India Grapples With First Tremors Of Economic Shake-up
BY
R.K.MISRA
India grappling with the Covid-19 pandemic is
beginning to feel the first tremors of the economic shake-up caused by the
21-day shutdown as corporates , business, trade and industry, even public
sector undertakings are burning midnight oil to wriggle out of prior
commitments.
The restriction on human movement has had a spiraling effect on every aspect of
human life whether it is business or
manufacturing, commerce or construction, trade or transport.
Once
the attention from the control of the virus shifts a swarm of issues is
expected to occupy attention for quite some time to come. A major one-amongst the lot of them- will be
the delays caused in meeting contractual obligations. These will be spread over
a huge canvass from construction contracts to manufacturing and supply
agreements, from professional service
providers to engineering contractors and their suppliers and even financiers
who will be grappling with cost over runs due to time slippages as well as
those who will be seeking re-negotiations of prices and terms of contract. This
will bring force majeure into play.
Force Majeure translates literally from
French as superior force. In business, force majeure describes those
uncontrollable events(such as war or natural disasters, even pandemics) that
are not the fault of any party and that
make it difficult to carry out normal business. A company may insert a force
majeure clause into a contract to absolve itself from liability in the event it
cannot fulfill the terms of a contract
for reasons beyond its control.
Legal firms are under pressure for many Indian
businesses are reviewing old contracts
to see whether Force Majeure can be invoked to find a way out of old agreements
as manufacturing sector is hit, recovery cycles are stretched and raw material
shortage is hitting consumption. Even Indian Liquified natural gas(LNG)
importers have issued force majeure notices to suppliers as domestic gas
demand and port operations are hit by
the countrywide lockdown, industry sources said. In short a welter of legal
wrangles await corporate India and by implication all other facets of Indian
life in the days to come.
According to an international financial
news daily, signs of acute corporate stress is seeing big Indian companies invoking
force majeure clauses to halt payment to suppliers and these include
Indian Oil Corporation, Adani Ports and Royal Enfield, among others.
Renewable energy developers and their
bodies facing supply chain disruptions have also urged the Centre to invoke the
clause for time extensions on projects. The
Ministry of New and Renewable Energy(MNRE) is reported to have agreed to time
extensions subject to the condition that evidence is produced to prove supply
chain disruption due to virus spread in China or any other country.
A case in point is corporate entities
involved in infrastructure development, particularly road construction.
Application of the force majeure clause
may give them temporary respite but will only add to their woes in the long
run. The union ministry of road transport in a notification issued on March 25,
has urged the National Highway Authority of India(NHAI) to stop levying toll
charges for the period of the lockdown. It has stated that this period would be
classified as a Force Majeure of concession contracts.
According to ratings agency ICRA, this
will put toll collection into negative category for FY 2020 while collection in
April and subsequently 2021 is likely to be affected adversely. ”In March 2020
the decline in toll collection is estimated to be more than 40 per cent”, the statement said.
In effect-in a tolled road project- the application of force
majeure ensures 100 per cent of O&M and interest costs are reimbursed for
affected period. This would cover 50 to 55 per cent of the loss of revenue,
according to R.Burla , vice-president corporate ratings, ICRA. But then toll
revenues constitute less than one- fourth of the consolidated revenues of companies operating in this sector.
Trade sources say that It is expected to
take a minimum of one quarter to restore
traffic levels and if the demonetization experience is taken into account, two
quarters to do so. Besides the 40 per cent fall in toll collections estimated
by ICRA, the constraint on vehicular movement likely to persist beyond April,
the toll collections for quarter 1 of FY
21 will also be adversely affected.
This implies that Global
infrastructure funds who have invested heavily in India’s road assets
are going to be facing heavy losses due to the toll collection slump. Most Indian
toll roads are owned by private foreign investors. Global financial
institutions such as Macquarie, GIC, Cube Highways and leading Canadian funds
and pension groups-Brookfield, CPPIB,CDPQ and OMERS-have deployed more than $5
billion on Indian road assets in last few years , trade sources report.
This in turn is set to hit the country’s
road monetization plan with investors turning wary and adopting a wait and watch approach. The
NHAI has had to extend the fourth round of auction to monetize
operational highways to April. It had invited
bids for its fourth bundle of
TOT(Toll, operate, transfer)auction in October 2019.The initial plan was to
raise at least Rs 4200 crores, but the floor price was eventually brought down
to around Rs 2200 crores. Coronavirus has led to further postponement.
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