Reducing the Cost of Doing Business in India: One Example (ADR/GDR Regulations)

by Pratik Datta and Ajay Shah, ajay shah blog

Last week, the Ministry of Finance notified the Depository Receipts Scheme, 2014 (‘2014 Scheme’). This replaces the 1993 Scheme with respect to depository receipts. The key materials on this subject are:

• The Sahoo Committee Report, which provided the intellectual framework, and drafted the 2014 Scheme.
• An article about this Report
• A brief video summarising the Report.

The 2014 Scheme improves upon the 1993 Scheme in two dimensions: economic thinking and legal drafting quality.

Improved economic thinking

The 1993 Scheme was a haphazard set of interventions by the government in the working of the economy, without a clear rationale. The 2014 Scheme is logical and clear in the role of the government. Every policy intervention is viewed from the standpoint of market failures. If there are demonstrable concerns about consumer protection, micro-prudential regulation, systemic risk or resolution, they motivate interventions. Where there are no market failures, there is no case for intervention by the government.

As an example of the improved economic thinking underlying the 2014 Scheme: the 1993 Scheme embeds industrial policy with names of many industries. The 2014 Scheme eschews industrial policy.

Improved drafting of law

Everyone interested in law and finance should print the 1993 Scheme and the 2014 Scheme and compare them, side-by-side.

Occam’s razor can be adapted to the field of law with the idea that when there are multiple ways of drafting a particular policy choice into the law, the simplest should be preferred. The most sophisticated law is that which is the simplest. Simplicity, clarity and reduced legal risk have been achieved in the 2014 Scheme through many strands of thought.

Word count. The first test of simplicity is the word count. The 1993 Scheme (paragraphs 1 to 11) had 2984 words, while the new 2014 Scheme (paragraphs 1 to 11) has 1659 words – a reduction of 44.4% in usage of words. However, this difference is overstated as the previous Scheme dealt with FCCBs also while the new Scheme does not.

Readability. When we apply the Flesch-Kincaid readability test, the 2014 Scheme wins clearly, with a score of 30 when compared with the 1993 Scheme, which stands at 21.5.

Structured document. For a given word limit, a well structured document is more comprehensible. The 2014 Scheme follows the logical sequence of a depository receipt transaction. The 1993 Scheme was a haphazard mess.

Use of examples. When drafting the Indian Penal Code, Thomas Babington Macaulay intentionally included many terse, exemplary cases to illustrate the application of a provision. The Justinian Code and writings of Roman jurists persuaded him to make clear the legislative intent: ‘they are cases decided not by the judges but by the legislature, by those who make the law, and who must know more certainly than any judge can know what the law is which they mean to make‘. This unusual innovative feature of the Code earned the praise of John Stuart Mill, who wrote:  ‘besides the greater certainty and distinctness given to the legislator’s meaning, [it] solves the difficult problem of making the body of the laws a popular book, at once intelligible and interesting to the general reader‘. The 2014 Scheme includes examples which clarify the law.

Minimal set of defined terms. The 2014 Scheme uses a standardised set of defined terms. For example, it strictly uses a defined term – ‘international exchange’ – on listing institutions. In contrast, the 1993 Scheme used three different terms to explain listing institutions on which depository receipts could be listed – `overseas stock exchanges’, `over the counter exchanges’ and `book entry transfer systems’. None of them were defined. This created legal risk.

Principles-based definitions. With the rapid development of technology, the concept of an `exchange’ itself has evolved substantially. To make the law neutral to such evolution, the 2014 Scheme is technology-neutral and principles-based in its definition of `international exchange’.

Rationale statement. Finally, there is the backdrop of the drafting intent and rationale of the Scheme. The 1993 Scheme was not backed by a document articulating what was sought to be done. The 2014 Scheme is accompanied by the Sahoo Committee Report which performs this function. When faced with litigation in the future, practitioners and judges will be able to use this document to reduce legal risk.

You will recognise the IFC way here. Also see Umakanth Varottil on the 2014 Scheme.

Clearing the thicket of India’s capital controls

The Indian system of capital controls comprises the FEM Act, regulations under FEMA, RBI circulars, etc. The 1993 Scheme is representative of the mess that is the Indian system of capital controls. The cost of doing business in India is being greatly raised by the badly thought out and badly implemented capital controls that are all over the landscape.

Capital controls on ADR/GDR issuance by Indian companies is the only element, out of the overall system of capital controls, where the Ministry of Finance is able to initiate reforms. In all other areas, RBI has veto power, and has blocked all progress.

As the years go by, it is increasingly difficult to justify these failures. RBI needs to find the intellectual capabilities to clean up the mess. There is a lot to learn from the clarity of thinking, and the implementation strategies used, in fixing the capital controls on ADR/GDRs.