be associated with such changes,” he adds.

Other lawyers have pointed out that the proposals essentially mean that the overwhelming majority of UK companies will be denied appropriate access to justice because they will not be able to afford to pay lawyers to represent them, even if they feel that the charges made against them are without merit. Nichola Evans, partner in the financial and professional risks practice at solicitors Browne Jacobson, says that the government’s proposals are “not very well thought through”.

“If companies are no longer able to reclaim their defence costs from the central fund, then there is likely to be a rise in the number of small to medium enterprises that will either plead guilty to charges that they could otherwise have defended themselves against or cease trading because of the potentially ruinous cost of litigation fees. This is totally unfair and hardly something that the government should be pushing for,” she says.

Kevin Roberts, partner in the litigation department at international law firm Morrison & Foerster, says that “if the government wants to reduce its legal bill, agencies such as the SFO should have a good think about whether they can actually win the cases they try to prosecute. If they did that, the number of companies reclaiming costs through the central fund after being acquitted would be dramatically reduced because fewer cases would be brought to court.”

He adds: “It is absolutely wrong for the government to try to prevent companies from reclaiming legal costs from the central fund. Firstly, companies are usually unable to reclaim all legal costs anyway so expenses are already capped. Secondly, the government’s consultation does not take into account other expenses that the company has to bear as a result of a prosecution being launched against it, such as the amount of time and staff resources it takes to collect evidence and so on. As these cases can go on for years, these extra costs can run into millions of pounds and not a penny of it can be reclaimed from the central fund.”

Analysing European triparty

When Timothy F Geithner spoke at the Economic Club of New York on June 2008 he was president and chief executive officer of the Federal Reserve of New York. Little did we know that he would be chosen as 75th Secretary of the Treasury by President Obama. What brought a shiver through my spine was one remark he made: “We have begun to review how to reduce the vulnerability of secured lending markets, including triparty repo by reducing, in part, the scale of potentially illiquid assets financed at very short maturities.”

In the early 90s, the American investment banks brought a new product to Europe called triparty. Triparty is based on the technique of bilateral repurchase transactions but provides additional collateral management tools. The legal framework commonly known as the GMRA (Global Master Rate Agreement) opened possibilities for secured financing. The diversity of collateral like government bonds, corporate bonds, equities and ABS/MBS securitisation programs would have been unmanageable without collateral agents. Currently four major triparty providers are known – Euroclear, Clearstream, BONYMellon and JPMorgan Chase. Triparty is used by wholesale banking participants, hedge funds, money funds and increasingly also by central banks. The triparty agents have an additional legal document supporting the outsourcing of collateral management by the users to the triparty agents.

Only last year the Eurosystem (the ECB and the National Central Banks of the euro area) agreed in principle to avail of all market techniques in the reform of what is commonly known as CCBM (Collateral Central Bank Management). CCBM is used by the Eurosystem as an internal system for collateral management. The current CCBM has some drawbacks as there is a lack of standardisation across countries, which materially impacts on the usability as it adds to administrative burdens for the users, particularly in a cross-border context. It is in that context that the market took note of the intention of the Eurosystem to develop the next version of the internal collateral bank management commonly called CCBM2. It would harmonise all country specific practices regarding cut-off times and order execution and obviously open possibilities for more advanced collateral management with the Eurosystem. The short-comings of the current system have been especially noticeable with the un-abating credit crisis particularly after the failure of Lehman Brothers.

Structuring the markets
The European Repo Council wrote to the ECB on December 18th 2007 highlighting the efficiency gains and mitigation of operational risks of the triparty product. The letter highlighted in particular the benefits performed through this mechanism such as matching of transaction details, collateral screening, collateral transfers, collateral valuation, custody and reporting services. After many discussions in various working groups the Eurosystem accepted the integration of external collateral management systems, which would enable the use of existing collateral management solutions provided by (I)CSDs and the eventual integration of other triparty collateral management services into CCBM2.

In the context of the above, it is easily understandable that eyebrows regarding Mr Geithner remarks were raised. Why?

Triparty is extensively used in the US markets but the infrastructure of the market is dominated by BONYMellon and JPMorganChase only. A large percentage of financing in the triparty programs is for overnight transactions only, hence the alarming remark from the Federal Reserve of New York.

In Europe the concentration in triparty financing is rather different as shown in the most recent repo survey conducted by ICMA’s European Repo Council. The European triparty product has shown to be a flexible tool catering for the wide and diverse government bonds allowing the creation of different baskets that allow users to switch collateral in and out of these when sovereign states have been downgraded lately. An increasing share of collateral used in triparty is the non-government bond sector. The recent crises have demonstrated what was known for a long time, pricing of less liquid bonds can be problematic. All triparty agents are increasing their efforts and similar to other efforts in Europe like the European Securitisation Forum solutions are currently been worked out. As Europe’s capital market matures the secured market through a flexible approach by the users and providers will be able to continue to prosper.

There is little doubt in my mind that the market volume of triparty will increase with the increased use of central counterparties as pushed by the regulators. It will make this product even more attractive to all, although continuous improvements to the product are obviously needed. The crisis has shown a weakness in the evaluation of the various types of collateral used and a decrease of non-government bonds has been witnessed. But that does not mean that triparty is a dangerous product, I call it “garbish in – garbish out”. All triparty agents are spending a lot of attention and money to improve the daily collateral evaluations. A clear distinction needs to be made between the triparty process and the type and complexity of securities used in triparty.

Collateral to be had
Europe’s secured financing market has a wide range of collateral available in various currencies. The triparty products allow cross-currency transactions and has been beneficial to market participants in the credit crisis, allowing the posting of European collateral versus US dollar liquidity provided through the Federal Reserve to the ECB.

The 16th ERC repo survey shows the value of  repo contracts that were still outstanding at close of business on December 10, 2008. The total value of repo contracts outstanding on the books of the 61 institutions who participated in the latest survey was €4,633bn, compared to €6,504bn in June 2008.This is the most severe reduction in the headline number since the survey began in 2001, reflecting the acceleration of de-leveraging by banks since the collapse of Lehman Brothers in September 2008.

The growth of electronic trading continued, reaching a record 28 percent from 24.4 percent in June 2008. There was a dramatic increase in the share of outstanding repo contracts that were negotiated anonymously on an ATS and settled with a central clearing counterparty (CCP) to a record 17.6 percent from 12.7 percent in June 2008, confirming the importance attached by the market to the creditworthiness and automatic netting facilities of CCP. However, the share of tri-party repos fell back to 9.4 percent from 10.1 percent.

The trend decline in the use of government bonds as collateral was reversed. The share of government bonds increased to 83.6 percent, compared to the record low of 81 percent in June 2008. The share of government bonds in tri-party repos fell back from a corrected 47.3 percent in June 2008 but remained historically high at 41.7 percent.

The seasonal need of banks to lock in term funding over the year-end was evident in a significant increase in business with remaining terms of one to three months. This may have disguised an underlying reduction in duration, which was reflected to some extent in a reduction in short-dated transactions to 55.4 percent from 61.3 percent. The maturity profile of triparty repos continued to shorten dramatically, with transactions with one day remaining to maturity jumping to 46.4 percent from 29.1 percent in June 2008, largely at the expense of transactions with remaining terms of between one week and one month. This means that turnover in triparty repos will tend to appear healthier than outstandings would suggest.

Discussions ongoing
Market participants are currently engaged in discussions with the Eurosystem on yet another form of collateralisation, namely credit claims (bank loans). Initially introduced by the Eurosystem to help widen the pool of collateral availability for central bank purposes, it is now widely acknowledged that a huge untapped market exists in the bilateral market. When the current credit crisis abates the central banks will scale down the liquidity provided through regular auctions. The increased use of secured financing for an ever wider range of different types of products, in particularly pushed by the regulators through the use of Central Counterparties will without any doubt increase the pressure on the need to find more collateral. Credit claims are one such product but because of the numerous amounts of individual loans the triparty product will be crucial for efficient and well managed collateral provisions.  European policymakers and market participants have also worked on the establishment of a common identification tool on a cost recovery basis that would harmonise the framework. The European Repo council, the Euribor ACI Money Market & Liquidity working group and the European Banking  Federation are in discussions with the ICSDs to provide a common data base. This needs to be complemented by a common legal framework made possible as the Financial Capital Directive has been extended to accept credit claims as financial collateral for both central bank and wholesale bank purposes.

Triparty in Europe differs to some extend from triparty market practises in the US markets. Although repo markets are global, local “flavours” make a difference as highlighted in this article. As we expand the territory of the product in emerging markets, efforts of the G20 to solve the credit crunch will force us to look beyond the current framework of collateral management. In this respect it is crucial that we as professional wholesale market participants contribute to consultations with the regulators and express the needs we have to optimise the product with the infrastructure providers. At the same time we have to satisfy the regulatory requirements. It will be a huge effort from all involved, but the ultimate rewards will also be important as repo and triparty contribute to stabilise and rebuilt the financial markets.

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Rumble in the jungle

Moses Singo is an African exception. A black farmer with green fingers, he has probably had to overcome more obstacles than faced by most entrepreneurs anywhere else in the world to get his family business off the ground.

A little more than a decade since launching the Singoflora Nursery in Tswane (Pretoria), he now exports some four tonnes of lilies, agapanthus, strelitza, ruscus and snake grass to Europe, the Middle East and Asia every week.

From its origins as a humble plant farm the nursery has since expanded in size and scope, and now has its own export packing division and delivery trucks. It employees more than forty people. Today Mosses Singo is hailed as a pioneering black businessman and is celebrated as one of the most successful exporters of flowers and foliage in South Africa.

Success for this so-called small and medium enterprise (SME) has not come easily. Along with proving to a sceptical white audience that black people can indeed farm, he has had to prize every cent of the funding needed to grow his business from a largely aloof banking system which for decades neglected small black businesses in favour of the more comfortable and lucrative role of servicing governments, wealthy white corporates or high net worth individuals.

But South Africa at least has electricity, a national road network, functioning ports and airports, legally enforceable property rights, and a government bureaucracy which – while cumbersome by the standards of more developed economies – is nonetheless capable of running a reasonably efficient taxation system, an export-import sector and a commercial court dispute procedure on which a vibrant private sector depends. This is not the case in much of the rest of Africa.


“Host multinational corporations are under mounting political pressure to make a contribution towards promoting African economic development


The importance of being modest

Africa is, in this respect, a continent without a middle. SMEs are the backbone of the world economy and the primary engine of its economic growth. In high income countries, SMEs account for almost 50 percent of gross domestic product. In low income countries, the proportion is about 20 percent. But in impoverished Africa, it is less than 10 percent. Africa is host to most of the world’s multinational corporations at one end of the spectrum of economic activity, and a vast profusion of micro-enterprises at the other. Very little exists in between.

Dirk Willem te Velde, Programme Director of the London-based International Economic Development Group, an arm of Britain’s Overseas Development Institute which seeks to promote economic growth in developing countries, told World Finance: “African SMEs have not performed as well as SMEs in other parts of the world for a host of reasons.”

“Chief among these has been the difficulty they face accessing capital. The African financial sector is not developed enough to cater for the SME sector’s needs. Formal links between the banking sector and SMEs are few. The banks have traditionally prefered to lend to bigger firms. It’s more costly and riskier to lend to smaller ones.”

Lack of capital is compounded by other obstacles. “The business legal framework and administrative procedures have also been much weaker in Africa than say in Latin America or Asia,” Mr te Velde said. “It takes longer to start up a business, and longer to export and import in Africa than in other parts of the world. Then there are infrastructure constraints, roads and ports, and of course electricity. In some countries, power provision often covers less than 10 percent of the population. Add to this the widespread skill shortages. All of this has hampered the development of SMEs in the private sector hugely.”

But while the SME sector in sub-Saharan Africa remains small, it still accounts for the majority of private enterprises on the continent. Growing and developing African SMEs, many of which are family-run businesses struggling against seemingly insurmountable odds, is now increasingly being seen by governments, international donor countries, the multilateral development banks, the international commercial banks and other foreign investors as the key to Africa’s future economic development, and the only real chance of lifting the continent out of the poverty in which it has been trapped for decades.

Finally waking up

African governments have in recent years been seeking to alleviate poverty by reforming their legal structures to promote their own private sectors, and directing their financial and technical assistance towards SMEs. Host multinational corporations are under mounting political pressure to make a contribution towards promoting African economic development by including SMEs in their value chains, while African and international financial sectors are beginning to wake up to the huge potential market for credit among Africa’s small and medium enterprises.

According to the World Bank, 24 African countries – half the number on the continent – have embarked on far-reaching macro-economic and administrative reform programmes during the past decade, fostering a more pro-business climate for the private sector, thereby making it easier to start a business, strengthening property rights, improving investor protection, boosting access to credit and reducing the tax burden.

The Africa of today is not the Africa of thirty years ago – even if President Robert Mugabe of Zimbabwe appears to be one of the few people left on the continent not to have understood this. Things have moved on. The love affair with the Soviet-style command economy of the post-colonial era is dead in most African countries, and dying out in most of those that remain. Growing the private sector, especially SMEs, is now at the heart of many African governments economic development programmes.

Along with most other multilateral development banks, the International Finance Corporation, the private sector lending arm of the World Bank, has put nurturing SMEs at the centre of its strategy for promoting growth of the private sector in Africa. “Doing business in Africa was once seen as difficult and complex undertaking,” the Washington-based organisation says. “Red tape, a fragile investment climate, inadequate infrastructure, all contributed to this. But with fewer conflicts, more democratic elections, rising growth rates, that is all changing.”

The IFC has helped scores of family businesses across Africa gain access to the credit needed to make their businesses grow, an area in which an excessively risk-averse African banking sector has been hesitant to tread. Ten years ago the IFC’s Small and Medium Enterprises Solution Centre, through its SME Risk Capital Fund, provided Eddy Kimemia and his wife Diana Ndungu, the owners of a small Kenyan family construction firm, with a $6.6m loan needed to bid for a road construction project, putting the family business on the road to long-term commercial viability.

The IFC has also helped to finance Madagascar’s first commercial laundry company in Nosy Be, the country’s main tourist centre, which caters for the flourishing hotel and restaurant trade. In Uganda, it backed Samuel and Margaret Rugambwa’s soap and cleaning material business, helping it to expand from a $400 initial investment in 1990 to a $250,000 a year business – a one thousand fold increase – today. Success stories like these were few and far between three decades ago. Now they are increasing in frequency.
The reform impulse, fostered by the creation of the New Partnership for Africa’s Development, Africa’s home-grown blueprint for economic revival, has largely come from within. But it is being assisted by the world’s developed economies, partly out of guilt that Africa remains the least developed continent on Earth, but also out of a growing realisation that Africa’s population is fast approaching one billion people – which represents a vast, untapped, market of the future.

The Investment Climate Facility, the public-private sector partnership which came out of former British Prime Minister Tony Blair’s Commission for Africa, has been in the forefront of trying to improve Africa’s business climate to enable African SMEs to prosper and grow. In Rwanda, it has helped to establish a commercial court and an online business registration mechanism, the lack of which proved to be the single biggest obstacle inhibiting banks from lending to SMEs.

In Lesotho, it has helped to streamline and simplify the value added tax regime, which was drowning SMEs in red tape. In Liberia, where a staggering 90 percent of economic activity takes place in the informal sector, it has been helping SMEs to move into the formal economy, thereby providing the state with the beginnings of the tax base needed to fund public services. While in Tanzania, it is helping to computerise the judiciary – and the commercial courts – creating the legal environment within which property rights can be protected.

Some African banks and financial institutions have not been slow to capitalise on these emerging opportunities. Ecobank Transnational, the West African banking group, has long outgrown its modest roots in Togo, and now runs 500 branches in 26 countries, employing 10,000 people, with an asset base at the end of 2007 of more than $7bn. It was among the first to recognise that the sprawling cities scattered along West Africa’s Atlantic coast – one of the most vibrant commercial zones in the continent – offered tremendous potential for banking services.

Most of the trade on West Africa’s Atlantic seaboard is informal. But by servicing SMEs – mostly traders and manufacturers – as well as large corporations and wealthy individuals, Ecobank has been gradually luring the informal economy into its branch network by showing the owners and managers of SMEs that they can make a deposit in Monrovia or Freetown and withdraw it – for a fee – in Lagos or Accra.


“The love affair with the Soviet-style command economy of the post-colonial era is dead in most African countries”


An example to follow

Ecobank’s success in drawing SMEs into the formal sector has helped boost the company’s profits year after year, making it one of the most dynamic banking groups on the continent – a record other African and international banking groups are now seeking to emulate – while at the same time helping to fuel growth throughout the west African region and beyond.

But if Ecobank has demonstrated that there are serious profits to be made in providing African SMEs with financial services, the full potential of the sector is still only dimly appreciated. An estimated 600 million of Africa’s 900 million people are engaged in subsistence agriculture – by far the biggest and most neglected sector of the continent’s economy. As images of starving African children constantly remind us, Africa can barely feed itself. Yet it has the potential to triple or quadruple agricultural output, feeding itself, and helping to feed the rest of the world in the process.

Last year’s record rise in global food prices triggered renewed investor interest in African agriculture. The Alliance for a Green Revolution for Africa (AGRA), with start-up funding from the Rockefeller and Gates foundations, and chaired by Kofi Annan, the former UN Secretary-General, is building a continental network of 10,000 agricultural SMEs – small and medium-scale dealers to sell seeds, fertiliser, pesticides and other imputs such as farm machinery and irrigation systems to Africa’s vast army of agricultural workers – in an attempt to breath new life into Africa’s most important economic sector.

Investors across the world, from China to America, the Middle East and India, have taken note of AGRA’s initiative. Serious money is now starting to flow into African land assets, food processing, refining and distribution systems, in the expectation that African food production could finally be on the threshold of a revolution in output.

Africa’s agricultural SMEs, most of them small family interests which have barely kept their heads above water for decades, could now be about to experience an unprecedented expansion. For while global food prices have fallen from earlier peaks, few doubt that as the world’s population races towards seven billion and beyond, high prices will return. African banks were largely unaffected by the subprime contagion, due to tight exchange controls. But African economies are now being hit hard by the freezing of international credit markets and the dramatic fall in commodities. Most analysts expect lending to African SMEs to decline as a result.

But not for long. The sector, starved of cash for decades, is well placed to weather the storm. When the upturn comes, investors are likely to return to a long-neglected prospective growth sector, which had only just begun to tap its potential.

Investigating fraud at Satyam

Oh the irony. “Satyam” means “truth” in Sanskrit, a fitting name then for the fourth largest company in India’s booming information technology sector – a company that named the World Bank and a series of international blue chip businesses among its clients. But not anymore.

The company, it now turns out, was a scam. Its chairman and founder, Ramalinga Raju, resigned in January after sending a letter of confession to his board. Some $1.5bn of the company’s funds were “non existent”, Mr Raju said, as was 95 percent of the revenue it reported in its last financial statements.

Naturally, this was bad news for Satyam’s investors: they were wiped out in a stroke. But it is bad news for India too. The chairman of the country’s financial regulator, the Securities and Exchange Board of India, said it was an event of “horrifying magnitude.” If the November terrorist attacks in Mumbai gave this emerging world power its 9/11, now it had its very own Enron.

The fear now among India’s business and political elite is that the Satyam scandal will scare off foreign investors and – more specifically – cripple its IT sector. Outsourcing is a massive business for India, but it relies on the trust of foreign companies. They will not let Indian companies handle their sensitive data or take responsibility for business processes if they cannot trust their probity. Satyam looked like a safe pair of hands. It was listed on the New York Stock Exchange, had business operations in 66 countries, and counted 185 companies in the Fortune 500 among its clients. It won awards for its standards of corporate governance.

Perhaps the most alarming aspect of the fraud is that it seems to have been going on for a long time. Mr Raju confessed that he had been fiddling the company’s financial records for the “last several years” – all under the noses of Satyam auditor, PricewaterhouseCoopers. In his contrite letter he argued that he had not benefited financially from the fraud, and was simply trying to keep the business going. Once he had started to cook the books, “It was like riding a tiger, not knowing how to get off without being eaten.”

That tiger started to nip Mr Raju’s ankles in December, when Satyam launched a $1.6bn offer to buy two property companies largely owned by Mr Raju and his family and run by his sons. Analysts said the bids massively overvalued the target businesses and would have used up all of Satyam’s cash reserves. Its shares started to fall, and within hours the company announced that it had scrapped the idea. Institutional investors were angry that Satyam’s nine-member board had approved the deal in the first place. It just didn’t seem to make sense: why would a leading IT company want to start investing in property?

Logical conclusion

Mr Raju’s resignation letter revealed the true logic behind the aborted deal. It was a final desperate effort to cover up the accounting fraud by bringing some real assets into the business, he said. When it failed, Satyam started to unravel. Within days, the World Bank said it had barred Satyam from offering it computer services for eight years, citing concerns about corruption, data theft and bribery. Other customers started to voice their concerns about fraud and accounting irregularities. Satyam directors started to resign. And then Mr Raju confessed.

In his letter, Mr Raju tried to take full responsibility for the fraud. Investigators will test the credibility of that claim. The government has already replaced all of Satyam’s board directors, and, at time of writing, Mr Raju was pondering the consequences of his actions from the comfort of a Hyderabad jail cell.

What are the consequences for corporate India? “If there were one or two more such accounting scandals in the next six months, it would make international investors more wary,” says Michael Useem, professor of management at Wharton, the business school. “One example would put people on guard; several examples would be enough to tell big investment money managers that they have to be especially careful working in that environment. [but] Don’t assume other firms are guilty,” he says.

Unrelated events

Mr Useem’s colleague, Mauro Guillen, a Wharton management professor who has studied corporate governance in emerging economies, says that India has good grounds to argue that Satyam’s problems are not systemic. “India is not perceived like Russia – it is neither everyone’s darling nor the plague,” he says. “This works to the country’s advantage because it deflects the blame of such occurrences to the way governance works in emerging economies rather than to India. What regulators in India need to do in response to Satyam is to find out quickly if other companies have been doing similar things. The proper response is to deal with and defuse the problem as soon as possible.” However, the fact that Satyam had a listing in the US but still had such serious governance problems “makes this case particularly disturbing, says Mr Guillen.

Corporate India has tried to contain the damage so far. Rajeev Chandrasekhar, president of the Federation of Indian Chambers of Commerce and Industry, has called upon regulators “to move quickly to demonstrate that this is an exceptional case among corporations, and that investors need not worry about Indian corporate governance and accounting standards.”

But the scandal is bound to put Indian companies under the spotlight. The Satyam affair is “a major eye opener and will bring into renewed and critical focus the role of independent directors, auditors, company management, [the] CFO and other key persons involved,” said Suresh Surana of Astute Consulting. Richard Rekhy, chief operating officer of the global consultancy firm KPMG in New Delhi, has espoused similar views. “The Satyam crisis is not only a wake-up call that has shocked us all, but it is also a great opportunity for everybody to look at the quality of corporate governance more seriously,” he said. For a long time, “many found the subject boring, but that has changed now. We were busy pursuing a high-growth economy and neglected important things like instituting an ethical corporate governance mechanism.” Mr Rekhy said that as yet unpublished KPMG research shows that “integrity and ethical values are not given enough attention” in Indian companies.

The Asian Corporate Governance Association (ACGA) 2007 ranking of corporate governance placed India third out of 11 Asian countries, behind Hong Kong and Singapore, but far ahead of China, in ninth place. India’s financial-reporting standards are high and the SEBI is independent of the government. But regulatory enforcement is weak, the rules contain large loopholes, and shareholders tend not to make their views known. The Confederation of Indian Industry, has demanded that the loopholes in regulation, accounting, audit and governance that allowed such lapses be addressed with urgency. The government has introduced a new companies bill, which would allow shareholders to pursue class-action lawsuits, but it isn’t certain to make it onto the statute book – elections have to be called in the first half of this year.

True, shareholders protested about Satyam’s planned December acquisitions, but that was a rarity, and by then it was too late. Often, Indian shareholders don’t understand governance rules and corporate legislation anyway, observers say. Until they stand up and complain, what incentive is there for companies to change?

Compounding the problem of ineffectual shareholders is the fact that India’s corporate landscape is still dominated by family-owned businesses. According to a survey on Indian corporate governance by Moody’s Investors Service, such firms have specific characteristics compared to companies with more widespread share ownership. The survey looked at corporate governance practices of 32 Indian companies in 16 prominent family groups, covering a broad cross-section of Indian industry. There are benefits to being family controlled: a lack of outside influence makes it easier to take a long-term view and to act quickly. That is one reason why Indian companies have been able to take advantage of the opportunities created by a fast growing and rapidly liberalising economy.

Problems underfoot

But family control also brings governance problems – not least of which are a lack of checks and balances over executive decision-making and behaviour, and a lack of transparent reporting to the outside world. “Although Indian corporate governance practices are improving, this largely reflects regulation of listed companies, particularly regarding ‘checks and balances’ such as composition of the board of directors and the operations of audit committees,” said Chetan Modi, co-author of the report. “The lack of board nomination sub-committees in many companies suggests that succession planning is not fully deliberated with independent directors. There is often insufficient transparency on ownership/control, related-party transactions and the group’s overall financial position. Also, the prospect remains of higher leverage as families try to maintain control while implementing their often aggressive growth plans,” said co-author Anjan Ghosh.

More regulation won’t necessarily do anything to help. Satyam – so far it seems – is a scandal of flawed leadership and human failure at the very top of the business. When the chairman himself is cooking the books, the best corporate governance in the world will do nothing to stop him. Having said that, Satyam’s supposedly independent directors – all of whom resigned just before the fraud was announced, but who claim no knowledge of it – could have done more. What questions, for example, did they ask about the quality of internal control over the company’s financial reporting (which, by Mr Raju’s admission, had been fraudulent for years) or about the scope and extent of the work done by its external auditors, who seem not to have spotted the fraud?

It’s hard to know what goes on inside a boardroom once the doors are closed. However, it’s often the case in India that the independent directors who are supposed to provide an objective voice are linked to the executives or their family. There is also an attitude in some Indian companies that the board members – executive and independent – work for the people who have brought them onto the board, and not for the interests of shareholders. This is wrong, but hard to fix in the short term.

How badly does Indian corporate governance need to improve? Here’s an interesting example. As Satyam fell apart, Puneet Kumar, a top manager at Wipro, India’s third-biggest IT business, said the company was “an aberration”. Mr Kumar told reporters: “After what happened there is bound to better self-regulation among Indian IT companies. The fact is that the IT industry thrives on good reputation and every major in the business lays great emphasis on maintaining global standards of corporate governance.” Sounds laudable, but within days the World Bank announced that, like Satyam, it had banned Wipro from providing it with IT services. The reason: corruption. Actually, the company was banned in July 2007 – for four years – a fact that, at the time, it didn’t bother to tell its shareholders.

Do we need the IMF?

“We were all Keynesians now,” said Richard Nixon, back in 1969. If it was true then, it didn’t stay true for long. The rise of monetarism and neo-liberalism in the 1970s sidelined the once-dominant theories of British economist John Maynard Keynes

Nowhere was the decline of Keynes’ ideas, and their replacement with the ideology of neo-liberals like Ronald Reagan and Margaret Thatcher, more apparent than at the global financial institution created after the second World War to implement his style of economic management on a global stage: the International Monetary Fund.

Now the wheel has turned again. In our new financial crisis, Keynes has become fashionable. Politicians across the developed world – Gordon Brown and Barack Obama among them – are implementing massive borrow and spend programmes, as a way of replacing vanishing consumer demand and steering their economies out of recession.

This is exactly the kind of economic management that the IMF was created to enable. The Bretton Woods conference of 1944 established the IMF as a way of lending countries the money they needed to finance deficit spending, so long as it was aimed at stimulating economic recovery. Without this support, the argument went, countries would compete with each other in a slump – for example, by devaluing their currency to boost exports and deter imports. The IMF, it was believed, would ensure global financial stability.

That was the theory. But as neo-liberal politicians – and economists – rose to power, the IMF’s agenda gradually changed. Instead of lending money to finance spending and stimulate economic recoveries, its loans came with draconian strings attached. These “structural adjustments” forced recipient countries to adopt neo-liberal economics: governments were told to privatise states assets, such as power and telecommunications utilities, to implement austerity budgets, and reduce domestic subsidies for basics such as food.

Thomas Gangale of Alaska and San Francisco State University described a typical outcome of IMF assistance: “Government workers are laid off, creating unemployment. Government services are reduced, adversely affecting the poorest members of society. Government assets are sold off at fire sale prices to raise money to pay off debts. Often the private investors who take advantage of these opportunities cut services and raise prices in order to operate these formerly government-owned assets at a profit. Interest rates are driven up in order to attract foreign investment; however, doing so drives domestic companies out of business, creating even more unemployment.” The IMF, wrote Mr Gangale, became “a twisted child.”

The importance of adaptability

With Keynesianism back in the ascendancy, what future does the IMF have? At an event organised by the Per Jacobsson Foundation to debate the IMF’s future, Andrew Crockett, President of JP Morgan Chase International, said the fund, in the course of its 64-year history, had shown itself to be adaptable as the world economy changed. But this time, he said, according to a report of the event published by the IMF, “the transformation of the IMF’s role in the international financial system will need to be more wide-ranging than in the past.”

Speaking at the same event, Stanley Fischer, a former IMF First Deputy Managing Director and now Governor of the Bank of Israel, said there were good reasons why the IMF had not been successful in addressing the build-up in global imbalances that had preceded the crisis. “The fund’s role in patrolling the exchange rate system didn’t work – something we already know,” he said. “But we also know why it didn’t work. For the fund to have succeeded, it would have had to mediate between the country with the largest population in the world and the country with the largest GDP in the world, and get them to reach an agreement that they were incapable of reaching bilaterally. China was not willing to change its strategy of operating with an undervalued exchange rate, which has been an extremely successful one from the viewpoint of growth.”

The IMF wasn’t solely to blame for its lack of influence, said Jean Pisani-Ferry, Director of the Brussels-based think tank Bruegel. The IMF’s Spring 2007 Global Financial Stability Report had accurately described the first phases of the crisis, he told the event, and its Spring 2008 report had also been much more accurate than analysis provided by other international institutions and national governments. “The IMF has gained – or regained – intellectual credibility,” he claimed.

But does the world still need an IMF? Most speakers at the event said that it did, but the fund faced significant challenges in fulfilling its mandate in the world of today. As Mr Fischer put it: “How should the fund operate in the modern world in which financial markets are a much more important source of financing than they were 60 years ago, in which governments are less inclined to think in terms of what’s good for the international system as a whole, and in which there are many more international economic organisations? This is really at the heart of many of the dilemmas currently facing the fund.”

Dominique Strauss-Kahn, IMF Managing Director, tried to address that question in a recent speech on the future of the IMF – a future that he said “seems fluid and uncertain.” Mr Strauss-Kahn pointed to the fund’s founding Articles of Agreement, which stated the need to promote global financial stability and to help members to adjust their balance of payments “without resorting to measures destructive of national or international prosperity.” These objectives remain valid today, he said, as the fund tries to manage another chaotic period in the global economy: “The question is how to do it, in a global economy which is very different from that of the 1940s.”

Seasoning stability

The answer is twofold, argued Mr Strauss-Kahn: first, restore stability; second, “we must look ahead and design a financial architecture to make the global economy calmer and less prone to economic and financial instability.”

On the first point, the outlook is grim. The global economy is continuing to deteriorate, with 2009 set to be a very difficult year and no expectation of any recovery before the beginning of 2010 at the earliest. To prevent a global depression, there must be action in three areas, said Mr Strauss-Kahn: “We need financial market measures, in order to get credit flowing again. We need fiscal measures, to offset the abrupt fall in private demand. We need liquidity support for emerging market countries, to reduce the adverse effects of the widespread capital outflows triggered by the financial crisis.”

Governments around the world have endorsed this agenda, as has the G-20. Some have started to implement it, “But the actions taken so far are not enough. We need more,” said Mr Strauss-Kahn. The fund would help by monitoring risks at the global level and providing timely technical advice on financial market issues; deploying its expertise and experience on fiscal issues to help finance ministries find the best ways of calibrating and implementing fiscal stimulus; and by helping emerging economies design good economic programs, and by providing sufficient finance to support them, “with conditionality tailored to the goals of containing the crisis.”

One way of achieving these aims, said Mr Strauss-Kahn, is to help support aggregate demand – that’s good old fashioned Keynesianism. “Fiscal stimulus is now essential to restore global growth,” he said. However, the fund is still telling some countries to reign-in their budgets. Isn’t this a contradiction?

Mr Strauss-Kahn says not. Fiscal stimulus should be undertaken widely, and the more countries that engage in stimulus, the smaller will be the actions that any individual country will need. But not every country is in a position to join in. “There are some emerging market countries that have financing constraints – either high costs or inability to finance deficits at all – which mean that they need to contract their budgets rather than expand them. Others are constrained from fiscal stimulus by high levels of debt,” said Mr Strauss-Kahn. “It is cases like these that explain why in some of the programmes the fund is supporting at the moment, we are calling for some fiscal retrenchment, despite our call for global fiscal stimulus. If there was fiscal room for manoeuvre in these programme countries, we would say ‘use it’. But often there is no room for manoeuvre. In fact, in the absence of fund support, countries would have to contract even more, because financing is so tight.”

The need for this stimulus is urgent, said Mr Strauss-Kahn, as spending and investment dries up. “Every day brings additional indications that the psychology of individuals, households and firms has changed sharply in the past year,” he said. “The more profound that change, the greater the fiscal effort that will be needed to offset it and to restore confidence.” The world economy is facing “an unprecedented decline in output.” Substantial uncertainty is limiting the effectiveness of some fiscal policy measures, said Mr Strauss-Kahn, and the IMF anticipates that the negative growth effects will last for some time.

What do we need?

Bottom line: the global fiscal stimulus should be about two percent of world GDP – or $1.2trn, he said. “This may make a sizable difference to global growth prospects and substantially reduce the risks of a damaging global recession. But these two percent are an average, while some countries can’t do anything, others have to do more.”

So far, Keynes would approve. Mr Strauss-Kahn also said spending should be focused on troubled sectors like housing and finance and transfers to low-income households, because they are most likely to face credit constraints and because they would be most likely to raise their spending. Good examples would be greater higher unemployment benefits, increased tax benefits for low-wage earners, and expansion of in-kind benefits covering basic needs such as food, he said. He talked about the “multiplier effect”, whereby spending in certain areas is thought to give a higher bang for the buck. He also pointed to the value of investment spending, on areas such as state-funded capital projects. “Since the slowdown is expected to be long lasting, investment spending, which typically has a longer gestation period than many other measures, becomes a more appropriate policy tool in the current circumstances,” he said. “Investment projects that are already in the works and can be implemented quickly, and those with good long-run justification and likely positive effects on expectations of future growth, like President-elect Obama’s Manhattan Project for energy saving, are good ideas.” Again, all very Keynesian.

Temporary reductions in personal income and sales taxes “could also be envisaged,” he continued. “But we would not recommend reduction in corporate tax rates, dividends and capital gains taxes or special incentives for businesses. These are likely to be ineffective and difficult to reverse.” Not very neoliberal.

So perhaps the IMF has returned to its roots after all? “Good brakes are important too,” Mr Strauss-Kahn cautioned, and even advanced economies need to keep an eye on fiscal sustainability, in case their spending provokes an adverse reaction from the financial markets. But “At present, the most urgent need is for a strong foot on the accelerator of fiscal spending,” he said.

In a sense, it doesn’t really matter what the IMF’s exact role is. “What matters is that we make a useful contribution,” said Mr Strauss-Kahn. “We have the tools to do that. If we deploy them well, and help our members, then the IMF will have a good future. More importantly, it will be doing its job, and therefore give the world a better future. All around the planet, the people of the world have reacted to the crisis with feelings going from surprise to anger and from anger to fear. It is our responsibility to help building a world based more on humanity and cooperation than on opacity and greed.” Keynes would certainly approve of that.

Increased financial regulation

When the leaders of the G20 nations met in Washington in November to discuss the impact of the credit crunch, they made it clear that financial firms will face much tougher regulation in future. “We must lay the foundation for reform to help to ensure that a global crisis, such as this one, does not happen again,” their end of summit communiqué said. There was little detail about how they would actually achieve this; more plans are promised for the end of March. But the general point was clear: there had been a systematic failure, so “the system” needs to be fixed

Perhaps surprisingly, the G20 had very little to say about standards of corporate governance in the financial sector (see sidebar). There was much talk about the need for banks to improve their modelling and their risk management practices, to re-examine their internal controls, and to disclose more about risks. But there was only a fleeting mention of the need to improve governance. This is despite the fact that all of these specific criticisms of banking behaviour can be traced back to a failure of board-level corporate governance. Doesn’t that mean that the system of corporate governance has failed too, and therefore needs to be fixed?

The Financial Reporting Council, which is responsible for the UK’s Combined Code on Corporate Governance, the leading international benchmark, says not. Its chief executive, Paul Boyle, argued in a recent speech that “the primary questions should not be about the standards of corporate governance in these institutions but rather the practice of it. The focus should be on whether the existing standards have been observed in practice.”

The Code, for example, says that a company’s board should “provide entrepreneurial leadership of the company within a framework of prudent and effective controls which enables risk to be assessed and managed.” It goes on to say that non-executive directors “should satisfy themselves on the integrity of financial information and that financial controls and systems of risk management are robust and defensible.” Bank boards have failed to meet either of those principles. But that doesn’t mean the principles are wrong, Mr Boyle argued.

Asking the right questions

If it is the practice, rather than the code, of corporate governance that is at fault, what should be done? The governance consultancy Independent Audit recently convened a meeting of 120 chairmen, chief executives and directors from FTSE 100 and 250 companies to discuss that question. “There has been a failure of governance, and that really centres on non-executives,” concluded Ken Olisa, Chairman of Independent Audit. The UK government’s new City minister, Lord Myners, said that boards were “part of the problem” and need to be strengthened. Lord Myners called on investor groups, such as the Association of British Insurers and the National Association of Pension Funds, to provide better training and guidance for non-executives.

The UK’s corporate governance system is hinged on their effectiveness. They are meant to perform the role that Walter Bagehot described for the monarchy: to be consulted, to encourage and to warn. But too often, they ask the difficult questions only when things have started to go badly. Delegates at the Independent Audit event wanted to see the performance of non-executives improve. They called for clearer selection criteria, so that better directors are appointed in the first place. They wanted them to get more training. And they suggested some quick fixes, such as holding informal meetings outside the confines of the traditional boardroom – to make it easier for non-executives to raise a challenge – and a ban on PowerPoint presentations, so that people had to actually engage with each other.

But perhaps the corporate governance model asks too much of non-executives? They are on a hiding to nothing. If the business thrives, the executives make more money – in salaries, bonuses and on their share options. But the non-executives don’t. Yet if the business falters, they catch as much flack as the executive directors, sometimes even more. They get none of the upside and all of the downside. This wasn’t such a problem when holding a non-executive role at a bank or FTSE company was a cushy number. But increased regulation and corporate governance reform has massively increased the workload and responsibility burden of the typical non-executive. No wonder companies say it is becoming more difficult to find good candidates – a problem that the current crisis will only make worse.

Institutional shareholders also have a crucial role to play in corporate governance, yet their engagement with companies on governance issues tends to be poor. With a few notable exceptions, they have been unwilling to invest in developing their ability to monitor and challenge governance practices, lapsing instead into mindless box-ticking.

Remaining on radar

And what of senior executive and management performance? A recent report from an all-party parliamentary committee, established “to develop and enhance the understanding of corporate governance”, pointed to a “surprising lack of board level contact between senior managers and directors.” It argued that over the last decade, the proportion of the board composed of hands-on, executive directors had declined to the point where they now account for less than a third of all board members in the FTSE 350. Yet over the same period, many of these companies have witnessed a significant increase in the size and complexity of their businesses.

These two trends have increased the responsibilities of the senior managers who are just below board level, such as the directors responsible for human resources and information technology and the chief risk officer. In a typical FTSE 100 company, the members of parliament found, nearly half the executive committee is not represented on the main board. HR directors, for example, had a board seat at only six percent of FTSE 350 companies. The report concluded that these people, who slip below the governance radar, are the ones who really run UK plc. Non-executives needed to “get beneath the skin of the board”, said Philip Dunne, the Tory MP who chairs the all-party group, and companies need to “provide shareholders with more confidence in the capabilities and skills of key executives below board level.”

There is another reason why these executives need to be more involved in corporate governance. The Senior Supervisors Group, which represents financial sector regulators in France, Germany, Switzerland, the UK and the US, warned recently about the risk of companies fracturing into “organisational silos” based on highly technical management functions. Poorly run companies often “lacked an effective forum in which senior business managers and risk managers could meet to discuss emerging issues frequently; some lacked even the commitment to open such dialogue,” it said. The financial firms that had the best control over their balance sheet growth and liquidity needs were those that: “demonstrated a comprehensive approach to viewing firm-wide exposures and risk, sharing quantitative and qualitative information more effectively across the firm and engaging in more effective dialogue.” There was a risk of disconnect, the group said, between the people effectively running the company and the board-level directors to whom governance principles apply.

Jaap Winter, the Dutch law professor whose ideas are behind much of the European Union’s approach to corporate governance, has talked recently about the need to make senior managers – indeed, all employees – more accountable and responsible, rather than creating more board-level rules and regulations.

Mr Winter told the annual conference of the European Confederation of Institutes of Internal Audit (ECIIA), held recently in Berlin, that errant human behaviour caused financial crises, not flawed systems. “No system has ever generated a crisis,” he said. “The first reaction is that the system has failed so we need new rules. We ask for more rules and more enforcement, but we forget about our own behaviour: what is it in us that we continue to game the system?”

Mr Winter said increased regulation of financial firms and general corporates was leading to the “self-enforcement” of a compliance culture. There were already far too many rules for regulators to monitor and enforce, so they were outsourcing that work to companies themselves, he argued. This growth in corporate compliance was having a pernicious effect: crowding out personal responsibility. “It is not helping us, it makes things worse,” he argued. “What compliance is doing is making sure people follow rules. We forget about our own responsibility for our behaviour and replace it with responsibility for compliance.”

Never again?
Leaders of the G20 have pledged to reform the global financial system

The G20 leading nations met in Washington on November 15, 2008, amid serious challenges to the world economy and financial markets. The group said it was determined to enhance its cooperation and work together to restore global growth and achieve needed reforms in the world’s financial systems.

The powerful club of nations said that in the months it would lay the foundation for reform to help to ensure that a similar global crisis does not happen again. Specifically, there would be action to stabilise financial markets and support economic growth.

Regulation is high on the agenda. The G20 said first and foremost this is the responsibility of national regulators, who constitute the first line of defence against market instability. However, financial markets are global in scope, so “intensified international cooperation among regulators and strengthening of international standards” was necessary.

The group’s end of summit communiqué said that regulators must ensure that their actions “support market discipline, avoid potentially adverse impacts on other countries, including regulatory arbitrage, and support competition, dynamism and innovation in the marketplace.”

Financial institutions must also “bear their responsibility for the turmoil” and should do their part to overcome it, the G20 said. This included recognising losses, improving disclosure and strengthening their governance and risk management practices.

The group committed itself to strengthening financial market transparency, including by enhancing required disclosures on complex financial products and ensuring complete and accurate disclosures by firms of their financial conditions. It also wants clearer alignment between incentives and risk-taking.

Crunch costs

After the crisis, comes the litigation – and the regulation. The financial turmoil of 2008 will lead to tougher regulatory action, and a wave of law suits, this year, as governments and market authorities try to plug the gaps exposed by the market meltdown, and investors try to get at least some of their money back.

Life is going to get tougher from the boardroom down, with experts saying financial companies will come under tougher scrutiny across their operations: from the way the business is governed, to the way it archives its email.

Starting with the tone at the top, the depth of the current global economic crisis, and the fact that governments around the world have had to step in and use taxpayers’ money to limit the damage, has made corporate governance an incendiary issue. “The public, investors, shareholders and regulators will no longer tolerate corporate governance failures in 2009,” says Peter Giblin, visiting professor of corporate governance at CASS Business School, London, and president of Integrity Europe, a corporate governance advisory firm.

“Whereas a few years ago a company could ride out a corporate governance scandal, now the impact could be potentially catastrophic, with many companies going into administration. Tougher and more detailed regulations will be introduced, resulting in an inevitable increase in scrutiny,” Mr Giblin predicts. “In 2009 we will see a trend towards all senior management being judged more aggressively on their knowledge of and adherence to proper corporate governance standards and statutes.”

“Another area that will continue to grow in importance is the accountability of companies in monitoring the entire supply-chain. No longer will it be acceptable to plead ignorance to corporate governance failures at any point in the supply chain, for example, whether it be knowledge of the supplier of raw materials in Asia, the vendor of your product or the final customer’s intended use of the product.”

Regulation everywhere
Executive remuneration is one area where more regulation is likely, says Mr Giblin, pointing to growing pressure in the UK and Europe for companies to link rewards more closely to executive behaviour. Activist shareholders are already organising pay revolts, with large votes against remuneration policies likely at some companies. In the UK, City minister Lord Myners has said investors were too soft on pay and benefits before the credit crunch. Corporate governance lobby group PIRC has been calling on investors to vote down “excessive” remuneration at several businesses.

 “I have no hesitation in calling the developing situation a regulatory minefield – and this is not an exaggeration,” says Neil Gerrard, head of the regulatory and litigation practice at DLA Piper. “We are operating in an unprecedented time of financial pressures and market volatility and the authorities are more determined than ever that everyone will play by the rules.”

For the financial sector, Simon Rawling, group managing director of London-based management consultancy PIPC, says the credit crisis has exposed global regulatory problems that need global solutions. “The last 12-months have proved that we lack any sort of joined-up global governance or regulatory structure,” he argues. “All we’ve seen to date is knee-jerk reactions from corporates to effectively shut-up shop” – by not lending to each other.

Mr Rawling predicts regulatory action on information and record storage, operational risk, and general corporate governance. “However, what we’re yet to understand, and what is needed more than ever before, is a set of compliance and regulation initiatives that are integrated across governments to effectively manage risk across global economies and global businesses,” he says.

Such a framework could emerge this year, and will be on the agenda when the G-20 leading nations meet in London in April. US and European banking chiefs are already working behind the scenes with central bankers and regulators to hammer out what that framework should look like. A private January meeting organised by the Bank for International Settlements was attended by banking luminaries such as Morgan Stanley chief executive John Mack, Citigroup chairman Sir Win Bischoff and Crédit Suisse chief Brady Dougan. Clearly, the finance industry is desperate to get its views across now, fearing that left to their own devices the G-20 diplomats will come up with something that they believe to be too onerous.
Reserving liquidity

The Basel Committee for Banking Supervision, which sets world banking regulations and measures of banks’ capital, has already indicated that it plans to changes its rules, forcing banks to hold a greater proportion of capital reserves in future, and to make higher provisions against bad debts. It also wants banks to hold more liquidity reserves.

Looking more widely, one trend to watch this year will be the extent to which new regulations and governance requirements directed at the financial sector spill over to affect general corporates. In the UK, for example, the Financial Reporting Council has cautioned against post-crunch changes to the Combined Code on Corporate Governance because they would apply to all listed companies, not just financial ones. FRC Chief Executive Paul Boyle used a recent speech to argue that the regulatory focus should be on whether financial firms had observed the existing standards, rather than whether those standards needed to change.

While organisations watch anxiously to see whether the credit crunch will hit them with a further wave regulation, 2009 is a year in which many will finally get to grips with reforms aimed at fixing the last international financial scandal: the raft of corporate fraud and accounting scams that were exposed in 2002 and 2003, such as Enron, WorldCom, Parmalat and Ahold.

In Europe, for example, the combined EuroSox directives will finally start to take effect in 2009. This set of regulations brings together disparate directives already in place and harmonises them: the aim is to build trust in European auditing, financial reporting and corporate governance. Among the big changes: companies have to disclose their risk management activities in their annual report, including the principle elements of their risk management and internal control systems, and describe their approach to corporate governance. Management is also legally responsible for making sure that financial statements provide a “true picture” of the company’s situation.

“EuroSox places greater demand on an enterprise’s financial reporting – meaning more information must be stored, tracked, modelled and made available to relevant authorities as and when required,” says Lynn Collier, Solutions Director at Hitachi Data Systems. “The strain on the business will not only be the additional information being stored but also making sure it is secure and easily accessible so it can be reported on and audited as and when necessary.”

In Japan, listed companies will face their national version of such reforms in 2009, as J-Sox (the tag used to describe the country’s Financial Institution and Exchange Laws) takes hold. These regulations require the same sort of internal controls over financial reporting as the US Sarbanes-Oxley Act. Practice Standards set by the Japanese Business Accounting Council require companies to produce an audited assessment and report on their internal control over financial reporting. The rules apply to all Japanese public companies – and their overseas affiliates – from April 2008 and many are still in a rush to comply with and then embed the requirements. “Much of the impact in terms of effort to get compliant has been completed, but the integration of control to make it efficient as well as effective is still in progress in many organisations,” says ISACA International President Lynn Lawton.

Regulation isn’t always driven by crisis: in 2009, companies will also have to respond to significant compliance challenges that have been in the pipeline for a while. In Europe, insurers will have to monitor the developing Solvency II accord and 2009 will see the introduction of the EU’s controversial data retention directive for telecommunications and internet companies. In India, the government is introducing a new Companies Act in 2009, aimed at bringing the country’s business law and corporate governance rules up to international standards. In Hong Kong, important changes to the stock market’s listing rules took effect on January 1.

More regulation will not be the only consequence of the turmoil – litigation is expected to increase rapidly. “As the credit crunch bites all the chickens will come home to roost,” says Professor Alan Riley of The City Law School, London. “Flawed business models which may look fine in climbing markets are exposed in harsher economic times, and as a result all sides head to the courts or arbitrators.”

Ready to litigate
In the US, investors filed 210 federal securities class-action lawsuits in 2008, up 19 percent from 176 in 2007, according to figures compiled by Stanford Law School and Cornerstone Research. The total amount claimed was $856bn, up 27 percent from 2007 and the highest in six years. Nearly half of the year’s litigation was connected with investors’ losses from the credit meltdown. The Stanford figures show that a third of the finance companies in the Standard & Poor’s 500 index are targeted in new lawsuits. A record 12 complaints claim losses of $5bn or more.

“Given the financial crisis, litigation is, for some, an increasingly necessary option and all companies need to be prepared in order to meet obligations in terms of data disclosure,” says Tracey Stretton, legal consultant at Kroll Ontrack. “The next wave of litigation, which we’re likely to see a lot of in this year, is likely to be securities litigation – everyone is waiting for this ‘credit crunch litigation’.” Ms Stretton pointed to a policy shift in Europe away from public enforcement (such as formal investigations launched by bodies such as the European Commission) towards private enforcement, where parties sue each other for redress. There may therefore be an increase in anti-trust litigation as more follow on actions post-investigation and private stand-alone actions may be launched in future, she added.

One issue that will be under the spotlight is electronic communications and the electronic storage of information (ESI), such as emails and documents, Ms Stretton predicts. “The issues surrounding ESI have assumed a higher priority on the business agenda as the financial crisis threatens to trigger legal actions. With litigation and the amount of electronic data requested in discovery on the rise, and coupled with tightening corporate budgets and regulation, corporations cannot afford an ESI misstep,” she says.

 Of course, all this regulatory activity will take place against a backdrop of global economic recession, when management would rather focus on corporate survival than corporate compliance. Just staying in business will be the biggest challenge many organisations face over the next twelve months.

Charting a new map

Managers say the focus this year will be on restructuring and shopping for value assets. As heads of investment banking survey a new year, some of the most crucial documents in their possession are the detailed lists kept by their subordinates of the expected dealflow. These extensive lists, referred to as the pipeline, are kept rigorously up to date by all investment banking teams, but in 2009 they are looking thinner than in previous years.

Some managers say they might well be virtually useless in providing them with a guide to what activity to expect in the next 12 months.

Two years ago, in what must seem like another age, managers could leaf through page upon page of upcoming deals showing a record level of pent-up activity across their mergers and acquisitions and capital markets businesses, but in January 2009 the situation bears little comparison.

But despite the backdrop of a deteriorating world economy and a financial sector wrecked by more than $1trn of writedowns in 12 months, investment banks can continue to point to a small pipeline of mandates.

However, most companies are focusing their attention on the likely deluge of work from distressed corporate clients as the financial crisis ravages the real economy.

David Fass, Head of Global Banking Europe at Deutsche Bank, said: “This year is going to require the most complex and thoughtful approach we have seen in recent memory. As the world approaches the 24th month of the credit crunch, we are going to need to invent new solutions to work through the stresses and strains in the markets. For bankers, this means the amount of time we are going to spend thinking about how to help our clients will be many multiples of what it has been in recent years.”

Mr Fass mentions the increasing frequency of meetings between his teams of coverage bankers with their corporate clients, and says chief executives are eager for updates on the state of the financing markets and their options should they need to tap them.

Behind the scenes many companies have hired investment banks to examine their strategic options, from simple financing requirements to full-scale balance sheet restructuring and asset disposals.

One of the most obvious examples of this was German automotive components maker Schaeffler Group’s hire of JP Morgan late last year to examine its strategic options as its creditor banks pushed the company to provide them with more detail on how it would pay back the billions of euros they lent to support the acquisition of Continental.

Mark Aedy, head of Merrill Lynch and Bank of America’s combined European corporate investment banking operation, said: “In the past quarter, corporates have adjusted to market conditions and realised that this is a new world and they need to take action. Many of our clients have asked for full nuts and bolts reviews of their businesses and actionable business is coming out of this.”

For those companies prepared to be first movers the signs appear to be good. Bankers say the capital markets appear willing and able to buy new issues for those prepared to accept the new valuations on offer.

John Winter, head of investment banking for Europe, the Middle East and Africa at Barclays Capital, said: “The financing markets feel good at the moment. The bond market is clearly open for business, equity capital raising will be active and we think there are likely to be a lot of disposals related to corporate restructurings.”

The worry is that those that do not act swiftly to tap the markets and wait until the last minute might find the markets unforgiving and emergency capital raisings, forced asset disposals and even full-scale enforced takeovers are considered likely to be a major part of the market this year.

Mr Fass said: “There will be good companies out there that haven’t managed their balance sheet properly over the last couple of years and are going to find themselves in distressed situations. They are going to be unable to refinance and therefore they will have to take action quite quickly.”

Mr Aedy said his firm would be focusing on winning restructuring mandates in 2009, which the bank has identified as one of the biggest sources of investment banking fees over the next 12 months.

He said: “The focus will be on restructuring opportunities, but with a heavy emphasis on the capital markets and within that on equity capital raisings.”
Fishing for shares

The issue of how to position their businesses to capture the largest possible share of the fees on offer will be one of the biggest headaches for managers this year, particularly given that some are predicting a further 20 percent drop in the overall fee level in Europe this year.

Mr Winter said: “We are going to selectively reflect the market. We aren’t, for example, currently bringing issues for emerging market corporates but we will be when that market reopens. Meanwhile there are plenty of other areas where we are already very active.”

Geographically, the focus is likely to return to the large markets of the UK, France and Germany. Aside from the hundreds of billions of dollars of debt issued by the governments of each country, corporates in the developed markets are expected to provide the most business.

In the UK, which is regarded as the developed economy most exposed to the financial crisis, restructuring mandates will be the order of the day, while France and Germany may be relatively better off and able to take advantage of the opportunities the stressed markets are likely to provide.
 Charles Packshaw, head of UK corporate finance at HSBC, said: “Well-capitalised companies are likely to see opportunities to pick up undervalued assets in the UK. We generally expect UK deal activity to be pretty patchy, but there will be some strong sectors, such as consumer, resources and energy.”

ECM
Rights issues:
The busiest area by volume of the equity markets last year were capital increases and this shows no signs of changing this year, though the type of issues will be rather different.

If the past 12 months were dominated by multi-billion dollar capital raisings by distressed financial institutions, 2009 will be the year of corporate capital increases as a range of businesses tap the equity markets.

Emmanuel Gueroult, head of European ECM at Morgan Stanley, said: “Capital increases are likely to continue to be deeply discounted, but there is no shame attached and investors accept that the market has repriced over the last year.”

M&A
Mergers and acquisitions revenues in Europe fell by a third to $15.3bn last year as deal activity declined. Few bankers are predicting any improvement this year, but many are hopeful that things may be better than they seem.

Gordon Dyal, Global Head of M&A at Goldman Sachs, said: “The 2009 M&A market will most likely be a reflection of the global market dynamics; a balance between attractive valuations relative to historical levels and restricted liquidity. We expect 2009 M&A themes to be stock-for-stock transactions, fill-in acquisitions by large, well-capitalised corporates as well as emergency sellsides to address capital structure issues.”

Winning restructuring mandates is likely to be one of the keys to success this year, with many disposals being linked to working as an adviser on these types of transactions. The financial services sector is also expected to be another source of dealflow. A report published recently by US advisory firm Freeman & Co highlighted the continued need for consolidation among broker-dealers as well as the pressure on asset managers to merge.

Mr Freeman also predicts that stock exchanges will be active buyers of credit data-focused firms this year as they prepare for the advent of centralised clearing in the credit default swaps market.

Jumbo private equity deals may be dead, but with billions of dollars at their disposal bankers have not written financial sponsors out of their calculations for the next 12 months. Mr Freeman expects private equity firms to be active in the financial institutions sector as they use 2007 and 2008 vintage funds to buy assets on the cheap.

Convertible bonds
Equity-linked paper was one of the worst performers last year and convertible bond funds endured a torrid 2008. Analysts at Barclays Capital expect the convertible bond market to continue to shrink over the next 12 months as new supply continues to be exceeded by maturing issues.

Despite this, convertible bonds may continue to be one of the more active areas of the new issue market in 2009, as investors look for their combination of downside protection with the potential to profit from share price rises.

Several banks last year, including Barclays and UniCredit issued convertible bonds as part of their capital raising and bankers expect corporates to follow their lead.

Mr Gueroult said: “Though the equity-linked market has been very quiet, we think it could come back this year.”

Initial public offerings
Falling valuations and record volatility brought the new issues market to a virtual standstill last year and few expect an improvement any time soon.
Large issues such as the stock market listing of Deutsche Bahn have been postponed, with no date set for when they might return.

Thomas Gottstein, co-head of ECM for Europe, the Middle East and Africa at Credit Suisse, said: “There will need to be continued improvement in volatility, which has come down to below 40 percent, before the return of initial public offerings and there will need to be a clearer consensus about the length of the recession.

There is a lack of confidence in earnings or price to earnings valuations. A sustained recovery in equity markets isn’t likely until credit spreads have narrowed.”

A pipeline of issues is building from the Middle East with Dubai property developer Nakheel reported to be considering up to a $15bn flotation and several other smaller deals are in the pipeline.

Blocks
With bankers talking about a new-found realism among chief executives, expectations are growing that companies may be more prepared this year to accept the new valuations attached to their own shares and equity holdings.

UK utility Scottish and Southern recently accepted almost a 10 percent discount when selling a block of new shares to raise £479m and others are likely to follow as they attempt to finance ahead of the crowd.

Large block sales could also be back on the cards, sooner rather than later. UBS in a report published in January estimated that of the $1.5trn of European equities held by businesses, more than $160bn could be considered “loose” or under review for a possible sale.

Of this total, about 50 percent are held by corporates and, with many companies’ balance sheets under greater pressure than at any point in recent years, sales of these stakes this year are now considered more likely than they were last year, despite the fall in equity valuations.

Mr Gueroult said: “Sellers are now prepared to accept discounts on block trades. There is an acceptance that the market has repriced and that higher-valuation discounts may be required to complete trades.”

European government bond market
Analysts estimate a record €185bn was issued by the US and European governments in January, with up to €736bn expected to be issued by the end of the year from €576bn last year, according to calculations by Nordea analyst Jan von Gerich.

The four largest Eurozone economies will represent the biggest issuance, with Germany issuing up to €149bn of bonds, up by €8bn from last year, France issuing €145bn, up by €30bn, Italy €220bn, up by €20bn, and Spain €75bn, up by €15bn, according to analysts.

Germany and France are the main pillars of Eurozone issuance, rated triple A by rating agencies. Bankers said the recent failure of a €6bn auction by the German Government was not too serious. Less than a day later, a French issue was subscribed by investors.

Of France’s total financing need this year, €79.3bn results from the projected budget deficit for 2009 and €110.8bn from medium-term and long-term bond redemptions falling due in 2009. Other state commitments will amount to €1.6bn.

Germany’s financing plans this year give greater weight to short-term instruments as it faces rising financing needs in the economic downturn. Aside from capital market issuance of €149bn, its treasury bill, or Bubill issuance, is set to rise to €174bn from this year’s target of €72bn.

Several governments in Europe, including Germany, have moved to cover their rising financing needs in 2009 with higher issuance of treasury bills.

However, analysts warn it may prove problematic if governments rely on treasury bills and then have to return to market to continue financing in six or 12 months’ time, when yields could rise.

Corporate bond market
The European investment grade corporate bond market has reopened on stronger sentiment this year, but corporate treasurers, bond bankers and investors have their work cut out to navigate still treacherous new issue conditions.

Suki Mann, credit strategist at Société Générale in London, forecasts a possible low of €80bn – versus €133bn in 2008 – for investment grade non-financial bond supply this year.

Mr Mann said should the new issue window be open for longer, €120bn is reachable.

Top of investors’ wish lists for new issues are bonds from well-rated, well-known companies in non-cyclical industry sectors, with riskier credits rarely getting a look-in.

For industrials, bankers warn if conditions prove too onerous, companies may use free cashflow and/or draw on their bank lines instead of issuing bonds.
For utilities, forecasts are between €25bn and €40bn for supply due to redemptions and large M&A refinancing needs. Analysts believe E.ON and Enel have around €5bn available for funding. EDF, Iberdrola, Gas Natural and Vattenfall have €2bn to €3bn each to refinance and Nuon and EDP Group around €1bn to €1.5bn each. GDF Suez has another €1bn and EnBW around €500m.

Technology, media and telecoms issuance could reach €28bn, of which €22bn will come from telecoms groups, led by France Télécom, Deutsche Telekom and Vodafone.

In the motor vehicle sector, €18bn of potential supply is forecast, while €15bn is expected from the consumer and services sector this year.

Financial institution bond market

Issuance this year from the insurance sector may be a “difficult number to predict”, according to Barclays Capital, but issuance from the damaged banking sector could fill that void, as banks exploit government debt guarantees to raise capital.

Fritz Engelhard, head of European fixed-income strategy at Barclays Capital in Frankfurt, said: “It is not only a matter of how expensive the funding is, it is about accessing term funding and managing liquidity.”

European banks issued €40bn of government-backed bonds last November and December. This year, that could be €250bn, according to estimates from Frank Will, frequent borrower strategist at Royal Bank of Scotland. Other houses have forecast up to €500bn of supply.

In senior funding, the supply outlook is made more difficult by the prospect of government-guaranteed issues. However, Barclays said there was €270bn of senior redemptions this year, which indicates new supply.

For subordinated supply, Société Générale forecasts €13bn of lower tier two capital bonds, and €2bn – down from €6bn last year – of tier-one capital bonds.

Securitisation market
Securitisation was linked to the sub-prime crisis in the US and was a cause of wider economic malaise. As a result, the market was the hardest hit and has been at a standstill since the middle of 2007.

Bank issuance, however, has been hitting highs. Deutsche Bank research said €50bn of asset-backed securities were issued in the week starting November 9, an 18-month high. The reason for the spike is increasing use of central bank lending facilities, which now accept these securities as collateral for loans.
Merrill Lynch research published last week estimated 97.5 percent of securitisations in 2008, totalling €600bn, were retained by banks. Germany, Spain and Italy have announced specific funds aimed at purchasing ABS with a combined maximum total of €170bn. The UK is expected to follow.

Stuart Jennings, Structured Finance Risk Officer for Europe, Middle East and Africa at Fitch, said in a statement on January 7: “This is an apparent recognition that banks will have to continue to tap central bank funding for the foreseeable future.”

© eFinancial News, 2009. www.efinancialnews.com

Buyside and sellside must learn to pull together

There has traditionally been tension between the sellside and buyside but as a prolonged dearth of liquidity is turning the capital markets into deserts, the mutual dependence of investment bankers and asset managers is becoming more apparent and their future success will depend on how well they adapt to each others’ needs.

Bankers have earned four times as much money from taking trades from asset managers as they have from underwriting new issues of securities, according to financial data published by US trade body, the Securities Industry Association. The asset managers benefit from being able to trade when they want. The cost of all the trading is ultimately borne by the investors in asset managers’ funds.

Bankers have done well over the past five years from the rise of hedge funds, some of which traded far more frequently than traditional asset managers. The banks also made a lot of money from lending money to hedge funds.

But this arrangement has been upset since July, because investors, desperate for liquidity, began withdrawing their money from hedge funds. Redemptions are wreaking havoc in the hedge fund industry, with bankers and investors estimating that its assets under management will soon have shrunk from about $2trn to $1trn.

The massive reduction in hedge funds has already resulted in substantial job cuts in the investment banks’ prime broking divisions, the units responsible for lending to hedge funds. Their client trading departments are trying to shift their focus back to the traditional end of the asset management industry, which itself has struggled as market liquidity has dried up. But the traditional asset managers, which are trying to pare back all the costs they can, are ready for them.

Jim Connor, a partner at Morse, a management consultant to the asset management industry, said: “Investment banks will redouble their efforts with traditional asset managers. But transaction costs will come under pressure. The EU’s markets in financial instruments directive, which concerns best execution, paves the way for this by putting an obligation on asset managers to ‘do right by clients’ in this respect. Moreover, asset managers have been rationalising their broker relationships and this competitive dynamic will be a catalyst for reducing costs.”

Peter Preisler, Director and Head of Europe, the Middle East and Africa at US asset manager T Rowe Price, said: “Any kind of cost is a negative, so anything we can do to minimise the cost of trading we will do. That doesn’t always mean trading cheaply, because settlement is a discipline itself these days.

“We have benefited enormously in the past three to six months by having in-house traders. In a market with less liquidity, the ability to read the market and place transactions where there is liquidity is highly valuable. Liquidity has often dried up in the past six months, for example in high yield bonds, and you need to know who is in the market and have good relationships.

“But the obvious way to minimise trading costs is to trade as little as possible. In most strategies we turn over our portfolios only once every one to five years.”

Research the key
Investment banks will try to use their in-house research, in particular equity analysts’ reports and stock recommendations, to resist the pressure on trading commissions. The bankers reckon asset managers using their research will accept higher transaction costs. An investment banker said: “We have begun holding back the details of our research for our best clients – in accordance with regulations, we are disseminating our views and the bones of our arguments to everyone, but keeping the colour and depth for those who give us a call or who are our highest-paying clients. This has become general practice in the industry in the past couple of months. In any other business in the world you would treat your best clients better.”

The bankers’ negotiating hand has been strengthened by cost-cutting among the asset managers. Job cuts so far have mostly been restricted to marketing staff, but the prospect of continued falls in the value of assets under management, and hence annual management fee income, means some chief executives of asset management companies are reconsidering whether they want to employ as many research analysts as they have done, particularly when compensation for a senior analyst can reach £500,000. Those asset managers that cut back on their in-house research operations will be asking investment banks for more research.

In addition, the discrediting of the ratings agencies over the course of the credit crisis has led investment bankers to anticipate greater demand from asset managers for research on bonds. Demand for analysis of sovereign risk, pertaining to countries, is also expected to rise.
However, asset managers will resist the temptation to use more of the banks’ research. Mr Preisler said: “The market environment will lead certain asset management firms to rely more on sellside analysts. This won’t be the case at T Rowe Price and our competitive advantage will become even stronger.
“Sellside analysts have a sales role and their compensation is dependent on asset managers turning over their portfolios. From their point of view, the best recommendation should be a Buy and the second best should be a Sell; no one can do anything with a Hold. If a sellside analyst does a serious piece of research and comes up with a Hold recommendation, it’s really a problem. It looks as if they’ve wasted their time relative to generating business. So only a minority of sellside recommendations are Hold.

Sticking to the Hold
“By contrast, the majority of stocks rated by our in-house analysts have a Hold rating. Part of our analysts’ compensation is by the quality of their recommendations and having their recommendations used by the portfolio managers, and the pattern of our recommendations seems to be a lot more balanced than the pattern of sellside analysts’ recommendations – which it should be.”

Martin Gilbert, Chief Executive of UK-quoted Aberdeen Asset Management, said: “We have long been an advocate of in-house research, so we won’t be asking for more research from the banks. We just look for access to company management, but there also we find that most companies know we are long-term investors and are happy to talk to us.”

Aberdeen is another asset manager that trades rarely, often holding on to its investments for a decade.

This has led to stiff competition for limited resources. But there may be a way forward that will benefit both sellside and buyside. Asset managers will be making greater use of derivatives, according to surveys by Morse and risk management consultant Protiviti, and this could be a significant source of revenue growth for investment banks.

Protiviti said in a report toward the end of last year that asset managers’ use of derivatives would rise over the next 12 to 18 months, with 79 percent of asset managers saying they would use them more. One of the strongest drivers behind this is the need to contain the risks of a portfolio on a daily basis, to obtain approval for a fund under the European Union’s Ucits III mutual fund structure, which is becoming the norm for all investors, including those outside Europe.

Rob Nieves, a director of Protiviti, said: “The asset management industry has reached an inflection point in its use of derivatives. In many cases, it would appear that derivatives strategies helped firms remove at least some downside risk and our survey suggests that derivatives will play an increasingly important role in asset management.”

Huw van Steenis, Financials Equity Analyst at Morgan Stanley, said: “We believe derivatives will be an area of growth for investment banks. There will be much more demand for derivatives offering downside protection – it will be a paradigm shift, though there may be less for taking more risk.

“Absolute-return funds will have a place in investors’ portfolios and some will be distributed using the Ucits III mutual fund structure, which will become more broadly used because distrust of non-regulated funds has grown and because investors are confident of the liquidity they offer. These funds will be buying market protection using derivatives. It is expensive now, but volatility will go down and it will become more and more common.”

If derivatives trading is to come to the rescue, the bankers will need to reassure asset managers on counterparty risks, which have taken on alarming proportions since Lehman Brothers filed for bankruptcy protection in September. Bankers will also need to soothe the managers’ perennial concerns about conflicts of interest, particularly front-running – using knowledge of a client’s intentions to make a profitable trade just ahead of it.

The codification of good practice embodied by Mifid has imposed a strict discipline on investment banks in this regard, and that should help. Better still will be the reassurance that arises from feeling that regulators have their eye on the ball.

© eFinancial News, 2009, www.efinancialnews.com