Political and Security Risk for Investors: Trends to Watch in 2016 | Practical Law

Political and Security Risk for Investors: Trends to Watch in 2016 | Practical Law

A discussion of important political and security risk developments from 2015 and the risks investors should look out for in 2016. This Article also discusses steps that investors can take to manage these risks.

Political and Security Risk for Investors: Trends to Watch in 2016

Practical Law Article w-001-4300 (Approx. 12 pages)

Political and Security Risk for Investors: Trends to Watch in 2016

by David J.E. Chmiel, Global Torchlight Limited with Practical Law Finance
Law stated as of 17 Feb 2016USA (National/Federal)
A discussion of important political and security risk developments from 2015 and the risks investors should look out for in 2016. This Article also discusses steps that investors can take to manage these risks.
If one word characterizes the mood of international investors at present, it is "uncertainty." Dramatic collapses in commodity prices, combined with volatility on equity and currency markets have created challenges for both developed and developing economies. Many observers now fear that the world teeters on the brink of recession, even as recovery from the full effects of the Great Recession still seems only nascent.
While significant political insecurity and concerns about global economic growth dominated headlines, top line estimates of foreign direct investment (FDI) in 2015 appear to belie these fears. The United Nations Conference on Trade and Development (UNCTAD) reported that global FDI rose by 36% to an estimated $1.7 trillion, the highest level of FDI flows since the global financial crisis. Scratch the surface of these figures, however, and the picture becomes less rosy.
Much of the increase in investment is attributable to the surge in mergers and acquisitions activity in the world's most developed economies, particularly the US and the European Union (EU) (see Article, What's Market: 2015 Year-End Public M&A Wrap-Up and Legal Update, Public M&A: Trends and highlights from 2015 (UK)). Furthermore, overall FDI flows into developing economies only increased by 5% in 2015 with much of that activity being concentrated in Asia. Regions such as Africa, Latin America, Central Asia, and Russia all saw dramatic declines in FDI, a reflection of the impact of low oil and gas prices on their resource-dependent economies.
While the decline in resource revenues is a key factor in current uncertainty, broader political and economic events also contribute to the overall sense of unease felt by many investors. In particular:
  • Tensions remain high between Russia and the West as the conflict in eastern Ukraine lies unresolved.
  • The contagion effects of Syria's civil war combined with Iran's return from the cold after its agreement to end much of its nuclear program are altering the established political order in the Middle East.
  • Structural weaknesses in China's economy, as evidenced by deep corrections in its equity markets, have created domestic political challenges for the country's ruling Communist Party.
None of these events (or any other pressing geopolitical issues) are likely to find a quick resolution. Some may even escalate further, possibly in more disruptive ways, in the months ahead. Therefore, developing a comprehensive and nuanced understanding of domestic and regional political and security metrics is integral to the overall process of assessing, managing, and mitigating the risks that international investors face.
A comprehensive review of all of these geopolitical dynamics is beyond the scope of this Article. It is, however, possible to discern a few fundamental trends of particular relevance to international investors, regardless of the region or industry in which they have interest. This Article focuses on five of these trends:
Having considered these broad issues and their potential implications, this Article offers some brief suggestions on how to manage and mitigate risk exposure in an effective and integrated manner.

Political Implications of Economic Uncertainty

It can often be difficult to separate the political from the economic dynamics in the issues occupying the minds of investors. While media attention focuses on commodity price declines, stock market volatility, currency fluctuations, and future rates of economic growth, these can all sow the seeds for less obvious, but far more disruptive, political consequences which can further weaken economies and create a vicious circle of uncertainty from which there is no immediate exit.
International investors typically pay close attention to economic conditions in the countries where they are making investments. They should, however, also consider the second-order political consequences of these economic conditions. In placing economic changes in the context of national and regional politics, investors gain valuable insights into potential longer-term risks that could fundamentally alter the environment in the countries where they do business.

Resource-Dependent Economies

Nowhere is the inter-relationship between economics and politics more acute at present than in resource-dependent economies. Many developing economies remain highly dependent on revenues from resource industries (for example, oil, gas, and mineral ores). As these revenues decline, the governments in these countries typically adopt substantial austerity measures to preserve liquidity.
While declining economic performance can present political difficulties in even the most stable of nations, the situation is more pronounced in those countries where governmental institutions are less inclusive or democratic or where deep sub-surface political tensions remain. This cause and effect relationship between politics and economics has already manifested itself in significant ways in various parts of the world.

Saudi Arabia

Saudi Arabia continues to produce record levels of oil in efforts to restore its share of the oil market. This, combined with stagnant global demand and high production in other countries such as the US, has caused oil prices to decline by about 70% since June 2014 (see WTI Spot Prices and Brent Crude Spot Prices). Given that it derives about 90% of its revenues from oil exports, declining oil prices have had a significant impact on Saudi Arabia's fiscal situation (see McKinsey Global Institute: Saudi Arabia Beyond Oil: The Investment and Productivity Transformation (December 2015)).
According to a Reuters news report, Saudi Arabia's budget deficit ballooned to $97.9 billion in 2015. As a result, the government has announced cuts to electricity and water subsidies among other efforts to reduce spending. While Saudi Arabia is a politically stable country without a history of significant political unrest, where elements of the population feel unduly impacted by such cuts, austerity could become a source of political disquietude.

Venezuela

The International Monetary Fund estimates that Venezuela's economy contracted by 10% in 2015, mostly as a result of declining oil prices. This economic instability and rampant inflation were key factors in the landslide victory of Venezuela's opposition party in parliamentary elections in December 2015. In response, President Nicolas Maduro has threatened to rule by presidential decree, setting the stage for gridlock and escalated political confrontation in the months to come.

South Africa

Revenues in South Africa's dominant mining industry declined as a result of weakening global commodity demand. Even so, the country's powerful mineworkers' unions are demanding wage increases and job guarantees from mining companies. Mass industrial action in the industry has turned violent in the past and renewed labor activism could not only create political uncertainty within South Africa, but also instigate similar behavior in other countries in the region where resources companies are also seeking to stem growing losses through wage freezes and closure of unprofitable facilities.

Currency Devaluation and Capital Restrictions

As demand for commodities has fallen, the currencies of many economies (especially those of resource-dependent countries) have depreciated significantly. To manage this decline, governments can:
  • Restrict capital transfers.
  • Impose delays on foreign currency payments.
  • Create additional customs requirements.
  • Adopt other measures aimed at preventing further flights of capital.
Some governments have already taken some of these steps.

Azerbaijan

In the wake of civil unrest sparked by collapsing exchange rates, Azerbaijan's government banned certain forms of currency trading and imposed a 20% tax on all capital transfers out of the country. Fears have also grown in recent months that the country's energy-dependent economy would be unable to weather a sustained decline in oil prices.

Angola

Angola's central bank devalued the country's currency on a few occasions in 2015 in efforts to reflect declining demand for energy exports. The country's reliance on resource royalties for over three quarters of its revenue also forced its government to slash public spending by half.

Sovereign Debt Restructuring and Defaults

Credit ratings agencies have recently downgraded many countries in the wake of deteriorating economic conditions. For example:
  • Standard & Poor's (S&P) downgraded Nigeria's credit rating to B+ from BB-.
  • Moody's downgraded France's sovereign debt rating from Aa1 to Aa2.
  • Both S&P and Fitch downgraded Brazil from BBB- to BB+.
While sovereign debt credit downgrades effect countries differently, increased borrowing costs combined with declining currency values and other factors could drive some governments to restructure sovereign debt or default entirely on payment. This risk can transcend borders. For example, Uruguayan farmers recently staged protests demanding the assistance of their government in securing payment from Venezuela of unpaid bills amounting to $100 million.

Less Favorable Investment Policies

As budgets tighten, governments may:
  • Cut subsidies (see, for example, Angola and Saudi Arabia) or other spending on economic development or raise additional revenue through tax increases or similar measures.
  • Implement policies that may drive out foreign investors in favor of domestic companies. Policies targeting foreign investors can in some circumstances have greater appeal to political leaders than those targeting domestic political constituencies.

Growth of Nationalism and National Interest Politics

Nationalism and the promotion of national interests are long-standing concepts in international relations, but have garnered less attention in recent decades as many governments have devoted efforts to promoting international economic, security, and political cooperation. Prevailing wisdom holds that greater integration and interdependence between countries encourages open borders and trade while dulling the potential for international conflict.
While that narrative largely continues to hold true, recent events are presenting it with fundamental challenges. Acting in "the national interest", even where that is a source of conflict, is becoming more common and some international investors will invariably find themselves caught up in such momentum.
As nationalism asserts itself in the politics of countries around the world, investors cannot assume that doors will remain open and that governments will continue to prefer cooperation over confrontation in their diplomacy. Understanding the extent to which this phenomenon is capable of taking hold in a particular country is integral to assessing the long term health and stability of investments and signaling whether investors will need to adapt to new norms in geopolitical thinking.

Mass Migration Crisis

The mass migration crisis prompted by ongoing political turmoil in the Middle East and North Africa has generated significant challenges to the further integration of the EU. Several member states have suspended their participation in the Schengen passport-free travel zone and deep differences are emerging between member states over how to manage what are likely to be even larger migration flows this summer.
The question of European integration will take center stage in the UK in 2016, with an expected referendum on continued membership of the EU (the so-called "Brexit" referendum). Some European leaders have already suggested that a UK withdrawal from the EU could prompt a wider debate threatening the foundations of that body.

Nationalist Policy Decisions

A willingness to adopt policies that may run contrary to spirits of international comity can become all the more frequent in times of economic uncertainty, such as those existing at present. As already noted above, it can be much more politically acceptable for governments to target foreign, rather than domestic, economic actors when introducing unpopular policies (see Less Favorable Investment Policies). Populist measures portrayed as being in "the national interest" can also be latched onto as ways of diverting attention from more fundamental issues that could render existing political actors unpopular.
This is nowhere more evident than where governments are responding to local or regional security challenges. 2015 saw the emergence or continuation of many such situations. Countries that may previously have been content to let the US and other Western governments manage these security crises have demonstrated a much greater willingness to intervene themselves when national interests are seen to be at stake.
For example:
  • Russia. In recent interviews, Russian President Vladimir Putin has made it abundantly clear that Russia will continue to pursue a foreign and security policy focused on protecting its national interests, even if that brings further conflict and confrontation with the West. The tenuous nature of relations with Russia was no more evident than in late 2015, when Turkey's downing of a Russian fighter jet over northern Syria led to the cancelation of numerous economic co-operation measures between the two countries.
  • Africa and the Middle East. Kenya is continuing efforts to curb the Somali al-Shabaab insurgency in East Africa while countries such as Chad, Cameroon, and Niger have all adopted more active roles in combating Boko Haram in Nigeria. The Saudi Arabian military is also now actively involved in Yemen's civil conflict. This assertiveness has implications for the security risk profiles of these countries and the regions in which they operate.
However, the past year also offered up examples of where these overtly nationalist policy measures can backfire:
  • Argentina. In 2015, voters in Argentina rejected candidates promising to continue the overtly nationalist economic policies of outgoing President Cristina Fernandez de Kirchner.
  • Indonesia. Indonesian President Joko Widodo acknowledged that relationships with foreign investors needed significant repair after a series of regulatory reforms by his predecessors were widely perceived as hostile to foreign investment.

Eternal Importance of Compliance

Experienced investors know that a comprehensive compliance strategy is critical to managing risk in international investments. However, it is equally important to understand the broader foreign and security policy objectives lying behind these measures, to anticipate further compliance challenges before they arise. This past year saw several events which reinforced the link between compliance and political and security risk.
While many investors have become familiar with compliance obligations associated with sanctions, export controls, and anti-bribery and corruption laws, new issues requiring attention and thorough due diligence and risk management policies are also likely to develop.
Issues such as human rights violations are inherently rooted in a country's political and security environment. Non-governmental organizations and advocacy groups are intensifying efforts to look at the behavior of investors doing business in countries where these issues are endemic. Developing an advanced awareness of these conditions can help investors to identify those projects in which compliance obligations are particularly critical, where public scrutiny is likely to be high, and on which further similar legislation may be targeted during the life cycle of an investment.

Iran Nuclear Agreement

The Joint Comprehensive Plan of Action (JCPOA) limiting Iran's nuclear program lifts many wide-ranging nuclear sanctions imposed on doing business with the country. While the details of the JCPOA and the associated sanctions relief are beyond the scope of this Article, investment in Iran remains subject to a complex compliance environment, given that other sanctions (particularly those imposed by the US) remain in place. In fact, in the days following implementation of the JCPOA, the US imposed targeted sanctions on eleven companies and individuals in relation to Iran's ongoing ballistic missile program. For more information on the JCPOA, see Legal Update, Updated: US Eases Sanctions Against Iran.

Normalization of US Cuba Relations

The US and Cuba continued to normalize relations in 2015. In May, Cuba was removed from the US list of state sponsors of terrorism and the two countries reopened their respective embassies. Trade and investment activity between the two countries is still subject to numerous restrictions and the issue of continued progress remains highly politically charged. For more information, see Legal Update, Updated: US Government Eases Sanctions Against Cuba.

Ukraine Agreement

In February 2015, Russia, Ukraine, France, and Germany agreed to a package of measures to alleviate ongoing fighting in eastern Ukraine (the so-called Minsk II agreement). While the Minsk II ceasefire has broadly held, little progress was made in implementing the agreement's political components, in spite of agreed deadlines at the end of 2015. Therefore, sanctions imposed on Russia by the US, Canada, the EU, and others remain in place and will likely continue to do so until substantial progress is made on the implementation of all components of Minsk II.

Chinese Anti-Corruption Efforts

China continued efforts to tackle high-level corruption in government and state-owned enterprises in 2015, with many high profile current and former officials being investigated and convicted. Concerns that endemic corruption could weaken the Communist Party's monopoly on power lie at the heart of this crackdown and emphasize the critical and politically charged nature of compliance for international investors in China.

Conflict Minerals

The EU remains intent on enacting legislation requiring declarations on use of conflict minerals in supply chains, similar to those introduced in the US by the Dodd-Frank Act (see Practice Notes, Summary of the Dodd-Frank Act: SEC Authority and Selected Securities Act and Exchange Act Provisions: Conflict Minerals and ESG and the Supply Chain). Many companies in the US have expressed considerable difficulty in meeting these compliance obligations and some have chosen to restructure their supply chains completely (see Practice Note, Conflict Minerals Diligence).

Modern Slavery Act 2015

The UK enacted the Modern Slavery Act 2015 to tackle the persistent problem of human trafficking, with companies above a certain size required to publish annual statements of their efforts to ensure that their business (including their supply chain) does not involve slavery or human trafficking. For more information, see Article, Expert Q&A on the UK Modern Slavery Act 2015.

Alien Torts Claims Act

Efforts also continue to pursue lawsuits in US courts under the Alien Tort Claims Act (28 U.S.C. §1350) against companies accused of complicity in human rights violations in developing countries. Recently, the US Supreme Court rejected efforts by three companies (Nestle SA, Archer Daniels Midland and Cargill Inc.) to dismiss lawsuits alleging involvement in child slavery on cocoa plantations in West Africa (US Supreme Court No. 15-349). For more information, see Case Docket, Nestle U.S.A., Inc., et al v. John Doe I, et al., No. 15-349 (U.S. Jan. 11, 2016).

Questions of Political Succession and Transfers of Power

A key challenge for investors is anticipating and managing emergent potential risks in countries that have previously appeared relatively stable. There can sometimes be a tendency to fall victim to status quo thinking. Conditions of the past and present are simply assumed to remain applicable in the future, without considering emerging dynamics that can fundamentally disrupt the geopolitical environment.
One potential problem lies in the issue of political succession. In countries lacking robust democratic institutions, political power can vest for considerable time with one individual or a small elite group. Little consideration is given to how the passage of power to successors will be managed. Many observers argue that one of the key reasons China's Communist Party has maintained its monopoly on power for so long lies in its ability to identify new generations of leaders and to stick to rigid schedules for successive transfers of power, thereby creating some sense of political regeneration.
The risks associated with lack of political renewal become potentially more acute in times of economic uncertainty. Even in democratic countries, voters often punish governing parties at the ballot box for perceived economic mismanagement. That mechanism does not exist where one individual or group is in complete control of a country's political system. In these circumstances, aggrieved populations may turn to more radical measures to bring about the change they demand. Understanding the degree to which these dynamics exist in countries and the extent to which governments have made provision to manage questions of succession and demands for greater democracy and accountability are always critical, but never more than in times of economic uncertainty.
Equally important will be identifying circumstances in which certain political leaders seek to circumvent constitutional limits on their power. Analysts have coined the phrase "third termism" to refer to situations in which incumbent politicians have sought to change legal limits on their terms of office. This drew particular attention in Africa in 2015 when violent protests erupted against incumbent leaders in the Republic of Congo and Burundi who sought to do that very thing. Further, members of the military loyal to Burkina Faso's former president, Blaise Compaoré, also attempted a coup to restore him to power after he was ejected from office amidst unpopularity over his own decision to seek a third term.
Similar term limits are approaching for other leaders this year, and investors should watch these issues closely given the potentially disruptive effects the protests and civil unrest could generate.

Contagion Risk in Geopolitics

While the term "country risk" is often used to refer to all of the challenges related to investment in a particular place, events in 2015 provided a stark reminder that the political and security components of that assessment are not purely a function of circumstances within national borders. Stability can also be impacted by circumstances in neighboring countries and even those on the other side of the world.
Nowhere has this phenomenon been more recently apparent in the Middle East and North Africa. The Arab Spring was a testament to the ability of events in one country to influence political circumstances in others and spawn further instability. Now, Syria's civil war, itself prompted by the Arab Spring, is reverberating in ways that are impacting neighboring countries. Examples include:
  • Jordan's already limited economic resources have been placed under considerable strain by a mass influx of refugees, who are now thought to account for at least a quarter of its population.
  • Lebanon's parliament suspended national elections scheduled for 2014 for two years and seven months as a result of political gridlock in the country linked to the factionalism of Syria's politics.
  • The conflict in Syria has contributed to the collapse of the ceasefire between Turkey and the insurgent Kurdistan Workers Party (PKK), with fighting between Turkish and PKK forces intensifying considerably in the final weeks of 2015.
However, it is not just in the case of civil conflict that contagion risk exists. The consequences of an economic slowdown can also transcend national boundaries. For example, due to declining economic circumstances, millions of guest workers from Central Asia are now unemployed in Russia and the remittances that they routinely send back to their home countries are estimated to have fallen by as much as fifty percent. This is having a significant impact on the overall economic health of many Central Asian countries. Approximately 45% of Tajikistan's GDP, for example, is attributable to remittances from abroad, primarily Russia. For Kyrgyzstan, that figure is estimated at 30%. This creates serious economic and political challenges for the governments of those countries, even before considering how declining resource prices are also affecting their future risk profiles.
Modern technology plays a significant role in the amplification of political risk across borders. Decades ago, acts of protest or other potential instigators of political instability often went unheeded beyond their immediate environs. That is no longer the case. The greater interconnectedness caused by the Internet and social media means that aggrieved segments of a population can quickly take notice of the actions of groups elsewhere. Technology also continues to be a highly effective recruiting tool for terrorist organizations like ISIL. In fact, FBI Director James Coney argued in 2015 that ISIL's social media strategy has, in some ways, made it a more effective threat to security than al-Qaeda.
This ability of political and security events to transcend boundaries creates a further dynamic for investors to consider when assessing their international risk profiles. Understanding that political risk analysis cannot occur in a vacuum and that it needs to draw on the implications of seemingly disparate events is an increasingly important component of the entire risk analysis process.

Strategies for Managing and Mitigating Political and Security Risk

Virtually no investor has the ability to influence the overall economic conditions in the countries where they operate. Likewise, geopolitical events present challenges that are seemingly impossible for individuals to contain or control. However, while events of 2015 demonstrated that the global political and security risk environment is constantly evolving (often in dramatic ways) there is a greater sense of constancy in the means by which investors can factor the assessment and mitigation of these challenges into their overall risk management strategy. To those who have been dealing with these issues for years, none of these strategies will be particularly surprising, but they all bear reiteration. They include:

Comprehensive Awareness and Understanding of Risks

Investors are generally aware of the critical importance of thorough pre-transactional due diligence. For instance, with the exponential increase in compliance obligations comes the need for greater background investigations of local business partners. Identifying connections between those individuals and past or current government officials can, for instance, raise red flags about potential anti-bribery and corruption risks and allow compliance policies to be adapted accordingly. It is worth remembering that individuals and companies can appear on lists of designated nationals for sanctions purposes at short notice. Having up-to-date knowledge of local networks relevant to a particular investment allows prospective violations of these measures to be identified quickly. For more information on these issues, see Practice Notes, USA PATRIOT ACT and Know Your Customer Requirements for Lenders and Suspicious Activity Reporting Requirements for Financial Institutions.
Moreover, the assessment of political and security risk issues should not be a static act. As investors are confronted with heightened uncertainty, they should regularly monitor relevant events to assess how they are altering the overall risk environment of countries or regions in which they do business. Given the ever-present risk of contagion discussed above, this will also include giving at least some consideration to how even seemingly tangential events could bring about fundamental changes to the underlying risk structure with which investors are dealing.

Careful Investment Structuring

There are many legal mechanisms and other protections on offer to investors which can assist in the process of managing geopolitical risk. These include:
  • Analyzing appropriate bilateral investment treaties and investor protection provisions in free trade agreements to maximize the benefits they provide for an investment.
  • Ensuring that treasury operations are, where possible, adapted to regularly sweep excess cash out of higher risk jurisdictions, thereby minimizing the risk of assets being caught by unforeseen currency and capital controls.
  • Holding higher risk investments in special purpose vehicles to keep them separate from other interests.
Of course, contracts also serve as key tools in minimizing risk exposure through doctrines such as frustration and force majeure or through specific provisions aimed at ensuring compliance with sanctions or other restrictions. It is important to remember, however, that all of these principles have their limitations (for example, if events were foreseeable) and investors should work closely with counsel to ensure that a contract is drafted to match the particular risk profile faced, rather than simply relying on universal boilerplate principles.

Use of Political Risk Insurance

Investors in developing markets continue to use political risk insurance (PRI) to mitigate some of the risks associated with political and security-related uncertainty. As with all insurance, the nature of cover and its cost are dependent on the particular risk profile faced and insurers will often expect investors to have some awareness of the specific protections sought, rather than simply seeking all-risks blanket cover. Protection can, nevertheless, be sought for risks such as:
  • Kidnap and ransom.
  • Expropriation of assets.
  • Sovereign debt default and currency controls.
  • Political violence and war.

Dynamic Risk Management

Developing a comprehensive awareness of the domestic, regional, and global events that can impact the viability of an investment forms only one component of an effective risk management strategy. It is equally important for investors operating in higher risk jurisdictions to have some form of organizational structure in place for managing these events should they arise. A strategy should include:
  • Identifying key managers who will form a crisis management team. This team should draw on all relevant business lines including finance and treasury, operations, government relations, legal, communications, and investors' relations together with outside advisors.
  • Maintaining a holistic approach to analysis that includes looking beyond borders at potential sources of contagion risk, while also considering second- and third-order effects of particular events (for example, risk to reputation).
  • Periodically testing the robustness of a crisis management strategy through training and operational exercises.
  • Challenging status quo thinking and the assumptions on which previous assessments of risk exposure have been based, given the rapidly evolving nature of geopolitical events.
These are only a few ways by which investors can ensure that they are better prepared for the more uncertain economic and political environment in which they operate at present, allowing them to focus on long-term success of investment opportunities even in stormier geopolitical waters.