Business setting sail away from America

The world finds it’s too hard to do business with the US
by Stephen Foley

Lucrative opportunities taken away on a political whim; the danger of being locked up by an over-mighty government agency; the brick wall of protectionism – the business community expects to do battle with all these things in an emerging market.

Yet this suddenly seems to be a description of doing business in that most developed of all markets, the United States of America.

In the UK, in the cash-rich Gulf states and in fast-growing India, different incidents in the past week have made people ask the same question: is it worth doing business with the US?

Critics say the outcry over the £3.9bn acquisition of P&O by Dubai Ports World, which will transfer the running of five US ports to a state-controlled Middle Eastern company, has exposed the US Congress at its xenophobic worst. But it has also revealed more starkly than ever the protectionist tide that is waxing in America under the guise of national security.

The acquisition was due to close this Thursday, but DP World has had to delay completing the deal as it faces a protracted Congressional and legal fight to keep hold of the US contracts, which account for 6 per cent of the business it is buying…

The refrain is, why can’t an American company run our ports? Democratic presidential frontrunner Hillary Clinton is among the senators proposing legislation to guarantee precisely that.

Bill Reinsch, president of the National Foreign Trade Council, says it has been a profoundly depressing episode, and one that could have lasting repercussions if it derails a planned free-trade deal between the United Arab Emirates and the US. “These are not societies given to a lot of rhetoric – they are not going to hold a press conference and call off negotiations,” he explains. “But what would happen is that things would slow down – forms of co-operation would not happen any more.”

When a firestorm of protest threatens to drive a Middle Eastern company out of the US, it is only business sense to look for opportunities elsewhere. The Dubai government has begun to build up a modest aerospace industry, launching a components business that might, one day, mean it is less reliant on the US for aircraft. Its new airport management business is targeting contracts in India.

Arab businessmen have expressed their concern. The Egyptian billionaire investor Naguib Sawiris says Arabs would be tempted to look away from the US for asset acquisitions, for investment opportunities and for business contracts.

And a country that had a trade deficit of $726bn (£415bn) last year can ill afford the “paranoia” about inward investment and foreign trade exposed by the DP World furore, adds Mr Reinsch.

But even supposedly enlightened business media such as The Wall Street Journal and CNBC television are setting up the debate as “globalisation versus security” – eliminating the possibility that these might be compatible, perhaps even mutually reinforcing.

Protectionism has already won some significant victories. Last year, the Hong Kong-based oil company Cnooc blamed “unprecedented political opposition” in the US for its decision to abandon a $18.5bn bid for the Californian oil firm Unocal – what would have been the biggest Chinese takeover of a US company.

Law makers are now pushing a number of Bills that would impose economic sanctions unless greater efforts are made to narrow a trade deficit with China that hit $202bn last year, the largest bilateral imbalance ever. The US government has promised tougher enforcement of trade laws and created a China enforcement taskforce to try to placate Congress.

Stephen King, managing director of economics at HSBC, says no one should be surprised that US politicians are reacting to the emergence of China and the threat it poses to US manufacturing jobs. “The employment risk is immediate and it is the workers that vote.” There have been periods in the past, he adds, where the US has become more protectionist in order to get through a period of economic upheaval – notably against Japan in the late 1980s.

And it is not just Far East and Middle East companies that might be tempted to disengage with the US.

“Any businessman with any connection with the US, however tenuous, should think very carefully about the potential peril they face. Right here, right now, I would not advise even to engage in a business relationship with the US.”

These were the warning words of a British man, David Bermingham – one of the “NatWest Three” bankers who lost their appeal last week against extradition to the US to face trial for Enron-related fraud.

An Anglo-American treaty agreed in the wake of the 11 September terrorist attacks means prosecutors are no longer required to prove there is a case to answer in order to secure an extradition. It has been used as many times to pursue white-collar suspects as it has terrorists – and only the UK has ratified it. The treaty has been used not only against the three bankers but also the 62-year-old former chief executive of taxi maker Morgan Crucible. Ian Norris faces extradition to answer charges over alleged price fixing.

Douglas McNabb, the Texan lawyer who appeared as an expert witness for the defence at the NatWest hearing, says that law-abiding businessmen have much to lose if they are wrongly accused. “Maybe the US is wrong and you have to go through the whole process to prove it. My view is that in order to have a chance of winning an international extradition case, you have to have counsel from both countries, and you have to have a lot of money.”

It is not just law enforcement agencies in the US that are reaching across the seas, but US financial regulators too. Foreign businesses with American shareholders have become subject to the provisions of the onerous Sarbanes-Oxley legislation pushed through after the collapse of Enron. This demands that executives take legal responsibility for the accuracy of their financial results, and insists on upgraded audit procedures that are estimated to cost a minimum $1m per year. Bigger companies with significant operations in the US just have to grin and bear it – BP said it was spending $100m a year on Sarbanes-Oxley compliance – but others have decided to ditch their US shareholders.

In the UK, ITV has engineered a complex financial restructuring to that effect and O₂ and Rank have delisted their shares from Wall Street. French media giant Vivendi Universal is doing the same and Mexican and Israeli companies are among dozens to have retrenched to their home stock markets.

This is a trickle that is likely to turn into a deluge. Delisted companies currently remain subject to the reporting rules of Sarbanes-Oxley if they have over 300 US shareholders, so the saving might seem negligible. But US regulator the Securities and Exchange Commission is proposing to ease that rule. BT is among the UK companies to have signalled it would like to delist from the US if it can also escape the clutches of Sarbanes-Oxley.

As significant are the companies that are not now coming to Wall Street at all. Clara Furse, chief executive of the London Stock Exchange, says it has benefited as international companies choose to list in London instead – both on the main market and on AIM, which is attracting growth companies that might once have been Nasdaq bound.

In the insurance industry, the US is demanding that foreign-owned reinsurers deposit big sums in a trust fund to compensate US partners should they fail. This was slammed last week by Lloyd’s of London chairman Lord Levene as discriminatory and totally unacceptable.

Perceived discrimination in other areas might also damage America’s economic future. The head of chip maker Intel, Craig Barrett, has complained repeatedly that the US is losing out on international talent because of the tightening of immigration laws after 9/11, which led to lots of hi-tech engineers losing their work permits. Intel, Microsoft and others are channelling investment into India that might otherwise have stayed in the US.

The issue flared up again last week when a prominent Indian scientist was refused a visa for the US because of concern that his work had chemical weapons applications. The case of Goverdhan Mehta, who is president of the International Council for Science, a Paris-based group of national scientific academies, has caused a storm in India.

Mr Reinsch says the Mehta case is another blow to the US’s attempts to attract the world’s best scientists. Meanwhile, Tony Blair has been moved to warn US politicians not to use the war on terror as “a back door route to protectionism”. And the NatWest Three ruling prompted Sir Digby Jones, director-general of the CBI, to call the US “an ignorant bully”.

Across the world, friends and free traders are concerned about the course set by the US. They say that while its motives are diverse – national security, energy supply concerns, the protection of investors – there is a single conclusion: it has become riskier, costlier and harder to do business with the US and, unless that changes, fewer people will want to.