Mumbai/Tokyo: Imagine buying a home on the condition that you could sell it back anytime for half price. Then imagine trying to do so a few years later only to hear that the agreement wasn’t legal.
That’s effectively what’s happening to Japan’s largest mobile-phone carrier. Only instead of a house, NTT Docomo Inc. bought a stake of more than $2 billion in a phone company from Tata Group, India’s biggest conglomerate, which says Indian law bars foreigners from selling out of their investments at above a “fair value”.
Though an international arbitration panel sided with Docomo in June, the years-long dispute has since moved to courtrooms in London and New Delhi. More broadly, the case has highlighted the legal risks in Asia’s third-largest economy as Prime Minister Narendra Modi seeks to bring in foreign investment.
“Among those doing business in India, there is some level of anxiety toward its administration and the execution of laws,” said Kotaro Tanaka, an official at the South Asia Department of Japan International Cooperation Agency, which makes loans and investments in developing countries. “If Docomo loses the case, risk-averse companies may stay away from India.”
Tokyo-based Docomo spokesman Yousuke Oowada declined to comment, as did Tata.
Modi is seeing some success in bring in money from overseas as India grows faster than any major economy as his administration seeks to ease investment curbs. Foreign direct investment into India climbed 23% to $55 billion in the 12 months through March 2016, according to government data.
Modi is partly trying to restore India’s image after legal wranglings contributed to some of the world’s biggest multinational companies foundering in the country.
For example, when former prime minister Manmohan Singh eased restrictions on the entry of foreign-owned retailers in 2012, Wal-Mart Stores Inc. and Carrefour SA began setting up plans to expand in the country. Singh then reversed course and supported restrictions that effectively barred foreign entrants.
Then there’s Vodafone Group Plc, which has been disputing a tax bill involving more than $2 billion related to its acquisition of Hong Kong billionaire Li Ka-shing’s Indian phone business. While Vodafone has said it doesn’t owe the Indian government money because the transaction was conducted offshore, Indian authorities have sought to collect because the deal involved assets in the country.
Nevertheless, investors drawn to India’s rapid economic growth and relatively young population will probably be willing to overlook these issues, said Abhimanyu Sofat, vice-president at brokerage India Infoline Ltd. in Mumbai.
“While the Docomo-Tata spat may impact sentiment, for an investor seriously looking to enter India, it won’t be a huge concern,” he said.
The feud traces its roots back to 2009, when Docomo agreed to buy shares in Tata Teleservices from Mumbai-based Tata Sons Ltd. to enter the fast-growing Indian phone market. But as insurance, the agreement entitled the Japanese company to sell its shares back at 50% of the purchase price, or let Tata find a suitable buyer for the stake.
But as competition drove Indian operators to charge less than a penny a minute for calls—among the lowest rates in the world—profits turned elusive for the nation’s smaller carriers. Tata Teleservices, the nation’s seventh-largest operator, has accumulated more than 300 billion rupees in losses, according to company data accessed from India’s Ministry of Corporate Affairs.
In 2014, Docomo exercised its right to sell out.
For its part, Tata has said its preferred course of paying Docomo as per the original agreement is blocked by India’s central bank, which has said that the deal contradicts the Foreign Exchange Management Act .
A 2014 circular from the bank said that non-residents cannot be guaranteed an exit price for an investment and that fair value of such stakes should be determined “as per any internationally accepted pricing methodology on arm’s length basis, duly certified by a chartered accountant or Sebi registered Merchant Banker.”
Though neither company will say what that fair value is, the Business Standard newspaper reported in July 2015 that Tata offered to buy the stake at 23.34 rupees a share, less than half the 58 rupees per share Docomo has sought.
Since the London Court of International Arbitration said in June that Tata should pay $1.17 billion to Docomo, the Japanese company has been seeking to enforce the arbitrator’s decision in courts in New Delhi and the U.K.
“The outcome of this case will be carefully monitored, especially since Japan is the second-biggest source of FDI in India,” said Saket Shukla, a partner at Phoenix Legal in New Delhi. “If the court holds it’s a valid award, and at the end the government doesn’t allow them to remit the money, then it’s a major concern for investors.”
Regardless of the outcome, investors are likely to give full scrutiny to any ownership terms going forward, said Sofat of India Infoline
“If anything, it will prompt companies to be more careful that the fine print in their agreements are compliant with law,” he said. Bloomberg