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SPICY IP TIDBIT: Govt for discussion paper on royalty payment ceiling


Background

We had earlier reported that the Indian government, in 2009, waived the requirement of prior government approval in case of payment of royalty by Indian companies to multinational corporations and allowed such payments through the automatic route. Later, we also carried a Business Standard report which stated that the aforesaid relaxation is being used by the MNCs to divert a major portion of the profits made by their Indian arms in the form of royalty payments and technology transfer fees. This deprives the minority investors in those Indian concerns of their rightful dividends. Citing Economic Times report dated 8 August 2013, we reported that the GoI was considering the re-imposition of restrictions on royalty payments in the light of sudden surge in outflows post-relaxation.

Latest Development – Discussion Paper on revisiting the policy

According to Business Standard report dated 29 April 2014, the GoI is set to release a Discussion Paper which will invite comments on whether or not the royalty ceiling applicable till 2009 should be re-imposed. I had discussed this issue in August, 2013 in my post titled ‘Re-imposing curbs on royalty payments to foreigners’. I am reproducing my comments in that post which are still pertinent to a great extent:

“The outflow is, of course, worrisome considering the rising current account deficit and the consequent disastrous results.  The Indian rupee is depreciating at an alarming level.  Further, the rate of inflation is not anywhere near the comfort zone. In this context, outflows in the form of royalty payments (devoid of any major addition to technical know-how) is worrisome especially when experts are suggesting proactive steps  such as issuing NRI bonds, sovereign debt offers, raising FII debt limits, FDI limits etc to recoup foreign exchange reserves. In other words, it is quite imperative to fix the leaking tap!! According to news reports dated 23 August 2013, the Finance Minister noted that the government and the RBI do not intend to impose capital controls [see here]. This stance of the government contradicts the Economic Times report dated 8 August 2013. I am not getting into the merits of this stance of government. But I do hold the view that royalty payments, which do not result in any major addition to technical know-how, is detrimental to the economy. Any outflow from the nation must bring in commensurate benefits. Else, it is a drain on the economy – a drain which denudes the nation of its productive capital. [Curiously, it sounds more like the economic drain theory put forward by Dadabhai Naoroji against British colonialism!!] Of course, imposing absolute capital controls may dent the investor confidence. We cannot afford it at this juncture. But imposing restrictions on royalty payments, which do not bring in commensurate benefits, are within the best interests of the nation. Therefore, I suggest a closer look at the policy. 

 

Even otherwise, the royalty payments also raise some pertinent issues on corporate governance. I wonder whether the decision to relax norms was taken after due consideration and consultation. Prof. Umakanth succinctly and incisively analysed the issue [‘Royalty payments and Corporate governance’] and noted as follows: “Such royalty payments are a classic case of related party transactions (RPTs) between the company and a controlling shareholder. As we have previously lamented, the regulation of RPTs in India is far from the desirable. Current corporate governance norms only require appropriate disclosure in the financial statements, a responsibility imposed on the auditors and the audit committee. One way of approaching the issue is to consider disclosure as fulfilling an important function because investors can then decide their further course of action depending on the nature of disclosures. However, there are problems with disclosure as the sole option. First, disclosures can sometimes lack meaning if they are not appropriately and accurately made. Second, disclosures tend to acquire an element of standardization over a period of time thereby leaving investors with little information to distinguish among companies that make the royalty payments.

 

Due to the failure of disclosure as an adequate option, it is necessary to consider other possibilities through amendment to corporate governance norms. Essential among them is the need for a committee of independent directors to specifically consider and approve such royalty payments (or any other material RPTs for that matter) after specifically expressing their views on the impact of such transaction on the interest of minority shareholders. Another option would be to mandate shareholder approval for such royalty payments (or other RPTs), wherein the recipient of the royalty payment (i.e. the parent company) must be required to abstain from voting in view of the conflict of interest.

 

Unless such checks and balances are introduced, the minority shareholders in such MNC subsidiaries will be exposed to considerable risk that the parent companies will likely treat the Indian listed companies as if they are merely arms of themselves.”

 

Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his very second year in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property. Winner of almost a dozen essay competitions in his law school days, he was involved in various research and policy initiatives relating to intellectual property. His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property.

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