Main Article: The following is a 5 minute interview with Stephen Karangizi, CEO and Director of the African Legal Support Facility. The African Legal Support Facility, hosted by the African Development Bank, has been supporting African governments in the negotiation of complex commercial transactions since 2010. To find out more about the ALSF, please click here.
- What are the key areas of opportunity to capitalize on for Africa’s development?
The key opportunities for Africa’s development lie in taking advantage of the advances in Information Technology as well as a large young population. Business opportunities remain for those who have long term objectives as the cost of business has gone down in a number of African countries and investment returns in Africa are always higher. In addition, an expanding middle class of youth means a large absorptive market.
- Could the presidential elections that are going to happen in the next three years in Africa announce important political changes? Will these have consequences on the economic policy and on Human Rights in Africa?
The political dynamics of African countries differ from one country to another. On the whole, Presidential elections do not impact significantly on a country unless the country relapses into a conflict situation like Burundi.
- Will the COP 21 and the international aid programmes for developing countries be a source of new economic developments in Africa?
Yes it should but also depends on your view point. Some people argue that Aid is recycled: old commitments are modified to appear as if it is new Aid. So one needs to look at the specific aid in question. But at least some of the new Aid can be dedicated to climate favourable investments such as renewable energy. For instance off-grid renewable energy solutions can have quick development benefits for African rural communities not connected to national electricity grids.
- China’s growth is slowing down and the country is facing financial problems. Will this lead to less Chinese investments in Africa?
I am not sure whether that is the case but China has already made large investment commitments in Africa. Africa also provides China with new investment opportunities. Chinese investors can take advantage of the comparative labour costs which are lower in Africa. An example in point is the successful leather processing industry established in Ethiopia in partnership with a Chinese company that has been very successful.
I think it’s more of the China economy slowing down due to various factors and not necessarily financial problems.
Executive summary: The following article discusses recent developments around the definition and interpretation of the term ‘control’ under Indian Takeover Regulations and the impact it may have on investments in publicly listed entities in India, including the risk of classification of investment in a publicly listed entity as the acquisition of ‘control’ of such entity.
On March 12, 2016, India’s securities markets regulator, the Securities and Exchange Board of India (“SEBI”) published a press release pursuant to its board meeting earlier that day (the “SEBI Press Release”). Amongst other matters, the SEBI Press Release indicated that SEBI would initiate a public consultation process regarding bright-line tests (“BLT”) for determination of the term ‘control’, as defined under the SEBI (SAST) Regulations, 2011 (“Indian Takeover Regulations”).
To those unfamiliar with this issue, there has been considerable debate in Indian corporate legal circles around the interpretation of the term ‘control’ and the risk of classification of investment in a publicly listed entity as the acquisition of ‘control’ of such entity on account of the definition of the term ‘control’ under Indian Takeover Regulations. Whether the genesis of such debate owes its origins to conflicting definitions of ‘control’ by Indian courts and legislators or interpretations of ‘control’ by Indian regulators is moot, but the absence of a clear and exhaustive definition of ‘control’ continues to exist. Recognising this and its impact on deal making and M&A in the public space in India, SEBI has sought to define ‘control’ and initiate a public consultation process.
Significance of ‘Control’
Under Indian Takeover Regulations, where (a) an acquirer seeks to acquire substantial shares or voting rights (including and upwards of 25%) in a public listed entity (“Target”) or where an acquirer acquires ‘control’ of a Target; and (b) such acquisition is not exempted under Indian Takeover Regulations (for instance, acquisition in the ordinary course of business by intermediaries or transfer between certain shareholders, etc), then such acquirer is required to make an open offer for the purchase of shares held by the public shareholders of the Target, in the manner set forth in the Takeover Regulations (“Open Offer”). The Open Offer process is detailed and broadly involves notices to be provided to shareholders, minimum number of shares to be acquired by an acquirer, the engagement of a merchant banker, allowing tendering of shares by the shareholders, payment there-for and filing of relevant documents with SEBI during and after the process.
Therefore, and in the context of the current discussion, if an investor’s terms of investment in a Target, including the obtaining of contractual rights that are not available to other shareholders (“Special Rights”), are deemed to be indicative of ‘control’, then the investor is required to undertake an Open Offer, irrespective of (a) the investment being within the said 25% threshold, or (b) the underlying commercial considerations of the transaction at hand, including the percentage of ownership that may be acceptable to the investor, or (c) the implications of being in ‘control’ of an enterprise as opposed to being invested in the said enterprise. This opens up larger questions of relevance and commercial acceptability of an Open Offer to the transaction at hand.
The First Approach: ‘Protective’ Special Rights
As may be expected, the confusion around what constitutes ‘control’, especially in the context of Special Rights granted to an investor, has been impacting deal making and M&A in the public space in India. Based on various industry representations and feedback, SEBI has proposed two approaches to conveniently identifying or ‘bright-lining’, whether there exists ‘control’ in its discussion paper titled “Brightline Tests for Acquisition of ‘Control’ under SEBI Takeover Regulations.”
SEBI’s first proposal is to identify certain Special Rights as protective and exclude them from the purview of ‘control’. The principle enunciated is that where a Special Right is aimed at protecting the investment by an investor or preventing dilution of their stake in the Target or preventing the Target from undertaking a significant change in the current business by the Target, such Special Right would not be construed as ‘control’. An overarching rider to this principle is that the Special Right in question should not limit the Target from conducting its business on a day-to-day basis or from policy making, including by subjecting it to investor approval. Further, SEBI has suggested that these Special Rights not amounting to ‘control’ may be granted subject to: (a) the investment being 10% at the least, (b) the Target setting forth the concepts of materiality and what would be ‘outside the ordinary course of its business’ (see below) and disclosing the same to its shareholders; and (c) obtaining the public shareholders’ approval for grant of the Special Rights.
In this context, SEBI has described certain rights that it deems to be protective in nature and which do not amount to exercise of ‘control’, some of which are set out below:
- The right to appoint an observer to the board of the Target (“Board”) by an investor. However, SEBI prescribes that such observer should not have any “participation rights”. Prima facie this would seem to limit an investor from ensuring that its observer is part of the quorum for a valid Board meeting.
- If Special Rights are conferred pursuant to a commercial agreement between parties, the same would not amount to ‘control’ if (1) the said commercial agreement is fair and mutually beneficial to the Target and the other party, (2) the Board has approved the commercial agreement and has the right to terminate the said agreement, and (3) the commercial agreement is non-exclusive i.e. it does not restrain the Target from entering into a similar contract with any other party.
- Veto rights enjoyed by an investor that would not amount to exercise of ‘control’ over a Target include those pertaining to restricting amendments to the bye-laws of the Target (in so far as such amendments impact the rights of the investors), alteration of the capital structure of the Target, material divestments of assets or subsidiaries, material acquisitions, write off or loans or investments outside the ordinary course of business, any change to the statutory auditors of the Target or indebtedness beyond what is statutorily permissible.
The Second Approach: A Quantitative Test
SEBI has suggested that ‘control’ be determined on the basis of the right to exercise at least 25% of the voting rights of the Target. It has also suggested that, additionally, if an investor is granted the right to appoint the majority of non-independent directors, then such right would be construed as ‘control’ for the purposes of the Indian Takeover Regulations.
Balance or Brightline: What Works in the Indian Context
BLTs have been historically criticised for their inability to appreciate factual nuances and for addressing legal issues in a predictable, convenient and over-simplified manner. A related criticism of a BLT is that on account of its nature, it may not always result in an equitable outcome. Conversely, adopting fine-line tests or balancing tests (“FLTs”), whereby various factors surrounding the matter at hand are examined and then the legal principle applied, may result in the introduction of excess objectivity in ‘control’ determination process. A standalone BLT may be easier to administer but it may not be the best option in the Indian deal making context, given the Special Rights that are typically sought by investors. Similarly, a pure FLT may not be the most effective and efficient manner to determine the existence of ‘control’ on a case-by-case basis. As such, whilst the SEBI initiative to define ‘control’ is welcome and has been long due, it is interesting to see where the consultative process takes the definition of ‘control’.
- A new foreign investment regulatory regime applies from 1 December 2015.
- The ‘substantial interest’ threshold above foreign investors must notify Australia’s Foreign Investment Review Board (FIRB), has increased from 15% to 20%.
- Specific rules now apply to foreign investments in the agricultural sector, following the introduction of the concepts of ‘agribusiness’ and ‘agricultural land’.
- The rules applicable to investments by foreign governments, and real estate investments, have been clarified.
- Tougher criminal penalties and a new set of civil penalties have been introduced for contraventions of the regime.
- Foreign investors are now required to pay fees in relation to any FIRB application they make.
From the 1 December 2015, a new foreign investment regime came into force, marking a significant reform of Australia’s foreign investment legislative framework.
The new regime comprises of the Foreign Acquisitions and Takeovers Act 1975 (Cth), a new set of regulations, and the Register of Foreign Ownership of Agricultural Land Act 2015 (Cth).
The changes seek to ensure Australia’s national interest is maintained while also strengthening foreign investment in Australia.
Substantial interest threshold
Foreign persons who intend on acquiring a ‘substantial interest’ in an Australian entity (generally above $252 million) must notify the Foreign Investment Review Board (FIRB) and obtain approval for the acquisition.
Under the new regime, the substantial interest threshold has increased from 15% to 20%. This means that certain acquisitions which previously attracted the notification requirement may no longer do so.
Agricultural land and business
Regulatory scrutiny of foreign investment in the agricultural sector has increased under the new regime.
Direct private investments in an agribusiness attract a $55 million threshold (indexed annually). A higher threshold ($1094 million) applies for investors from countries who have free trade agreements with Australia, which comprises of the US, New Zealand and Chile.
An agribusiness is defined to include Australian entities or businesses which carry on certain primary production and downstream manufacturing businesses contained in the Australian and New Zealand Standard Industrial Classification Codes. These include meat, poultry, seafood, dairy, fruit and vegetable processing and sugar, grain and oil and fat manufacturing. At least 25% of the business’ revenue or assets must come from the carrying on of the prescribed businesses in order to meet the statutory definition.
Agricultural land is defined as any land in Australia that is used, or could reasonably be used, for a primary production business.
Agricultural land is subject to a $15 million notification threshold and is assessed on a cumulative basis. Certain exceptions apply: investors from countries in free trade agreements with Australia (US, NZ and Chile) attract the $1094 million threshold, and investors from Singapore and Thailand are subject to a $50 million threshold only in relation to land used wholly or exclusively for a primary production business.
The new regime also establishes an agricultural land register which contains all information about foreign interests held in Australian agricultural land. While the register will not be publicly accessible, certain information will be made available to the public on a regular basis. Foreign investors with interests in Australian land must notify the register of their interest or any changes within 30 days.
Regulation of foreign investments in commercial land depends on whether the land is vacant or developed, and whether it constitutes sensitive commercial land.
All private foreign acquisitions of vacant commercial land require notification, regardless of the value of the investment. Acquisitions of $252 million or more in developed commercial land require notification, unless the interest relates to certain sensitive land, in which case a $55 million notification threshold applies.
Sensitive land is defined broadly, and may include land leased to the Commonwealth, land used for military or security purposes and land on which public infrastructure is located, such as an airport, or electricity networks or telecommunications.
A threshold of $1094 million for agreement country investors applies in relation to developed land regardless of whether it constitutes sensitive land. The relevant country investors includes Chilean, Chinese, Japanese, New Zealand, South Korean and United States investors.
Foreign government investors
Consistent with the previous regime, approval must be sought for most direct interests acquired in Australian land or business by a foreign government investor.
Under the new regime, a foreign government investor includes a foreign or separate government entity, as well as private entities in which a foreign or separate government entity holds a substantial interest (20%).
The regime also provides that all foreign government investors from the same country will be considered as associates, and their interests aggregated.
The new regime introduces tougher criminal penalties and new civil penalties for both individuals and companies. Now, criminal penalties for individuals have increased to $135 000 (or 3 years imprisonment). The new civil penalties include fines of up to $45 000 for individuals. For both criminal and civil contraventions the penalty for corporations is 5 times that for an individual.
Penalties are in addition to other powers, including divestiture orders.
The new regime imposes a set of fees onto foreign investors for all foreign investment applications. These fees are indexed and are determined by the value and type of investment. The fee must be paid before the Treasurer will take any action in regards to the application.
Some examples of common application fees include:
- Vacant commercial land – $10,000,
- Non-vacant commercial land – $25,000,
- Private acquisition of an interest in a mining or production tenement – $25,000,
- Foreign government investor to acquire an interest in a mining, production or exploration tenement, or a 10% interest in a mining, production or exploration entity – $10,000,
- Acquiring an interest in an Australian entity, including an agribusiness, where the consideration does not exceed $1 billion – $25,000,
Acquiring an interest in an Australian entity or business, including an agribusiness, where the consideration exceeds $1 billion – $100,000.