Showing posts with label finance. Show all posts
Showing posts with label finance. Show all posts

Tuesday, November 27, 2018

Negotiation: The Concept


The problem with ‘negotiation’
In trade finance and documentary credit operations, the word ‘negotiation’ remains one of the most enduring enigmas of all times. No one describes the situation better, perhaps, than Ole Malmqvist, a member of the UCP Drafting Group for UCP 600 and one the most revered experts in the business. He said:
.... there has been an extended discussion about the word negotiation, which nobody can define and which only a few want to get rid of.... I'm still looking for someone who can explain to me the difference between payment and negotiation .... so far no one has been able to come up with a definition, not one I have seen, at any rate, so I doubt that anyone will be able to come up with a definition now ....The word ‘negotiation’ is a problem.... I think we should get rid of the word ‘negotiation’ because we cannot define it and because we don't need the concept…. [1]
“…Every L/C expert knows exactly what negotiation is/means. But ask any three of them for their interpretation and be prepared to receive three different answers![2]”.
Reinhard Längerich says,[3] “I am convinced that by removing the term 'negotiation' and 'the right of recourse against the beneficiary' [from UCP], we would make the letter of credit a more reliable instrument.”
The fact remains that in spite of such sever criticisms, ‘negotiation’ is alive and well – ...... (continued...)

[This article is continued in the book 'Beyond Trade Finance', published on 13-Apr-2021 by Notion Press, and available at https://notionpress.com/read/beyond-trade-finance or at https://www.amazon.in/dp/1638508666]


[1] DCInsight Vol. 10 No.4 Oct - Dec 2004.
[2] DCInsight Vol. 12 No.2 April - June 2006
[3] DCInsight Vol. 10 No.2 April - June 2004
[4] For a detailed comment on ‘negotiation’ by this writer, refer to article ‘Re-defining Negotiation’, LC Monitor – Trade Services Update, Volume 11, Issue 4, July–August 2009.
[5] ‘Suggested answer’ to question no. 2.15, Frequently Asked Questions on UCP 600, Gary Colleyer.

Monday, June 06, 2016

How to set up a new bank

On 30 March 2016 the Economic Times (Kolkata edition) published an article by Mr. Atmadip Ray and Ms. Saloni Shukla on Bandhan Bank and IDFC Bank, the two new kids of banking on the block. At one place in the article I came across these words, "Few in the country barring Rana Kapoor of YES Bank has had the experience of creating a bank from scratch."

This surprised me. I did not expect a venerable daily like the ET to err in such a fashion. To set the record straight, on 11 April 2016 I wrote to the ET pointing out that I was one of those who were involved in setting up one of the first few commercial banks. I was employed with 20th Century Finance Corporation Limited (TCFC) in Bombay as Vice President when, in January 1994, the first 'Guideline for setting up commercial banks in the private sector" was released by the Reserve Bank of India. On behalf the organisation, I was given sole responsibility (while holding charges of other departments as a VP) for the project to set up a commercial bank.

Mr. Dev Ahuja, chairman of TCFC, had always been keen on banking business. He jumped at the opportunity when the RBI announced its new licensing policy. TCFC was to be the main promoter (ADB and IFC, Washington came on board later). Mr. V. S. Srinivasan, Vice Chairman, TCFC, a brilliant mind and a genius at project management, steered the project from start to finish. (I learned a lot from him). The bank was named the Centurion Bank Ltd.  Yours truly picked the name, was a signatory to its Memorandum and Article of Association, and also selected its HQ. How that came about is another story!

Mr. D. R. Mehta, Deputy Governor, RBI (now retired) was in charge as the head of DBOD. Dr. C. Rangarajan (now in New Delhi) was the RBI Governor.

The new banks were being set up at a time when no one – including those in the RBI – had any experience about setting up a bank from scratch. How the RBI and ourselves learned from each other as we went along, what we went through for setting up the first such banks in India – are tales that were unique, never to be repeated, and possibly will remain untold for ever. I have with me some of the old files, several on floppy disks in Wordstar and Lotus 1-2-3 (know what these are?) that would be lost along with me. Would any archive want to have them? I don't know.

My entire resource consisted of a desktop computer. All the files were on that computer, along with those related to my job at TCFC. No manpower support was given. Back then, I had no idea about the necessity of taking back-ups. I shudder to think what would have happened if that computer had crashed. Probably, Centurion Bank would never have been born. And most likely, I would have been out of a job!

Business Standard did a feature in "Money Manager" on a few of us – including Ms. Chanda Kochar and myself - who were leading the operations on behalf of our respective organisations at that time. (Our photographs were published in the supplement; I still have a copy). A bright young journalist named Pankaj Aher from Business Standard (now Chief Executive Officer at Cogencis Information Services Ltd.) interviewed me at my residence on a Sunday afternoon In Bombay, and wrote the feature. Sri R. Srinivasan, an eminent journalist (now Editor - HBL) was in touch, closely tracking developments. Dr. A. C. Shah (may his soul rest in peace), former chairman of Bank of Baroda, was in charge of setting up the bank on behalf of the UTI. A thorough gentleman, he became a mentor and a friend in days to follow.

Together, we struggled to create a five-year spreadsheet template for a brand new commercial bank. Identifying and selecting the essential parameters, creating a framework for sensitivity analysis, were serious problems that had to be resolved in double quick time. Unlike today, information was hard to come by then. While going about the business of creating the new banks, I realised that no one had ever drafted a memorandum or an article of association for a new commercial bank in the private sector. There was no template, no precedence to follow. Top legal firms in Bombay could not help, nor could the RBI. “Write whatever you want. But don’t bring it to us. If something you include is against the Banking Regulations Act, it will be invalid anyway!” they told me. There were many such instances of ‘creative banking’.

It is definitely not common knowledge that the limit (cap) on the voting rights was enhanced from 1% to 10% only at our (20th Century's) insistence. We fought hard for it, reasoning that roping in other financial partners and financial closure could otherwise have been very difficult, if not impossible. It may also not be common knowledge that along the way, I created and implemented, for the very first time in India, what everyone today knows as the 'centralised banking system' or 'core banking solution' (CBS). (That story too would appear here later.)

Too many 'i's were to be dotted, too many 't's were to be crossed. The problem was, no one had any experience to fall back on, no reference to go by – no one had set up a bank like this before! The RBI wanted the new generation banks to be technology driven. But no one had the foggiest idea what the software platform was to be. Almost every step that we took felt like being for the first time ever. As a banker, I was extremely fortunate to be at the right place at the right time to have this unique opportunity to set up a bank – an opportunity that few bankers could ever have dreamt of having in his/her entire lifetime.

When the regulatory doors were widened further years later, when a few more licences were issued by the RBI, the banking industry in India already had a well-defined, tried and tested road map in place for setting up commercial banks in the private sector. When we had stared, we surely did not. We created the road map, did all the pioneering work, working side by side with the officials at the RBI. It was a fantastic experience, a whole new learning process – sadly, not of much use today.

Centurion Bank is no more; it's long gone. It went through two mergers, the second and the last being with HDFC Bank which took over the bank entirely. However, when the history of (post liberalisation) Indian banking is written, I hope that these facts are not overlooked or entirely forgotten, but find their rightful place at least by way of a small footnote on the pages of the history of Indian banking.

[E&OE. This article is also available at LinkedIn: https://www.linkedin.com/pulse/how-set-up-new-bank-rupnarayan-bose?trk=pulse_spock-articles] 

Sunday, April 17, 2016

Life in the day of a banker

For three years till May 1992 I worked on deputation as the branch manager of State Bank of Hyderabad, Sion branch in Bombay. We were given our residential quarters at a housing complex called ‘Gokuldham’, at Goregaon East, a suburb of Bombay (now Mumbai). The nearest railway station was called Goregaon, on the Western Railway network, a little more than two kilometres away from where we lived.
My office was quite a distance away on the Central Railway of the Bombay suburban railway network. My daily routine was to ride my two-wheeler (a 1974 Royal Enfield Bullet) to Goregaon rail station, find a parking space in an extremely crowded roadside next to the station, rush up the steps along the over-bridge to the platform where the train was due to arrive, then dive into the first-class compartment even before the train could come to a stop or the people could get off. It was a skill that anyone commuting by train had to acquire, or be left behind. The compartments were always overcrowded – even at 7.15 a.m. Hence, even a second’s delay meant missing that small window of opportunity to get into the compartment.
I had to change trains at Bandra, rush with my briefcase to another platform for another train – this time to King’s Circle on the Harbour Line of the Central Railway. The last lap was a walk for about three-quarter of a kilometre to my branch. By 8.15 a.m. I used to be in my chair. After the day’s work was done the direction of my travel was reversed, though the route remained the same. That was my daily routine. It rarely varied.
It changed a bit on the day I received a call from a chartered accountant about an hour after I had reached office. As the branch manager, it was my job to develop business. He was one of the several that I had been in touch with, with a request to direct some of the firms that he dealt with to my branch. The phone call from him was to say that he’d like me to visit a unit somewhere in Worli (central Bombay) that afternoon. Could I come? I said, “Yes, of course!”. Since I did not know the exact location, it was arranged that he’d pick me up just after 2 pm.
He arrived at 2, on his scooter! He apologised for the transport arrangement, explaining that he planned not to return to his office later, but to go home after the visit was over. Therefore, he did not want to go back all the way once again, just to pick up his scooter. Would I mind? Under the circumstances I had hardly any option. I rode pillion, hanging on to the vehicle for dear life from Sion to Worli – a good 5-kilometer journey on an uneven, bumpy, extremely crowded roadway.
The industrial unit was a cooperative venture of cobblers. The area was large, several people were engaged in a variety of activities; the production was meant for local markets and also for export. I was introduced to the main promoter and the key man behind this venture. I asked some standard, routine questions, collected some papers, had the mandatory bottle of soda, and was ready to leave.
The promoter enquired where I lived, and offered to provide a lift all the way back to Goregaon. I excused myself, saying that I had to lock up my desk, close the branch and collect my briefcase before I could return home for the day. We walked down to the ground floor to the reception area and the exit.
The car that was waiting for me took my breath away. It was a Mercedes, one of those larger-sized ones, with tinted glasses. The cap was doffed, the rear door was opened for me by the uniformed chauffer. I seated myself all alone on the rear seat of that car, pretending to be as casual as possible – as if I did that (nearly) every day. The big boss gave appropriate instructions to the driver (oops, chauffer!), said ‘bye’ to me, and we drove off.
As the car (sorry, the Merc.) drove along, I looked out, trying to make eye-contact with people who had no option but to use their feet to go from place A to place B. I tried to do the same at the traffic lights – just to see if anyone noticed me in ‘my’ car. None did, nor did they care to. Worst still, the tinted glass stood in the way. I could look out, they could not look in. I had no option but to ignore me being ignored. By the time I made it back to my branch, everyone (except the watchman) had left. So, none witnessed my arrival either.
I thanked the driver, collected my briefcase, trudged back to the King’s Circle station, pushed myself into a crowded railway compartment, changed trains at Bandra station for Goregaon, retrieved my motorbike after getting off at Goregaon, and rode it home just as I did everyday.

Thursday, April 25, 2013

Redefining 'negotiation'


Background
The term ‘negotiation’ has defied definition since its inception. As far back as the early 1980s people have been asking what negotiation was supposed to mean. Integral to the meaning of negotiation is the issue about recourse payment. The confusion about correct interpretation and application of the term ‘negotiation’ is not confined to laymen like me, but has troubled some of the experts in the business.
Ole Malmqvist, a member of the UCP Drafting Group for UCP 600 says, 
.... there has been an extended discussion about the word negotiation, which nobody can define and which only a few want to get rid of.... I'm still looking for someone who can explain to me the difference between payment and negotiation .... so far no one has been able to come up with a definition, not one I have seen, at any rate, so I doubt that anyone will be able to come up with a definition now .... I suggested that we get rid of the word negotiation.... The word ‘negotiation’ is a problem.... In short, I think we should get rid of the word ‘negotiation’ because we cannot define it and because we don't need the concept…. (contd......)

[The complete article is available in the book 'Beyond Trade Finance', published on 13-Apr-2021 by Notion Press, and available at https://notionpress.com/read/beyond-trade-finance or at https://www.amazon.in/dp/1638508666]





[i] DCInsight, April-June 2004.
[ii] LC Monitor-Trade Services Update, Volume 11, Issue 2, March–April 2009.
[iii].Ibid.
[iv].Ibid.
[v] Ibid.
[vi] Ibid.
[vii] Ibid.
[viii] Ibid.
[ix] DCInsight, Vol 15, No 3, July-September 2009.
[x] LC Monitor-Trade Services Update, Volume 11, Issue 2, March - April 2009.
[xi] Another comment on ‘Negotiation, Trade Services Update Volume 12, Issue 3, May – June 2009.
[xii] Ibid.
[xiii] LCM-Trade Services Update, Volume 11, Issue 2, March - April 2009.
[xiv] DCInsight, Vol 15 No 3, July-September 2009.

Nominated bank and UCP 600


This article analyses the roles and responsibilities of a nominated bank under selected provisions of UCP 600.
Article 6(a) of UCP 600 requires that a “credit must state the bank with which a credit is available”. This bank has been defined under Article 2 as the ‘nominated bank’. A nominated bank could be a bank specifically designated by the issuing bank for the purpose of negotiation or honour of documents. Alternately, it may be any bank. According to sub-article 7(c), the issuing bank’s undertaking to reimburse under its own LC is restricted only to a nominated bank. Note that the bank that has added its confirmation to a credit need not necessarily be a nominated bank.
Let us focus on the first major article on nomination, viz., Article 12. Sub-article 12(a) states: (contd...)

[The complete article is available in the book 'Beyond Trade Finance', published on 13-Apr-2021 by Notion Press, and available at https://notionpress.com/read/beyond-trade-finance or at https://www.amazon.in/dp/1638508666]




[1] Published in DC Insight, Volume 17, No. 1, Jan-March 2011.
[1] Author is the former managing director of Fina Bank Ltd, Nairobi, Kenya and TransAfrica Bank  Ltd., Kampala, Uganda; founder and CEO of Institute of Banking Studies.  

[i] ‘Suggested answer’ to question no. 2.15, Frequently Asked Questions on UCP 600, Gary Collyer.

Wednesday, April 24, 2013

Article 12, UCP 600 - a critical analysis


Ever since UCP 600 was published, Article 12 (Nomination) each of the three sub-articles provided room for confusion about their intent and purpose. This article examines the issues related to Article 12 as a whole, taking up one sub-article at a time.

Sub-article 12(a)
Sub-article 12(a) states:
“Unless the nominated bank is the confirming bank, an authorisation to honour or negotiate does not impose any obligation on the nominated bank to honour or negotiate, except where expressly agreed to by the nominated bank and communicated to the beneficiary.”
This sub-article addresses two distinct effects of nomination. The first is a nominated bank’s obligation, if any, to honour or negotiate upon being nominated. The second is an apparent exception to the foregoing. The first part of the sentence stipulates that, unless the nominated bank confirms the credit, its nomination by the issuing bank casts no obligation on the bank thus nominated to honour or to negotiate. This is perfectly correct, and is also in accordance with Article 8. This is not a rule, but more in the nature of a clarification; however, its existence helps. The problem is with the second part of this same sentence or sub-article. The expression “except where expressly agreed to…” appears to provide for an exception to what goes before it. One would, thus, be led to believe that the obligation to honour or negotiate is indeed cast on the nominated (non-confirming) bank, provided that bank ‘expressly agrees’ (to negotiate or honour) and communicates the same agreement or willingness to the beneficiary.

As we know, this sub-article intends no such thing, rather ....(contd...)


[The complete article is available in the book 'Beyond Trade Finance', published on 13-Apr-2021 by Notion Press, and available at https://notionpress.com/read/beyond-trade-finance or at https://www.amazon.in/dp/1638508666]





[i] Nominated bank and UCP 600, DCInsight, Volume 17, No. 1, Jan-March 2011.
[ii] “Issues in UCP 600: another look at five banking days and negotiation” by King-Tuk Fung, DCInsight, Vol. 16, Issue 1, October-December 2009.
[iii] That confirmation may be on the forwarding schedule itself or through later communication.
[iv] Negotiation and the law of contracts, DCInsight, Vol. 16, No. 2, April-June 2010, and Re-defining Negotiation, LC Monitor-Trade Services Update, Volume 11, Issue 4, July–August 2009.

Some random thoughts on the UCP


1.        Introduction
Often I had wished that I were a fly on the wall, had a voice recorder in place to record the deliberations, or could browse through the background papers and notes while the first ever UCP was being drawn up nearly 80 years ago. Tapping into the minds of the first ever drafting group could have been a revealing experience. For, very recently, while trying to understand the true meaning of the term “negotiation” and a few other provisions of the UCP, the question that I repeatedly asked myself was, “Does the UCP have its roots in the laws of contract?” For, there were certain inescapable similarities between the articles of the UCP and the laws of contract. I am not a member of the legal profession, neither qualified in matters of law. Yet, even to a layman like me, the similarities became so compelling that I decided to put my thoughts on paper. My initial effort resulted in a paper published in DC Insight[i]. I based that paper on the Indian Contract Act, 1872. However, since the Indian Contract Act (ICA) was formulated by the British, I looked for the original English Act to use it in my analysis. To my surprise I learned that, even today, there is no English law equivalent to the Indian Contract Act 1872 (ICA).
The ICA appears to be basically a codification of the English Common Law (contd....)

[The complete article is available in the book 'Beyond Trade Finance', published on 13-Apr-2021 by Notion Press, and available at https://notionpress.com/read/beyond-trade-finance or at https://www.amazon.in/dp/1638508666]





[i] Negotiation and the laws of contract, DC Insight, Vol. 16, No. 2, April-June 2010.
[ii] Issued by the United Nations Commission on International Trade Law, United Nations, New York, 2010.
[iii] Articles 15(2) and Article 16 of the CISG reflect similar approach to revocation.
[iv] Does this provide grounds enough for modifying Articles 2 and 4 of the ISBP to create a level playing field?
[v] The expression ‘promisee’, describing the issuing bank - the original promisor or proposer – in this particular context, is derived from the title to Section 52 viz., “Order of performance of reciprocal promises”, and sub-section 2(e) of the ICA (“Every promise and every set of promises, forming the consideration for each other…”.
[vi] “…Silence or inactivity does not in itself amount to acceptance”, states Article 18(1) of the CISG.
[vii] ICC Official Opinion R520 / TA543 rev2 - Unpublished Opinion 1995-2004.
[viii] DC Insight, Vol. 17, No. 1, Jan-March 2011.
[ix] An agreement, valid in law, is defined as a contract. In places, I have used the terms interchangeably for the limited purpose of this article.
[x] Article 3 of the Uniform Rules for Collection, ICC Publication No. 522.
[xi] Refer to my articles Negotiation and the law of contract, DC Insight, Volume 16, Issue 2, April-June 2010, and Re-defining negotiation, LC Monitor-Trade Services Update, Volume 11, Issue 4, July-August 2009.
[xii] This appears to be a deviation from the principle stated in UCP 500, sub-article 10(b)(ii) which read as follows: “Negotiation means the giving of value for draft(s) and/or document(s) by the bank authorised to negotiate. Mere examination of the documents without giving value  does not constitute a negotiation. (emphasis added)”
[xiii] The definition in Article 2 of UCP 600 is full of holes. After the publication of my article Re-defining negotiation, in the LC Monitor-Trade Services Update, Volume 11, Issue 4, July-August 2009, I was hoping to receive very strong, specific, point-by-point rebuttal of the points I had made therein. Surprisingly, I have received absolutely none till date. (Incidentally, has anyone ever wondered why, since the first UCP was released in 1933, the term “negotiation” has defied a universally acceptable definition?)
[xiv] Review of the recent Swiss Supreme Court decision (Emirates Bank International v. Credit Lyonnais (Suisse) S.A., Decision 1 June 2004, Tribunal Federal) on deferred payment credit from a comparative commercial law perspective, Chang-Soon Thomas Song, 10 May 2005.
[xv] Sub-article 12(b) was inserted in UCP 600 to address the issues raised by the courts on deferred payment credits.
.

Wednesday, June 06, 2012

Genesis of the crisis in Europe

Europe is going through a financial crisis. It's becoming worse day by day, final outcome unknown. 
Many reasons have been offered for it. However, I came across an article titled "The idea of Europe" by Prabhat Patnaik (The Telegraph, 5 June 2012) which throws new lights on its origin.
I did follow the financial meltdown since it erupted on 15 September 2008. Read many articles on it. But, must admit that I didn't come across any analysis that seemed so much to the point. The analysis is from a totally new angle, is very interesting, and - once you read it - seems perfectly logical.
I'd be happy to present a summary of his main arguments, if you are interested. Do leave your comment/request below.