Reinventing economics

This lack of sound models meant that economic policymakers and central bankers received no warning of what was to come.

As George Akerlof and I argue in our recent book Animal Spirits, the current financial crisis was driven by speculative bubbles in the housing market, the stock market, and energy and other commodities markets. Bubbles are caused by feedback loops: rising speculative prices encourage optimism, which encourages more buying, and hence further speculative price increases – until the crash comes.

But you won’t find the word “bubble” in most economics treatises or textbooks. Likewise, a search of working papers produced by central banks and economics departments in recent years yields few instances of “bubbles” even being mentioned. Indeed, the idea that bubbles exist has become so disreputable in much of the economics and finance profession that bringing them up in an economics seminar is like bringing up astrology to a group of astronomers.
The fundamental problem is that a generation of mainstream macroeconomic theorists has come to accept a theory that has an error at its very core: the axiom that people are fully rational. And as the statistician Leonard “Jimmie” Savage showed in 1954, if people follow certain axioms of rationality, they must behave as if they knew all the probabilities and did all the appropriate calculations.

So economists assume that people do indeed use all publicly available information and know, or behave as if they knew, the probabilities of all conceivable future events. They are not influenced by anything but the facts, and probabilities are taken as facts. They update these probabilities as soon as new information becomes available, and so any change in their behavior must be attributable to their rational response to genuinely new information. And if economic actors are always rational, then no bubbles – irrational market responses – are allowed.

Unsatisfactory rationality
But abundant psychological evidence has now shown that people do not satisfy Savage’s axioms of rationality. This is the core element of the behavioral economics revolution that has begun to sweep economics over the last decade or so.

In fact, people almost never know the probabilities of future economic events. They live in a world where economic decisions are fundamentally ambiguous, because the future doesn’t seem to be a mere repetition of a quantifiable past. For many people, it always seems that “this time is different.”

The work of Duke neuroscientists Scott Huettel and Michael Platt has shown, through functional magnetic resonance imaging experiments, that “decision making under ambiguity does not represent a special, more complex case of risky decision making; instead, these two forms of uncertainty are supported by distinct mechanisms.” In other words, different parts of the brain and emotional pathways are involved when ambiguity is present.

Mathematical economist Donald J. Brown and psychologist Laurie R. Santos, both of Yale, are running experiments with human subjects to try to understand how human tolerance for ambiguity in economic decision-making varies over time. They theorize that “bull markets are characterized by ambiguity-seeking behavior and bear markets by ambiguity-avoiding behavior.” These behaviors are aspects of changing confidence, which we are only just beginning to understand.

To be sure, the purely rational theory remains useful for many things. It can be applied with care in areas where the consequences of violating Savage’s axiom are not too severe. Economists have also been right to apply his theory to a range of microeconomic issues, such as why monopolists set higher prices.

But the theory has been overextended. For example, the “Dynamic Stochastic General Equilibrium Model of the Euro Area,” developed by Frank Smets of the European Central Bank and Raf Wouters of the National Bank of Belgium, is very good at giving a precise list of external shocks that are presumed to drive the economy. But nowhere are bubbles modeled: the economy is assumed to do nothing more than respond in a completely rational way to these external shocks.

Depressive lessons
Milton Friedman (Savage’s mentor and co-author) and Anna J. Schwartz, in their 1963 book A Monetary History of the United States, showed that monetary-policy anomalies – a prime example of an external shock – were a significant factor in the Great Depression of the 1930’s. Economists such as Barry Eichengreen, Jeffrey Sachs, and Ben Bernanke have helped us to understand that these anomalies were the result of individual central banks’ effort to stay on the gold standard, causing them to keep interest rates relatively high despite economic weakness.

To some, this revelation represented a culminating event for economic theory. The worst economic crisis of the twentieth century was explained – and a way to correct it suggested – with a theory that does not rely on bubbles.

Yet events like the Great Depression, as well as the recent crisis, will never be fully understood without understanding bubbles. The fact that monetary-policy mistakes were an important cause of the Great Depression does not mean that we completely understand that crisis, or that other crises (including the current one) fit that mold.

In fact, the failure of economists’ models to forecast the current crisis will mark the beginning of their overhaul. This will happen as economists’ redirect their research efforts by listening to scientists with different expertise. Only then will monetary authorities gain a better understanding of when and how bubbles can derail an economy, and what can be done to prevent that outcome.

Robert Shiller, Professor of Economics at Yale University and Chief Economist at MacroMarkets LLC, is co-author, with George Akerlof, of Animal Spirits: How Human Psychology Drives the Economy and Why It Matters for Global Capitalism

Copyright: Project Syndicate, 2009

Market insider

Equities find positive territory
Most G20 bourses closed up in positive territory at the end of Q3. The FTSE 100 went up 21 percent. Between July and September 2009 it rose a number of times, particularly during August when it was reported to have climbed by 8.4 percent over the course of the year, having rallied by 39 percent since its low at the beginning of March 2009.

The positivity in the market was created by renewed confidence, rising consumer demand in China and India, and the economic stimulus packages. FTSE’s revived vigour has particularly focused on large capital stocks and stimulated by an increase in the crude oil price to around $73 per barrel.

During August the FTSE rallied over a four day period, a positivity that continued in September, boosted by higher commodity prices. Both summer months saw the index rising to new highs. It traded above 4,800 for the first time in August since early October 2008, and by September it had risen to 5,163.95.

In Q3 European shares climbed by 17.3 percent, the best quarterly gains in a decade. The trend appears to have been similar in the US, and in many of the other G20 countries.

Mergers and acquisitions more significant at end of period
Mergers and acquisition were more significant at quarter end. In September 2009 it was reported that T-Mobile and Orange (£8.2bn) were engaging in talks to merge their mobile phone network operations in the UK. Approval of this potential deal by the Monopolies and Mergers Commission would create the country’s largest mobile network, gaining a hold of a third of the market.

The prospect of this merger and others involving, for example, Disney and Marvel Entertainment ($4bn) and even Kraft’s rejected merger proposal of Cadbury worth £11.8bn, created hope for a rival in the fortunes of this market. An upturn would be stimulated by the fact that UK companies are valued cheaper than many of their global sector peers.

Nevertheless the Bank of England reported an ongoing decline in mergers and acquisitions in the UK, but the commercial real estate sector made a positive contribution to corporate credit demand over the Q3 period. Mergers and acquisitions and inventory finance are expected to contribute to increased credit demand over the next three months.

Buy-outs fall in value by 24 percent
The lowest number of buy-outs since 1995 at 384, down from 705 in 2008. Deal values are as low as $39.9m. The UK decline has been matched in continental Europe. Macroeconomic factors are cited in both cases.

The Centre for Management Buy-out Research has reported that their overall value tumbled by 24 percent during the first of half of 2009, compared to the same period in 2008.  European buy-outs are now valued at just $15.3bn, less than 25 percent than the $63.1bn value achieved H108. This means that the heady days of 2007 are now a distant memory; the market was then worth $149.6bn.

Deals worth more than $15m have fallen by 75 percent. The market has been dominated by deals that are valued below this level. The short supply of debt is having a dramatic impact on this market. It will remain quiet until conditions in the leverage finance market improve.

Insolvency risk increases firms ask for time to pay their taxes
The recession has led to 204,000 firms agreeing “time to pay” arrangements with HMRC largely due to deferred taxes. The delayed payments are worth £3.6bn. This facility involves VAT, national insurance contributions corporation tax and other levies on firms. It was offered in a pre-Budget report to offer some relief to recession-hit firms.  

Experts are apparently dumbstruck by the number of deals being made, leading to some payments being pushed back by several years and even though payments tend to usually last just months. Insolvencies are expected to spike when these arrangements end. Many firms will struggle to complete their final payments on time. Around 33,000 firms have already stepped into a situation where they have had to ask for repeat deals.

More economic pain is therefore expected, showing that the economy is not out of the woods yet. Nevertheless, since the scheme was announced in November 2008, £2.49bn has already been repaid to HMRC. Thankfully it is taking a more lenient stance than usual on business debt. Viable companies can avoid insolvencies by contacting them to make the necessary arrangement to pay the levies are a longer term period.

Quantitative easing weakens Sterling
Sterling has weakened due to extended quantitative easing (QE) programme. The British government has authorised the Bank of England to buy £175bn in securities using newly-created money. Opposition leader, David Cameron, has warned that this action could lead to a rise in inflation. His comments themselves were criticised as being wildly dangerous.

In spite of this heated exchange, interest rates remain at a historic low of 0.5 percent for the seventh month in succession, and quantitative easing is accredited for improving money supply, reduced bond yields and many believe it will improve the UK’s prospects for kick-starting the countryís economic recovery. Meanwhile, ten-year government bonds yielded 3.35 percent recently. They stood at 3.64 percent on March 4, the day before QE started.

The IMF has forecast that the British economy will slump by 4.4 percent this, but it is expected to expand by 0.9 percent in 2010 in spite of Bank of England warnings of high UK debt levels inter alia. Things don’t look much better across the Atlantic as the US dollar continues to slide, threatening its reserve currency status.

Regulation to create a financial market culture change
G20 governments have taken steps to implement the new regulatory agreement, which was agreed at the Pittsburgh Summit in the US. These steps include regulations for credit-default swaps (CDSs) which are to go through a central clearing house, in order to reduce systemic risk when counterparties fail. If possible they should also be traded on exchanges.

A bonus accord has also been signed to ensure that they donít encourage the kind of reckless behaviour that led to the credit crunch. The G20 hope that the new framework with not only prevent the extent of the current economic crisis from ever occurring in the future, but they also want to instil a culture of greater integrity and responsibility in the financial markets. It is hoped that this will prevent the excessive and foolhardy risk-taking that led to the financial crisis, which in turn led to the global economic collapse.

The G20 meeting gives way to a stronger position for countries like Brazil, Russia, India, and China (BRICs) and the Financial Stability Board. It is predicted that by 2050 these countries will be the world’s strongest and wealthiest economies.

Brazilian oil and gas to yield 2bn barrels
On September 9, BG Group Guara and its partners, Petrobas and Repsol, announced that they had discovered oil off the south-eastern side of the Brazilian Coast in the waters of the Santos Basis. The well has a potential yield of 2bn barrels per day. The Abare Oeste well is the fourth to be drilled in BM-S-9, proving the existence of hydrocarbons in the area.

Petrobas has a 45 percent stake in the business, BG Group owns 30 percent and the remaining 24 percent share is own by Repsol. They plan to produce an assessment plan of the oil and gas field, and they will seek its approval by the National Petroleum Agency.

The region’s leading oil producer, Mexico, isn’t having as much luck as its Brazilian counterpart. In December 2008 its oil production totalled 2.72 mm bpdm but it fell to 600,000 bpd. Brazil is therefore the new shining star, taking the spotlight from Mexico and Venezuela, and attracting massive investments and rising output.

Central banking: G20 exit strategy talks continue
The G20 Summit in Pittsburgh, USA, raised a new issue. Having created a number of interventions to prevent a global economic meltdown, the governments need to find a way to create exit strategies that wonít lead to their achievements from being undone in an instant, and once again creating an economic disaster and undermining recovery of the global economy.

Some policy makers commented in September 2009 that it was premature to begin talking about exit strategies, believing that the recovery is too fragile to contemplate an end to central bank interventions. It was however welcomed that the G20 central banks are prepared to engage in exit strategies as this will help to maintain market expectations.

The US Federal Bank announced that it will turn off the tap of new money in March 2010, but there was no indication about how it would mop it up later on. The Fed can take comfort from the fact that neither the Bank of Japan or the Bank of England have been shy of quantitative easing, while the ECB has been slightly more constrained. Because everyone is running a loose ship, the effects on exchange rates are reduced.

More recently, the renewed confidence in the market has led to the Reserve Bank of Australia raising its interest rates to 3.25 percent to avert inflationary pressures.

Year of the big stick

It’s not like that in China where Zhou Xiaochuan, governor of the People’s Bank of China, is on a mission, carefully co-ordinated with the government, to have the greenback replaced as the world’s reserve currency.

As China (and Asia’s) top central banker sees it, the termination of the dollar’s nearly century-old supremacy doesn’t have to be effected absolutely at this minute, just so long as the process starts now. No ifs, no buts. He wants a “super-sovereign currency” that basically sidelines the dollar, very much like Keynes’ still-born bancor, and removes all the settlement uncertainty associated with a tarnished greenback.

So saying, Dr Zhou, other POBC luminaries and senior members of the government from premier Wen Jiabao down have been conducting a nearly year-long campaign against the greenback with increasingly pointed speeches and back-room diplomacy to get their way.

It all started of course with the financial meltdown that threatened the value of China’s gargantuan storehouse of US government paper – in effect, dollars. At last count this amounted to more than a trillion, prompting Nobel prize-winning economist Paul Krugman to describe China as the “T-bills republic”.

Dr Zhou is clearly disgusted with the fiscal management of George Bush’s administration. Author of ten books with a PhD in systems engineering, married to Li Ling, a legal authority on China’s trade disputes with the US, he cites a string of made-in-USA causes. It’s the usual list of suspects including “lax lending standards”, “excessive leverage”, and “frivolous development of derivative products”.

China’s diplomatic offensive started in Buenos Aires last September when the POBC’s deputy governor Hu Xiaolian made some unusually candid observations about how the “continuous depreciation” of the dollar was hurting China by driving up its domestic inflation.
Applying more pressure, vice-premier Wang Qishan entered the fray three months later at the fifth Sino-US strategic economic dialogue in Beijing when he effectively warned the Fed to ensure the safety of China’s dollar-denominated assets. Other Asian nations owning billions of T-bills are firmly in his camp.

China turned the screws again in March. Around the G20 in London, the premier remarked that “we have lent a huge amount of money to the US” and, “to be honest, I am a little worried”. These carefully calibrated remarks were widely reported, as intended.

Around the same time Dr Zhou weighed in again, for the first time calling for the dollar to be replaced with nothing short of a new global monetary order. “An international monetary system dominated by a single sovereign currency has intensified the concentration of risk and the spread of the crisis,” he said.

Right on cue, the government-controlled China Daily followed up with a public debate in its own pages. Sample contribution: “The demise of the US$ [sic] will only expedite the dismantling of US global tyranny.” The newspaper regularly publishes stories on economists who support the super-sovereign cause.

Dr Zhou’s latest broadside came at a global think tank in July when he blamed “rich people in the high-income countries [who] have consumed beyond their means”.

This salvo followed soon after legendary American central banker Paul Volcker attempted to pour oil on the waters in a speech in Beijing. In this, the chairman of Obama’s economic recovery advisory board, while conceding that a world currency was the “ultimate logic”, insisted “there are no practical alternatives today, or for many tomorrows, to the US dollar as an international currency,” he said.

That’s not exactly what Dr Zhou and his government want to hear. Make that Years of the Big Stick.

The lessons of Vietnam

Of course, history never repeats itself exactly. Vietnam was an episode in the Cold War, a combination of geopolitical and ideological conflict, which did not challenge the structure of the international system based on the nation state. Iraq is part of an ideological struggle – between Islamic sects and between radical Islam and the rest of the world – in which the jihadists reject the established order, its borders and its national states.

Defeat in Vietnam had long-term psychological significance for countries that relied on America for their defence; a collapse in Iraq would immediately weaken societies with significant Muslim populations, as radical Islam gains momentum from Indonesia, through India, to North Africa and Western Europe.

There is one important similarity, however. A point was reached during the Vietnam war when the domestic debate became so bitter as to preclude rational discussion of hard choices. For a decade and a half, successive administrations of both political parties perceived the survival of South Vietnam as a significant national interest. Starting with the Johnson administration, they were opposed by a protest movement that coalesced behind the conviction that Vietnam reflected a rampant amorality, which needed to be purged by confrontational methods. This impasse doomed the American effort in Vietnam; it must not be repeated over Iraq.

Prolonging the war
This is why a brief recapitulation of the Indochina tragedy is necessary.
It must begin with dispelling the prevalent myth that the Nixon administration settled in 1972 for terms that had been available in 1969 and therefore prolonged the war needlessly. When serious historians return to studying the documentary record — rather than fragments of tapes out of context — they will conclude that the Nixon administration operated on the basis of a strategic design that culminated in 1972 in terms not conceivable in 1969 and that it pursued this design for geopolitical, not electoral, reasons.

Whether that agreement, officially signed in January 1973, could have preserved an independent South Vietnam and avoided the carnage following the fall of Indochina will never be known. We do know that America’s disunity prevented such an outcome when Congress prohibited the use of military force to maintain the agreement and cut off aid to a friendly country after all US military forces (except a few hundred advisers) had left South Vietnam. American dissociation triggered a massive North Vietnamese invasion, in blatant violation of existing agreements, to which the nations that had endorsed these agreements at an international conference turned their backs.

Two questions relevant to Iraq are therefore raised by the Vietnam war: Was unilateral withdrawal an option when Nixon took office? Did the time needed to implement Nixon’s design exhaust the capacity of the American people to sustain the outcome, whatever the merit?

When Nixon came into office, there were over 500,000 US troops in Vietnam, and their number was still increasing. The official position of the Johnson administration had been that American withdrawal would start only six months after a North Vietnamese withdrawal. The ‘dove’’ platform of Sens. Robert Kennedy and George McGovern, which was rejected by the Democratic Convention of 1968, advocated mutual withdrawal. No significant group then advocated unilateral withdrawal.

Nor was unilateral withdrawal practically feasible. To redeploy over half a million troops is a logistical nightmare, even under peacetime conditions. But in Vietnam, over 600,000 armed Communist forces were on the ground, largely regular North Vietnamese units, buttressed by guerrilla forces. They might well have been joined by large numbers of the 700,000 strong South Vietnamese army feeling betrayed by its allies and working its way back into the good graces of the Communists. The US forces would have become hostages and the Vietnamese people victims.

Two preconditions
A diplomatic alternative did not exist. Hanoi insisted that, to obtain a ceasefire, the United States had to meet two preconditions: The first, the United States had to overthrow the South Vietnamese government, disband its police and army and replace it by a Communist-dominated government. Second, the United States had to establish an unconditional timetable for the withdrawal of its forces, to be carried out regardless of what happened in subsequent negotiations or how long these might last. The presence of North Vietnamese troops in Laos and Cambodia was declared not an appropriate subject for negotiations.

Especially in light of the horrors that occurred when the Communists took over Indochina in 1975, Nixon correctly summed up the choices before him when he rejected the 1969 terms; “Shall we leave Vietnam in a way that – by our own actions – consciously turns the country over to the Communists? Or shall we leave in a way that gives the South Vietnamese a reasonable choice to survive as a free people?” A comparable issue is posed by the pressure for unilateral withdrawal from Iraq.

From its beginning, the Nixon administration was working for a political, and not a purely military, solution: It recognised that the demand for total unconditional North Vietnamese withdrawal, put forward by the Johnson administration, was unachievable. But nor would it accept Hanoi’s one-sided demands to leave the people of South Vietnam to their fate.

When negotiations stalemated, the Nixon administration moved to implement what could be done unilaterally without undermining the political structure of South Vietnam. Between 1969 and 1972, it withdrew 515,000 American troops, ended American ground combat in 1971 and reduced American casualties by nearly 90 percent. A graduated withdrawal compatible with preventing a takeover by radical Islam in Iraq is also a serious challenge in Iraq.

In Vietnam, a breakthrough occurred in 1972 because the administration’s strategic design finally came together in its retaliation for the all-out North Vietnamese spring offensive. When the US mined North Vietnam’s harbors, Hanoi found itself isolated because, as a result of the opening to China in 1971 and the summit in 1972, Beijing and the Soviet Union stood aside. Hanoi’s offensive was defeated on the ground entirely by South Vietnamese forces assisted by US air power – according to a programme developed by Secretary of Defense Melvin Laird.

The domestic debate
Faced with a military setback and diplomatic isolation, Le Duc Tho, Hanoi’s principal negotiator, abandoned Hanoi’s 1969 terms in October 1972. He accepted conditions publicly put forward by President Nixon in January 1972 — and decried as unachievable in the American domestic debate: “. . . this new proposal is exactly what President Nixon has himself proposed: ceasefire, end of the war, release of the prisoners and troop withdrawal . . . and we propose a number of principles on political problems. You have also proposed this. And we shall leave to the South Vietnamese parties the settlement of these questions.”

The terms of the resulting Paris peace agreement were: an unconditional ceasefire and release of prisoners; continuation of the existing South Vietnamese government; continued American economic and military help for it (the latter limited to replacement of worn-out equipment); no further infiltration of North Vietnamese forces; withdrawal of the remaining American forces; and withdrawal of North Vietnamese forces from Laos and Cambodia. None of these terms was available in 1969; the separation of military and political issues reflected the essence of the Nixon administration’s position in the secret negotiations since 1969.

No one could guarantee that the Saigon government would be able to sustain itself forever — that depended importantly on its own efforts. But the Nixon administration was convinced that it had achieved a decent opportunity for the people of South Vietnam to determine their own fate; that the Saigon government would be able to overcome ordinary violations of the agreement with its own forces; that the United States would assist with air and naval power against an all-out attack; and that, over time, the South Vietnamese government would be able, with American economic assistance, to build a functioning society.

American disunity was a major element in dashing these hopes. Watergate fatally weakened the Nixon administration through its own mistakes, and the 1974 midterm congressional elections brought the most unforgiving of Nixon’s opponents to power. Aid to two friendly governments was cut off, while not a single American soldier had been in combat for two years. The imperatives of domestic debate took precedence over geopolitical necessities.

Public endurance
Two lessons emerge from this account. A strategic design cannot be achieved on a fixed, arbitrary deadline; it must reflect conditions on the ground. But it must also not test the endurance of the American public to a point where the outcome can no longer be sustained by our political process. In Iraq, rapid unilateral withdrawal would be disastrous. At the same time, a political solution remains imperative.

In Iraq, the military forces of the adversary are less powerful than they were in Vietnam, but the international political framework is more complex. A political settlement has to be distilled from the partially conflicting, partially overlapping views of the Iraqi parties, Iraq’s neighbors and other affected states and based on a shared conviction that the cauldron of Iraq would otherwise overflow and engulf everybody. The essential prerequisite for such a political solution is staying power in the near term. The president owes it to his successor to make as much progress toward this goal as possible, not, as some say, to hand the problem over, but to reduce it to more manageable proportions. What we need most is a rebuilding of bipartisanship on all sides, in both this presidency and in the next.

© 2009 Tribune Media Services, Inc.

The land of smiles and permanent revolution

country rich in natural resources, Thailand is unique in its region due to never having been ruled by a foreign power. Despite recent news that the new military government is changing investment laws that would make it harder for foreigners to control Thai companies, it insists it is simply closing a loophole in existing policy, and that foreign manufacturers, exporters or companies with investment privileges would be unaffected. Although undertaking continued political turbulence, Thailand’s fiscal situation remains strong and, with a focus on attracting private investment, a strengthened financial sector, and a trade balance surplus in the first quarter of 2009, the country stands in good stead to withstand the global economic crisis.

History of Thailand

1932 saw a Westernised military elite stage a coup d’etat and forced the king to accept the role of constitutional monarch.

In 1939, Phiban came to power, a nationalistic ruler, changing the country’s name from Siam to Thailand.

The 1990’s witnessed increasing private participation in the telecommunications sector, as state monopolies began to grant concessions to private operators. In fixed line services, concessions were granted to two private operators, True and TOT.

Between 2002-2004, due to well developed infrastructure, free enterprise economics, and genuinely pro-investment policies, it became one of East Asia’s best performers with an average six percent annual real GDP growth.

In Dec 2005, the Telecommunications Business Law was amended which effectively raised the limit of allowable foreign ownership from 25 percent to 49 percent.

In 2006 Shin Corporation was purchased by Temasek Holdings in a controversial deal which saw Thaksin Shinawatra with a 49.6 percent stake. The biggest deal in Thai stock-market history was shrouded in secrecy and controversy.

September 2006 saw a military coup which ousted PM Shinawatra. Elections were held in December 2007, with Shinawatra’s People’s Power Party (PPP) emerge positively.

In May 2008 anti-Shinawatra People’s Alliance for Democracy (PAD) began street demonstrations, occupying the prime minister’s office in August.

In December 2008, Abhisit Vejjajiva was elected leader of the Democratic Party, according to results of a parliamentary vote. The new leader implements free market economics to encourage private investment. Molotov cocktails were launched during Thai New Year celebrations, as deadly riots broke out in support of Shinawatra. According to the NSDB the riots sparked losses of 220 million baht in damage to public property and loss of state income, whilst Prime Minister Abhisit Vejjajiva announced that tourism was likely to fall by more than 102 billion baht.

Force majeure clauses in petrochemical and refining

he downturn is increasing pressure on petrochemical and refining projects as businesses face decreasing demand and low margins. With rising exposure to the risk of non-performance of contractual obligations, attention is turning to force majeure clauses as a way of suspending obligations under an onerous contract.

Force majeure clauses
A force majeure clause under contracts governed by English law seeks to relieve a party from the performance of its obligations under the contract as long as the force majeure event that is both unforeseeable and unavoidable still subsists, and performance of the contract continues to be rendered impossible. The parties in petrochemical and refining projects often spend a considerable amount of time and effort negotiating force majeure clauses in order to agree the events which allow them to suspend their contractual obligations. The clause typically defines a force majeure event as an event or act that:

• is beyond the reasonable control of the affected party;
• was not reasonably foreseeable or, if foreseeable, could not have been avoided; and
• prevents the affected party from performing its obligations under the contract.

Certain force majeure clauses may also specify an illustrative list of events such as acts of God, terrorism, war and severe adverse weather conditions which will be deemed to be force majeure events if they also comply with the conditions above; others may not have any illustrative examples and may be restricted to the general conditions. Depending on the circumstances, parties may seek to exclude particular events from the ambit of force majeure in order to allocate liability in advance for such events, for example commercial impracticability due to increased funding costs or the acts of certain regulatory authorities.

Agreeing the definition of force majeure events, and exclusions from them, can be a substantial task given the extensive number of inter-related agreements and parties in petrochemical and refining projects. The definition and exceptions will depend on the risks that the investors are willing to take in the country where the project is based and any other country in which obligations are performed. This often results in parties agreeing different force majeure events across the project agreements, depending upon the jurisdiction in which the contractual obligations arise. In addition, the various project agreements are often governed by different laws (typically, a combination of the local law and English law where, for example, the offtake agreement may be governed by English law, while the feedstock agreement and the services agreement may be governed by local law). This could lead to a potential inconsistency in the interpretation of force majeure provisions, even where the actual wording of the force majeure provisions is identical.

The absence of a consistent force majeure approach across all the project agreements could have serious consequences for the project. A force majeure event under a feedstock supply agreement, which subsequently results in the suspension of the feedstock supply to the petrochemical plant or refinery, may result in the project company being unable to make the product and therefore being in breach of its obligations to the purchaser under the offtake agreement. Such a breach, where the project company is unable to claim force majeure, could result in the offtaker having a claim for liquidated damages under the offtake agreement which the project company would not be able to pass back to the feedstock provider.

Another issue to bear in mind is that a force majeure event entitling one party to have certain of its contractual obligations suspended will not necessarily relieve the other party from the non-performance of its corresponding contractual obligations. For example, under an offtake agreement containing annual take-or-pay commitments, while the supplier may be permitted to suspend its supply obligation for a certain period of time as a result of the occurrence of a force majeure event, the purchaser who will be unable to offtake any product during this period, may need to accelerate its monthly offtake quantities after the resumption of supply (or build in corresponding relief), in order to be able to meet its annual take-or-pay quantities. Consequently, the parties should consider obligations of this nature under the different project agreements and reflect their intentions through express provisions.

Market collapse and force majeure
The global recession has brought to the surface the question of whether an economic downturn constitute force majeure events which are unforeseeable and beyond the reasonable control of the parties, thereby excusing the parties from the performance of their obligations as long as such events persist. This issue becomes particularly pertinent where the clause is not narrowly defined, leaving the door open for such a question to be raised.

This is not the first time that the question of changing economic circumstances has turned people’s attention to such clauses. The 2005 case of Thames Valley Power considered whether the obligation of Total to supply gas to Thames Valley Power under a long-term gas supply contract could be suspended on the grounds that the then unprecedented increase in gas prices amounted to a force majeure event. The contract in question defined it as “any event or circumstances beyond the control of the party concerned” which results in that party failing to comply with its obligations. It included a specific provision that “in assessing the circumstances of force majeure affecting the customer, the price of gas under this agreement shall be excluded”. The judge considered the facts of the case and held that for high gas prices to constitute a force majeure event, the contract needed to specifically incorporate such an eventuality as a force majeure event. The fact that the contract was no longer profitable for Total did not excuse them from performance. The wording dealing specifically with gas prices affecting the customer was not sufficient to alter the meaning of the rest of the force majeure clause.

An argument may be made that the credit crunch and the collapse in demand for petrochemical and refined products are each different from gas price fluctuations on the basis that the latter is a market reality, whereas the former were to a certain extent unpredictable, and not within the scope of the parties’ normal contemplation at the time of entry into the contract. However, given the Thames Valley case, in the absence of express wording, it seems unlikely that the courts will recognise a force majeure event where the performance of the contract could still be made, albeit with commercial difficulty or with increased cost.

In the Middle East
Some civil jurisdictions such as Egypt, Kuwait and the UAE have adopted as part of their civil code the doctrine of unforeseen circumstances. In the UAE, for example, Article 249 of the civil code provides that:

“If exceptional circumstances of a public nature which could not have been foreseen occur as a result of which the performance of a contractual obligation, even if not impossible, becomes oppressive for the obligor so as to threaten him with grave loss, it shall be permissible for the judge, in accordance with the circumstances and after weighing up the interests of each party, to reduce the oppressive obligation to a reasonable level if justice so requires, and any agreement to the contrary shall be void.”

The concept of change of circumstances is different from force majeure as it does not require impossibility of performance for it to apply and a mere threat of grave loss may suffice. Accordingly, a lower burden of proof than that required under typical force majeure clauses will apply to this doctrine. The courts are required to examine each case based on its own merits and circumstances in order to decide whether or not to grant relief from performance.
It is unclear whether this doctrine could impact on contracts governed by English law with heavily negotiated force majeure clauses. It is a complex area, depending on many factors, including the specifics of the case, the jurisdiction, and conflict of law issues. Parties involved in jurisdictions in which the doctrine applies should be aware of the risk (or benefit) associated with this doctrine.

Conclusion
Generally, when negotiating force majeure clauses, the safest route is to draft express provisions dealing with the precise circumstances which will constitute a force majeure event. A general non-specific force majeure event may also be included but the parties should consider in this case whether any particular exclusions are required specifically to deal with any foreseeable risk which can be identified at the outset. Additionally, the inter-related nature of the agreements as well as any relevant local law issues should be carefully considered by the draftsperson.

For further information tel: +44 (0)20 7859 1661;
email: renad.hajyahya@ashurst.com; www.ashurst.com

Launching into turbulent seas

“Banks in Trinidad and Tobago are blessed,” says Sekou Mark. It may be an intriguing statement, given the current global economic crisis to which some of the biggest banks have fallen victim. More intriguing perhaps is that the man making the statement is a banker himself. He is the General Manager of Corporate Banking at First Citizens Bank, the highest rated indigenous financial institution in the English-speaking Caribbean (BBB+ Standard & Poor’s) and winner of the World Finance Award for Best Bank, Trinidad and Tobago this year.

Brandishing a broad smile and exuding a youthful confidence that speaks to his younger-than-average age for a top banking executive, Mark is sitting in his office overlooking the beautifully lush and serene Queen’s Park Savannah at the bank’s headquarters in Port of Spain. “We are blessed with a lot of liquidity which, in the current climate, can be a good thing but at times we have trouble trying to find places to invest that liquidity,” he goes on to state. It’s evident from that far from bemoaning the present state of the international banking sector, Mark is instead excited by the prospects of new opportunities and grand new projects for First Citizens over the coming months.

But what about the fact that Trinidad and Tobago has experienced some effects, albeit delayed, of the economic downturn? Local energy companies have suffered from reduced demand and fluctuating gas and oil prices, which have directly impacted their bottom line and led to significant job cuts. Local manufacturers who export to the many tourism-based CARICOM nations have seen orders dry up as foreign arrivals have slowed. Those that export to the US and UK faced markets that were pre-occupied with ‘buying local’ in order to save their own economies.

As far as the local financial sector goes, things weren’t looking too bright either. The collapse – and subsequent bailout – of the CL Financial Group by the Trinidad and Tobago Government sent shock waves across the Caribbean Sea, not least because the conglomerate’s four largest financial institutions were responsible for assets valued at more than 25 percent of the country’s GDP. The group was considered a Caribbean success story and had developed into the region’s largest privately owned corporation with subsidiaries in over 32 countries.

In spite of the doom and gloom forecast by pundits around the globe, Mark and his colleagues at First Citizens seem surprisingly upbeat about potential new prospects throughout the Caribbean and Latin America. Trying to grow a business in new markets in the middle of a global recession is quite a daunting task. But if there is anyone who can spot a silver lining in what must be the largest and darkest raincloud in almost a century, Mark is that person: exuberant yet measured in his remarks, and completely driven towards the accomplishment of the institution’s vision.

An orange lining
The first bright spot to come out of the CL Financial collapse was the acquisition of CMMB (Caribbean Money Market Brokers). Established in 2000, CMMB has become the largest full-service brokerage house in the Caribbean, managing assets of over $1.1 billion and recording profits of $11.1 million in 2008.

With headquarters in Trinidad and offices in Barbados, St Lucia and St Vincent and the Grenadines, CMMB has single-handedly created a vibrant secondary equities market, and has stayed true to its mission to ‘create, develop, educate and nurture the capital markets of the region’. Its distinctive orange branding and unique, free-thinking culture have allowed the company to carve out its own niche and attract a very loyal group of investors and staff.
Mark is clearly excited about the acquisition. “CMMB presents a great opportunity for us at First Citizens and one in which we have been interested in for quite some time. They have a great business model, a robust research arm and are young, energetic and entrepreneurial in spirit.”

When the largest full service brokerage house joins the highest rated indigenous bank in the English-speaking Caribbean, the result is synergy in every sense of the word. Each party brings something different to the table, they complement each other and are both excellent at what they do.

As far as Mark is concerned, First Citizens is the key to helping the brokerage firm realise its full potential. “In order for CMMB to blossom, the organisation needs two things: a ready and cheap source of funding. We can provide this.” With a capital base of $4bn, a capital adequacy ratio in excess of 18 percent and recorded profits at the end of fiscal-year 2008 of about $80 million before tax, First Citizens is well positioned to provide support if needed. But what does the bank get out of this deal? A strong, stable, well-respected brand with a loyal investor base and, most importantly, a presence in other Caribbean territories.

Although First Citizens has recently been involved in a number of landmark projects across the region including Sandals Antigua, Jamaica Energy Producers and LUCELEC (the St Lucian energy provider), in addition to a number of ventures in Barbados, it has generally kept a low regional profile. For Mark and the Corporate Banking Unit, the strategic alliance with CMMB translates into a regional network that provides opportunities to leverage the presence, contacts and on-the-ground expertise in these locations in order to discover new sources of business for the Group, so that in time First Citizens will become top-of-mind for large scale corporate and capital markets transactions in the Caribbean.

Why not First Citizens?
“We have the capabilities to compete on a global scale. We have a strong balance sheet, the liquidity we mentioned earlier, and a nose for credit – our delinquency ratio is consistently less than one percent compared to an industry average of three percent. We have proven ourselves in the local market and it is incumbent on us to grow the bank beyond the shores of T&T,” he retorts.

As he continues to speak, the justification for Mark’s confidence becomes apparent. “There are a lot of opportunities coming out of the recent global crisis that we are prepared to seize. Quite a number of very solid companies have lost access to good financing and have had their lines of credit pulled… good companies with positive cash flows and strong management that have become ‘victims’ of the downturn. We can provide what they need. If there ever was a time to make an impact and gain a foothold in a new market, this is it.”

Entering new markets is a bold move, but one which is not alien to First Citizens, which pioneered ATM and e-commerce in the Caribbean. It is countered by a measured approach to assessing clients and projects. “We have to be comfortable with the people we are working with, their track record, the regulatory and legal framework, the nature of the project, its viability and the social and economic impact.

“At the end of the day, yes, we look at the numbers but we also look at the people. Businesses will have ups and downs but at the heart of good relationships are good people. There is very little difference among the products that many banks offer. But there can be great differentiation and we set ourselves apart by the importance we place on human connections and our commitment to building strong relationships. Whether it is retail or corporate banking, a fixed deposit of $2,000 or a $200 million syndicated loan, it is the knowledge of our clients and mutual trust we enjoy that pay dividends over time, and which lead to success.”

This is the more culturally acceptable approach to conducting business in Latin America. Prior to joining the First Citizens Group in September 2008, Mark worked in Latin American and Caribbean markets during his tenure at the Inter-American Development Bank. There he was responsible for assessing the feasibility of and financing major infrastructure projects in the region.

With years of experience, a passion for the culture and a Blackberry full of contacts eager to do business with a progressive bank such as First Citizens, it’s no wonder that Mark chose Costa Rica as his point of entry into Latin America. Spurred on by the stable economy, the government’s progressive environmental outlook and the solid guarantees associated with financing major infrastructural projects – from power plants to toll roads and beyond – Mark considers it an ideal environment for First Citizens to establish a foothold in Latin America.

It is apparent that First Citizens embodies the resilient, ambitious spirit of Trinidad and Tobago. This spirit motivated the island to host the fifth Summit of the Americas this year, and to host the Commonwealth Heads of Government Meeting in October. Whilst many other organisations have become stagnant or retreated, this bank is moving ahead with purpose into new worlds, full of possibility.

For further information tel: +868 624 3178;
email: sekou.mark@firstcitizenstt.com;
www.firstcitizenstt.com

Company recovery

Brazil, one of the main emerging markets in the world and a country with a fast developing business environment, has recently experienced a series of important breakthroughs in building a scenario more favourable to business. The most important initiatives in modernising Brazil’s business environment include the creation, in 2005, of the so-called “Company Recovery and Bankruptcy Law” (LREF), which triggered a vast discussion in the National Congress, and replaces statutes that were in effect over the previous six decades.

Before the enactment of the law, Brazil did not have efficient legislation addressing insolvency cases and capable of facing the demands of a highly competitive economic environment, which continues to evolve at an unprecedented speed. Until the recent past, most of the organisations that became insolvent did not have mechanisms to recover, which resulted in many cases of bankruptcy that could have been avoided.

Previous legislation provided for two solutions: composition with creditors and bankruptcy. The first consisted merely of granting an entity the right to pay existing debts over two years. There was virtually no actual involvement of creditors and did not encompass a recovery plan. Accordingly, it only addressed the effects and not the causes of the problem that triggered the financial crisis. As for the bankruptcy proceedings, they were extremely lengthy, and could extend during up to ten years, and recovery of assets by creditors, if any, used to be very low.

The new law represents a turning point in the history of the relations between debtors and creditors in Brazil, and its underlying principle is that both business activities and jobs should be preserved. And, from the creditors’ standpoint if a company is not viable, the law permits a swift declaration of bankruptcy and asset settlement, which ensures a smaller loss of company assets.

One of the major features of the new law is transparency, as recovery procedures now have greater involvement of creditors, who must approve the recovery plan proposed by the debtor. It also creates the position of the receiver, appointed by a court judge, whose job is to follow up the entire recovery process and provide all the necessary information to the stakeholders.

Brazil’s insolvency index
Additionally, creditors are now divided into three classes – labour, unsecured, and secured creditors, where the latter have priority in the event of bankruptcy.

Another positive aspect of the new law is that it favours the financing of a recovering entity’s operations ensuring that the credit offered after a court recovery request is filed – loans not subject to bankruptcy rules – have full payment priority in the event of the entity’s bankruptcy.

The Company Recovery and Bankruptcy Law helps to improve Brazil’s insolvency index, measured by the World Bank, by expediting bankruptcy procedures, preserving the guarantees held by creditors, and awarding payment priority in the event of bankruptcy, base indicators used to build this index. Accordingly, impacts such as lower cost, increased credit, and development of the market as a whole are expected.

It is worth noting also the significant judicial progress in Brazil, as a result of several training courses for judges on business and corporate matters and the creation of specialised courts to deal with proceedings focused on company recovery.

The new law has already resulted in many recovery success stories, which might have not been the case had they been addressed under the previous law. Significant progress has been obtained; however, it is important to bear in mind the need to improve the Law and create more business courts to address these cases. By breaking historic paradigms on the business relations in Brazil, the new company Recovery and Bankruptcy Law has had very positive effects for the improvement of the business environment in Brazil.

Luis Vasco Elias is partner of the Corporate Reorganization Services in the Corporate Finance practice at Deloitte in Brazil

For further information tel: +55 11 5186 6686; email: comunicacao@deloitte.com;
www.deloitte.com

Working goals

Size, says Margrit Schmid, is not the only criterion for success. But it does help indicate just how well a company is doing in its chosen marketplace. “In terms of premium volume, we are the leading global employee benefits network,” she says. “While size is not everything, our size does reflect how many multinational companies entrust their employee benefit solutions to us.”

Clients looking for answers to their employee benefit problems do not come to Swiss Life Network just because it is big, of course. Among the important pillars for Swiss Life Network’s success, Schmid says, are its totally customer-oriented and experienced multilingual employee benefit experts, and its modular system of solutions, which allows companies to determine the best plan to match their needs and risk appetite. “We offer best-in-class employee benefit solutions, which also include administration,” she says. “Our solutions include managing pension funds for multinational companies and providing large companies with captive solutions. Every client has a single point of contact within our organisation, which coordinates and organises all their benefit needs around the globe. Naturally, this is in close co-operation with our local network partners, each of which is a leading life and pension provider in their market. In every case, optimal and efficient administration is part of our solution.”

This network of local partners is an essential part of Swiss Life’s ability to offer companies global employee benefit schemes. “We work closely with our local partners who, like us, use state-of-the-art technological support to ensure the highest quality service,” Schmid says.

Beyond borders
In a world where state medical provision, state pensions, and state benefits vary so greatly between countries, inevitably national differences affect benefit plans across borders among an international corporation’s workforce, an issue that particularly affects expatriate workers. Companies need to ensure that they are fair to both expatriates and the local employees they work with. Here, Swiss Life Network can help. “Even within the EU we have 25 different social and labour laws,” Schmid says. “We base our solutions on best-in-class local solutions that are fully compliant with local laws, and attractive and competitive in the local environment. We then group these into a global solution that provides corporate headquarters with transparency and information. This includes regular reporting, and allows cost optimisation of risk coverages through multinational pooling.”

On the global level, a degree of equality in employee benefits across countries can still be achieved. However, this is through providing employees worldwide with the same categories of benefits, and not necessarily with the same level of benefits.

“Adequate solutions for expatriates are a special challenge. It is important for expats to ensure they have a solution that bridges any gaps resulting from working in different locations and not always qualifying for local solutions or vesting rights. Our expat solutions provide both risk cover and pension solutions, and help ensure that expats have decent risk and retirement benefits both during and after retirement, comparable to an employee with a similar career pattern, but always in the same country. In some cases, this can mean that in some countries an expat may receive more from the employer in terms of benefit contributions than a pure local employee, since social security and other state provisions must be considered differently.”

There is room in the system for expat workers to help themselves, however. “It is important that expats ensure they have a solution to cover any gaps resulting from working in different locations and not always qualifying for local solutions or vesting rights. As we work with modular solutions, we can ensure that every time an expat changes from one country to another, the modules – risk, health and savings – can be adjusted to the new environment,” she says.
All the same, the existence of, for example, “fringe benefit” taxes in certain jurisdictions, for example Australia, and the tax applied to benefits in countries such as the UK, mean efforts at complete equality are unlikely to succeed. “Given the different systems of social and labour law, as well as tax law and general living conditions, it is unrealistic to aim at absolutely equal treatment for employees across borders,” Schmid says. “What can be aimed at is comparable treatment taking into account the environment.”

“Legislation within the EU has ensured that there are no penalties if you move between countries, even if in the first country benefit contributions are tax efficient, that is, tax deductible, while in the second benefits are tax efficient. Tax optimisation is always a complex area. We provide transparency and information, but detailed tax planning has to be in the hands of the employer or the employees themselves.”

It is not always obvious from a Eurocentric viewpoint, but cultural differences – such as the expectation in South Asian countries and elsewhere that children will take care of their parents in old age – make a difference to the employee benefit solutions workers expect, something that Swiss Life Network has to tailor in. One problem, however, is that what parents expect today is not necessarily what children will want to be doing when they grow up, and pension provision and saving for old age, while far less important still in many cultures than they are in the West, are likely to move rapidly up the agenda in developing countries. “As we group best-in-class local solutions into one global solution, local customs are automatically considered in our plans,” Schmid says. “But we are certainly experiencing significant changes worldwide in relation to the expectation that children will take care of their parents and act as their pension solution. While the expectation is still there, ongoing globalisation and urbanisation, as well as the demographic revolution, are making it clear that this expectation cannot be met.

“Every individual needs a pension solution independent of their family and the next generation. In the West also, social security systems based on the so-called inter-generation contract [the expectation that today’s workers pay the taxes that cover the pensions of yesterday’s workers] are experiencing strong financial pressures.”

There does not seem to be a lot of evidence that, outside the obvious areas of differences in local health care provision and old age provision, employees around the world see benefits differently in different jurisdictions. “The importance of employee benefit solutions for employees depends on the level and extent of social security, the tax incentives available in relation to employee benefits, and last but not least, the economic environment and degree of development of the economy,” Schmid agrees. “People generally care most about daily needs and consumption, and only then look at protection against the financial consequences of death, disability and old age.”

Meeting demands
“In the current environment, however, we are seeing increased awareness of the issues and more interest in employee benefits and old age pensions. We listen very carefully to our customers across the globe, and constantly adjust our solutions to meet their needs. We also take an active part in discussions shaping the employee benefit industry.”
All the same, whether employees and employers prefer benefits in terms of rewards and incentives, for example extra holiday allowances for longer service, bonuses for good service, or they prefer basic “inalienable” benefits, such as pensions, medical cover, and so on, “depends on the country and its economic situation,” Schmid says. This is another challenge for global employers: discovering whether the people who work for them in a particular jurisdiction would like more cash or holidays, or whether they look for employee benefits covering death and disability, and a decent income after retirement. “From an employer standpoint, there is also the question of social responsibility,” Schmid says. “Firms need to make sure that employees are aware of the pension situation, and can participate in a second pillar pension scheme.”

Employers also need to look to the future, when the world comes out of the current recession, and skilled, committed workers start to get scarce again as employment picks up. “Employee benefit solutions are an important tool to attract and retain talented employees, and studies show that these can also have a direct positive impact on company performance,” Schmid says. For these reasons, “employers have a real interest in providing appropriate employee benefit solutions, and not just cash or longer holidays.”

For further information www.swisslife-network.com

Boutiques and banks clash

When did your banker last recommend against an execution or transaction for which they are being remunerated?” This leading question awaits prospective clients browsing the website of Ondra Partners, one of a new breed of independent boutique offering “unbiased” advice to companies raising equity, debt or making acquisitions.
Senior bankers at established underwriting banks get angry at any implication they do not always work in a client’s interest and in turn question whether firms offering advisory services have the experience and knowledge to be of help to companies.

One senior banker at a London-based firm said: “These firms have very little to offer as they don’t have the day-to-day experience of the primary equity markets that you need to make the type of judgments they say they can offer. Frankly, they simply add another level of complexity and expense that is certainly not in the best interests of the client.”

In spite of complaints, there are signs companies in need of raising equity to strengthen their balance sheets and wary of getting it wrong, are frequently seeking independent advice.

Investment advisers Lazard and Rothschild have so far been the main beneficiaries of this, working on some of the largest European equity issues of the year, such as Italian utility Enel’s €8 billion deal as well as some of the more complex capital restructurings such as the £1bn equity offering by UK building supplier Wolseley.

These banks say there has also been a resurgence of demand from private equity sponsors wanting to float portfolio companies and from companies and investors considering ways to monetise their equity holdings.

Advisers must tread delicately so their involvement adds to the smooth running of their clients’ deals, rather than creating tensions with corporate brokers and equity capital markets bankers.

David Landman, a partner and chief operating officer for Europe at advisory boutique Perella Weinberg Partners, said: “An adviser should be an advocate for a company and its shareholders during an equity offering, not an adversary of the underwriting banks.”

One of the main jobs of independent advisers on the recent spate of rights issues has been to offer guidance on the structure of equity syndicates and the level of underwriting fees, in part because companies have been keen to make underwriters and bookrunners more accountable.

Underwriter input
Advisers have been asked to draw up underwriting contracts that restrict the banks’ ability to hedge their positions and to push for greater transparency about banks’ intentions to involve sub-underwriters. Some companies have wanted to take the opportunity to reward supportive shareholders via sub-underwriting fees and have also been keen to include creditors on equity syndicates.

Paul Gismondi, head of capital markets advisory in London at Lazard, said: “Equity offers are relationship building opportunities that don’t come about every week. Some companies have needed or wanted to include lending banks in an equity syndicate given that debt is a scarce commodity.”

The risks associated with higher equity market volatility and the weakened balance sheets of many investment banks have made fees a hot topic.

Advisers say there has been a lot of brinkmanship by banks attempting to drive up fees, while some have not been willing or able to commit to hard underwrite deals themselves.

Adam Young, joint global head of equity advisors at Rothschild, said: “The risk appetite of underwriters has varied considerably during the first half of this year and companies have wanted advice on the right line-up of banks to cover the naked risk in case a deal was not fully sub-underwritten.”

There has also been a trend for more unbundling of fees into a base fee plus incentive and discretionary elements and this has led to advisers being asked for their view on how the banks have performed when fees are allocated.

This quality control is important given that the banks with the greatest underwriting capacity might be over-stretched. One head of European equity underwriting said some of the strongest banks are having to leave relatively junior bankers in charge of smaller rights issues because their top bankers are in such demand.

Equity advisers also claim to have been playing a more strategic role at an earlier stage, advising on timing, alternative structures such as a rights issue versus equity placing and the right message about how the proceeds will be used on complex deals involving balance sheet restructuring.

They say preparation, particularly on deals that were not “plain vanilla” equity raisings, have helped get deals done faster with the best chance of success and less chance of leaks.

Gismondi said: “It is a market of windows so it is important that a company is not exposed to the market until it is absolutely certain that it wants to launch a deal. Independent advisers can begin the documentation process before brokers and other banks are brought on board.”

However, bankers at large underwriting firms say preparatory work done by advisers can sometimes be substandard and create more work for bookrunners.

One head of corporate finance based in London said: “We often find this when advisers have been given responsibility for preparing the equity story ahead of a deal. We’ll be brought in two weeks before launch and find ourselves with a plan that hasn’t been properly market tested and will have to spend a lot of time rewriting the proposal.”

The increased profile of independent boutiques clearly rankles with many equity bankers, who object to the implication that their views might be tainted by self interest, claiming many “independent” advisers are just investment bankers trying to make money from the recapitalisation process while there are no mergers and acquisition fees.

Nick Reid, co-head of UK investment banking at UBS, said: “Companies with strong and trusted relationships with their corporate brokers and investment banking advisers tend not to need support from anyone else.”
He said UBS’ corporate broking team offers a market view based on experience and relationships with shareholders, the advisory team comprises bankers who complement the broking relationship, undertake financial analysis and help brokers build the equity story, while the ECM team provides institutional relationships and execution expertise.

ECM bankers are also adamant their advice on equity offerings is the best because they are in the “flows” of the market day in, day out, speaking to institutional investors, gleaning information on trading activity and doing deals.
One head of ECM at a US bank said: “Equity advisory firms are only valuable as job creation schemes at a time of dislocation in the market. If you want culinary advice, you ask the chef who’s been tasting the food in the kitchen, not the person sitting in the dining room waiting for the meal to be served up.”

Sweet Samba

Simplicity, boldness and, above all, freedom. These are the concepts that drive growth at Oi, a company that in the last 10 years became the biggest telecommunications operator in Brazil. Since the Brazilian telecommunications industry was privatised in 1998, Oi, whose control is 100 percent in the hands of Brazilian shareholders, competes with giants such as Telefónica, Telmex, and other multinational operators. During this period, Oi was not only able to withstand – but indeed to beat – the competition, becoming one of the 20 biggest telecommunications companies in the world, with a market value of approximately $8 billion.

In January this year, Oi took the decisive step to strengthen its position: the company acquired Brasil Telecom, a regional operator covering Southern and Midwestern Brazil. As a result, the Federal District and nine states – in addition to 17 in which Oi already operated – were added and became fully integrated throughout the national territory. After this shift, Oi’s share of the Brazilian market reached 33 percent in terms of revenue. The company ended March with about 57.6 million customers, with 21.8 million in fixed segment, 31.9 million in mobile segment and 3.9 million broadband customers. With Brasil Telecom, Oi’s EBITDA rose from $0.9 billion in 1998 to $5.2 billion in 2008, making Oi the largest telecommunications company in Brazil by revenue.

Oi (“Hi”, in English)was created in 1998 when the privatisation of the sector sparked a telecommunications revolution in the country. In the 10 years that followed, Brazil, which has 190 million inhabitants and a $1.5trn GDP, experienced a boom in this area. The 20 million fixed lines in operation and the seven million mobile telephone users in 1998 increased to 41 million and 157 million in 2009, respectively. The highly-competitive broadband market emerged from nearly zero to 10 million users. After the boom of fixed and mobile segments, this is the service that leads the new wave of investment in the sector in Brazil. Apart from commercial motives, agreements signed between the operators and the Brazilian government will bring broadband infrastructure to all municipalities in Brazil by the end of 2010. This, added to the popularisation of personal computers, shows a huge growth potential for companies in Brazil, where the number of broadband users is high but the density rate is still low at 18 percent of homes. The growth of 3G users confirms that the country’s entry in the digital age will be promoted by a combination of technologies, and fixed and mobile access.

On the tube
Another promising front is the subscription TV market, which remains virtually unexplored by telecommunications companies due to regulatory restrictions. As a result, Brazil has one of the lowest rates for subscription TV in Latin America: about eight percent, compared to 63 percent in Argentina and 49 percent in Uruguay. In a recent move, Oi launched the DTH (Direct to Home) service intending to capture the growth potential of this service.

Aiming to become a global operator, Oi surprised the competition and frustrated experts, who after the privatisation bet on groups consisting of international operators, which they claimed would defeat a national company formed by shareholders from different sectors. However, the market has witnessed the retreat of many foreign operators and the strengthening of Oi. From 1998 to 2008, the company invested more than $18 billion to improve services, unify operations and establish a new corporate culture focused on customer satisfaction.

Over the years, Oi expanded its services and its coverage. The company was the first operator to bring GSM technology to Brazil, the first to bundle fixed and mobile phone access with internet and broadband, in an aggressive move to win new customers. Oi was also the first company to sell unlocked handsets and to have a radio and cable TV. From 1998 to 2008, more than 11 thousand locations started to count on fixed telephone lines for the first time. In the same period, the company’s net revenue jumped from $2.6 billion to around $9.2 billion. In May 2007 the company’s rating was upgraded to investment grade, which helped it obtain funding even in times of scarce credit.

In October 2008, Oi took another important step. After winning a hotly-disputed bidding, Oi began operating mobile services in the state of Sao Paulo, which has 41 million inhabitants and the highest GDP among Brazilian states. The introduction of Oi to that market established a new dynamic in the region, whose low density was incompatible with the high purchasing power of its inhabitants. With an aggressive offer allowing three months of free calls, and relying on a time-tested business model, Oi reached unprecedented results for a start-up. At the end of May, the company had 3.5 million customers in São Paulo.

Sustainability
The entire Oi business strategy has been accompanied by a strong sustainability policy, which in 2008 was recognised by the market with its entry into the Corporate Sustainability Index (ISE) of the São Paulo Stock Market (Bovespa).
To contribute with social transformation and human development in Brazil, Oi created “Oi Futuro”, an institute for social responsibility with an emphasis on education and culture. “Oi Futuro” is present in several cities in the country, making the access to knowledge more democratic, fostering artistic creation, valuing the Brazilian cultural diversity and investing in cutting-edge technology to accelerate and promote development. Since its inception in 2001, Oi Futuro has served more than 3.5 million young people, besides investing in several cultural initiatives in different places in Brazil.

Additional initiatives were the sales of unlocked handsets and GSM sim cards, an innovative strategy that once again surprised the market using a simple concept: the consumer’s freedom to move to any operator. Meanwhile, the competitors continue to “handcuff” the customer to annual packages. This strategy was complemented with the end of the penalty for cancelling or changing packages. Also, Oi offers a wide variety of plans, allowing consumers to choose what is most appropriate for them – an important item in continent-sized Brazil.

The financial crisis that fell upon global markets did not affect the expansion plans of the company. For 2009 we anticipate operational investments between $2.6 billion and $3.1 billion.

Oi foresees the expansion of the market, especially in the mobile and broadband internet access segments. The company will expand its strategy of acting as a provider of convergent services. With a backbone spanning 138 thousand kilometers of fiber optic cables and 30.4 thousand kilometers of metropolitan rings, combined with 22,000km of undersea cables connecting Brazil to Venezuela, Bermuda and the US, Oi wants the top spot in the Corporate Data Segment. International expansion is also part of the plan. Oi plans to take its services to Europe, Latin America and Africa. To this end, Oi will draw on its ability to exceed expectations and write its own history.

For further information tel: +55 21 3131 1212;
email: alex.zornig@oi.net.br
web: www.oi.com.br

Dark pools braced for uncharted waters

Dark pools are not the “new black” anymore – they have been in Europe for more than a decade – but recently these esoteric trading systems emerged as the new battleground for European exchanges and their ambitious rivals.
Multilateral trading facility Turquoise signed up six customers to a new service that aggregates the liquidity in their dark pools while a rival MTF, Bats Europe, detailed its plan to launch a dark pool.

Separately, the LSE launched its dark pool Baikal, offering its members the ability to route orders to other trading platforms, and affirmed its commitment to support dark pool trading “later this year” though it declined to be more specific.

The challenge for these providers – as with every trading entrant – is to attract from day one the liquidity that compels firms to start using the system. But these ventures face the added problem of launching into a competitive market where exchanges (NYSE Euronext), MTFs (Chi-X Europe and Turquoise), banks (all the big names) and brokers (Instinet, ITG, Liquidnet and Nyfix) are already fighting to win a critical mass of liquidity despite relatively slow trading.

The recent launches also came at a time of uncertainty about how dark pools fit with US and European authorities’ pledge to ensure transparent markets.

UK financial watchdog the FSA set out guidelines on reporting bilateral trades at a meeting with market participants, according to a source close to the matter.

Furthermore, the sudden proliferation of dark pools has fuelled concerns among buyside dealers that it is becoming harder to find liquidity, something that is hampering their ability to trade effectively.

Systematic philosophy
However, Mike Seigne, the head of algorithmic trading at Goldman Sachs, which has one of the largest dark pools in the US and a fast-growing European offering, argued that dark pools had been misrepresented.

He said: “There is nothing sinister about dark pools, rather they are trying to solve a real requirement on behalf of the clients. The trend of average trade sizes on the lit venues in Europe has continued to decline. This has created a need to try to reaggregate some of these orders into more meaningful liquidity opportunities. Dark pools are simply addressing this need.”

Lee Hodgkinson, the chief executive of NYSE Euronext’s SmartPool, the exchange’s dark pool that launched in February, said dark pools were necessary because the average trade size on the main European exchanges has dropped below €10,000 for the first time, meaning firms are struggling to find on these systems liquidity in what traders call “size”. But Hodgkinson is philosophical about the increased regulatory scrutiny that has been brought to bear on dark pools, arguing it is prudent to test the systems that have emerged after the November 1, 2007 introduction of the European Commission’s Mifid rules.

He believes the review should focus on all market participants that provide dark pools, but said the exchanges and MTFs are obliged to meet stricter regulatory requirements than the banks though they all provide similar services.

He said: “This complex review will cover a range of topics as well as dark pools including the systematic internaliser regime which may need to be reworked. There are currently different regulatory treatments in place for dark pools across the exchanges, MTFs and brokers, though they provide largely the same services to the same customers. We need to encourage a level playing field.”

Seigne fears an overzealous push to transparency by regulators will limit dark pools’ ability to function and hurt traders.

He said: “It is important to remember that at some point too much transparency can become detrimental to a client’s execution quality, particularly if the client is trying to execute a large order.”

A more immediate concern that can be traced to the rise of European dark pools is the increasing fragmentation of liquidity, leading to confusion among traders as to the sources of liquidity.

Most of the dark pool suppliers have seen this and, in the spirit of turning a problem into an opportunity, they are looking to provide additional services to tackle this new requirement.

Goldman Sachs, Morgan Stanley and UBS struck a deal two months ago to link their dark pools and offer European clients access to three of the biggest bank dark pools.

But rivals, such as Bank of America Merrill Lynch, have taken a different approach and signed up to allow bank consortium-owned Turquoise to manage the aggregation.

The US bank, CA Cheuvreux, Citadel Securities, Citigroup, Deutsche Bank and Nomura International last week became the first six groups to sign up to the MTF’s aggregation service.

Yvonne Hansmann, head of Emea execution sales at Bank of America Merrill Lynch, said: “We spoke to the buyside and they gave us a strong indication that this type of aggregated service is the way forward.”

Her colleague Brian Schwieger, head of Emea algorithmic execution at Bank of America Merrill Lynch, added: “The advantage of Turquoise is that it limits the signalling associated with the bilateral broker model. The multilateral model, incorporating six brokers, ensures the Turquoise pool and brokers’ participation stay completely dark.”

The LSE is also bidding to help customers with their aggregation issues and its chief executive Xavier Rolet said: “We have delivered the first part of Baikal’s solution for aggregating liquidity and solving the challenges of market fragmentation.

“We look forward to building on this important milestone with the launch of the non-display order book and further liquidity aggregation services later in the year.”

Dark pools are a fine idea in principle and their providers are moving quickly to address the problem of fragmentation, but the reality is these trading systems have actually created unforeseen problems for many customers, at least in the short term.

How the ‘hidden equity market’ operates

What is a dark pool?
A dark pool is an electronic equity system that differs from an exchange order book by hiding attributes of an order, such as the price or the identity of the broker.

Who provides these systems?

Agency brokers ITG and Liquidnet were the first to launch in Europe, but in the past two years every investment bank worthy of the name has been building and marketing its European dark pool. More recently US brokers, such as Instinet, Liquidnet and Nyfix, and Europe’s stock exchanges have got in on the act with NYSE Euronext launching its Smartpool in March and the London Stock Exchange opening its Baikal system in July.

Why are they important?

Buyside dealers and sellside traders have long complained the exchange order book, the standard mechanism for European share trading, gives up to the market at large vital information about an order. This is less of an issue for normal-sized orders, but this transparency can be problematic when a trader is looking to execute a large block of shares or an order in an illiquid stock because rivals can see what is happening and trade against, or “front-run”, the order, which can prove costly.

What is the downside?

Regulators are suspicious of dark pools for the very reason traders like them – their opacity. European regulatory body the Committee of European Securities Regulators has been peering into the dark this year while the UK’s Financial Services Authority clamped down on some dark pools earlier this year, forcing them to change how they generated prices. The emergence of numerous dark pools has also confused traders because there is no way of knowing which pools have liquidity in a certain stock. Trading firms have to “sweep” each dark pool separately, which can waste time, a problem some firms are looking to tackle by “aggregating” dark liquidity on behalf of their customers.

Proud to be African in international waters

Guaranty Trust Bank plc is a leading Nigerian bank with a corporate banking bias and strong service culture that has led to consistent year on year growth in the bank’s clientele base and financial indices.

From the early 1990s the bank has tirelessly set the pace for other Nigerian financial institutions in terms of service quality, product functionality and excellent customer service. The bank has also created exceptional value for its shareholders through consistent dividend payouts and bonus issues, remaining one of the few institutions in Nigeria that pays dividends twice a year and presents its financials using both Nigerian GAAP (Generally Accepted Accounting Principles) and IFRS (International Financial Reporting Standards).

Guaranty Trust Bank plc has a double A minus risk rating from Fitch Rating, a triple A rating (AAA) from Agusto & Co and a double B minus rating from Standard and Poors. The bank also has an ISO 9001:2000 certification from the International Standards Organisation (ISO) and is the only Nigerian bank to have been the subject of business and brand reviews by Harvard and Cranfield Business Schools.

Guaranty Trust Bank plc operates from 154 business offices in Nigeria with several bank and non-bank subsidiaries spread across Anglophone West Africa and the UK. Through these, the bank is able to meet the growing needs of its customer in areas of banking, insurance, mortgage, asset management and other sectors outside the realm of traditional banking.

Brand values and financials
At Guaranty Trust Bank, the customer is king. A high premium is placed on understanding the customer’s business and providing him with services that meet and exceed his expectations every single time. The bank’s operations are guided by a set of founding principles called the 8 Orange rules; simplicity, professionalism, service, friendliness, excellence, trustworthiness, social responsibility and innovation.

By adhering closely to these values and the ensuing customer confidence the bank enjoys, these have become the source of its financial and other successes over the years. The bank’s December 2008 financial show earnings of over N100 billion, shareholders funds of N182 billion and assets plus continents of over N1.3 trillion.
History

Guaranty Trust Bank plc was incorporated as a limited liability company licensed to provide commercial and other banking services to the Nigerian public in 1990. The bank commenced operations in February 1991, and has since then grown to become one of the most respected and service focused banks in Nigeria.

Five years later, in September 1996, Guaranty Trust Bank plc became a publicly quoted company and won the Nigerian Stock Exchange Presidential Merit award that same year and subsequently in the years 2000, 2003, 2005, 2006, 2007 and 2008. In February 2002, the bank was granted a universal banking license and later appointed a settlement bank by the Central Bank of Nigeria (CBN) in 2003.

Guaranty Trust Bank undertook its second share offering in 2004 and successfully raised over N11bn from Nigerian investors to expand its operations and favourably compete with other global financial institutions. This development ensured the bank was satisfactorily poised to meet the N25bn minimum capital base for banks introduced by the
Central Bank of Nigeria in 2005, as part of the consolidation exercise by the regulating body to sanitise and strengthen Nigerian banks.

Post-consolidation, Guaranty Trust Bank made a strategic decision to actively pursue retail banking. A major rebranding exercise followed in June 2005, which saw the bank emerge with cutting edge service offerings, aggressive expansion strategies advertising policies and its now trademark vibrant orange.

In 2007, the bank entered the African business landscape history books as the first Nigerian financial Institution to undertake a $350 million regulation S Eurobond issue and a $750 million Global Depositary Receipts (GDR) Offer. The listing of the GDRs on the LSE in July that year made the bank the first Nigerian Company and African Bank to attain such a landmark achievement.

Over the years, the bank has been a recipient of numerous accolades and commendations for exceptional service delivery, innovation, corporate governance, corporate social responsibility and management quality. A few of these are: the 2007 Most Respected Company in Nigeria in a survey by PricewaterhouseCoopers and BusinessDay, multiple honours in the Vanguard Newspaper Banking Awards as winner in three categories: 2007 Most Customer-Friendly Bank, 2007 Bank of The Year and 2007 Best Bank in Corporate Governance. More recently, the Bank clinched the 2009 Most Customer-Focused Bank: Retail Award and a 2008 Best CSR Rating from KPMG and SIAO respectively. The bank also won the Best ICT Support Bank of the Year award at the 2009 National ICT Merit Awards.

Products
Guaranty Trust Bank plc provides a full range of commercial, investment and retail banking products/services to its discerning corporate, commercial and retail customers.

Widely recognised as a pace setter and industry leader, the bank is also accredited with such innovations as the introduction of online banking in 1990, making it possible for customers to access their accounts and conduct transactions from any branch in the bank’s network. In 2006, the bank launched GT Connect, a fully interactive service contact centre that allows customers conduct 90 percent of banking transactions via phone from anywhere in the world.

The bank’s other innovative products and solutions include an E-branch, where customers can perform transactions electronically with no human interface; Drive Through banking, a service which enables customers to withdraw funds and make enquires from the comfort of their cars as well as GTBank on wheels, a fully mobile banking branch.
The bank’s internet banking platform is a notch above its contemporaries in that it is enabled to support inter-bank transfers. The bank also offers debit and credit card services, and keeps its customers abreast of transactions on their accounts through GeNS, its SMS and electronic transaction notification system.

Social responsibility
For Guaranty Trust Bank, corporate social responsibility as not just a catch-phrase, but a continuing commitment to the millions resident in its diverse operating environments.

Accordingly, the bank is driven by the developmental challenges of its host communities to remain a socially responsible company that ensures its activities meet and exceed the social, environmental and economic expectations of its stakeholders.

A significant part of the bank’s annual earnings are used to support structures, events and individuals across diverse areas of child healthcare and education, entertainment, environmental beautification, human capital development and the arts.

Guaranty Trust Bank’s continued support for such laudable initiatives over the years have resulted in several accolades and recognitions; most recent was the 2008 Best CSR Rating by SIAO, a foremost indigenous rating firm.

Brand affiliations
Today, backed by its growing regional spread and strong domestic franchise, GTBank’s business ties in various facets of the global economy extends across all continents to include over 15 overseas correspondent banks and finance institutions such as HSBC, Citibank, Bank of China, JP Morgan Chase and Deutsche Bank, Afrexim Bank, Bank of China and BNP Paribas.

The bank has also partnered with key local and international brands on socio-economic developmental projects over the years. Some of these partners have been Swiss Red Cross, The Prada Foundation, The Commonwealth Business Council and Nigeria’s House of Representatives

For Guaranty Trust Bank plc, everyday presents the opportunity to make history. In achieving this, the bank is constantly evolving, whilst consolidating its pride of place as a proudly African, truly international bank. π

For further information tel: +234 1448 0000; email: pascal.or@gtbank.com; www.gtbank.com

Gold’s role on the road to recovery

Economic strategists, fund managers and the guardians of our collective wealth are preoccupied with attempting to determine whether the green shoots peeping through the debris will be short-lived or represent a real return to stability. We also have to hope that they give appropriate consideration to some of the issues which might have contributed to the vulnerability of assets and what steps might now be taken to better protect them in the future. Of course, hindsight is a wonderful thing, and it is perhaps a little too simple and easy now, standing in the wake of the crisis, to suggest that the return expectations of investment professionals during the bull run that ended so dramatically in 2008 were both overly optimistic and unsustainable. But it would be equally remiss of asset managers and policy makers not to examine the factors that lead to such a failure of foresight and what drove them to pursue strategies that proved so fragile when faced with the corrosive consequences of the credit crunch and subsequent recessionary pressures.

It can certainly be argued that many in the investment community were blinkered by an overly narrow focus on the search for returns, which in turn helped further fuel the bull run. This resulted in a vicious cycle of investors taking on increasing amounts of risk to chase higher and higher returns, whilst paying less attention to risk and diversification during this period. Even as clouds gathered on the horizon, many asset managers remained complacent about risk levels within portfolios, believing they were sufficiently diversified. The probability of a negative event was perceived to be very low and the possible consequences judged to be too insignificant to cause serious concern or prompt a change in attitude or policy. In reality, this “tail risk” proved to be much greater than expected and its consequences were both severe and far-reaching.

Awakening complexity
As a result of the widespread shortcomings in portfolio risk management, investors have now been forced to return to the fundamentals of asset allocation and diversification and re-examine the robustness of investment strategies. What has become apparent is that much of the diversification that had taken place was equity portfolio diversification, as opposed to true diversification across asset classes. Recently voiced concerns that diversification theory – which underpins the ability to manage risk in a portfolio – had been proven by recent events to be flawed failed to acknowledge that it was the narrow range of assets used to implement diversification that undermined the effectiveness of asset allocation strategies.

Moreover, to the extent that some asset managers and investors had started to move into other asset classes, much of this was put into practice through complex investment vehicles and strategies that were poorly understood. The decimation of the hedge fund industry and the concurrent decline in property values should now have taught investors that merely moving a portion of their assets away from core equity holdings does not necessarily represent an effective diversification strategy.

To the surprise of many market participants, whereas the reactions of most asset classes converged as market conditions worsened, an age-old but recently neglected asset, gold, proved to be one of the few true diversifiers, uncorrelated to mainstream asset behaviour and impervious to the economic downturn. And, as gold’s value held while oil and broader commodity indices plunged during the second half of 2008, it quickly became apparent that gold is not just another commodity – its qualities as both a monetary asset and an enduring safe haven set it apart from the struggling commodity complex as recessionary pressures mounted.

This unique independence as an asset is reflected in a robustness in the demand for and price of gold across the economic cycle that is not apparent in most other assets. Put simply, most portfolios are strategically biased towards assets that perform well during periods of economic strength, but provide limited support during periods of sharp economic downturn. Effectively, gold’s resilience during periods of crisis provides a form of portfolio insurance. Beta, or market risk, can negatively affect even the most defensive equity portfolios as evidenced in the recent turmoil. From an asset allocation perspective, the absence of a positive correlation in the gold price with the price of other assets makes it a powerful diversifier within a broader portfolio. Even gold’s correlation with a broad commodity basket, while positive, is generally lower than is widely thought.

Looking beyond the recent gloom and current uncertainty, gold can also add value to a portfolio during buoyant economic times. As with other commodities, demand for gold benefits from rising incomes and spending levels during periods of economic growth. In the case of gold, this occurs not just through industrial demand as with other precious metals, but also through demand for gold jewellery. Gold is unique in the range of geographical and sectoral drivers of demand and these help buffer it from specific regional or cyclical shocks. Furthermore, gold offers well-established inflation and dollar hedging attributes. These attributes are relevant from the point of view of both strategic and more tactical asset allocations.

Inflation/deflation
Gold’s inflation hedging ability continues to be an important driver of investor flows. The stimulus measures of quantitative easing, in its various forms, taken by governments across the globe to address the economic crisis carry their own health warning. While the immediate concern may be that major economies struggle to crawl out of a liquidity trap and enter a period of deflation, it is widely acknowledged that the stimulus packages, if successful, also make future inflation far more likely. Currently, gold is benefiting from a fear of future inflation as well as deflation. For those investors concerned about future inflation, it is gold’s historical outperformance during previous periods of high inflation that is proving to be an important motivator. Conversely, in a deflationary environment it is gold’s safe haven status that helps allay investors’ fears, reflecting the likelihood that deflation is the result of continued extremely weak economic conditions.

While each of gold’s long run attributes may be important in its own right, it may not be intuitively clear how they fit together and influence gold’s interaction with a broader portfolio of assets. In other words, if gold’s attributes are judged sufficient to warrant gold’s inclusion within a portfolio, should this allocation be primarily tactical due to current conditions, or are the arguments strong enough to warrant including gold as a core or strategic holding? And, if gold is identified as a foundation asset, how much gold is enough?

World Gold Council recently carried out a series of research studies to examine these questions using patented portfolio optimisation software developed by Boston-based economists and asset allocation specialists, New Frontier Advisers. Long-run returns for a range of assets that might form the core holdings of a typical investor or fund entered into the system and then gold was added with the objective of determining if an allocation to the yellow metal would prove optimal and what size that allocation should be. The studies (for sets of both US and UK oriented assets) produced broadly compatible results; that an allocation of gold is optimal, ranging from around four to ten percent, depending on levels of risk tolerance. It is worth noting that the return expectations for gold used in the studies were conservative and asset managers and investment strategists may consider larger allocations easily justified, particularly during times of uncertainty.

www.gold.org

Working towards a more trusted internet

With billions of dollars in trade — and even national security — at stake, it is no surprise that the issue has progressed from a technology concern to a hot political issue. In the US and UK, high level governmental announcements have propelled cybercrime to the top of the policy agenda, and the EU is looking at ways to clamp down on crime and ramp up punishment.

Encouraging as this is, it’s an issue that cannot be tackled by national or even pan-regional governments alone. The nature and complexity of online crime, combined with a rapidly evolving threat landscape, demands global and collaborative solutions.

“Cybercrime is the main threat to the internet’s huge economic, social and governmental potential,” says Roger Halbheer, Microsoft’s chief security advisor Europe, Middle East and Africa. Building greater confidence in the internet specifically and ICT more generally, has been a long-standing strategic focus for the company dating back to the creation of the Trustworthy Computing (TwC) division in 2002. Whilst TwC’s initial remit was to take an engineering approach to making Microsoft’s products more secure, its focus has evolved to encompass a long-term, collaborative effort to deliver security, privacy and reliability which the company calls End to End Trust.

According to Microsoft, realising a more trusted online environment lies in four principal areas. The first is the adoption of basic security fundamentals – the use of antivirus and firewall technology for example, along with making sure that operating systems are maintained with up-to-date security patches.

The second principal is the establishment of an IT stack from hardware through to operating systems and applications in which security is the central engineering principal. Building on that collaborative challenge is the call for a claims based identity system where consumers have control over what personal information they divulge and only need to impart personal data relevant to the content or service they are seeking to access.
Finally, and perhaps the biggest challenge of all, Microsoft’s End-to-End Trust vision calls for collaboration to work towards social, economic and political IT alignment.

“For people to make trusted decisions they must trust the technology”, said Roger Halbheer, Security Chief Advisor, Microsoft EMEA. “They need trustworthiness in their operating system, applications and devices. They also need to trust people and data to be able to safely access resources while disclosing as little of their identity as possible. We believe that technology innovations are critical to build up a more trusted online environment and regain people’s trust”.

At the 2008 RSA Conference in the US, Microsoft’s Corporate Vice President for TwC, Scott Charney,  called for a broad dialogue with customers, governments and policy makers on the future of security and privacy on the internet — with the aim of galvanising the move to coordinated action. Charney argued that the vision can only be realised through cooperation, technology innovations and social, economic, political and IT alignment.

The need for this cross-stakeholder dialogue is underlined by the rapid re-targeting of criminal activity to where the most lucrative opportunities lie. Less than a decade ago, criminals exploited vulnerabilities in operating systems with viruses and worms, spyware and spam. Through Trustworthy Computing, Microsoft’s response was to place security as a principle engineering requirement. The company even delayed the launch of Windows Vista so that all its developers could undergo secure development training.

Hackers and other cyber criminals have not waved a white flag and gone home, but since the inception of TwC they have found versions of Windows to be increasingly harder targets. Malware infection rates on Windows Vista are over 60 per cent less than Windows XP. It is a lesson the company is carrying forward into its next generation of products, and the expectation is that Windows 7 will be more secure still. Good security is evidently good business.

However, as the number of technological vulnerabilities to exploit has gone down, human nature is now seen as the soft target. Criminals are using sophisticated confidence scams to deceive. We’ve all received emails informing us of lottery wins, or asking for help in extricating millions from a West African bank account.

Rogue security software, which masquerades as a defence when it’s actually the threat, is a growing problem and uses deception to obtain money or sensitive information from victims. Microsoft’s own research, published in its twice-yearly Security Intelligence Report, shows that criminal use of rogue security software increased significantly between July 2007 and December 2008. Three of the top 10 online threats detected worldwide in the second half of 2008 disseminated rogue security software.

Microsoft has for a long time explained that, whilst recognizing the pervasiveness of its technology means it has a responsibility it has to address the security issue, it cannot provide the answer on its own. Indeed, according to version six of the Security Intelligence Report, nearly 90 per cent of disclosed vulnerabilities in the second half of 2008 were in applications developed by third parties and not in Windows. This suggests that other players in the software industry could learn lessons from Microsoft – a point not lost on the Trustworthy Computing group which is increasingly offering secure development tools to external developers, along with guidance and training. 

Developing more secure software is one challenge, but governments, educators and law enforcement also have a vital role to play.

”The challenge for the IT industry is to make the entire cyber infrastructure, ranging from the Internet itself to the devices that people and businesses use to interact with it, as secure as it can be,” says Graham Titterington, principal analyst at Ovum. “However, no equipment can protect itself against being used carelessly, or being manipulated by people with evil or devious designs. Training and awareness will help here. Cybercrime is fundamentally crime. Criminals have to be hunted and prosecuted no matter which avenue they choose to follow. Governments have to pass laws, including ones to enable international co-operation, to make this possible.”

The industry is uniting to enhance trust. In May this year Gemalto, Microsoft, Nokia and Philips announced the ‘Trust in Digital Life’ initiative, with the aim of bringing European public and private stakeholders together to create an agenda for innovation and promote alignment of public and private policies. The SAFECode initiative is another partnership that pulls together global players, including Microsoft, Nokia, SAP AG and Symantec Corp. It is committed to increasing trust in ICT products by promoting ever-more effective software assurance methods.  These partnerships are combined with initiatives such as Microsoft’s Security Development Lifecycle, which helps independent software vendors to embed security at the design stage when building applications for Microsoft products.

“The ICT industry was able to find common agreements on general standards and frameworks. Internet protocol became a common standard for Network communication in less than 20 years. It is almost a common language,” explains Eric Domage, IDC’s Western European security expert. “The challenge now is to adopt a common security language understood by software developers, infrastructure architects, Trust and identity providers, and business users. Some pieces already exist, such as X509 and SAML, so the intention of creating this is real.”

Real world solutions for real people
Sadly, there will always be those who seek to profit from illegal activity, which is why there will always be threats to online security. It is clear that everyone — from governments to businesses to IT professionals to families using the internet at home — needs to have access to the latest protection in the fight against cybercriminals.

People want technology that solves real world problems such as ID theft, online fraud and child safety. But the growing threat of cyber crime is such a global and complex issue that it can’t be tackled by technology alone. Regulation, behavioural change and technology solutions must come together, because only a combination of these factors will deliver the End to End Trust as envisioned by Microsoft.