Submissions on the new Mixed Ownership Model Bill (who dreamt that nonsense up?) closed last Friday. Although I was away on holiday, I did get mine in, though it wasn’t quite as detailed as planned. I have posted the full submission below but, in light of news out overnight, I wanted to add a few points.

My opposition to the proposal to partially sell 4 of our energy companies (and who knows what else down the line) is based not on an ideological opposition to privatisation (government should only own assets that have a public good purpose or have key national strategic value) but on the issues of finance, risk and law.

The finance argument is simple. There really is no case for selling these assets based on their poor performance, funding costs or return. Government debt may be high and set to rise but flogging the family silver provides short term gain with long term pain. The debt position in NZ (both public and private) is a structural problems and will not be solved by a $5-7b sell down of core assets.

The question of the risk of these proposed sales is perhaps more subtle. It simply comes down to how one views the provision of energy on a national scale. It is a clear public good, even if it can be provided privately (e.g solar or micro-wind) and therefore should be provided at least cost (taking into account externalities) to the public. Floating energy providers onto the stock market changes the goal of the company. It is now a profit maximizer with long term shareholder value as its primary concern. Some might argue that SOEs are already operating in that model but that’s not relevant to this argument. The key is that in order to provide a public good, ownership must be in public hands. Added to that, the changes in technology and energy availability will require national level changes, planning and investment. Diluting ownership will make this problematic. At some point, the national interest may come back into focus and then what? What of the shareholders? They may not be interested in the national interest, especially if it impacts on the share price or their dividends.

This leads nicely into last night’s news. Argentina has sensationally nationalised YPF, a unit of the Spanish energy giant, Repsol, quoting “Hydrocarbon Sovereignty” (in Spanish) and basically arguing a lack of investment by YPF in Argentina. This is out and out expropriation and Repsol has hit back with a claim for $10.5b as compensation. This has been completely rejected by Argentina, as expected. This is likely to play out very badly in the international trade and investment arena and will probably end up in the international courts, if it is not resolved diplomatically.

Now this is exactly what I alluded to in my submission around the issue of international law and any future re-nationalisation or expropriation of assets, no matter what the situation is locally. Added to that we have the TPPA lurking in the background, which may further complicate matters, especially for a National government desperate to turn everything in NZ into an investment. One may argue that there is absolutely nothing to worry about in terms of possible future legal claims or problems but history shows us that this is a serious and unconsidered risk. Certainly I have not seen it in mentioned in any commentary. The government tries to duck and weave around the wording and structure of the sales model but it really needs to rethink the whole process from start to finish.

 

Submission on the Mixed Ownership Model Bill

The main purpose of the bill is to raise funds to reduce government debt and provide funds for new spending on public services. Reducing government debt is a laudable proposition and one can do that by increasing taxes, cutting expenditure or selling assets.

 

The government has chosen to sell publicly owned assets, specifically energy companies, in order to raise somewhere between $5 and $7b. These numbers are purely guesswork and will depend on a number of factors, including current market conditions, offering price and the structure of the companies post-sale.

 

This proposed bill is of concern for a number of reasons, which are listed below. I have categorized them into three areas: finance, risk and legal.

 

1)   Finance: The prime reason given for selling energy companies is that they provide a poor return to the government and that private owners may extract more “efficiencies” from the businesses. There has been no clear-cut evidence provided to support the former assertion, namely that the return from the energy companies is lower than the cost of government debt. Furthermore, there is scant evidence to support the proposition that privately run energy companies are any more efficient than publicly run ones. As we have seen from the Pike River disaster, private companies tend to be poor managers of risk and cut costs wherever possible, in order to increase profits. As many costs are externalized as possible to achieve this goal. In the energy business, this is a very dangerous approach. It seems that the financial argument is weak at best.

2)   Risk: As alluded to above, risk management is of serious concern when privatizing companies in the energy space. Energy provision is a prime public good and should therefore be provided by the public. Like water, energy is a pre-requisite for basic survival and should, therefore, not be seen as a profit maximizing good. By giving up pubic ownership of these basic assets, we open ourselves up to a poorer service, which may be based on ability to pay rather than a right to have the basic provision of energy. We may also lose the ability to make changes to and investment in the development of new energy production and networks. Investors, even with a 10% cap and other restrictions, will still have rights and views (see legal for further argument on this point), which may not be aligned with the public good. As well as safety and control risks, there is the risk of prices being raised over and above what might be appropriate. The example of the Bolivian water privatization and the Bechtel corporation (see Cochabamba riots of 2000) is a good example of what can go wrong when private interests are allowed to control basic pubic goods. Theses risks should not be taken lightly.

3)   Legal: Global investment rules have been expanded significantly over the last 20 years. NAFTA, the WTO and numerous bilateral trade agreements, have made the investment law field extremely complicated. What is clear, though, is that foreign investors have clear rights and these rights may, in some cases, trump domestic law and the expectations of the domestic citizenry. Examples of this are the Santa Elena case in Costa Rica, the Metalclad Corporation vs. The United Mexican States and the Ethyl Corporation vs. Canada. These are a small example of cases taken by foreign investors against states, where they feel their rights have been infringed. This could be for a number of reasons: environmental laws, human rights laws or expropriation (e.g. arising from renationalization or similar action).  We have transnational agreements being negotiated in secrecy (the Trans Pacific Partnership Agreement (TPPA)), which may contain further restrictions on the ability to make decisions based on domestic considerations but perceived as harmful to foreign investors. The making of new international investment rules has seen many unintended consequences. The same outcomes may apply to this bill.

 

In summary, it is clear that the proposed bill has some serious problems. There are many consequences, known and unknown, which give cause for deep reflection and concern. The financial argument is weak and there are other ways to raise funds for public expenditure. Of more concern is the risk and legal framework that may end up being applied. The examples are too numerous to fully list but they are clear and unambiguous as to the impact on the local population and its finances.

 

This bill seems predicated on an ideological desire to privatize state assets and not on any serious and well thought out argument for doing so. I would therefore argue strongly against its implementation.

 

 

Raf Manji,

Director,

Sustento Institute,

Christchurch.

 

Tags: argentina, asset sales, debt, energy, Ethyl Corporation, expropriation, finance, international law, Metalclad, mixed ownership model bill, national, nationalisation, new zealand, privatisation, privatization, repsol, risk, Santa Elena, spain, TPPA, ypf