INTRODUCTION
The explosive growth of international financial transactions and capital flows is one of the most far-reaching economic developments of the late 20th century. Net private capital flows to developing countries tripled – to more than US$150 billion a year during 1995 to 1997 from roughly US$50 billion a year during 1987 to 1989. At the same time, the ratio of private capital flows to domestic investment in developing countries increased to 20% in 1996 from only 3% in 1990. Hence, this has effected a shift from the national economy to global economies in which production and consumption is internationalised and capital flow freely and instantly across borders.
Powerful forces have driven the rapid growth of international capital flows, including the trend in both industrial and developing countries towards economic liberalization and the globalisation of trade. Revolutionary changes in information and communications technologies have transformed the financial services industry worldwide. Computer links enable investors to access information on asset prices at minimal cost on a real time basis, while increased computing power enables them to rapidly circulate correlations among asset prices and between asset prices and other variables. At the same time, new technologies make it increasingly difficult for governments to control either inward or outward international capital flows when they wish to do so.
In this context, perhaps financial markets are best understood as networks and global markets as networks of different markets linked through hubs or financial centres.
All this means that the liberalisation of capital markets and with it, likely increases in the volume and volatility of international capital flows is an ongoing, and to some extent, irreversible process.
It has contributed to higher investment, faster growth and rising living standards. But this can also give rise to shocks and stresses resulting in financial crisis as we have all witnessed in 1997 and 1998.
Testimonies to the risks of open capital markets are the several waves of instability in the financial markets in early 1998 and again in the wake of the Russian crisis in August/September 1998. To illustrate, net private capital outflows from the five countries most affected by the crisis, namely, Indonesia, Korea, Malaysia, Thailand and the Philippines rose to US $28.3 billion in 1998, reflecting mainly the decline in net bank and non-bank lending. Meanwhile, foreign direct investment which had been one of the main sources of growth during the pre-crisis period in these countries remained sluggish in 1998, amounting to US$8.5 billion as compared to an average amount of US$17.8 billion during the period 1995 to 1995.
Global trade has experienced a slowdown over the past two years due to trade contraction of East Asian economies. Generally, world GDP and trade growth slowed in the past 1997/1998 as the East Asian crisis deepened and its repercussion were felt increasingly outside the region. Asia recorded the strongest import and export contraction in volume and value terms of all regions of the world. The dollar value of Asia’s imports registered an unprecedented decline of 17.5%. The five Asian countries most affected by the financial crisis that broke in mid-1997, that is, Malaysia, Indonesia, Philippines, the Republic of Korea and Thailand experienced import contraction by one-third.
In the context of these powerful trends, I like to discuss a few significant the issues relating to them, particularly from a capital market regulator’s perspective. Given the breadth of the topic at hand, and in the interest of keeping to time, please allow me to focus particularly on current trends and difficulties faced in the capital markets.
DEVELOPMENTS IN ELECTRONIC COMMERCE AND CAPITAL MARKET REGULATION
Developments in computer and information technology have made dramatic changes to the way the financial services industry operates. These changes are affecting and will affect every aspect of the financial services industry and offer the possibility of reduced costs in raising capital, greater efficiencies in the mobilisation of domestic and international savings and the provision of better, cheaper investment products more closely tailored to the needs of different investor segments. The convergence of computer and communications technology is promoting the development of computer mediated networks, allowing for users to communicate and transmit data and other information regardless of boundaries and distance. As communication costs continue to fall, the potential of outsourcing grows.
These changes will affect –
The way investment products are offered, distributed and marketed and the way in which investors access information about the products and entities involved;
The activities of financial services intermediaries, especially advisers, and the way they deal with investors;
The continued blurring of product and institutional boundaries, and even the scope of financial services sector itself as non-traditional entities take on some of the functions of financial intermediaries;
The methods of distribution and marketing of investment products which will increasingly draw upon the techniques of mass marketed consumer products; and
The way secondary trading in investment products takes place as greater scope for direct investor transactions and low cost competitors to established securities and futures markets becomes more of a reality.
Just as electronic commerce affects investors and providers of financial products and services, it will affect the role of corporations and capital market regulators. Just as electronic commerce facilitates activities across jurisdictional borders, it poses in clear terms questions about the practical enforceability of national laws. As well as practical enforcement questions, electronic commerce also raises issues about the role that capital market regulators should play and the effectiveness of many of the traditional regulatory approaches and mechanisms that have been employed by them. An example might be an offering of securities made without a prospectus or registration statement on the Internet by a person in a jurisdiction with which the capital market regulator has no regular contact or mutual enforcement arrangements. There are also concerns about illegal and fraudulent activity on the Internet.
In this regard, the Malaysian position is that it is committed towards a structured development of electronic commerce. Towards this end, Malaysia has proposed to introduce a National E-Commerce Masterplan. This Masterplan should focus on key initiatives which will create momentum in trading via e-commerce. Besides looking at developing the technological infrastructure such as telecommunications infrastructure and systems providing for electronic delivery of goods as well as payment, the Government is also aware that there are legal and regulatory issues which will arise with regard to e-commerce. Malaysia has introduced several sets of laws catered towards proper regulation of e-commerce known as ‘Cyberlaws’. The Cyberlaws which have been introduced include, among others :
(i) Computer Crimes Act 1997
This Act provides for a framework to counter computer offences such as unauthorised access to computer material, crimes of fraud and dishonesty through the computer, unauthorised modification of contents of a computer and so on. The Act is not limited by jurisdiction. It has effect outside as well as inside Malaysia. Where a computer crime is committed outside Malaysia in respect of computers or data in Malaysia or that which may be connected to or used in Malaysia, the crime may be treated as a crime within Malaysia and the perpetrator may be dealt with under the provisions of this Act; and
(ii) Digital Signatures Act 1997
This Act addresses issues of security and authenticity of electronic transactions and it allows for greater confidentiality and integrity of messages. It allows for businesses to use electronic signatures instead of hand-written counterparts in legal and business transactions. The Act provides for the treatment of document signed with a digital signature created in accordance with this Act to be treated as legally binding as if the document was signed with a handwritten signature.
The development of an effective regulatory framework is essential in attracting and maintaining confidence for the world in trading with Malaysian counterparts via electronic means. The regulatory framework as it stands is currently incomplete as many other areas such as electronic banking and broking are still in the process of development.
To instil confidence, Malaysia must be able to provide for regulatory certainty and coherence as well as prevent regulatory capriciousness. In relation to financial services, a major consideration is cross-border implications. The Securities Commission, as an example, is currently looking at issues relating to Internet offering of securities and fund management and broking services over the Internet. A re-examination of current laws would need to be conducted to ensure that they have not been overtaken by technology and to restructure the laws so that they are technology neutral.
As far as the capital market is concerned, the Securities Commission recognises that electronic commerce is an area where it is important that the regulatory infrastructure responds in a positive and timely way to facilitate market developments and not hinder innovation in market products and processes. We believe that there are important benefits to be gained through the Commission’s facilitation of market developments in this area for the competitiveness of the Malaysian capital market, efficiencies in the operation of our capital markets and the better making of investors at lower cost. At the same time, the Securities Commission considers that it is important for the successful implementation of electronic commerce that investors retain confidence in the integrity of the market for investment products.
LIBERALISATION VS. PROTECTIONISM
On the issue of liberalisation vis-à-vis protectionism, there has been a proliferation of multi-lateral trade agreements since the middle of the century. Such agreements provide for a framework of rules within which nations are ‘obligated’ to assure other nations signatory to the agreement of a sovereign’s approach towards international trade. For example, Malaysia is a member of, among others, the World Trade Organisation through which it is a signatory to the GATS (General Agreement on Trade in Services) and GATT (General Agreement on Tariffs in Trade), APEC as well as ASEAN, all of which have the objective of achieving liberalised trading of goods and services within specified, albeit not immediate, time frames. Through these trade blocs, Malaysia has committed itself to progressive liberalisation which essentially entails a gradual opening of the economy to foreign participants.
The globalisation of economies is intrinsically linked to the internationalisation of the services industry. It plays a fundamental role in the growing interdependence of markets and production across nations. Information technology has further expanded the scope of tradability of this industry. Access to efficient services matters not only because it creates new potential for export but also it will be an increasingly important determinant of economic productivity and competitiveness. The main thrusts of the ‘services revolution’ are the rapid expansion of the knowledge-based services such as professional and technical services, banking and insurance, healthcare and education. Responding to this phenomenon, regulatory barriers to entry in service industries are being reduced worldwide, either through unilateral reforms, reciprocal negotiation or multilateral agreements. Developing countries such as Malaysia are increasingly looking at foreign direct investment in services as an especially powerful means of transferring technical and managerial know-how, besides attracting foreign capital and investment to the country.
Malaysia has made a commitment under GATS under legal services covering advisory and consultancy services relating to home country laws, international law and offshore corporation laws of Malaysia. Under the GATS commitments, commercial presence of foreign legal firms is not available except in relation to the Federal Territory of Labuan and in such a case, their services are limited to legal services given to offshore corporations established in Labuan. However, there are no limitations placed on the provision of legal service cross-border, that is, provision of such service from a foreigner without having a legal presence in Malaysia. This may be done via fax, telephone or the Internet. As stated before, most aspects of legal services does not need the physical presence of the service provider except perhaps where a court appearance is necessary. Furthermore, a Malaysian may obtain legal services abroad without any limitation either.
Malaysia is also signatory to the ASEAN Framework Agreement on Trade in Services (AFAS). The AFAS is an agreement made within the auspices of the GATS. In very basic terms, commitments under AFAS are GATS-plus which means that liberalisation of trade is accelerated within the ASEAN region under the AFAS as compared to the world at large under GATS. Its ultimate aim is to achieve regional integration and free flow of services within the region. In achieving integration and free flow of services within the region, many issues would need to be ironed out. Issues such as harmonisation of professional standards, acceptable levels of accreditation between member countries, movement of labour in relation to provision of these services, licensing and certification of service suppliers are still under intense discussion within the Member Countries. Taking into account the different levels of economic and regulatory maturity of Member Countries within the ASEAN, it is understandable that it would be a long process of consultation before a consensus may be achieved.
LIBERALISATION OF CAPITAL ACCOUNT
A most obvious impact of globalisation of trade are pressures exerted on developing nations to liberalise their financial markets and capital accounts. However, it is important to recognise that domestic and international financial liberalisation heighten the risk of crises if not supported by prudential supervision and regulation and appropriate macroeconomic policies. Domestic liberalisation, by intensifying competition in the financial sector, removes a cushion protecting intermediaries from the consequences of bad loan and management practices. It can allow domestic financial institutions to expand risky activities at rates that far exceed their capacity to manage them. By allowing domestic financial institutions access to complex derivative instruments it can make evaluating bank balance sheets more difficult and stretch the capacity of regulators to monitor risks. External financial liberalisation in allowing foreign entry into the domestic financial markets may facilitate easy access to an abundant supply of offshore funding and risky foreign investments. A currency crisis or unexpected devaluation (such as in the Asian crisis) can undermine the solvency of banks and corporations which may have built up large liabilities denominated in foreign currency and are unprotected against foreign exchange rate changes.
The ideal free market is one that every one should be free to enter, to participate in and to leave. However, events in the recent financial crises have led many of us to believe that in the freest of markets, there is a need to ensure that free flow of capital does not destabilise the market itself.
Indeed, calls for reform have gained increasing support and credence within the international community with the unfolding of the devastating effects of the crisis beginning mid-1997. The SC’s work within IOSCO’s Emerging Markets Committee has drawn attention to fundamental weaknesses in the existing global financial infrastructure that have caused and exacerbated these effects. These weaknesses include the inordinate power of highly leveraged institutions to move markets, the destabilising force of volatile short-term capital flows and the failure of existing credit assessment systems to adequately inform market participants of increasing risk of default.
One example of this mounting consensus was the express recognition by G7 countries at their recent meeting in Cologne of the need to strengthen the international financial architecture.
There are now increasing calls for greater transparency and regulation of hedge funds and greater awareness of the dangers of volatile short-term capital flows. To rebuild East Asia and the global economy, we now urgently need to engage in a sincere discussion about what constitutes sound governance in the contemporary world.
On the domestic front, we would have to ask ourselves this question: has our financial markets kept pace with change? Whilst markets have become global, applicable rules and regulations remain predominantly parochial or local. From a regulator’s perspective, the challenge for us in a global market is to design the regulatory and structural framework which will allow the market to function efficiently, competitively in a fair and level playing field environment, ensuring at the same time that the market is not subject to highly concentrated or destabilising forces that would disrupt its functioning.
The recent crisis also shows up the need for a careful and sequenced approach towards liberalising a country’s capital account. The experiences of Thailand, Korea and Indonesia clearly tells us that there is no prescribed formula on sequencing. However, it is important to recognise that countries vary greatly in their levels of economic and financial development, in their institutional structures, in their legal systems and business practices, and their capacity to manage change in a host of areas relevant for financial liberalisation. It is in recognition of this that the IMF policy-setting committee and subsequently the Finance Ministers and central bank governors of the G7 industrial nations, in the fall of 1998, stressed that a country opening its capital account must do so in an orderly, gradual and well sequenced manner.
Issues of liberalisation versus protectionism would need to be considered at great length to ensure that a country is competitive in a global trading environment. In a developing nation such as Malaysia, a protectionist policy towards local financial services industry and industry participants have been adopted to assist the local industry to develop to international standards. In the area of financial services, for example, the Government’s stance has been that consolidation of local financial services providers is necessary to ensure the development of a core group of strong and stable financial institutions to be able to withstand international competition when the financial services markets are opened to international participants.
Indeed, the Malaysian experience clearly shows that a premature freeing up of the capital account, which was done in 1988, without the requisite reforms and institutional arrangements in order to withstand the shocks, can result in debilitating effects as was faced in the Malaysian financial services industry.
MALAYSIA’S EXPERIENCE
Perhaps the most important lesson learnt from the Asian financial crisis was the interdependence of financial markets. Even the most developed economies were not spared of the effects of the financial turmoil which began as a result of Thailand’s default on its eurobond issue in February 1997. By May, 1997, the Malaysian Ringgit was under severe pressure from currency speculators and interest rates had risen from between 7% to 9%. It was reported that Bank Negara Malaysia expended about RM1.2 billion of its foreign exchange reserves to try to stave off the attack of currency speculators. However, this was the first of many repeated attacks on the currency.
The effects of the currency crisis began to take its toll on the country in 1998. Interest rates were rising to above 11% and the Ringgit had dipped to an unprecedented low of RM4.71 in January, 1998. All sectors of the economy experienced severe contraction as access to liquidity and credit became more scarce. Bank Negara had made many attempts to quell the effects of the financial crisis through imposition of tight monetary policies and attempts to ease credit to certain sectors of the economy to no avail. But the avalanche would not stop.
Malaysia’s sovereign credit rating was downgraded by international rating agencies to just above so-called junk bond status. Malaysia was facing a serious credit squeeze. Raising international capital was prohibitively costly. Flight of capital from the country resulted in a sharp decline in the stock market which fell to levels of 250 before bottoming out in the second half of 1998.
As many of you are aware Malaysia’s response to the crisis was one that was totally unexpected by the global community. The Government decided that it needed to protect the economy from increasing global pressures on the Malaysian economy. On 1 September, 1998 the Government introduced selective exchange controls with the intention of curbing and preventing further manipulation and speculation on the Ringgit. The Ringgit was pegged at RM3.80. The Government took further measures to discourage short-term flows of money by requiring that inflow of funds should remain in the country for at least one year. On 15 February 1999, this was replaced with an exit levy for repatriation of capital. The selective exchange control measures imposed by the central bank on 1 September, 1998 were directed towards reducing the internationalisation of the Ringgit by eliminating access to Ringgit by speculators and reducing offshore trading of the Ringgit. This involved the introduction of rules relating to the external account transactions of non-residents and currency of settlement of trade transactions. However, general payments, including movement of funds relating to long-term investments and repatriation of profits, interest and dividends remain unaffected. Payment for the import of goods and services must be made in foreign currency. All export proceeds must be repatriated back to Malaysia within six months of the date of export and proceeds from exports must be received in foreign currency.
The selective exchange control regime is intended to provide the time and opportunity for the Government to institute the necessary financial reforms in the Malaysian financial markets. This is in fact in progress in the work of Danamodal (the equivalent of the Resolution Trust Corporation of the US) to alleviate non-performing loan from banks’ balance sheets and Danamodal which is to recapitalise the banks. The Government is also committed to consolidating the domestic financial services industry in having few but strong and viable financial services providers in order to be prepared for financial liberalisation.
GIVING CERTAINTY TO INTERNATIONAL FINANCIAL TRANSACTIONS AND PROTECTION TO FOREIGN INVESTMENTS
International trade and finance, because of its global nature, necessarily involves many areas which may give rise to uncertainty as to the applicability of the contract under which certain trade and financing arrangements are made. These areas range from political issues and political stability to sovereign intervention of the economy, certainty of applicable laws as well as independence of the judiciary.
The Asian lawyer will be fascinated by the rapid changes which are taking place in foreign investment law both within this region as well as in the rest of the world. In less than half a century, the states of Asia have moved through a whole range of stances which could be adopted towards foreign investment. The immediate post-colonial period was characterised by a period of hostility towards foreign investment, motivated by the belief that the ending of economic imperialism alone will bring about true independence. The ensuing period was dominated by a debate about the regulation of multinational corporations and the fear that they posed a threat to state sovereignty. In this period, laws were devised to control the entry of foreign investment and the manner in which such foreign investment operated in the host country after entry. The third and present period is a period of pragmatism where the dominant view is that foreign investment, if properly harnessed, can be an instrument which generates rapid economic development. Competition for the limited investment that is available means that each state country which is bent on a foreign investment led growth strategy must make its laws as hospitable to the foreign investor as the other state which is also bent on a similar strategy.
As much as there is competition among countries to attract foreign investment, there is competition among multinational corporations to enter host countries. Whereas previously the market was dominated by large multinationals, now, there are small and medium enterprises which can transfer more appropriate technology and bring sufficient assets for investment.
This “open door” policy towards foreign investment in developing countries is typically achieved through careful screening of entry by administrative agencies which have been established for the purpose and regulation of the process of foreign investment after entry has been made. After entry, there is continued surveillance of the foreign investment to ensure that the foreign investment keeps to the conditions upon which entry was permitted. In this regard, attitudes to foreign investment protection and dispute resolution will be affected by the new strategies adopted towards foreign investment.
In the context of the new strategies which have been developed by controlling entry and the later surveillance of operations of foreign investment, the foreign investment has ceased to be a contract based matter and had become a process initiated by a contract no doubt but controlled at every point through the public law machinery of the state. The old notions of foreign investment protection which concentrated on the making of the contract and the contract as the basis of all rights of the foreign investor would inevitably become obsolete. This transformation which has taken place is crucial to the devising of effective methods of foreign investment protection. The subject matter of the protection has also changed in that not only physical assets of the foreign investor but his intangible assets which includes intellectual property rights as well as public law rights to licences and privileges have become the subject of protection.
The proposition that contractual provisions in an agreement concluded with a host country offer little protection to foreign investment must be qualified in a situation when a bilateral investment treaty has been entered between the state of the foreign investor and the host country. The result will be different, for the contract becomes effectively internationalised as a result of the existence of such a treaty. It is a basic proposition of international law that any matter that is essentially within the domestic jurisdiction of any state could be internationalised if it is made the subject of an international treaty. The existence of a bilateral investment treaty which covers the foreign investment then internationalises the whole process of foreign investment which would otherwise have been a process that takes place entirely within the sovereign jurisdiction of the host state. But, whether this result will follow depends on the terms of the bilateral investment treaty.
As a matter of general international law, the position seem to be that a contract between a party and host country must always be subject to a national legal system. Those who seek to prove the contrary have an onerous task of showing that his accepted proposition has undergone a change. There are a few usually uncontested arbitral awards which support the view that a foreign investment contract is subject to international law or some other supranational system.
Bilateral investment treaties are obviously regarded as important by both capital exporting and capital importing states. But, these treaties are not uniform and they do not have the ability to create any uniform law on foreign investment protection. But their existence adds to investor confidence and creates an expectation of investor protection. The importance of these treaties lies in the several results they achieve. The first is a signaling function about the national policy towards foreign investment.
Another advantage is that the foreign investment contract in the context of a bilateral investment treaties could have the effect of forming assets protected by the bilateral investment treaties. This will also include licences and other advantages obtained from the government during the course of the foreign investment. Whereas without the bilateral investment treaty these licences and advantages may have been without protection under general international law, they new receive protection as a result of the wide definition of property in the bilateral investment treaty. Whether the host country did intend that its administrative decisions be subjected to international review as a result of the treaty, will remain a moot point. But, it remains a possible result if the treaty.
In Malaysia, efforts have been made by the Government to ensure a level of certainty between international trading partners trading with Malaysian counterparts. The Government has expressly guaranteed that foreign companies acquiring equity participation in local companies would not be required to restructure its equity at any time[1]. Further to this, the Government has taken many steps to increase confidence of foreign investors in Malaysia.
INVESTMENT GUARANTEE AGREEMENTS (IGA”)
The Investment Guarantee Agreement protects parties involved in an international transaction from non-commercial risks such as nationalisation and expropriation. The IGA will provide a foreign investor with the following :
protection against nationalisation and expropriation;
prompt and adequate compensation in the event of nationalisation or expropriation under a lawful or public purpose;
free remittance of currency, profits, capital or other fees on investment;
settlement of investment disputes either through a process of consultation through diplomatic channels or if such process fails, for referral to the International Court of Justice. Disputes in connection with investments, under IGAs should first be resolved through local judicial facilities. In the event of failure to settle, it would be referred to the Convention on the Settlement of Investment Disputes or the International Adhoc Arbitral Tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law.
Malaysia has concluded IGAs with about 64 trading nations including trading blocs such as ASEAN and major trading partners such as the United States of America, United Kingdom, Germany, Taiwan, etc.
TRADE DISPUTE SETTLEMENT
Another aspect of international trade is the availability of acceptable dispute resolution form. Globalisation of trade obviously involves greater potential for generating international trade disputes. The international business community looks for prompt, economical and fair conflict-resolution mechanisms. Negotiation, conciliation, litigation, and arbitration are well-known conflict-resolution devices. Direct negotiations and conciliation may resolve a conflict. However, when parties fail to solve the controversy through direct negotiations, they have two choices: litigation or arbitration.
Within the context of the GATS, there is an express provision for trade settlement dispute where countries have disputes in relation to commitments made under the agreement. The WTO have provided for procedures in relation to a dispute settlement process. The dispute settlement procedure is considered to be the WTO’s most individual contribution to the stability of the global economy. The WTO’s procedure underscores the rule of law, and it makes the trading system more secure and predictable. It is clearly structured, with flexible timetables set for completing a case. First rulings are made by a panel, appeals based on points of law are possible and all final rulings or decisions are made by the WTO’s full membership. No single country can block a decision.
Malaysia is also signatory to the Convention on the Settlement of Investment Disputes established under the auspices of the International Bank for Reconstruction and Development that establishes facilities for international conciliation or arbitration. Further to this, the Kuala Lumpur Regional Centre for Arbitration was established in 1978 with the objective of providing a system for the settlement of disputes for the benefit of parties engaged in trade, commerce and investments with and within the Asian and Pacific region.
In conclusion, as we draw close to the new millennium, it is indeed a challenge to us all to be able to grapple with some of the abovementioned issues and adopt appropriate responses.