15 May 2012

Prevailing in a New Financial Landscape


IFC’s 14th Annual Global Private Equity Conference: Prevailing in a New Financial Landscape

Robert B. Zoellick
President, World Bank Group

Introduction

It’s a great pleasure to join you today for IFC’s 14th Annual Global Private Equity Conference in association with the Emerging Markets Private Equity Association, or EMPEA.

The story of this conference is emblematic of how the world economy has changed: Fourteen years ago, a small group met in the basement of IFC to discuss the prospect of private equity in developing countries. 

Today, there are more than 800 people here, from nearly 60 countries: institutional investors; public and pension funds; private investors; endowments and family offices; senior investment professionals; chief investment officers, and directors from leading fund managers around the world, as well as representatives from development institutions and government agencies.  

Plenary sessions and roundtable discussions cover a range of issues over three days – the global economic outlook and regulatory trends, of course – but also non-financial risks, infrastructure, SMEs, mezzanine…and intriguing markets beyond the BRICs to Turkey, Palestine, Africa, and frontier markets.

The success of this conference is in large part because of the enormous potential of emerging markets: over the past five years, developing countries have provided two-thirds of global growth.

This conference also reflects the terrific partnership between Lars Thunell and the Private Equity Funds group at IFC, and Sarah Alexander and her team at EMPEA.  Together, they’ve made this conference one of the leading global forums for private equity.  So I want to thank them for their hard work and their leadership.

I also want to thank an impressive set of participants: sponsors; panelists; speakers –and all of you. 

Yet I want to add a special word of thanks for Lars.

When I came to the Bank in July 2007, it was a time of trouble.

Frankly, meeting Lars was like having a breath of fresh air: He was steady, sensible, constructive – clearly an excellent executive, committed to the private sector’s role in development, and doing interesting things. 

Together, we came up with some innovative ventures both to help developing countries during tough times, and to move IFC even closer to the cutting edge of private sector development in these exciting markets.

He always offered good counsel, fine judgment, common sense, and friendship – for which I’m grateful. 

Keeping the Focus on Growth and Structural Reform

Last month, at the Spring Meetings of the World Bank Group and IMF shareholders, much of the focus was – understandably – on macroeconomic stability. 

This attention to the macroeconomic picture is necessary – but it’s not sufficient.  Extraordinary monetary policies buy time – but they don’t solve the fundamental problems.

As my friend, Deputy Prime Minister and Finance Minister Tharman of Singapore said at our Spring Meetings, investors will accept short-term costs if they perceive good returns over time.  All countries – developed and developing – need to focus on the structural reforms – the microeconomic policies – that will drive future growth.

Structural changes are essential to enhance productivity, competition, and innovation for developed and developing countries – whether it’s so that Europe can restore its economic performance, or China can avoid the so-called “middle income trap” and meet its challenges in the coming decades.  Structural reforms are important for the United States, too.

In practical terms – and for investors like you – what does structural reform mean?

It means strengthening the fundamentals of productive supply-side growth in all sectors – agriculture, manufacturing, services.

It means investing in infrastructure – especially through public private partnerships.

It means private sector development – the engine of innovation and job growth: markets; investment; small and medium-sized businesses; as well as focusing on jobs training and skills.

It means expanding markets – through both the hardware and software of trade: regional integration; ports and infrastructure; lowering the costs of formal, informal, or logistics barriers.

At the same time, structural reform means investing in green growth and energy efficiency – because “growing dirty, cleaning up later” is not a viable option.  Environmental degradation cannot be the price for short-term growth.

Structural reform also means investing in human capital: 

-          Efficient and affordable safety nets – because only 1 out of every 5 people in the poorest countries has any form of social protection;
-          Basic financial services – because more than half the world’s poor, almost 2.4 billion people, are “unbanked”;
-          Basic nutrition and health – because without these essentials, people cannot begin to achieve their potential; and
-          Quality education, connected to training, which leads to better jobs, more innovation, and greater gains for all.

Investing in people means tapping the energies and genius of all: young people, the elderly, and not least girls and women – an under-realized source of growth everywhere.

Importance of Partnerships

You can play an important role in making all this happen.  

Countries need private equity more than ever to push forward the structural agenda.  But to be most effective, the right partnerships are critical – to seize opportunities, open up new markets, share market knowledge and learning.  

We’ve seen this at the World Bank Group with IFC’s Asset Management Company, or AMC, which Lars and I created in 2010 to supplement IFC’s traditional model of raising money in bond markets and then investing it.  The idea was for the AMC to tap sovereign wealth funds, pension funds, and other institutional investors that are looking to increase their exposure to emerging markets, and that are interested in accessing IFC’s transaction pipeline, investment approach, and track record of superior returns. 

Now ably led by Gavin Wilson and a fine team, the AMC considers investments in spaces where IFC-supported private equity fund managers are not active, either because of the size of the investment or the riskiness of the sector.  As the AMC makes profitable returns for its institutional investors, these investors are likely to feel more comfortable investing in smaller private equity funds and frontier markets. 

The AMC now totals over $4 billion – almost $3 billion of which had little previous exposure to Africa and other less recognized emerging markets.  Building on the success of its $1 billion African, Latin American, and Caribbean Fund, last year, the AMC established an African Capitalization Fund that invests in commercial banking institutions in northern and Sub-Saharan Africa.  This Fund has already made investments in Ghana and Malawi. 

AMC offers a great model for a win-win partnership between capital, experience, and expertise.

When I asked one pension fund manager what attracted him to AMC, he told me: We now know developed markets are risky, too; we see growth potential in developing markets – but we don’t know where to invest.  IFC does.  And we can learn through this partnership.
  
Opportunities: Doing Well and Doing Good

We have seen the positive impact private equity can have. 

IFC has private equity investments of about $3 billion across 180 funds in emerging markets.  We estimate that these investments alone have helped create about 300,000 new jobs over the last 10 years, many of them for women.  We see much more potential for the future.

Private equity also increases the wealth – the savings – of pension funds and other institutional investors who assist many millions of savers, small and big.

Increasingly, institutional investors want their investment capital not only to do well, but to do good.  Private equity can help companies grow, hire more workers, raise productivity.  But at the same time, private equity can also be a powerful driver of change: raising standards; fostering growth; promoting new opportunities for businesses and individuals; helping to overcome poverty; bringing hope.

Let me give you some examples.

China Environment Fund

Tsing Capital’s China Environment Fund:  Founded by Don Ye in 2000 to focus on clean tech investments, the Fund adopted a triple bottom line, balancing social, environmental, and financial returns. 

At first, portfolio companies were resistant to the Fund’s focus and approach.  After all, government regulations were weak.  Investors would say, “We give you the money, and you give us a return.  Why are you talking to us about welfare, child labor, the environment, and insurance?”  Deal flow was slow for the first fund: it only raised $13 million from socially responsible investors.  

Now, Tsing Capital’s investors are telling a different story.   The company has become a market leader, generating three digit financial returns.  The latest China Environmental Fund, in which IFC invested $20 million, had a target size of $350 million. 

What’s the secret of Tsing Capital’s success?  Certainly persistence on the part of Don and his team.  But they also chose the right partners. 

From the outset, Tsing Capital performed social and environmental risk screening on companies during due diligence before it invested.  The company checked standards against national laws and regulations, but they also made thorough use of IFC’s performance standards which provide guidance on how to identify – and avoid – risks and impacts.

If Tsing Capital identified any excluded activity – potential deals were dropped.  If they found risks, they were corrected.   Tsing Capital worked hand-in-hand with companies to improve corporate governance and upgrade management capability and strategies.

Their hard work has paid off.  Today, Tsing Capital is raising environmental and social standards across the industry, and transmitting those standards into multiple start-up companies.  It has twice been honored as a corporate citizen in China, and Don Ye has been recognized by Business Week as one of China’s 40 most powerful people – alongside President Hu Jintao and Yao Ming of the Houston Rockets!

It’s a great success story.  It shows how commercial concerns linked to environmental and social standards offer win-win opportunities.  It demonstrates how private equity can be a powerful driver of growth and change.

Pragati India Fund

One of IFC’s recent investments, the Pragati India Fund, offers another good example of doing well and doing good. 

The fund is a pioneering investment vehicle that will focus on economically under-developed states in India.  These are areas where it has traditionally been a challenge to attract private investments – but where the changing political, social, and economic development dynamics offer new opportunities that are largely untapped.  Sixty percent of Pragati’s investments target the country’s 8 poorest states.  

IFC is investing up to $20 million in the new fund.  The idea is to help Pragati provide growth capital to start-ups outside of major urban centers – adapting successful business concepts to small- and medium-sized enterprises in low-income states and rural regions.  In India, small- and medium-sized businesses typically receive only 5 percent of all private equity capital, forcing them to rely on high-cost informal borrowing.  The Pragati Fund is designed to fill that funding gap and support the development of India’s financial infrastructure. 

As a co-investor, IFC can help increase the impact of the project – bringing not only capital but management expertise, which can help strengthen operations as well as environmental and social governance.

Just last month, Pragati India Fund made its first investment – in Jash Engineering Limited, a manufacturer of customized engineering goods for the water and waste water infrastructure sector.  Jash is now expanding into manufacturing equipment for water treatment plants, and even generating clean power from residual water of the plants.  The company is looking to move into municipalities across India.

With India’s government pushing for world class water treatment facilities, investing in a company like Jash offers real opportunities – to help these enterprises access finance, create jobs, promote inclusive growth, and contribute to cleaner, healthier water and energy for hundreds of thousands. 

Supporting the Poorest

I hope more fund managers and investors will look for these types of opportunities – and look for them beyond BRICs and within frontier regions.

IFC is increasingly shifting its focus in this direction.  Since 2007, over half the funds supported by IFC have been in the poorest countries supported by the World Bank’s International Development Association, or IDA.  IFC's equity returns over the last 10 years in low-income countries, compared with IFC as a whole, provide a compelling case for investment.

Africa has been IFC's top performing region over the last 10 years, with a real rate of return of 25 percent compared to 18 percent for IFC worldwide.

Sub-Saharan Africa is also the region where IFC’s investments in private equity funds have grown the most, and where we have more private equity partners – a total of 38 – than anywhere else.  In FY11, IFC committed new investments in 5 funds in Africa, and so far in FY12 we’ve invested $70 million in 3 funds. 

We already have plans for 2 or 3 more funds this fiscal year – including 8 Miles Fund, a pan-African private equity fund backed by Bob Geldof. 

8 Miles plans to make investments in growth areas across Africa such as agribusiness, consumer and retail health, telecommunications, banking and financial services.  The target fund size is $450 million, with $15 to $40 million investments in 10 to 12 African companies with above-average potential for revenue growth and job creation.   Investors partnering with IFC include the United Kingdom’s CDC, the African Development Bank, and Vital Capital Fund.  J.P. Morgan will provide fund administration services.

Private equity is already changing the face of Africa – and funds such as 8 Miles recognize that there’s huge potential to do more.  The fund’s name refers to the fact that, at their nearest points, Africa and Europe are only eight miles apart.

For much of Africa, however, the distance is far greater.  Countries dealing with fragility and a history of conflict are home to the world’s poorest – the Bottom Billion, as Paul Collier pointed out in his 2007 book, though today, it’s more on the order of 1.5 billion. 

In 2010, the World Bank focused on these countries in our World Development Report on Conflict, Development, and Security.  One of the conclusions of that report was that private sector development is a key factor in infrastructure and logistics, local banking, service delivery, and job creation – to show early results as well as longer-term growth.  Access to capital and finance is vital for putting these countries on the path to economic stability.  But, of course, most fund managers aren’t ready to provide the risk capital and strategic advice that private equity provides. 

That’s why IFC conceived of SME Ventures, an initiative to support local private equity fund managers and raise equity and advisory services funds in low income – and particularly post-conflict – countries.  Today, we’re putting private equity to work is some of the most underdeveloped areas of the world.

Take Central Africa – a region rich in minerals, but with a history of fragility and instability.  Private equity groups have traditionally focused on larger investments in the extractive industries.  Yet it’s small- and medium-sized businesses that create the most jobs in any economy.

So two years ago, IFC committed up to $12.5 million to the Central Africa SME Fund.  Managed by XSML, a Dutch SME fund manager, and Cenainvest, its partner based in Cameroon, the fund aims to mobilize a total of$25 million from other development finance institutions and the private sector.  With offices and a team on the ground in the Democratic Republic of the Congo and the Central African Republic, the fund’s focus is on making investments and providing advisory services to the local business community, to help African entrepreneurs build sustainable businesses that create jobs and income.

The funds’ first investments in the DRC have been in a healthcare clinic, including new medical training for staff; a call center; and a food processing company for baby cereal, where the fund is also helping improve the company’s financial management and developing audited financial statements.  In the Central African Republic, the fund is preparing to invest in an internet service provider.  

The Central Africa SME Fund is also looking ahead.  So, for example, it’s conducting a market study on fresh fruits for a fruit producer in Kinshasa, and helping prepare a business plan and financial projections for a cassava mill run by smallholders.

Through the SME Ventures initiative, IFC has also committed equity to funds for Liberia and Sierra Leone; Bangladesh; Nepal; and we are currently working on a fund for Bhutan.

And just last month, IFC made its first private equity investment in Haiti.

When Haiti was hit by a major earthquake in 2010, we knew that the Bank Group’s support to help the country recover, rebuild, and break its dependence on aid must include bringing in the private sector.

IFC has already committed five investments and significantly scaled up its advisory operations in Haiti.  These projects are helping create 5,000 new jobs – as well as safeguard 5,000 existing jobs.

Now, IFC is committing up to $10 million to the Leopard Capital Haiti Fund to support small and medium-sized businesses.  

With a team already on the ground in Port-au-Prince, the fund is raising $75 million in equity to invest in four main sectors: renewable energy; low- and medium-income housing; agribusiness; and hospitality.  It’s also raising $4 million in donor money to provide technical and managerial assistance to companies that were thriving before the earthquake, but now want to upgrade their operational capacity and grow.  At the same time, this Haiti Fund will work with its portfolio companies to enhance corporate governance, and environmental and social standards and practices.

It’s an exciting new partnership for IFC.  Our Private Equity Funds team has already catalyzed an additional $10 million from investors – and will continue to support the Leopard Capital team in raising more.  

We hope this will encourage more investors to invest in Haiti’s potential.

Importance of Openness

Over the past five years, I’ve seen this private equity conference grow in size, scale, and quality.  I’ve also seen, from my discussion with our clients in developing countries around the world, just how important they consider the capital and expertise that private equity brings in helping their countries grow and raise standards.

Yet the role of private equity has come under increasing scrutiny and political focus in the developed world – not least here in the United States.  For some, the very term is synonymous with corporate raiders, asset strippers, and secretive back room deals.

The private equity industry needs to respond to the demand for higher standards of openness, transparency, and integrity.   Private Equity should be a major part of the new investment climate in emerging markets.   It should increase overall investor confidence.  

I recognize that some investment professionals aren’t used to being in the public eye.  But you are now.  And transparency is the best antidote to conspiracy theories.   

At the World Bank Group, we can see the transformative power of openness.    Our new information and knowledge-sharing initiatives may turn out to be the most important legacy of my tenure at the Bank Group.  

Our Access to Information policy releases to the public vast numbers of documents about the Bank’s projects, analytic and advisory activities, and proceedings of the Board.  It’s now viewed as the “gold standard” for financial institutions.  

Our Open Data initiative has unlocked our world-class knowledge and development data.  We now provide free access to more than 7,000 indicators, including GDP data and development statistics, meaning that anyone – from a PhD student, to an NGO, to a farmer, or even a private equity investor – can download our data, analyze it, and come up with solutions.

Our Mapping for Results website shares geo-spatial information on more than 2,500 Bank-funded projects. 

Now we are beginning to work with communities to map their own infrastructure – clinics, wells and schools.  The next step is to allow people to use hand-held devices to let the Bank know, from wherever there are in the world, what is really going on with our projects and investments.

These initiatives are making the World Bank Group more open, transparent, and accountable; helping us fight corruption and build better governance; and getting us ready for a new era of democratized development.

The investment community can benefit from greater openness as well.  
  
Conclusion

I have always enjoyed taking part in this conference.  I have spoken at it every year during my time at the World Bank Group. 

I wanted to come here again, for the fifth time, because I am convinced that private equity investments can be one of the most powerful and important agents of change for developing countries: boosting local economies and creating jobs; improving governance and sustainability standards in private industry and capital markets; transforming thinking about growth; reducing poverty and creating hope. 

That Change agenda is the core of our mission at the World Bank Group.  It’s what we strive to do every day.  It’s why private equity – and this conference – is important to me. 

The success of this event demonstrates that I’m by no means alone in this conviction. 

So I want to thank you again for joining us today.  I hope your time at this conference opens new insights and creates new partnerships for all of you – and for the World Bank Group.  

But most of all, I hope that it affirms your commitment to doing well and doing good – to using the power of private equity to support people in developing markets who want to create, build, and seize new opportunities.  

That can be a lasting legacy for all of us.  

Thank you.

Mauritius: Notice by the Minister under section 411(3) of the Insolvency Act


Notice is hereby given of the intention of the Minister of Finance and Economic Development to make regulations in respect of the qualifications of Insolvency Practitioners.

2. The matters to be contained in the intended regulations are as follows –

  • no person shall have his name entered in the register of Insolvency Practitioners under section 374 of the Act unless he 
  • possesses such qualifications as would entitle him to be a Secretary under section.165 of the Companies Act;
  • the revocation of the Insolvency (Transitional Provisions) Regulations 2009; 
  • any administrator, receiver or liquidator acting as such under the revoked Insolvency (Transitional Provisions) Regulations 2009 shall, upon completion of any administratorship, receivership or liquidation conducted pursuant to those regulations, cease to be an Insolvency Practitioner unless his name is entered in the register of Insolvency Practitioners under section 374 of the Act.


3. A copy of the draft regulations which is reproduced hereunder is available for inspection at the office of the Director of Insolvency Service, One Cathedral Square Building, Jules Koenig Street, Port Louis, on weekdays from 9.00 hrs to 16.00 hrs and may also be consulted on the website of the Companies Division (http://companies.gov.mu).

4. Submissions may be made on the draft regulations to the Director of Insolvency Service and sent to One Cathedral Square Building, Jules Koenig Street, Port Louis or by email at comd@mail.gov.mu not later than 60 days from the date of the publication of this Notice.

Dated this 15th day of May 2012.


DRAFT

Government Notice No. ….. of 2012


THE INSOLVENCY ACT

Regulations made by the Minister under section 411 of the Insolvency Act

1. These regulations may be cited as the Insolvency (Qualifications of Insolvency Practitioners) Regulations 2012.

2. In these regulations – “Act” means the Insolvency Act.

3. No person shall have his name entered in the register of Insolvency Practitioners under section 374 of the Act unless he possesses such qualifications as would entitle him to be a Secretary under section.165 of the Companies Act

1. The Insolvency (Transitional Provisions) Regulations 2009 are revoked.

2. Any administrator, receiver or liquidator acting as such under the revoked Insolvency (Transitional Provisions) Regulations 2009 shall, upon completion of any administratorship, receivership or liquidation conducted pursuant to those regulations, cease to be an Insolvency Practitioner unless his name is entered in the register of Insolvency Practitioners under section 374 of the Act

3. These regulations shall come into operation on …………………… 2012.

Made by the Minister on .....……… 2012


ICTA: Guidelines for submission of tariff applications for ICS

Following the recent amendments which were brought to sections 2, 17, 30, 31 and 51 of the Information and Communication Technologies Act 2001 (ICT Act 2001) by Section 14 of the Economic and Financial Measures (Miscellaneous Provisions) (No.2) Act 2011, the Information and Communication Technologies Authority (ICT Authority) has finalised a set of guidelines (Tariff Guidelines), which operators shall have to adhere to when submitting tariff applications for any information and communication service (ICS).

Mauritius: Industry training session on the new FSC AML/CFT Code


The Financial Services Commission (‘FSC’) held training sessions with industry representatives on the new FSC Code on Anti Money Laundering and Combating the Financing of Terrorism (AML/CFT) on 10 and 11 May 2012. After the industry training on the Guide to Global business, this initiative is in line with the FSC’s commitment to increase cooperation and interaction with industry partners.

The FSC Chief Executive pointed out that it is important to update our code and guidelines and make sure that Mauritius is recognized as a reputable and well regulated jurisdiction. Ms Clairette Ah Hen also said that while adherence with international norms and standards ensure that our jurisdiction remains competitive, the FSC is also ready to listen to the industry for its views.

The new AML/CFT Code came into operation on 1 April 2012. It is the result of a review initiated by the FSC following the enactment of the new set of legislations and is intended for Management Companies, Investment Businesses and Insurance Entities.

A major step in this review was to harmonise the requirements of the Codes issued and come up with a single comprehensive Code on Anti Money Laundering and Combating the Financing of Terrorism (AML/CFT) for all FSC licensees. This approach is in line with the consolidated licensing and supervisory framework put in place by the Financial Services Act 2007.

The main changes brought include the following:

• Enhanced general requirements for all licensees as well as specific guidance to each sector
• Recommendations from the last IMF/World Bank Financial Sector Assessment Program
• Revised list of equivalent jurisdictions and a list of non-cooperative countries and territories and countries with deficiencies in their AML/CFT regime
• Revised list of recognised, designated and approved stock/investment exchanges

14 May 2012

Shifting Capital: The Rise of Financial Centres in Greater China


Chatham House Report
Paola Subacchi, Helena Huang, Alberta Molajoni and Richard Varghese, May 2012
  • China needs to develop a deeper and more diversified financial sector that reflects the size and the international integration of its real economy to ensure the efficient allocation of capital. Yet building efficient financial systems in China and modern financial centres in Greater China will be riddled with challenges and obstacles.
  • The report focuses on the steps that China is taking to reform its financial services sector through the incremental development of financial centres in the Greater China region. The report takes a broad regional approach, looking at four key international financial centres (IFCs): Shanghai, Taipei, Shenzhen and Hong Kong.
  • The development of these four IFCs provides a picture of the complex evolution of China's financial reform, which is a policy-driven process where political considerations directly interact with market forces. 
  • China's financial reform is a gradual process that will take time to deliver the expected results, but it is critical for the global economy that China manages its transition to a modern financial system. 

12 May 2012

The Global Business Leaders Series - Leadership in a Globalised World: Nurturing New Partners


All India Management Association (AIMA) is organising The Global Business Leaders Series with the theme Leadership in a Globalised World: Nurturing New Partners from 29th to 31st May 2012 in Mauritius.

The Summit is being organized in partnership with the Board of Investment, Mauritius, Enterprise Mauritius and the Indian High Commission, Mauritius.

With the waning of the developed markets, emerging markets are the flavor of the decade and now represent the reshaped global economic map. These economies are throwing up new dynamics of management and will be drivers of future economic growth, but they will also throw up complex challenges.

The Summit is a unique platform to link businesses in emerging markets. And will focus on building thought leadership in emerging markets, will bring together business leaders to discuss the new competitive challenges, financial and social issues in the current times of uncertainty. These challenges will make companies review their strategies, beliefs and principles. The Summit will focus on how management innovations have influenced companies and the navigational challenges that leaders will be faced with in the near future.

The Summit with its powerful keynotes, breakaway sessions and industrial site visits will attract Ministers from Emerging markets, Chairs and Chief Executives of business, investment fund managers and other industry leaders.

Join the International delegation at the Summit scheduled during 29-31 May, 2012. Summit partners Board of Investment, Mauritius and Enterprise Mauritius are keen to organize site visits to their industrial parks on May 31, 2012 based upon your interest and availability. You can send your response in advance so as to help in planning and organising of the logistics for site visits in time. 


11 May 2012

Fighting unintended double non-taxation


Senior tax officials from OECD countries met in Montreal on 8-10 May 2012 to discuss unintended double non-taxation due to the use of hybrid mismatch arrangements.  The meeting was organised by the Canada Revenue Agency (CRA) in cooperation with the OECD.

Participants discussed recent trends in the area of hybrid mismatch arrangements and shared ideas and experiences on detection, deterrence and response strategies used across the world. Discussion focused on recent developments and also on the group of users and promoters. Participants included representatives from Australia, Austria, Canada, Chile, Denmark, Germany, Italy, Japan, Korea, Mexico, the Netherlands, New Zealand, Spain, Sweden, the United Kingdom and the United States.

Commenting on the meeting, CRA Assistant Commissioner, Mr. Terrance McAuley, stated that “As modern tax administrations share similar challenges they recognize the need to collaborate more in managing international tax risks and in responding to the challenges and opportunities of the global tax environment”.

Countries have historically set-up their tax systems and the elements thereof in isolation. In a globalised world this creates opportunities for arbitrage through hybrid mismatch arrangements. These arrangements exploit differences in the tax treatment of instruments, entities and transfers between two or more countries. Recurring elements include the use of hybrid entities, dual residence companies, hybrid instruments and transfers.

Typical effects which hybrids aim at achieving are double deductions (where a deduction related to the same contractual obligation is claimed for income tax purposes in two or more different countries), deduction / no inclusion (where there is a deduction in one country but no corresponding inclusion in the taxable income in another country), and foreign tax credit generators (which generate foreign tax credits that would otherwise not be available.

These arrangements raised policy issues in terms of tax revenue, competition, economic efficiency, transparency and fairness.



  • Consider introducing or revising targeted rules denying benefits;
  • Consider the introduction of mandatory disclosure obligations for taxpayers using these schemes;
  • Continue to share intelligence and information and build capacity in their tax administrations.


Mauritius Hosts Asia/Africa International Fiscal Association Conference


The 6th Edition of the Asia/Africa International Fiscal Association Conference organised by the International Fiscal Association (IFA) of Mauritius opened yesterday at the Hilton Hotel, Wolmar, Flic en Flac.

The two-day conference, with focus on the theme “International Tax Developments-Global and Regional”, aims at promoting a better understanding of international taxation and its incidence on cross-border trade and investment. Participants, mostly experts in the financial sector, are examining issues relating to the structuring of investment in Asia and Africa, double taxation agreements and a better cooperation and effective exchange of tax information.

The conference is also serving as platform for the participants to address investment opportunities that Africa offers in various sectors, such as energy, mining, construction and in telecommunications and IT.

Speaking at the opening of the conference, the acting Minister of Finance and Economic Development, Dr Vasant K. Bunwaree, said that government is committed to consolidate the position of Mauritius as the jurisdiction of choice for investing into Africa. The emergence of Mauritius as a major contributor of Foreign Direct Investment to India and China, he said, is due to a number of factors namely favourable tax treaties; the quality of the services offered by the Mauritius International Financial Centre, a highly competent pool of professionals, the quality of our regulatory framework, cultural affinities and the long historical ties with both China and India.

The acting Minister of Finance added that globalisation and disappearing boundaries have led to an increase in the cross-border trade and investment, stressing that an increasing number of activities conducted on a transnational basis have led to the growing impact of international taxation.

It will be recalled that the Mauritius Branch of the IFA is operational since 2004 and has organised three regional conferences on various taxation topics and other issues of current importance. The objectives of the Association are to assist and facilitate the activities of IFA as its Mauritius Branch in co-operation with IFA headquarters. The IFA headquarters covers a wide network of 11 500 members, intellectual resources and institutions in 102 countries across the globe.

10 May 2012

OECD launches Tax Inspectors Without Borders


 The OECD’s Task Force on Tax and Development, meeting in Cape Town, South Africa, has launched the concept of Tax Inspectors Without Borders/ Inspecteurs des impôts sans frontières – a new initiative to help developing countries bolster their domestic revenues by making their tax systems fairer and more effective. Building on that concept, the OECD will  establish an independent foundation, to be up and running by the end of 2013, that will provide international auditing expertise and advice to help developing countries better address tax base erosion, including tax evasion and avoidance. The initiative was championed by Oupa Magashula, Commissioner General of the South Africa Revenue Service, Nhlanhla Nene, South Africa’s Deputy Finance Minister and Pascal Saint-Amans, Director the OECD’s Centre for Tax Policy and Administration.

The stakeholders from business, civil society, as well as OECD and developing country governments attending the Tax and Development Task Force unanimously welcomed the initiative which fills a gap in the existing provision of audit assistance. They agreed to work together to launch a sustainably financed independent organisation to host a Tax Inspectors Without Borders secretariat by the end of next year. This initiative complements several efforts by donor agencies, notably USAID, to mobilise expertise.

“Countries helping each other is the only way to effectively fight global tax evasion and avoidance.”, said OECD Secretary-General, Angel Gurría. “The idea is quite simple. Tax Inspectors Without Borders will match ‘demand’ from developing countries wanting outside help with complex international tax audits with the ‘supply’, of international experts, drawn mainly from cadres of tax inspectors serving in other tax administrations. Joint teams will operate under the local leadership in each country, based on a learning by doing approach”.

Oupa Magashula added that, “The Tax and Development Task Force should now mobilise the best experts and make them available to developing countries and get the Tax Inspectors Without Borders secretariat in place so the work can begin in earnest from 2013”.

KPMG: African Emergence – The Rise of the Phoenix


On the occasion of the World Economic Forum on Africa 2012 that is taking place in Addis Ababa, Ethiopia, from 9 to 11 May 2012, KPMG Africa has released a report on Foreign Direct Investment (FDI) in Africa.

The report, titled African Emergence – The Rise of the Phoenix, discusses key themes around the three mega-trends currently shaping business in Africa, specifically high demand for natural resources, increased consumerism by an emerging African middle class and large-scale investments into infrastructure. 

The report finds that while Africa offers significant investment opportunities, the continent has not yet reached its potential. Yunus Suleman, Chairman of KPMG Africa Limited, comments, “FDI is an essential component of Africa's sustainable, positive future. And it's good for investors too – there is undoubtedly money to be made in Africa, recognised today as one of the world's most attractive hgh growth markets. Understanding FDI, what it means to Africa as much as to the global investor, accessing these funds and securing the desired returns, are all very much part of today's African story.”

The end of the Cold War more than two decades ago brought new freedom to Africa. People started to demand political representation and called on governments to be more transparent. Democratic features were introduced and vibrant civil society emerged fighting for more rights. The pressure to transform was irresistible and with political transformation, came economic transformation – state-centred structures and policies were swept aside and, while elements of this legacy linger, private ownership and entrepreneurship have replaced the idea that the state will and can provide.

Increasingly, investors have become aware not only of the risks of investing in Africa, but the risk of not investing in the continent. They have become more focused on where in Africa to invest, as opposed to whether to invest or not. Increased awareness of the potential size of the African consumer market, and a number of significant discoveries of oil and minerals in recent years, which have again highlighted the natural resources potential, have all played their role in attracting additional investment to the continent. Concurrently, an increased interest from foreigners and local governments alike to address the continent’s infrastructure challenges, has seen increased investment in roads, rail and ports.

While FDI into Africa has increased dramatically over the last decade, from US$110 billion at the end of 1998 to US$554 billion at the end of 2010, the overall FDI amount is still relatively small compared to other emerging market economies. China alone attracted US$578.8 billion at the end of 2010, more than all African countries combined. Brazil had FDI worth US$472.6 billion. “However, improvements in the business, political and macroeconomic environments across the continent have made African economies more attractive than ever before,” Suleman continues.

“Unlike China, India and Brazil, Africa is not a country: it is a continent of 54 very diverse countries, each with its own natural and cultural endowment as well as regulatory environment to be navigated through. While regional economic integration is creating greater economies of scale and lesser complexity, doing business in Africa must be guided by a deep understanding of the landscape and experience in stewarding successful translation of the immense opportunities into rewarding returns. Without this direction, many international investors have burnt their fingers and somewhat contributed to the earlier skepticism about the prospects of the continent. Those who have been guided through the complexity of Africa have realised premium returns unseen anywhere else in the world and are part of the emerging story of Africa as a priority investment destination,” says Josphat Mwaura, CEO, KPMG in East Africa.

Africa still exports mainly minerals and hydrocarbons. The top five hydrocarbon exporters, namely Algeria, Angola, Egypt, Libya and Nigeria account for 50 percent of all exports from Africa. They have experienced an 89.2 percent increase between 2001 and 2010, mostly due to an increase of petroleum exports. Of all oil exports from Africa, Europe and the United States account for about a third, with gradually decreasing amounts during recent years. China and India have most of the market share and have maintained robust economic growth rates despite the global financial crisis. Demand for non-oil commodities from Africa, such as gold, platinum, diamonds, iron and copper are equally shifting from Europe and the United States mainly to China. By the end of 2010, 12.9 percent of Africa's non-oil exports went to China, almost five times the amount of 10 years earlier. This dependence on exports of natural resources makes Africa vulnerable to volatility in global commodity prices.

The expanding economies of Asia and Latin America will enhance trade with Africa in the future. Traditionally most FDI in Africa has targeted North African countries. With the Arab Spring in 2011, this picture changed in favour of sub-Saharan Africa. This trend is expected to continue over the next decade, since sub-Saharan countries have become more attractive destinations for FDI. Inner-African investment remains weak, amounting to about five percent of the volume of all FDI, most of it contributed by South Africa. Nevertheless, Nigeria and Kenya are playing a more important role in West and East Africa respectively.

The idea of a 'gateway' into Africa has become a dated concept. Entry into African markets now mainly depends on the nature of the investment. Suleman elaborates, “Practically, there is no single 'gateway' but several 'gateways', obviously including South Africa but with Egypt, Kenya, Mauritius and Nigeria (and others) representing no less an opportunity. There is empirical evidence to suggest that, in a few years time, South Africa may no longer be the largest economy on the continent. Nigeria is expected, with several other countries, to close the gap.

“All of this drives higher investment from companies and countries seeking a foothold in Africa and looking to take a share of the tremendous wealth and potential that has yet to be unlocked. What we have seen to date is the tip of the proverbial iceberg – the continent has much more to offer and investments will continue to flow.”

Singapore: Corporate Governance Council releases Risk Governance Guidance for Listed Boards


The Corporate Governance Council (Council) has today released its Risk Governance Guidance for Listed Boards (Guidance).

Global events since the 2008 financial crisis have underscored the importance of companies taking an integrated, enterprise-wide perspective of their risk exposure. There is heightened concern and focus on risk governance, and it has become clear that companies should have a sound system of risk management and internal controls to identify, assess, manage and mitigate risk. In this regard, following its review of the Code of Corporate Governance (Code), the Guidance is another key initiative by the Council to strengthen the corporate governance practices of listed companies in Singapore.

The Council intends the Guidance to provide key information on risk governance to all Board members. This would include factors which the Board should collectively consider when overseeing the company’s risk management framework and policies. The Guidance also spells out the Board's and Management’s respective responsibilities in managing the company's risks. The Guidance is not meant to be a new rulebook or to prescribe additional standards. Its purpose is to enhance the awareness of Board members, and spur them to work towards strong corporate governance in their companies.

Mr Alan Chan, Chairman of the Council, said, “The Guidance, with its focus on risk management, acts as a complement to the Code and enhances the framework for corporate governance of Singapore-listed companies. Along with other existing materials such as the handbook for directors published by the Accounting and Corporate Regulatory Authority, the Guidance will contribute to better awareness of Board responsibilities within Singapore companies. This will in turn enhance investor confidence and Singapore’s reputation as a trusted financial and business hub."

France: Mesures de lutte contre la fraude et l'évasion fiscales. Etats et territoires non coopératifs.

L’article 22 de la troisième loi de finances rectificative pour 2009 (loi n°2009-1674 du 30 décembre 2009, Journal officiel du 31 décembre 2009) instaure différents dispositifs fiscaux à l’encontre des Etats et territoires non coopératifs. La présente instruction a pour objet de préciser : - la notion d’Etat ou territoire non coopératif ; - les mesures applicables aux transactions réalisées par des résidents français avec des Etats ou territoires non coopératifs ; - les mesures applicables aux transactions réalisées par des résidents d’Etats ou territoires non coopératifs ou localisées dans ces Etats. La présente instruction précise la portée des mesures qui ne sont pas commentées par des instructions particulières. Elle renvoie le cas échéant aux instructions déjà publiées par l’administration.

14 A-5-12 n° 53 du 10 mai 2012 : Mesures de lutte contre la fraude et l'évasion fiscales. Etats et territoires non coopératifs.


The Economist: India’s balance of payments - The tail that wags the elephant


India plays fast and loose with its balance of payments

09 May 2012

South Africa: Supreme Court of Appeal judgement on taxation of capital gains


I note the Supreme Court of Appeal's judgment in the matter of Commissioner for the South African Revenue Service v Tradehold Ltd on 8 May 2012.

The capital gains tax (CGT) system has since its inception in 2001 been based on the principle that South African residents are taxed on all of their assets, irrespective of where these assets are located. Another principle has been that it would be unfair to tax a resident's capital gains accumulated before the taxpayer became a resident. Equally, not taxing capital gains accumulated while a taxpayer was a resident would be unfair.

Taxpayers are therefore deemed to have sold their assets, except those with a particularly close connection to South Africa, at market value on the day before the change in their residence. The tax payable on this basis is known internationally as an exit charge or exit tax. It is encountered in varying forms in, for example, Australia, Canada, the USA, the UK and a number of other European jurisdictions.

The Supreme Court of Appeal's judgment that a double taxation agreement (DTA) applied to a deemed disposal and thus did not allow for an exit charge appears to disturb the balance that has been achieved. The full judgment is available from:


National Treasury and SARS are studying the judgment and, if necessary, I will propose amendments to further clarify that a DTA does not apply to deemed or actual disposals while a taxpayer is resident in South Africa. Measures such as the immediate termination of a taxpayer's year of assessment on the day before becoming non-resident, as is the practice in Canada, are being explored.

In order to maintain stability in the tax system, I will propose that any amendment take effect from 8 May 2012.


Issued by Minister of Finance Pravin Gordhan

Issued by Ministry of Finance
9 May 2012

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08 May 2012

Mauritius - HSBC Global Custody Services now available to global investors


HSBC has officially launched its Global Custody proposition, a first in Mauritius. Key players from the Global Business sector in Mauritius attended the launch event hosted by Siew Meng Tan, CEO of HSBC Mauritius, in the presence of the First Deputy Governor of the Bank of Mauritius and the Chief Executive of the Financial Services Commission.

HSBC has introduced its Global Custody proposition in Mauritius to meet a growing demand from international clients. This new product will give investors access to markets in over 90 countries around the globe, including 22 in Africa.

Global investors look for a highly professional custody service with a strong focus on accuracy and transparency of asset reporting. A strong global custody service provider, like HSBC, can help them achieve increased processing efficiency and better risk management. Awarded ‘Best Global Custodian’ in the 2011 Global Custodian Survey (top rated in 8 out of 10 categories), HSBC services more than 2,700 corporate and institutional clients worldwide, with US$5.4 trillion of assets under custody.

07 May 2012

India: Finance Minister’s full statement in Parliament on GAAR


Madam Speaker,

I presented the Budget for the year 2012-13 on 16th of March, 2012. Since then I have received a large number of suggestions both from within the House and outside.  Most of these pertain to tax proposals and range from seeking modification of some proposals to reconsideration or review of certain others. Requests have also been received for granting some fresh reliefs. I express my sincere gratitude to everyone for the interest they have shown in appraising my Budget proposals. I appreciate the valuable suggestions they have made and understand the concerns they have expressed.

2.            While I propose to address some of these through amendments to the Bill, a number of concerns relating to indirect taxes can be addressed through notifications. I shall now take up the significant amendments to the Budget proposals. 

Direct Taxes         

3.            I thank the members of the Standing Committee for examining the Direct Taxes Code Bill (DTC) and making valuable suggestions. Some of the proposals in the DTC such as removal of the cascading effect of the Dividend Distribution Tax, allowing Venture Capital to invest in all sectors, introduction of Advance Pricing Agreements and raising the threshold limit for audit and presumptive taxation to Rs. 1 crore which have been endorsed by the Standing Committee, have already been included in the Finance Bill. However, I could not consider all the recommendations of the Committee as the Report was received on 9th of March, after most of the proposals of the Finance Bill, 2012 had been finalized.

4.            In addition, certain provisions relating to a General Anti-Avoidance Rules (GAAR) have also been proposed in the Finance Bill, 2012.  After examining the recommendations of the Standing Committee on GAAR provisions in the DTC Bill 2010, I propose to amend the GAAR provisions as follows:

(i)            Remove the onus of proof entirely from the taxpayer to the Revenue Department before any action can be initiated under GAAR.
(ii)           Introduce an independent member in the GAAR approving panel to ensure objectivity and transparency. One member of the panel now would be an officer of the level of Joint Secretary or above from the Ministry of Law. 
(iii)          Provide that any taxpayer (resident or non-resident) can approach the Authority for Advance Ruling (AAR) for a ruling as to whether an arrangement to be undertaken by her is permissible or not under the GAAR provisions.

5.            To provide greater clarity and certainty in the matters relating to GAAR, a Committee has been constituted under the Chairmanship of the Director General of Income Tax (International Taxation) to give recommendations for formulating the rules and guidelines for implementation of the GAAR provisions and to suggest safeguards so that these provisions are not applied indiscriminately. The Committee has already held several rounds of discussion with various stakeholders including the Foreign Institutional Investors. The Committee will submit its recommendations by 31st May 2012.

6.            To provide more time to both taxpayers and the tax administration to address all related issues, I propose to defer the applicability of the GAAR provisions by one year. The GAAR provisions will now apply to income of Financial Year 2013-14 and subsequent years.

7.            Hon’ble Members are aware that a provision in the Finance Bill which seeks to retrospectively clarify the provisions of the Income Tax Act relating to capital gains on sale of assets located in India through indirect transfers abroad, has been intensely debated in the country and outside. I would like to confirm that clarificatory amendments do not override the provisions of Double Taxation Avoidance Agreement (DTAA) which India has with 82 countries. It would impact those cases where the transaction has been routed through low tax or no tax countries with whom India does not have a DTAA .

8.            The retrospective clarificatory amendments now under consideration of Parliament will not be used to reopen any cases where assessment orders have already been finalized. I have asked the Central Board of Direct taxes to issue a policy circular to clearly state this position after the passage of the Finance Bill.

9.            Currently, long term capital gain arising from sale of unlisted securities in the case of Foreign Institutional Investors is taxed at the rate of 10% while other non-resident investors, including Private Equity investors are taxed at the rate of 20%. In order to give parity to such investors, I propose to reduce the rate in their case from 20% to 10% on the same lines as applicable to FIIs.

10.          To promote further depth of the capital markets through listing of companies, I propose to extend the benefit of tax exemption on long term capital gains to the sale of unlisted securities in an initial public offer. For this purpose, I propose to provide the levy of Securities Transaction Tax (STT) at the rate of 0.2 per cent on such sale of unlisted securities.

11.          It has been proposed in the Finance Bill that any consideration received by a closely held company in excess of the fair market value of its shares would be taxable.  Considering the concerns raised by ‘angel’ investors who invest in start-up companies, I propose to provide an enabling provision in the Income Tax Act for exemption to a notified class of investors. 

12.          In order to augment long-term low cost funds from abroad for the infrastructure sector, Finance Bill proposes a lower rate of withholding tax of 5% for funding specific sectors through foreign borrowings. To further facilitate access to such borrowings, I propose to extend the lower rate of withholding tax to all businesses. This lower rate of tax would also be available for funds raised through long term infrastructure bonds in addition to borrowing under a loan agreement.

13.   The Reserve Bank of India is formulating a scheme for subsidiarisation of Indian branches of foreign banks to ring fence Indian capital and Indian operations from economic shocks external to the Indian economic scenario. To support this effort, I propose to provide tax neutrality for such subsidiarisation.

14.          The Finance Bill proposes that every transferee of immovable property (other than agricultural land), at the time of making payment for transfer of the property, shall deduct tax at the rate of 1% of such sum.  I have received a number of representations pointing out the additional compliance burden this measure would impose. I, therefore, propose to withdraw this provision for levy of TDS on transfer of immovable property.

15.          To curb the flow of unaccounted money in the bullion & jewellery trade, the Finance Bill proposes the collection of tax at source (TCS) by the seller at the rate of 1 per cent of the sale amount from the buyer for all cash transactions exceeding Rs.2 lakh. Responding to the representations made by the jewellery industry that this would cause undue hardship, I propose to raise the threshold limit for TCS on cash purchases of jewellery to Rs.5 lakh from the present Rs.2 lakh. The threshold limit for TCS on cash purchase of bullion shall be retained at Rs.2 lakh. However, it is being clarified that bullion will not include any coin or other article weighing 10 gms or less.  

Customs and Central Excise

16.          A related proposal that has attracted public attention is the imposition of Central Excise duty on unbranded precious metal jewellery at the rate of 1%. Madam Speaker, I would like to reiterate that the levy was well-intentioned and introduced not so much for raising revenue as for rationalization and movement towards GST. However, the outpouring of sentiment both within and outside the House indicates that we are not ready for it. As such, the Government has decided to withdraw the levy on all precious metal jewellery, branded or unbranded, with effect from 17th March, 2012.

17.          The House would recall that certain amendments were proposed in the Customs and Central Excise Law in respect of the classification of offences as cognizable and non-bailable. In response to concerns expressed by Members that the proposal regarding grant of bail only after hearing the public prosecutor is too harsh, I propose to omit this provision entirely. In addition, only serious offences under the customs law involving prohibited goods or duty evasion exceeding Rs.50 lakh, shall be cognizable. However, all these offences shall be bailable.

18.          There are a few other proposals relating to rationalization and adjustment of central excise and custom duties which I will place before the House while replying to the debate.

Service Tax

19.          As Hon’ble Members are aware, taxation of services has undergone a paradigm shift with the introduction of a Negative List.  This initiative has been widely welcomed.

20.          The negative list has been drawn keeping in view the federal nature of the polity.  Some of the States, through the Empowered Committee of State Finance Ministers, have expressed their concerns.   I have decided to address their concerns by making changes in the definition of “service” which will exclude the activities specified in the Constitution as “deemed sale of goods”.  The definition of “works contract” has also been enlarged to include movable properties.

21.          Exemption for specified services relating to agriculture in the Negative List has also been extended to agricultural produce enlarging the scope of the entry.

22.          There are some other minor changes in the definitions based on the widespread feedbacks and suggestions that we have received from various stakeholders and are specified in the revised draft.

23.          Notifications to give effect to these changes would be issued in due course and laid on the table of the House.
            
I would now like to hear the views of my colleagues from both sides of the House on the Budget proposals.

Mauritius and Kenya Sign Agreements on Taxation and Investment


A Double Taxation Avoidance Agreement (DTAA) and an Investment Promotion and Protection Agreement (IPPA) between Mauritius and Kenya were signed this morning in Port Louis by the Vice-Prime Minister, Minister of Finance and Economic Development, Mr Xavier Duval, and the Minister of Finance of Kenya, Mr Robinson Njeru Githae.

The DTAA which will give a further spur to the positive evolution of economic ties between the two countries will provide greater tax certainty for businessmen while making clear the taxing rights of Mauritius and Kenya on income arising from cross-border economic activities between the two countries. It will also encourage investment flows into Kenya (inbound Foreign Direct Investment FDI) especially from emerging investor countries such as India and China with which Mauritius has attractive tax treaties. The objective is to bring the competitiveness of Kenyan companies at par with that of other African countries already having tax treaties with Mauritius.

As regards the IPPA, it will give a boost to cross-border investment by protecting investors from direct or indirect double taxation, enhance commercial and economic relations and broaden investment opportunities for the business community. It will also make it easier for them to invest capital and repatriate their investments and profits to their respective countries.

The IPPA will cover the key issues such as scope and definition of investment, admission and establishment, national treatment, most-favoured-nation treatment, fair and equitable treatment, compensation in the event of expropriation or damage to the investment, guarantees of free transfers of funds, and dispute settlement mechanisms, both State to State and investor-State.

Speaking on the occasion, the Vice-Prime Minister, Mr Duval, underlined that Mauritius is making a lot of efforts to ensure its contributing to the development of the African continent. According to him, Africa is an emerging market and is growing at a fast pace, registering a growth rate of over 6%. Mr Duval stressed that Mauritius, being an emerging economy and due to its strategic location, has a central role in facilitating trade and investment.

Mauritius is positioning itself as a financial centre of substance in the region in investment and trade sector and investors are encouraged to tap the African market, said the VPM. Mauritius has opened up to foreign inward investment/business with attractive facilitation measures in a number of areas namely, Seafood Hub, Business Process Outsourcing and Integrated Resort Schemes (IRS).

The Minister of Finance of Kenya, Mr Robinson Njeru Githae, for his part, described the agreements as a significant achievement that demonstrates the commitment of both countries towards promoting cooperation and consolidating efforts in areas of mutual interests. He recalled that negotiations between Mauritius and Kenya started two years back and that both agreements will encourage trade and growth among the African countries. The two agreements will encourage Kenyan companies to invest in Mauritius and seek expertise in the fields of sugar, tourism and yacht and ship building, he said.

Mauritius has so far signed 13 Double Taxation Avoidance Agreements and 5 Investment Promotion and Protection Agreements with several African countries.

04 May 2012

FSA: Rebuilding trust and confidence


Martin Wheatley, managing director of the Financial Services Authority (FSA), told an audience last night there are still unresolved issues around how customers are treated across financial services and getting to grips with them is central to rebuilding confidence and trust.

Speaking at the Chartered Institute of Bankers in Scotland, he said that many of the lessons of the crisis had been learned, but that there was still much to be learned to improve the way customers are treated across the financial services sector.

Martin Wheatley said:

“We are working hard to get our regulation ready in time for the new regulators and we are building our understanding of what drives consumer behaviour, and banks’ business models. We need boards of firms to do the same, and for banks to rebuild confidence and trust by putting their customer back at the heart of what they do.”

The FSA will be replaced by the Financial Conduct Authority (FCA) next year and is now developing the new approach that the FCA will take to regulating the way that firms treat their customers.

He said:

“In order for our regulation to work better than before, we need to understand why people make mistakes and why firms do what they do.  So we are looking at consumer behaviour, and business models in firms to inform our new, more forward looking and intrusive supervision, and we will be expecting boards of firms to play their part too.”

The FCA will look at what is behind the economic decisions of individuals and the firms it regulates. It will take into account the wider economy, the challenges facing banks in their search for profits, the pressures on consumers facing tougher times ahead and economic uncertainty today.

And it will follow the money to understand what lies behind profitability and the implications of firms’ strategies. 

“In all of this, we accept that firms need to be able to generate acceptable returns for shareholders, and have to be financially robust.  But this is about ‘good profits’ rather than profit at any cost — either to firms’ own stability or their customers’ best interests.

“The key point is that in the FCA, we will be looking to firms to construct business models where fair treatment of customers is central.  And we will expect those in executive management and on the boards of firms to step up their engagement with this side of the business and take this seriously. 

“Because not only will we as a regulator need to understand your business better, boards will need to do the same, and they, like us will need to ask tougher questions.  We have to ask why boards of banks did not ask the management of firms about how things like PPI could be so profitable – 15% of some banks’ profits – and still deliver the fair treatment of customers.”

Looking to some of the current issues that the FSA is dealing with, including customers’ requests about payments to the sale of a complex product to a small business – people do not feel their banks are not putting their interests first. 

“So that although we have all – I think – learned the lessons on the prudential side of banking, and banks are now far more financially secure and stable, with better risk management and preparation for what might lay ahead.  We are not yet in that place on the conduct side.”

Mauritius Hosts Workshop on International Arbitration


A Judicial Training Workshop on the New York Arbitration Convention of 1958 opened yesterday at the Trou aux Biches Resort in presence of Chief Justice Sik Yuen.  Chiefs Justices and Judges from Malawi, Botswana, Burundi, Seychelles, Zambia, Rwanda, Lesotho, Tanzania, Mozambique, Namibia, Zanzibar, Swaziland and South Africa along with Mauritian Judges are participating in this two-day workshop.

This high-level international arbitration workshop is organised by the International Council for Commercial Arbitration (ICCA) in conjunction with the Permanent Court of Arbitration (PCA). The focus is on the implementation by national court judges of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).  Delegates from the PCA, ICCA, and the International Commission of Jurists are also participating.

This training programme in international arbitration has been specially designed for senior judicial officers from Mauritius and other Southern African countries.  It provides great opportunity for capacity building amongst Mauritian and African judges with regard to the implementation of the New York Convention.

The workshop is the first in a series of high-profile ICCA roadshows, giving Mauritius the opportunity for international exposure and standard-setting to judiciaries the world over. The participation of judges from other African jurisdictions presents an opportunity for knowledge-sharing and regional cooperation as well as showcasing Mauritius as an arbitral venue.

Among the resource persons conducting the workshop are Professor Albert Jan Van Den Berg, world pre-eminent specialist on the New York Convention, and his colleague Ms Marike Paulsson.

Furthermore, some 50 legal practitioners in Mauritius attended on 2 May, a one-day introductory seminar on International Arbitration organised by the Permanent Court of Arbitration and the Young ICCA.  The seminar which was held at the Laboudonnais Hotel Caudan Waterfront, gave a practical overview of international arbitration law and procedure.

The current President of ICCA, Professor Jan Paulsson, who is also one of the world leading experts on international arbitration delivered the keynote address at the seminar.

The seminar is a follow-up to the successful Mauritius International Arbitration conference 2010 organised by the Government of Mauritius in collaboration with the United Nations Commission on International Trade Law, the Permanent Court of Arbitration, the International Centre for Settlement Centre of Investment Disputes, the International Chamber of Commerce, the International Council for Commercial Arbitration and the London Court of International Arbitration.

03 May 2012

AOIFA: Foreign Account Tax Compliance Act (“FATCA”)

Timothy Geithner, Secretary 
US Department of the Treasury 
1500 Pennsylvania Avenue, NW 
Washington, DC 20220 

Douglas H. Shulman 
Commissioner Internal Revenue Service 
1111 Constitution Avenue, NW 
Washington, DC 20224 

Re: Foreign Account Tax Compliance Act (“FATCA”) 

Dear Secretary Geithner and Commissioner Shulman: 

The following investment funds associations from the Asia Oceania Region welcome the opportunity to provide the United States Treasury Department and the Internal Revenue Service with comments regarding the Foreign Account Tax Compliance Act (“FATCA”), which was enacted into law on March 18, 2010 as part of the Hiring Incentives to Restore Employment Act. 

(A) In principle opposed to FATCA 

We are sympathetic with FATCA’s goal of preventing tax evasion and promoting financial transparency. However, in principle, we are opposed to FATCA and believe that it should be repealed on the following grounds: 

  1. FATCA is an unprecedented move away from the long accepted practice governing international relations, that of negotiation resulting in mutual bilateral and multinational agreements. FATCA is an attempt by the U.S. to unilaterally super-impose its tax system – arguably the most complex regime in the world - on all of the world’s financial institutions: FATCA basically requires all the foreign financial institutions (“FFIs”), and not just those dealing with the U.S., to have a detailed working understanding of the U.S. tax system to implement its procedures. The system is highly costly and onerous. (In particular, the passthru payments system is so complicated, intrusive and based on such tenuous and indirect connections with the U.S., that it will be unworkable and likely to have significant adverse consequences). Furthermore, the costs will not only be borne by the FFIs, but ultimately by the end investors and retirement/pension scheme members; 
  2. FATCA unilaterally sets new standards for identifying and verifying the beneficial owners of companies. This undermines the multilateral approach that has all along been adopted by the Financial Action Task Force (“FATF”), the global standard setter for anti-money laundering regulations; 
  3. It imposes excessive and disproportionate compliance costs on FFIs, especially at a time when institutions have to grapple with a raft of new regulatory changes which have been introduced to increase the robustness of the global financial system. It is envisaged that the aggregate costs will far exceed the additional revenue that FATCA will bring in to the U.S. Treasury. Furthermore, FATCA’s effectiveness in furthering the cause of combating tax evasion is highly dubious; FATCA’s mechanical approach of flagging a discrete set of simple U.S. indicia is likely to result in tax evaders simply deliberately misrepresenting such indicia. The construction of an elaborate compliance mechanism around such indicia is therefore unlikely to be effective in combating tax evasion; 
  4. It directly contravenes, in a number of jurisdictions, local data protection/privacy laws and other legal requirements – FFIs will be put in a difficult position of coming up with means to reconcile the conflicting requirements; 
  5. It inevitably requires modifications to the global, national and regional payments systems to take into account the requirements of FATCA as the current systems do not have such a capability; 
  6. Apart from ignoring local legal differences, FATCA also fails to take into account the linguistic and social differences of different jurisdictions: Many FFIs and their clients in the Region as well as in other non-English-speaking jurisdictions, will find the U.S. IRS documentations and requirements difficult to understand. What is more formidable is that the process and the ways the forms are crafted are alien and intimidating: they are issued by the IRS, a tax agency that most will have had no prior dealings with, and are to be executed “under penalties of perjury”. Consequently, there will be significant difficulties to facilitate compliance; and 
  7. It will very likely result in reductions in investment choices for U.S. investors and limit the ability of U.S. corporate borrowers to access overseas debt markets. 

(B) Proposal – to exempt or at least defer transposition of FATCA to national retirement/pension schemes 

We fully understand that the objective of FATCA is to address and tackle offshore evasion of US taxpayers. However, the way the law is crafted is flawed. 

We are deeply concerned that non-U.S. regulated funds (including but not limited to unit trusts, mutual funds and other investment funds) would be covered as payments or investments in relation to these vehicles bear little, if not zero, relevance to US taxpayers. 

Furthermore, we have grave reservations about the implications of FATCA to national retirement/pension schemes. Despite the fact that FATCA has provided certain exemptions to these schemes in recognition of the fact that retirement/pension funds generally pose low tax risk, the way in which the Rule is drafted will mean that effectively few, if any, schemes will be able to enjoy the exemptions. This outcome is not surprising because each and every national scheme has its own political, economic and social context. And it is impossible for a piece of sweeping legislation to capture all the nuances. 

The unfortunate outcome is that all retirement/pension schemes will have to devote a dis-proportionate amount of resources and time to track down a miniscule number of U.S. citizens. (in fact, most schemes have mechanisms to exempt expatriates from their schemes and thus the universe of US citizens that would be covered would be negligible). All of these would undermine the objectives of these retirement/pension schemes as they take up resources which would otherwise be deployed more productively to help build the retirement nest eggs of the scheme members. 

In view of the undesirable outcomes and the fact that it simply is not feasible for retirement/pension funds to be in a position to comply with FATCA according to the timeline announced, and given the complexity of the schemes (not least of which is that the option to close accounts for recalcitrant members is incompatible with the retirement laws of many jurisdictions), we would like to propose that the U.S. authorities: 

  • exempt national retirement/pension schemes from FATCA altogether as they pose a low risk of tax evasion. Each government within the Region can supply the list of its own retirement/pension schemes to the US IRS, say before the end of this year; 
  • if the aforesaid option is not feasible (which we believe that the U.S. authorities have the onus to explain why it is so), stagger off implementation so that FATCA will only be applied to national retirement/pension schemes on or after 2017. Reasons – 
  1. these schemes are of extremely low-risk as the coverage of U.S. citizens is negligible.
  2. the chance of using retirement/pension schemes for tax evasion is remote, but the costs that arise will far outweigh the benefits that can be achieved by the U.S. authorities.
  3. transposition to national retirement/pension schemes would unavoidably require each jurisdiction to introduce legislative changes which can be long and protracted.
  4. according to the February Regulation, the FATCA implementation timeline would run into 2017 (including the final phase of handling passthrough payments). Even without the complexity of the pension schemes, all parties are already struggling with how to comply with a Law whose details have not yet been made clear. Thus a more realistic approach is to just focus on the non-retirement/pension space first, and only after this has bedded in should attention be turned to retirement/pensions schemes. 

In addition, as implementation of FATCA has on-going resources and costs implications to the interests of non-U.S. investors, as well as the retirement nest eggs of employees in non-U.S. jurisdictions, we believe that a reasoned approach is for the U.S. authorities to defray the costs so as to ensure that investors and members’ interests would not be adversely affected. 

We welcome the opportunities to explain our stance and elaborate on our concerns.