Monday, August 31, 2009

On Becoming a Libertarian Paternalist: Designing Better Policies for the Society (Part 2)

In my post dated 26 August 2009, we have discussed the basic concepts of Libertarian Paternalism, introduction to better policy making, and examples of human errors with respect to daily economic activities. Today, we will discuss some useful guidelines in making better policies and how to implement such guidelines in actual life.

The Six Guidelines of Better Policy Making

According to Thaler and Sunstein, there are 6 basic guidelines for better policy making:
  • Expect Error;
  • Defaults;
  • Understand Mappings;
  • Give Feedback;
  • Structure Complex Choices; and
  • Incentives.
Each will be further discussed below:


1. Expect Error

I guess this is the first guideline to be considered by policy makers. Since most men make mistakes, a good policy will consider such fact and will ensure that the mistakes can be fixed in the easiest way.

What is the actual implication of this guideline? While governments or private institutions can try their best to design a good policy, they must be aware on the possible failures due to human errors and must ensure that the system will be able to sustain and fix such problem. There are many examples for this problem, but let me show a very interesting case as provided by Thaler and Sunstein, that is the case of birth control pills. Some of you might be aware that in one month, most women will take birth control pills for about three consecutive weeks and then stop for one week (due to the menstruation period). Many women have difficulties to adopt to this system and some of them may forget to take their pills in accordance with the required schedule. So what the companies do with this condition? They provide 28 pills in 28 containers, each having a specific number from 1 to 28. However, pills in containers no. 22 till 28 are only placebos made for the sake of compliance by human users, and thus they don't have any effect whatsoever. Interesting isn't it?

2. Default
The "Default" guideline is made due to the fact that most people will take the options which require the least effort, or in other word, people would instinctively take the easiest route in doing something (seems familiar?). In our daily life, the "Default" option represents an option that, if the chooser does not do anything, will cause most people to end with such option, whether the option itself is good or bad. The case will be stronger if there is any suggestion (explicit or implicit) on such "Default" option, i.e. people will most likely take such option without much hesitation.

In reality, we can't avoid this "Default" problem. Governments and private options in many cases need to provide "Default" option, such as the default choice of menu in a fine-dining restaurant or the default choice for investment policies in your pension funds. Now, since the "Default" option is very powerful, it would be best to ensure that any "Default" option is made for the benefit of the people. How can we do this?

There are two possible ways. First, we can design that each "Default" option requires an active approval from the relevant user. This means that a "Default" option will only be applied once it has been approved by the user. However, in several cases, some people ended up with having no benefit simply because they are too lazy to activate their own "Default" option.

The other way is to design the best possible policy that can be made by the government or private institutions and then such policy will be made as the default option, whereas any people who don't agree with such option will always be free to opt out. Take as an example your computer's download system. All major software company requires the user to actively choose whether they want to download a file or not for each downloading session as a default option, instead of the automatic downloading system. Why? Simply because downloading a file automatically might be dangerous (e.g. causing computer virus attack) and you'll need to properly asses such risk whenever you are trying to download a file. Simple, but important. And in each case, you can always change the setting (of course, if your administrator permits you to do that).

3. Understand Mapping
The third guideline deals with the fact that most people will have some difficulties when they are facing complex choices. A good policy will provide some mapping mechanism to its users, enable them to review the possible options in an easier manner and will allow them to choose the best option for them. In other words, we're talking about better disclosure to the public.

Now, let me ask you some simple questions, do you really understand the actual costs for using your credit card ? Or how to calculate your telephone bills? I bet that most of us wouldn't even know.

That's why we need a regulation which would require companies to have better disclosure system. The implementation of the "Understand Mapping" guideline should be cheap and will maintain the basic freedom of choice for consumers. It would also be good for the business because it can increase fair competition without having to use excessive litigation method (such as the use of Anti Monopoly and Unfair Competition Commission) or forced price control.

As an example, let us see the telecommunication industry. Imagine that the Government now requires each telecommunication provider to provide all relevant information related to the costs of their services and to provide a simple costs comparison with other providers. The information should also be easy to be obtained by all consumer. With this kind of policy, we would have a better understanding on the actual costs for using telecommunication services and can easily spot the best provider which would satisfy our needs. Each telecommunication company will also have better incentives to increase their business efficiency and to optimize their services due to this information disclosure system. Wouldn't that be nice?

4. Give Feedback
It goes without saying that a good policy will be able to provide a feedback to the user, whether they have done well, or were actually making mistakes. A nice example provided by Thaler and Sunstein is our internal computer system that warns us before our computer battery completely runs out.

Based on this guideline, I also have an idea where there is an integrated system to supervise the use of credit cards by each person. We know that each credit card has its own limit. However, in many cases, rather than acting as a limiter for people in using credit cards, such limit encourages people to spend their credit cards up to its maximum limit, and in some other cases, people tend to obtain many credit cards to increase their total credit cards limit. All of these are totally wrong.

Now, by using this integrated system, the banks would know how many credit cards are owned by a person, including each of their limits. Whenever certain amount of the combination of the limits have been reached (which should be in accordance with the credit worthiness of the user), all of the credit cards wouldn't be available for use. We have this supervision system for banking loan and credits application, why not for credit cards? We can help many people by using this kind of system. Remember, having many credit cards doesn't mean that you're becoming richer.

5. Structure Complex Choices
Actually, this guideline is deeply related to Guideline no. 3. When people are facing complex choices, they tend to simplify the choice. That's why a good policy maker will structure its policies to be easily understood and choosed by the user. One of the most useful methods that is being widely used is the "Collaborative Filtering."

Don't be afraid with the name, since it's basically a public review system and the internet really helps the development of this method. As an example, when you want to buy a law textbook and you have many choices but don't have enough time to read all of the available books, what would you do? You'll ask other people's opinion right? In the world wide web, you can simply search the title using Goggle or Yahoo and then you can see whether any people have made a review on such book. It is easy, cheap, and in most cases would be helpful for us in making an efficient decision.

6. Incentives
This is my favorite guideline and has been discussed various times in my other posts. It's very simple, people respond to incentives, they actually calculate the costs and benefits of everything, though maybe not as complex as a professional would be. Therefore, a good policy should always calculate the best incentive to be used in order to make such policy can be effectively applied.

Some legal scholars claim that currently most regulations are no longer effective to bind the people and therefore they are questioning the efficacy of the law itself. If only these people understand the basic nature of men, they would not say such a thing. You can't expect people to follow the law if you don't provide a suitable incentives for them. If you think that people will act according to a law only because of morality or religious reasons, I suggest that you need to reevaluate again your idea, or I'm afraid you will be frustrated.

I wouldn't provide any examples for this guideline as I believe you have seen many in my previous posts and I assure you that you will see more in my future posts.
Concluding Remarks

I hope this article can enlighten you on how the government and private institutions should design a policy which would maximize the benefit for the people without minimum cost to the people's freedom of choice. I personally agree with most of this Libertarian Paternalism movement, but I need to put some qualification here. What matter most to me is finding the most effective policy in improving people's live, so when the circumstances show that preserving free choice would not be efficient, some other methods would be needed. This is especially relevant when we're dealing with major criminal acts, such as terrorism, money laundering, and corruption. Of course it would be really nice to reduce these criminal acts by using positive incentives, but don't put too much faith on that.

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Saturday, August 29, 2009

Statistics and Facts: Any Correlation?

All right, this is indeed a hilarious post from Greg Mankiw. The statistics show that children from higher income families are getting higher average SAT scores, and some people claim that there is a correlation between income and better result of tests. However, Mr. Mankiw theorizes that the correlation is not on the income rate, but on the fact that smart people are making more money and these people pass their genes to their children, thus smart children comes from smart parents not from rich parents.

Okay, I'm not a professional statistician, but when dealing with statistics, I always remember what David Hume, a Scottish philosopher, has taught us on making a conclusion from our experience: just because in your experience an act is always followed by the second act does not mean that there is a causality between the first act and second act.

In Nassim Nicholas Taleb's wisdom (taken from his book "Fooled by Randomness"): "no amounts of observations of white swans can allow the inference that all swans are white, but the observation of a single black swan is sufficient to refute that conclusion." If translated: even after going through 1,000 successfull experiments, you will never be able to claim that a hypothesis is correct with 100% degree of certainty, but it will only need one failed experiment to reject such hypothesis.

I agree with both of Hume and Taleb. Previously, I have made some hypotheses with certain logical reasoning in my blog. Will it always be correct? Of course not! Situation and condition may change or maybe I haven't considered all of the relevant issues and facts, or maybe there is a fallacy within my seemingly fine argument.

Mr. Mankiw is correct in saying that the ones who conclude that there is a relationship between family income and better test results might be wrong, but I also dare to say that his conclusion might not be correct either. Are there any relationship between smart people and their incomes, i.e. the smarter you are, the higher your income? I don't know, though I do know some rich stupid people and some poor to average smart people. Further, how many data should we collect before we can make such conclusion? Again, I don't know.

My advice is simple, be very careful when we are dealing with statistics as people can always make different conclusions and interpretations from such statistics. When you think that a correlation between facts exists based on a result of a statistic, you better think it through again.

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Friday, August 28, 2009

Can Guaranteed Bonuses Induce Excessive Risk Taking?

Yes, according to Lucian Bebchuck, a law professor from Harvard Law School. A guaranteed bonus may, to certain extent, create distortion in determining the business risk of a company. By having the benefit to receive a guaranteed bonus no matter what the performance of the company, there would be a considerable pressure for the management to meet the company's business target or even exceed such target. As a result of this, the management may take unnecessary risks in doing the business just for the sake of getting better performance. We need to understand that in some cases, riskier business decisions may provide higher results, but they may also cause greater losses. When the results are losses, who would be the largest victim? The Company and also the shareholders.

Further, Prof. Bebchuk theorizes that if the bonuses of the management were distributed based on the overall performance of the company, say after reaching a minimum amount of annual profit, the management will have better consideration in doing the business, i.e. they would only take the risks if the odd of getting the intended performance are higher than the odd of getting a lower results. Why? Since the management bonuses are now tied to the performance of the company, it would be dangerous for them to take too much risks because if the results are bad, they will also lose their bonuses. As a result, they would play safer.

Again, this shows how incentives work in our life. I would love to see how this will be implemented in Indonesian regulations. While I absolutely don't agree if the regulator is trying to limit the amount of benefits that can be obtained by the management, a policy on how to structure the best benefit package should be okay, provided that companies can freely choose to adopt such policy or not (as will be determined by the shareholders and, if possible, an independent remuneration committee).

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Thursday, August 27, 2009

Using Indonesian Languange on Contracts: Mandatory?

To certain extent, the answer would be yes. Why? See here (it is in Indonesian language, but no worries, we will only discuss one article and I'll provide the translation below). On 9 July 2009, the Indonesian Government issued Law No. 24/2009 on the Flag, the Language, the National Emblem, and the National Anthem. The title says it all, so I don't expect to provide a summary of this Law in my blog. While I don't see the necessity to have this kind of regulation, I can understand that the Government is trying to increase Indonesia's profile, particularly the use of Indonesian language.

Now, onward with the main theme for today, I have some concerns with the application of Article 31 Paragraph (1) of this Law, which states (unofficially translated):

"The Indonesian Language must be used in any memorandum of understanding or agreements which involve state institutions, Indonesian government agencies, Indonesian private institutions, and Indonesian individuals"

This is a provision that I would call as inefficient and unreasonable. Why oblige parties to use Indonesian language in their contracts? There are many reasons for Indonesian companies to use foreign languages (notably English) for their contracts with another Indonesian parties, such as: (i) the relevant Indonesian company has several foreign creditors and therefore most of its contracts were made in English so it would be easier for its creditors to review such contracts (if necessary); or (ii) the relevant Indonesian company usually enters into contracts with foreign parties and therefore its standard contracts were mostly made in English. We need to understand that the costs for drafting Indonesian version of the contracts are not always cheap, so I'm asking once again, why force them to use Indonesian language and penalize them with unnecessary costs? If the parties need to use Indonesian language for the best interest of both parties, they would do so without having to be forced by this Law. Having this kind of provision is indeed an exaggeration.

In addition, forcing Indonesian parties to draft all of their agreements in Indonesian language may cause unnecessary risk (due to its ambiguity), i.e. Indonesian parties with bad faith (of course, supported by their lawyers) may claim that contracts made with another Indonesian parties are invalid and should be annulled by operation of law simply because such contracts were not made in Indonesian language. That would be horrendous! What should be considered as an administrative breach can now be deemed as a major breach of law which could cause a contract to be annulled, all because of an ambiguous provision which shouldn't even exist in the first place.

Of course as a lawyer, I would love this provision since it will create additional job for lawyers, i.e. translating standard English contracts into Indonesian language. Sure it's a boring stuff, but it can generate some nice incomes :).

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Wednesday, August 26, 2009

On Becoming a Libertarian Paternalist: Designing Better Policies for the Society (Part 1)

A Libertarian Paternalist is someone who believes in Libertarian Paternalism, but since I'm guessing that most people wouldn't even know the definition of Libertarian Paternalism, you can check the definition here. So, why are we discussing this issue?

I have just finished reading a book titled "Nudge," and a very interesting book it is. Made by Richard Thaler and Cass Sunstein (Professors of economics and law at the University of Chicago, respectively) this book introduces the movement of Libertarian Paternalism, a movement that supports governments and private institutions to adopt policies which can maintain or maximize people's free of choice while in the other hand influence those people to improve their life and important decisions, such as wealth, health, and happiness. The basic reasoning is quite logic, people make errors most all the time and in reality, there is no such a neutral design in making a policy, so why don't we maximize the possible choices for the people, design the most possible best options, encourage people to take the best options, but ultimately let them also be free to take their own actions with regard to the choice alternatives?

The book also offers several forms of incentives and methods that can be used by governments and private institutions to improve people's life in accordance with the Libertarian Paternalism movement. For someone who are trying to find how to structure the best policy or regulation for certain issues in this life, I find that this idea is enlightening.

Human = Error?

I have to admit that the idea that common people tend to err on a regular basis is quite disturbing. However, there are too many supporting facts on this issue that would prevent us from declaring the idea to be baseless. See this site for additional insights on human errors, especially with respect to daily economic activities (by the way, Dan Ariely's book, Predictably Irrational, is also highly recommended).

While I believe that men are rational beings, i.e. able to think rationally and make decisions on a reasonable basis, I can't deny the fact that our decisions are subject to various internal and external factors, and these factors may take a dominant position, even more dominant than our own rationality. Let us face it, how many times did we make a decision based on a cool and wise demeanor? I bet that most of us will answer: seldom. In most cases, decisions are being made by our impulsive side, the automatic system in our mind which is very vulnerable to biases and blunders. Not to mention our weak self control, overconfidence, excessive ignorance, and tendency to follow the herd (i.e. going with the trend without too much thought). All of these factors may negatively affect our ability to make a better choice in our life.

See some of these interesting examples:

1. On Procrastinating
Procrastinating is always be a big problem for most of the people. You might be familiar with these statements: "I'll save money as soon as possible," "damn, I'm getting fat, I should exercise tomorrow," or "well what do you know, the deadline for the paper is still three months, I guess I'll take a break for a week and finish it later." Yes, most of us procrastinate, including myself. But how come? Aren't people aware on the danger of being obese, or retiring from a job without any saving? Then why people still procrastinate? Is it due to irrationality or an overconfidence or simply an inability to grasp the actual risks associated with our actions?

Have you ever think why some governments issue mandatory pension plan for their citizen, where the citizen is forced to put some of their salaries to their pension account? I dare to say that this is one of the reasons.

Having a mandatory pension plan is a positive nudge, although of course how we should structure such plan to reach the maximum results is another case to be discussed. By having a mandatory pension plan which automatically enrolls worker to some form of pension funds, the government may save people from being poor after their retirement due to low saving. True that the pension plan can go bust, but the risk is smaller than letting people not having any pension plan.

2. On the Ownership Bias
Several researches made by Thaler & Sunstein and Dan Ariely reveal that people are having difficulties in determining the value of certain goods due to the ownership problem. Those who possess an asset tend to value their asset higher than those who don't posses such asset, and the discrepancy of the value can be very, very huge. In one of Thaler & Sunstein experiments, participants are being given a mug or a chocolate bar having the same price. Half got the mug and the other half got the chocolate. Interestingly, when they are being asked to trade their mug with the chocolate and vice versa, only 10% of the participants are willing to trade. Why?

In another case, Dan Ariely made an experiment using college students where some of them successfully obtained a ticket for a really famous university basket ball final competition and the others failed to do so. These tickets are very hard to obtain, and most students must spend their nights in tents just to have an opportunity to get lotteries for getting the tickets. Yes, lotteries! Even after spending two days in tent, they still need to push their luck to get those tickets. However, despite the difficulties in getting those tickets, there were many students who participated in getting the tickets.

After the tickets distribution, Dan contacted students from both sides to find out how much they value their tickets, and he found a very amazing result. In general, those who failed to obtain such tickets were only willing to pay max US$170 for buying one ticket, whereas those who obtained such tickets were only willing to sell their ticket for a minimum of US$2,400 per ticket. This is amazing, especially when we considering the fact that before the distribution of the tickets, almost all students were very eager to obtain the ticket.

So, what is the effect of this ownership bias? Because people tend to value their owned goods higher and hates losses for whatever they cost, they would be more likely stick with their current holdings, even when such condition is not always better. In a more complex way, the ownership bias can be used to lure consumer toward what Dan Ariely calls the "virtual ownership," i.e. making people think that they have ownership over an asset in order to increase the opportunity of such people to purchase the assets with a higher value. One example is where your cable TV operator provide you with a "gold package" limited trial period with a discount. after certain period of having a standard package. When you try it for the first time, most of you would probably think that if you don't like it, you can always back to the standard package, or say, downgrade it a little to the "silver package." But in reality, most people tend to just stay with the gold package after the limited period expire even though the price has become more expensive. Why? Because people hate to lose the facility that they have obtained previously.

Ask yourself, it's hard to downgrade your quality of life right? As long as you have sufficient funds, you would most likely try to maintain your quality of life, even if it is getting more and more expensive, rather than to cut some expenses and save more money from the cutting. So don't be confused when some people claim that the richer you are, the bigger your expenses will be.

3. On Free Items Bias
Other experiment made by Dan Ariely shows our fragile way of thought when we are dealing with free items. The experiment was done in a halloween day where Dan gave chocolates and candies to kids wearing costumes. At first, he would give these kids three small Hershey candies and then give them 2 options, i.e. (i) if they are willing to give him back one candy, they'll get a small Snickers chocolate bar; or (ii) if they are willing to give him back two candies, they'll get a big Snickers chocolate bar (twice the size of the small Snickers). The Hershey candy itself only worth 1/10 of the big Snickers.

In the first experiment, almost all children successfully pick option No. 2. However, in the second stage of the experiment, Dan change the condition, i.e. (i) they'll get a small Snickers chocolate bar for free without having to give any of their Hershey candy; or (ii) if they are willing to give him back two candies, they'll get a big Snickers chocolate bar. Interestingly, now most children take the first option which, if viewed by a rational man, should be considered as a very bad choice. Again, how come? It is also interesting that Dan repeated a similar test to other people, including college students, only to find similar results! Seems that there isn't much development in human behavior when we're dealing with this kind of issue as children and adults encounter similar results.

It doesn't take a genius to understand that the free item bias have been used many times for business marketing purposes. Try to think of some, and you'll soon realize it. Next time, when you go to a sale, try to compare, would it be better to have a 50% discount or a buy one get one benefit? Or, what is better, having a 30% discount or a buy 2 get 1 benefit? When you're getting this question, you will start to think carefully in determining the best option. But, if people are not thinking it through, I dare to say that most people will take the buy one get one or buy two get one benefit.

Rational Imperfect Beings and The Need to Design Better Policy
We have discussed above some examples of the great ability of men in making errors in daily life. But let us don't forget that men is able to think rationally, men respond to incentives and information. We might be imperfect beings, but it doesn't mean that we are completely irrational. If the government or private institutions can design a better policy which will encourage people to really think deeply about their life and decisions, wouldn't that be very good?

What are the criteria for designing a good policy? You'll have to wait the second part of my post. So please be patient on that :).

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Monday, August 24, 2009

Greater Involvement of Public Shareholders in Appointing Directors and Commissioners of Publicly Listed Companies: Why and How?

Related to my post on 18 August 2009 where I discussed how US lawyers and law professors make comments on a proposed regulation, after seeing another recommendations from several professors from Harvard Business School and Harvard Law School on the proposed amendment to an SEC Rule which would allow shareholders of publicly listed companies to have greater influence in deciding the composition of the board of directors and commissioners ("SEC Regulation"), I'm getting pretty interested with the actual content of this SEC Regulation.


You can read the 250 pages of the SEC Regulation (which include the proposed amendments and a thorough review of such regulation from the SEC team complete with list of detailed questions asking for public comments) here, and if you are also interested to read the US lawyers' comments on that SEC Regulation for some additional insights, you may read the 40 pages comments here. Be warned however, considering the total pages of those documents and the fact that they deal with complicated US securities regulation, it would be wise if you don't waste your time to read them unless you have a legal background, consider long and complicated reading materials as entertaining, and have absolutely nothing important to do :). Of course, you can simply read a quick summary of the main issues of such regulation below.

Summary of the SEC Regulation

Okay, since this SEC Regulation also deals with certain issues which might only be applicable to US Laws, the summary below will only cover the main issues which might be relevant for Indonesian corporate law, i.e.:

  • the main purpose of the SEC Regulation is to increase public shareholders participation in determining management candidates for the relevant publicly listed company and to increase information transparency of the candidates themselves;
  • to satisfy the above purpose, the SEC Regulation requires publicly listed companies to provide information on the candidates in the proxy materials for the shareholders with respect to a general meeting of shareholders; and
  • the SEC Regulation also tries to determine the qualification of shareholders who can propose candidates of management members, which include having a minimum percentage of shareholding and a minimum period for holding the shares in case their proposed candidates are successfully being elected as the management of the company.
With respect to the above proposed provisions, the Professors from HBS and HLS recommend the SEC to adopt such regulation with the following recommendations:
  • the minimum amount of shareholding percentage for proposing candidates of directors and commissioners shouldn't be too small (the SEC Regulation proposes 1% but this amount will also depend on the total capitalization of the relevant publicly listed company), as it may cause too many competing candidates for leading the company;
  • the main point of this SEC Regulation is to have more information on the candidates and if possible, new people on the board of management, not for the sake of making trivial contests, therefore, the threshold for proposing candidates should be increased, say around 5-10% provided that this threshold can be further reviewed in the future in accordance with the relevant situation and condition; and
  • there should be a minimum period for holding the shares of the relevant publicly listed company after the appointment of the relevant shareholders' proposed candidates is successful, say at least 1 year, just to make sure that the appointed directors/commissioners and the shareholders are serious with the long term development of the company.
Why am I Interested with this Particular SEC Regulation?

It's quite simple though, until today, Indonesia does not have a specific law which deals on how public shareholders of a publicly listed company can propose candidates for the directors and commissioners of such company and when the information on such candidates should be available to the public.

Under the current Indonesian Company Law, any shareholder(s) having at least 10% of the total shareholding of a company (unless the articles of association of the company provide a lower threshold) would be able to propose a general meeting of shareholders (including proposal of the agenda of such meeting). So in theory, if you satisfy the 10% threshold, you should be able to propose your own candidates. However, I haven't heard the actual application of this concept in publicly listed companies.

In addition, it is almost becoming a general practice that the information on the management candidates will only be provided on the date of the general meeting of shareholders. As a result of which, shareholders often do not have the privilege to review the candidates competency beforehand and may not have complete information in determining the best candidates for the management position.

Having said the above, I would like to analyze whether at this current stage Indonesia should be required to have a similar regulation with the above one. Of course, I don't expect that we will have a detailed and sophisticated regulation like in the US, we're talking about the principles only. The drafting of such regulation should only be discussed after we can clearly agree that the regulation itself is needed.

The Necessity of Having Better Transparency and Fairness to All Shareholders

Balancing the relationship between the management and shareholders of a company will always involve some problems, particularly because there are no perfect guidelines on how the management should maintain the relationship with the shareholders. Some legal theorists argue that the management is, to certain extent, acting as the agent of the shareholders, and therefore must act for the benefit of such shareholders. But then again, some of them also argue that the management should act to the best interest of the company, whereas, the interest of the company may differ from the interest of the shareholders.

While we can talk anything in theory, in practice we would need to understand that since the management is appointed by the shareholders (and of course they can always be replaced by the shareholders), there would always be an incentive for the management not to acting in the best interest of the company, particularly when such action might cause them to lose their position or possible remuneration. As a result of which, when a company is being massively controlled by certain controlling shareholders, the possibility of management breaching their fiduciary duty to the company would be most likely increased.

However, the case can also be turned the other way around, that is, if the shareholders of the company are too diversified and no one has majority control over the company (such as in certain publicly listed companies), the management of those companies would be in a stronger position to determine their own actions and rewards and will have less incentives for having better accountability toward the shareholders.

In both cases, the victim would mostly be the public shareholders, i.e. those who cannot be considered as the controlling shareholders. Indeed, Indonesian laws have provided some form of protections for these kind of shareholders, such as the right to request the company (or any third parties appointed by the company) to purchase their shares with a fair price in case they suffer losses due to decisions made by the general meeting of shareholders or the management of such company. For publicly listed companies, the case would be easier. If the company's shares are liquid, the shareholders who don't agree with the company's decision could simply sell their shares in the market.

While this protection mechanism can be considered as a good policy, it has one significant problem, i.e. it encourages public shareholders to leave the company instead to stay for a longer period. What happen if those shareholders actually believe that in the long term the company has a very good prospect, but because of the current condition, they are "forced" to sell their shares? And how about institutional investors who may have quite a huge amount of shares though they are not yet considered as controlling shareholders? They may face some difficulties in selling their shares in the market.

Further, the most important question is why we penalize the company to purchase the shares of the public shareholders who don't agree with the decisions made by the organ of the company? Wouldn't that be counter productive for the growth of the company itself?

I always believe that giving more choices to the public would benefit us all. Therefore, it would also be better if we can have a regulation which can increase public shareholders' participation in determining candidates of the management of the publicly listed companies, including better transparency with respect to information on the management candidates and fairness to any shareholders to propose their own candidates (provided that they satisfy the minimum threshold for shareholding). In this case, adopting a similar regulation with the SEC Regulation would be recommended by me. Further comments from the HBS and HLS professors should also be considered as those comments are very relevant in ensuring that the regulation is workable enough in

One question remain though, what would be the use of giving the opportunity to public shareholders to propose their own management candidates if in the end they will not have sufficient votes to approve the appointment of their candidates since the controlling shareholders do not agree with the candidates? This is particularly relevant in Indonesia where it is very rare to find a publicly listed company which does not have any controlling shareholders.

To solve this issue, it may be possible that the threshold of appointing candidates proposed by public shareholders shall be reduced to allow voting by minority shareholders or that the controlling shareholders shall have no votes with respect to the appointment of such candidates. (as if in a conflict of interest transaction). Further discussion on this issue would be definitely useful.

To end this article, it is important to note that while having better transparency and fairness for public shareholders in determining the management candidates might help a company to increase its performance, it wouldn't be quite effective unless there are other incentives which may directly affect the behavior of the management. In this case, I refer to the remuneration system of the management. To see my proposal on this issue, I recommend you to read my post on 17 August 2009, where I discussed the use of independent committee in determining the remuneration of the management.

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Friday, August 21, 2009

Young Girl Goes to Law School: What's Wrong with That???

This story is hilarious, particularly because people have many different views on whether a 19 years smart young girl should really go to a law school. Okay, I understand that in the United States, a law school is designed as a grad school, means that you need to at least have a college degree before you can enter into such law school. And, since I've never gone into a US law school, I don't know whether the education there is really hard or not.

However, in Indonesia, you can go straight to a faculty of law of an university after being graduated from your high school. I join my faculty of law when I'm still 17 years old, and already start my career as a lawyer when I'm 21 years old. And that's very usual in Indonesia. I've seen many good young lawyers, they can do a decent job and will be even better with more experience from years to come. So what's wrong if a 19 years old girl chooses to go to a law school? I say, the younger the better. I believe that those who start at a fresh young age will have a lot more of time to adjust themselves with the law world and therefore may develop their career faster.

Being a lawyer might be a tough job, but it's fun. It will definitely involve some administrative paper work, but you won't do that forever, because along with the progress of your career, you'll have a lot more of experience and get more challenging and interesting jobs. Just remember one thing, a lawyer's career may depend on various factors, but in the end the most dominant factor would always be yourself. So for Miss Kate Laughlin, congratulations on your enrollment and welcome to the ever changing world of law.

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Thursday, August 20, 2009

The Power of Incentives: Fighting Terrorism With Radical Laws

This article is inspired from my discussion with Rob Baiton related to his post, Fatwa and Terrorism. The problem of terrorism is always an interesting theme for me, particularly because I absolutely hate terrorism (for whatever reasons) and because I wrote my thesis on the retroactive implementation of the Indonesian Terrorism Law to the 2002 Bali Bomb Case. In this case, retroactive implementation means that a law is being implemented to a case that occurred prior to the enactment of such law.

In my thesis, I analyzed the Constitutional Court decision which annul the above retroactive implementation, and after conducting an in-depth research including on the historical background of the non-retroactive principle of criminal law, I disagreed with such annulment. To cut it short, for me, when we are dealing with extraordinary crimes, we should also use extraordinary actions to combat them. This is not a place for someone to say something like: "then what would be the difference between us and the terrorist?" That might look interesting in a movie, but in reality, sometimes we are forced to do some radical things in order to put down dangerous and illegal actions.

Now, I will elaborate some of the basic ideas that have been previously discussed with Rob, i.e. what kind of policy which would work best to reduce terrorism, and whether we can use a law that penalizes people for a crime conducted by their closest relatives.

The Inside Mind of the Terrorists

Why were some people attracted to conduct terrorism? Why did they become terrorists? To this question, I would reply: poverty, low education, lack of affection, being depressed, and under constant oppression. Or in other words, terrorism are mostly being conducted by those who were considered as remnants of the world. Of course, for the terrorist leaders, the reasons might be slightly different, i.e. they must gain some benefits for doing terrorism, such as money and power.

In my opinion, religion teachings (or basically any type of ideology) are not a solid reason for conducting terrorism, they might be twisted to support terrorism, but they'll never be strong enough to bring people to actually "pull the trigger". And the reason is quite simple, no reasonable man having high level of education, good flow of income, lots of affection, living his life to the fullest with minimum or no oppression at all would do terrorism acts and wasting his life in the name of a religion unless he is crazy, absent minded, having some lack of mental capacity, or being brainwashed. It just doesn't make any sense. I'm a moslem, and if a clergyman comes to me and asks me to be ready to die for the sake of a crappy holy war, I would simply reply, "no thanks sir, I believe that the heavenly girls are currently reserved for you. So you should go first, remember, they are waiting, now shoo, shoo."

I always believe that most men will act based on the incentives provided to them, be it positive or negative, and terrorism is not free from these kind of incentives. As an example, why terrorist leaders and planners choose miserable men as their main target for brainwashing? Encouraging a miserable man to do a suicidal bombing must involve some good incentives, or else that man would not be willing to sacrifice himself. However, and this is the most important part, I'm quite certain that the costs for making a miserable man to sacrifice his life would be most likely cheaper than making a happy man to do the same act. Thus, there is a great incentive for terrorists to recruit the miserable men instead of the happy men.

So, What are the Incentives for the Miserable Men to Conduct Terrorism?
There are many incentives for miserable men to conduct terrorism. Being in their current state, that is having a miserable life, an option which will somehow make them a "hero" (by killing the enemy of the religion/ideology) and enable them to move to a better place (i.e. heaven, whatever the concept is) would be much appreciated. It is a general knowledge that people might experience a low mental awareness due to certain bad conditions, and during such period, the terrorist leaders will be most likely have the best chance to "brainwash" those poor people.

Another good incentive would be in the form of financial compensation for the families left behind. You see, it is common for the family members of the dead terrorist to receive a quite generous donation from the terrorist leaders to make sure that their future life will be secured.

Having all these kind of incentives, it is no wonder that some people would be willing to sacrifice their life. In some case, the benefit might be higher than the cost! Of course that is from the terrorist's point of view, not mine.

How Should We Prevent Terrorism?
We can say anything about the terrorist, saying that they are a bunch of cowards, losers, etc. But I don't think we can blame these guys entirely. Unless we can get and banish all the leaders, there is almost an unlimited supply for terrorists. It is too easy to find miserable men in any part of the Earth, there are too many people living in despair. In any case, picking one of them would not be that hard.

So what should we do? Surely, trying to banish terrorism by advancing the life of all people would not be a viable option, because I'm afraid that we can't achieve that even until the end of time. I understand that one of the proposed solutions is to cut down the blood supply of the terrorism, i.e. money by increasing legal enforcement to money laundering activities. This is good but I would like to propose another radical, if not crazy, solutions.

Why don't we enact a law which would "penalize" not only the terrorist, but also the closest relatives of such terrorist, i.e. parents, siblings, spouse, and children, of course provided that those terrorists have been deemed guilty based on a final and binding court decision. When I'm talking about "penalize," please don't associate it first with prison and any other type of torture. I could understand that the idea of punishing someone for the mistakes of other people is not generally accepted in this modern world (though I believe that this concept is still being recognized in some part of the world, including in some Indonesian customary laws, such as if a man conduct a certain type of crime, his family member must pay some fines in the form of cows to the village).

The form of sanction could be many. What I'm thinking right now would be a type of sanction which would cause some financial losses such as fines or additional rate of tax, and give peer pressures such as announcement of the name of the family members to the public. The most important thing is that these sanctions must be made known publicly as wide as possible to the society.

The Ratio for Giving Sanctions to Closest Relatives
Why give additional sanctions to the closest relatives? There is two basic argument for this, first, miserable terrorists who choose to end their life by their own choice would be most likely have no fear of death, instead they embrace death. Thus, even the death penalty would not be sufficient to cause fear to these kind of terrorists, and in some ways, it might even strengthen their conviction to die in the name of God or whatever they want to believe, making them something like a "hero." You could easily spot this from the trial of Bali Bombers, those who are convicted as the main culprits act as if they all are ready to die, some of them even make books about their so called "struggle" for an Islamic country! This is ironic, we want to make them feel sorry for what they did, not becoming proud of it.

That's why we should put our action to a different side, i.e. the closest relatives of those terrorist. With the current technology, it would be easy for us to find out the family member of convicted terrorists and this should be workable from practical point of view. From the terrorist view, family members are most likely important. It's human nature. Even the most cruel terrorists would not want something happen to their beloved ones. "God" might be important, but when they know that the government will target their parents, spouse, siblings and children, what will the terrorist do? Bringing all of them? For how far? Wouldn't that also limit their movement?

By giving a threat to the family members of the terrorists, I believe we can provide the best incentive to prevent terrorism, at least this can distract them from their movement.

Second, this policy might also provide an incentive to the rest members of the family to prevent any of their member to fall to fundamentalism trap. Since no one would like to bear the consequences of the actions of their "crazy" family member, supervision among family member should increase, and this might prevent the fundamentalism movement to spread its words. Government can not efficiently prevent fundamentalism movement, especially with the current technology. But closest relatives can, and they could actually do that efficiently, simply by putting more attention and affection to their family members, their beloved ones.
You Know, Your Idea is Still Somewhat Crazy
Yes, I know that this is a crazy idea. I would be glad to receive a better policy which would provide better incentives to each family in preventing their members from getting trapped by terrorist movement. So for know, I'll stick to this idea.

But, just to make it clear, my idea focuses on using the power of incentives in preventing terrorism, and other than using legalized sanctions, I'm also interested in using peer pressure method. Maybe it would be good if we have a great marketing team who will advertise the evil of terrorism, starting by having sad testimony from the family members of the terrorist. Yes, the terrorist, not the victim, remember to focus on their loved ones first, because for most terrorists, the victim will be considered as enemies who deserve to die, so focusing on them wouldn't work best to prevent terrorism from the terrorist own perspective. Anyway, hope it's useful and can generate a better solution from the readers.

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Tuesday, August 18, 2009

Making Comments on Draft of Regulations: The United States Style

I'm quite amazed with how lawyers and law professors in the United States involved in the discussion on a new draft of securities regulation. Based on the fact that 7 big law firms would cooperate to produce a 40 page of comments, I can safely assume that the US Securities and Exchange Commission (SEC), the equivalent of Bapepam-LK, the Indonesian Capital Market and Financial Institutions Supervisory Agency, is really paying attention to the comments of practitioners. Because if they don't care, I'm certain that those law firms would not even think to waste their precious billable hours for making such comments. Or, might this be a sign that those firms have some leisure time due to the decline of their jobs?

Now, I wonder when would we do the same? I know that Bapepam-LK has already started to ask for public comments before they issue a new regulation, but I haven't seen any notably public comments to such draft regulation.

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Monday, August 17, 2009

The Conquest for Immortality and Never Ending Profits: Some Insights on The Management of Corporations

Have you ever wished for immortality? Do you want to live forever and ever, having the luxury of doing whatever you want without any time constraint? I do, but I guess that the chance for achieving such immortality is too slim to be even considered by any rational being. However, other than any mythological creatures out there, there is an entity in this world that might actually have the capacity to achieve immortality. By this, I refer to corporations.

What Are Limited Liability Companies?
While the definition of corporations might slightly differ between various legal jurisdictions, it has several basic characteristics, i.e.:
  • corporations are legal entities established under the prevailing laws which have jurisdiction over such corporations (the domicile where such corporations were firstly originated);
  • corporations are able to maintain their own assets and liabilities, and to conduct various transactions with other parties;
  • corporations are "owned" by the shareholders, i.e. those who have contributed certain amount of capitals to the corporations and received shares from the corporations as evidence of their contribution and representing their ownership within such corporations;
  • there is a limitation of liabilities for the shareholders of corporations (mainly up to the respective shareholder's capital contribution in the corporation);
  • there is a separation of management within a corporation, i.e. the shareholders do not have direct management control of the corporation, instead it is conducted by a separate professional board of management (directors and commissioners); and
  • most corporations, if not all, are established for the purpose of getting profits, enabling them to maintain their existence for a very, very long time.
The legal concept of corporations is unique, because it is considered as a somewhat "living entity" having certain rights and obligations, while in reality it is a business organization made from joint stocks owned by certain party(s). But, only because of such characteristics that corporations are able to have an immortal life and becoming an integral part of the capitalist system.

When Was The First Limited Liability Company Established?
According to Gower's Principles of Modern Company Law, the early concept of corporations can be found in the 15th century, notably on the limitation of liabilities of the owner of such corporations. The oldest known corporation is no other than VOC (Verenigde Oost-Indische Compagnie), the "evil" company that made a reign of terror in Indonesia, and which is also the first company to conduct public offering in this world. Since the establishment of VOC in 1606, the history of corporation has lasted for more than 400 years, and that is quite a long time indeed.

Why People Made Limited Liability Companies?
The logic is quite simple, corporations allow people to have the protection of limited liabilities in doing their business, they can be established for an indefinite period, and their existence does not depend on the existence of their owners. This means that it would be easier for the owners to calculate their risk of liabilities (due to the limited liabilities) and the business activities may continue even after all of the original founders have crossed to the other side, i.e. died.

Prior to the existence of corporations, each man is liable up to all of his assets in doing business activities with other parties. Thus, if something goes wrong, he will be responsible with his entire assets, and he faces the risk of losing everything. In addition, since most of the businesses are being privately conducted by individuals in the form of self-company or partnership, the death of the particular individuals will cause the self-company or partnership ceases to exist. The introduction of corporations solves the above problems, and whoever firstly made this concept must be a genius.

The Role of Law on the Establishment of Limited Liability Companies
Of course, people can't simply establish an corporations and declare that they have limited liabilities to their counterparts solely by themselves, people need some legal support to do that. Without any legal basis, you can't expect people to believe that an abstract entity such as corporations exists. In order to achieve that purpose, we will need the government to step in.

Again, this is another genius concept. By having a state law acknowledging corporations as legal entities and stipulating rules on corporations characteristics, establishment procedures, and its rights and obligations, the existence of corporations has been secured by the law, and no one can argue more on that. With the help of law, corporations are no longer abstract beings. They exist in the vicinity and they can act and enter into various transactions as if they are living persons.

Unfortunately, the concept of corporations is not without any flaws. As we shall see further below, 400 years of existence has brought many issues that might not be considered yet when the corporation is firstly established.

The Chase for Profits and The Impact of Immortality
From the very beginning, a corporation was created to be a profit oriented business entity, and the management of a corporation has an obligation to ensure that such purpose can be satisfied most of the time, if not all the time. Under Indonesian laws, the management of a corporation must act to the best interest of the corporation, which can be interpreted to also include the obligation of the management to ensure that the corporation can obtain sufficient income and profits for maintaining its going concern status, i.e. the ability of the corporation to continue functioning as a business entity for certain period without any threat of stopping or being liquidated.

So, the obligation of the management of a corporation to pursue profits is not a trick made by some evil businessmen, rather it is an obligation stipulated by the law itself. This brings us to an important issue. You see, by having the ability to live an eternal life, there is no limit for corporations in obtaining profits. And since it can't aged, the shareholders would expect the corporation to survive in any kind of condition for as long as it can be. To give incentives to the management, huge salaries and bonuses were given for those who were succeed to make the corporation profitable enough for the shareholders and for those who were failed, losing their position might be the smallest consequence. With this kind of approach, it is no wonder that in some cases, the lust for profit can evolve to a dangerous lust for everything as greed controls the management of such corporation, and when that happens, all would be fair and square enough as long as their lust can be satisfied. VOC would be a pretty example, among with various famous crumbled corporations like Enron and WorldCom.

Can we blame them for that? Not entirely, because whether you like it or not, it is their legal obligation to secure those profits, even if they need to trick everybody. In addition, as I've mentioned above, they were paid by a huge salary and bonus to ensure that the corporation is always profitable for the shareholders. So, do we have some clear incentives for the management to do otherwise? My guess is not, since while some penal sanctions and fines might be a threat to the management, as long as their compensation is highly enough to cover the risks of being sanctioned due to their actions, there would always be a incentive for them to take such risk. As mentioned by Gary Becker, an American Nobel Laureate, crime only happen because it "does pay." See his paper here for more information.

Proposed Policies
Then, what should we do? What kind of policy that should be implemented to solve this problem? First of all, any kind of solution that restricts the corporations ability to obtain profit would be horrendous and will not be accepted. Or can we try the policy used by the US Government with respect to companies that receive US Government's aid, i.e. giving some limitation to the amount of the salaries and bonuses that can be obtained by the management?

My reply is no. The Government shouldn't regulate on the maximum amount that can be obtained by the management. How can they know how to calculate the performance of each member of the management? How can they know that the payment of such huge salaries and bonuses are exceeding the fair limit? A policy like that might give a negative incentive to the management for not doing their best simply because they see that their good results will not be as rewarding as it might be if such regulation does not exist.

Having said the above, my proposed policy would be as follows:

  1. Determination of the form and amount of salaries and bonuses of the management should be conducted by an independent committee within the corporations. This has been done in several Indonesian publicly listed companies, but have not been yet stipulated in a clear regulation. There is of course some additional costs for having this committee but there is also a good ratio for having this committee, i.e.: (i) ensuring that the management can receive a fair reward for their performances based on the calculation of those who are being involved with the corporation, (ii) preventing the management from creating salary and bonus policy that contravenes with the corporation and/or shareholders interests, such as giving excessive shares options with low price to themselves as their bonuses, and (iii) helping the shareholders who are not involved in day to day business activities of the corporation in understanding the performance of the management and how they should be rewarded.
  2. The sanction for the management who breach the laws for the sake of getting profits should be higher than or at least equal with their overall compensation (this include their salaries, bonuses and any type of incomes that they receive due to their illegal acts). This proposed policy is made based on the following assumptions: (i) if their compensation is low, there would be less incentives for them to breach the law; and (ii) if the compensation is high, they will face the risk of losing such compensation or even a bigger amount if they're breaching the law for getting good performances or else for benefiting themselves. As an example: "if the management is deemed guilty for conducting certain amount of crimes, they would need to pay an amount equal to triple times of their total annual salaries and bonuses that they received for the preceding years." Of course, this policy would be only effective if there is a high rate of legal enforcement, something that might not be achieved efficiently as of today.
While some elaborations and implementing provisions are definitely needed for the above policies, I do hope that the ideas presented here can contribute to the development of better policies in managing the balance between lust for profit and the business sustainability of corporations.

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Sunday, August 16, 2009

Mankiw and The Town Pier

A short and very good story on the application of economic principles in day to day life from Greg Mankiw's blog. If you ask me Mr. Mankiw, my reply would be that the price in the private pier will go down based on the following reasoning:

  1. the increase price of the town pier will reduce the competitors for getting slots in the town pier;
  2. as long as such price is still cheaper than the price of slots at the private pier, those who are currently using the private pier will most probably move to the town's pier as right now there would be less competitors and therefore their chance to obtain a slot there is increased;
  3. thus, to maintain its clients, the private pier should provide a competitive price by lowering its own price.

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Wednesday, August 12, 2009

The Current Challenges of Indonesian Islamic Banking Industry (Part II)

In Part I of my article, we have discussed two of the major challenges that are being currently faced by the Indonesian Islamic banking industry, the taxation and regulatory issues. In this article, we will discuss the remaining two challenges, i.e the risk management issues and the segmentation and marketing issues.

1. Risk Management Issues
We will start our discussion by asking this question: "Why murabahah financing sits at the top of Islamic banking financing products in Indonesia?" As of June 2009, the murabahah financing which involves a sale and purchase of assets between an Islamic bank and its customers with a deferred payments mechanism plus margin is the queen of all Indonesian Islamic financing products, comprising of approximately 57% of the total Islamic financing products. Meanwhile, the mudharabah financing (revenue sharing financing) and the musyarakah financing (joint venture financing) only comprise 21.6% and 14.5%, respectively, of the total Islamic financing products.

To be honest this is not a shocking result, and as I will further discuss in this article, the above result is none other than a logical consequence of the current structure of the Islamic banking industry risk management which is actually being supported by the current regulations of Bank Indonesia.

1.1 The Problem of Mudharabah and Musyarakah Financing's Risk Management
Most of us know that Islamic banks should be famous for their profit sharing concepts in doing their business, which is reflected in the mudharabah and musyarakah financing products. However, in reality, these products have two critical issues related to the risk management of such financing.

First, these products use revenue sharing mechanism, which means that the Islamic bank will only receive revenues if the actual business of the customer produces revenues. Any losses caused due to business losses of the customer shall also be borne by the Islamic bank, provided that the amount of which shall not exceed the total mudharabah or musyarakah financing.

The above is correct under the Islamic law principle and has been adopted by Bank Indonesia regulation. No one should argue on that. But the problem is quite different for modern financing activities. Most of Islamic banks' source of funds comes from third party funds (as of June 2009, the third party funds comprise 76% of the total liabilities of Islamic banks). These are the funds of the Islamic banks' customers and are not actually owned by the Islamic banks.

From risk management perspective, putting money in a high risk business is unlikely, especially when the banks are mainly using other people's money and they will be responsible to return those funds. We must also remember that banking industry relies heavily on the people's trust. If people are losing their trust on the Islamic banking industry, it is possible for us to predict a financial collapse of major Islamic banks.

Second, the current regulatory regime limits the possibility of Islamic bank to execute the security (jaminan) for mudharabah and musyarakah financing products, and also limits the ability of the Islamic Bank to request for payment of losses. Again, this is in line with the Islamic law principles and no one should further argue on that. But, from risk management perspective, the risk of mudharabah and musyarakah is increasing. Not only that the Islamic banks are liable for possible business losses, they don't have an exit clause which can secure their financing.

What would be the logical consequences of the problems above? Islamic banks will not be using the mudharabah and musyarakah financing products as their main products, rather they will focus on financing products which are more secured for them, in this case, murabahah would be the proper choice.

1.2 Suggested Solutions

Why murabahah financing is widely used? Murabahah financing is flexible enough to be used for certain type of financing, ranging from working capital, investment and consumer finance. It is more secured because after the sale and purchase has been conducted, the customer will be indebted to the Islamic bank and the Islamic bank would be able to secure such financing by the customer's assets and then execute the assets in case the customer fails to pay its financial obligation. From any risk management perspective, it would be best for Islamic banks to focus on this financing product. And we can't blame them for this issue as there is indeed an inherent risk management problem with the mudharabah and musyarakah financing and we must work together to solve this issue.

Now, how can we claim that Islamic banks have a wide array of products where in reality the Islamic banks will focus on murabahah financing products? The solve this issue, we would need to amend the current regulations on Islamic banking products, especially to help the Islamic banks in reducing their risk with certain type of Islamic financing.

My proposed solution would be to make a clear regulation which can eliminate any bad incentives to the customer with respect to the
mudharabah and musyarakah financing, i.e preventing them to make bad business decision which will resulting on losses to both sides. How can we achieve this? Some suggested solutions would be: (i) increase the Islamic bank's authority to review and be involved in the business activities of the customer, (ii) penalize the customer for conducting any material business decision without first consulting with the relevant Islamic bank, and (iii) enable the Islamic bank to execute the security for such financing in case the customer does not comply with the requirements stipulated by the relevant Islamic banks in doing their business.

With these solutions, we can expect that the business management of the customer will be handled in a more professional way and the Islamic bank will have an exit clause when they are dealing with bad customers. Further, by encouraging the Islamic banks to be more involved in the customer's business management, it would be easier for the Islamic bank to maintain its risk management and prevent bad business decision of the customer. An age of entrepreneurship may rise in Indonesia, if this can be conducted properly.
2. Segmentation and Marketing Issues
With a total assets representing only 2.64% of the total assets of the Indonesian banking industry (excluding the rural credit banks), the Indonesian Islamic banking industry still has a long way to go before it can dominate the market share in Indonesia. But how can this be happen when most of Indonesian citizens are moslem? The answer might lie on the issues on the Islamic bank segmentation and marketing. Apart from taxation, regulatory and risk management issues which might not be resolved directly by the Islamic banking industry (as government authorities involvement are needed), the segmentation and marketing issues are inherent issues within the core of Islamic bank industry.

From what I see until now, most of the Islamic banks in Indonesia do not have a clear segmentation or marketing policies, especially in getting new customers. This is not due to a cliche reason like the Shari'a bank is not aggressive enough in doing the marketing, etc. The main problem lies in the fact that most Islamic banks are not yet concentrating on getting specific customers and to certain extent are still being trapped with religious symbols and doctrines in doing their marketing activities.
On the segmentation issues, considering the number of Islamic banks' assets, it would be better for Islamic banks to focus on small to mid enterprises unless they have a huge amount of additional capital. And this is actually a potentially good business. Rather than competing with bigger conventional banks who have secured some loyal clients, creating new opportunities with new type of customers might be easier and can show some actual differentiation between Islamic banks and conventional banks in term of doing business activities.

In addition, some proposed plan on my mind for making specific segmentation would be: (i) Islamic banks could focus on micro financing using mudharabah and musyarakah financing products, since given the nature of these products, it would be best to diversify the financing to many parties to avoid high risk of default; (ii) Islamic banks could focus on targeting customers who like to have a secured financing liability, whereas in this case, murabahah financing products with its fixed margin system would be the best option to capture these kind of customers; and (iii) Islamic banks could also focus on assisting small to mid entrepreneurs in doing their business, becoming a "financial manager" for these kind of customers through mudharabah or musyarakah financing products, as this is possible under the current Bank Indonesia regulations.
On marketing issues, I've seen many marketing products in several branch offices of Islamic banks and can conclude that while it is good to tell people that Islamic banking products are the ones that have been blessed by God, it would be better to tell people that Islamic banking products are good and profitable.

I must say that it is ironic if Islamic banks are not focusing on marketing their competitiveness of their products. In term of savings and deposit products, Islamic bank offer a competitive rate of return with conventional commercial banks. Even in term of financing products, contrary to the common opinion that Islamic bank financing is a little bit more costly due to its fixed rate system, the margin rate of murabahah financing is fairly competitive with most of credit financing products and even lower compared to interest rate for consumer credit. I made all of these comparisons using Bank Indonesia's June 2009 Statistics.

To certain extent, I can understand why some of the Islamic banks are not focusing on this kind of marketing. After all, some of them are owned by the same party who own the conventional banks, which of course creates a conflict of interest. Creating a marketing strategy which shows the quality of Islamic banks to the highest degree would not always be acceptable by their colleagues in the conventional banks, thus, these Islamic banks can only focus on getting customers who use religious reasons rather than commercial reasons to become their customer.

In the end, what is truly matter when we are speaking about marketing is how the Islamic bank can provide marketing products that allow people to believe that Islamic banks are professional, accountable and profitable. It should be noted that Islamic banks are profit-seeking institution and should focus on getting those profits, because it is impossible to increase the market share of the Islamic bank if they can't obtain enough funds to expand their business.

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Monday, August 10, 2009

The Current Challenges of Indonesian Islamic Banking Industry (Part I)

1. Introduction
For quite a long time, it is very common for us to hear critics saying that the Indonesian Islamic banking industry has failed to capture a bigger market share in Indonesia despite the fact that Indonesia is the biggest moslem country in the world. To certain extent, this might be true.

If we compare the total assets of Islamic banks (based on Bank Indonesia's Islamic Banking Statistic per June 2009, the amount of which is approximately Rp.55 trillion) with the assets of commercial banks (based on Bank Indonesia's General Banking Statistic per June 2009, the amount of which is approximately Rp.2,028 trillion), we will found out that Islamic banks' assets only represent 2.64% of the total assets of Indonesian banking Industry (excluding rural credit banks). True, that if we compare the current data with 2005's data, Islamic banks' assets have increased around 250%, but that is not significant enough if we see the total cumulative assets of the Indonesian banking industry.

Seeing this hard fact, what are actually the main challenges of our Islamic banking industry? What need to be done to surpass these challenges and how? In this article, I will discuss some of the most important challenges that are currently being faced by Indonesian Shari'a banks and some suggested solutions which may be considered in solving those challenges.

2. Major Challenges in Developing the Islamic Banking Industry in Indonesia
In my opinion, such major challenges include:

a. taxation issues;

b. regulatory issues;

c. risk management issues; and

d. segmentation and marketing issues.

Issues No. a and b will be discussed in this article, and the remaining issues will be discussed in Part II of the article.

3. Taxation Issues

The taxation issues might be the oldest and most important issue of all time when we are discussing Islamic financing products. And amazingly, despite the seriousness of the issue, no resolution has been made until now, as there is no clear tax regulation on the correct tax treatment for such Islamic financing products, especially for the "asset-based" products, such as murabahah (deferred payment sale with margin), istisna (purchase by order/manufacture) and ijarah muntahia bit tamlik (financial lease with purchase undertaking). To show the importance of this taxation issue, it is worth to note that per June 2009, these "asset-based" banking products comprise more than 60% of the total Indonesian Islamic banking financing (excluding Islamic rural bank), with murabahah products sitting at the top by covering 57% of the total financing.

It is a basic concept under the Islamic law principles that for "asset-based"
Islamic finance transactions i.e. the transactions involve certain underlying assets and such underlying assets are being "transacted" or used as the basis of such Islamic finance transactions, the transactions related to the underlying assets which may include sale and purchase or lease should not be treated as actual transfers, but merely as a financing arrangement. Thus, there would be only a transfer of beneficiary ownership or usufruct rights (hak manfaat) and there is no transfer of legal ownership within an Islamic financial transaction (which may involve value added tax (VAT)).

However, as there is no clear regulation on the tax treatment, a conservative opinion will state that there is a huge tax risk for this "asset-based" Islamic finance transactions which in the end will cause these transactions to become more costly. True,
that currently there is a "status quo" between Islamic banks and tax authorities, i.e. each party is being silent on the tax treatment. It is also true that under most of the contracts of Islamic finance transactions, any tax arising from the transactions shall be borne by the customers. But this is like sitting on a time bomb, or saying that all problems will be vanished by simply closing our eyes and dreaming that the problems are indeed vanishing.

Consider this fact, as per June 2009, the total murabahah financing provided by Islamic commercial banks has reached approximately Rp.24. 2 trillion (equivalent to US$2.4 billion). And then imagine that after seeing the data, the tax authorities decide to actually impose the VAT on the murabahah transaction, simply because now they can obtain almost Rp.2.4 trillion (equivalent to US$240 million). More importantly, imagine if the Indonesian Islamic banking industry has reached an equivalent position with the commercial banking industry, the tax costs would be absolutely huge. Before that kind of disaster can happen, a preventing action must be done.

Based on my own experience in giving a presentation on Islamic financial transactions in capital market for certain Indonesian tax authorities, I get an impression that the tax authorities actually understand the basic concepts of Islamic financial transactions. However, they can't provide any remedy for the taxation issues without having a proper legal basis, as there is a fear that if they act without clear regulation, such act will be considered as causing losses to the state and they will face the risk of facing allegation of corruption. Might be exaggerated, but the risk does exist.

Therefore, the only solution that can be done is to lobby the House of Representative and the Government to amend the Tax Law. I understand that the Income Tax Law has been amended to cover Islamic finance transactions, but the real problem lies on the VAT Law. The question is, what are we trying to ask from the regulator? Based on my discussion with a Director of one of the major Islamic investment banks in Malaysia, the most important thing to ask is to have a same treatment with commercial banks, and not asking for a tax evasion or tax holiday. It takes almost 20 years for Malaysian Islamic banking industry to convince their tax authorities to provide a same treatment between Islamic finance transactions and the conventional ones. Surely, we would not want that to happen in Indonesia.

What do we mean by asking the same treatment? It means that all Shari'a finance transactions will be considered as pure financing transactions. It would not be deemed as an actual sale and purchase or lease, there is no actual legal transfer of assets, and all of the "transfer" procedure should be treated as an element to be fulfilled under Islamic law principles. Therefore, all Islamic "asset-based" financing transaction, whether based on sale and purchase or lease, shall receive similar tax treatment with the financing products of conventional commercial banks, i.e. exempted from VAT.

I understand that this might seem as an issue, if Islamic Bank is proud of not using interest in providing financing products, why bother to have a same treatment with conventional banks? To this, I would reply that same treatment is extremely important because while each of them have a very different method in conducting their financing business, both of them are still doing business in their respective status as financial institutions, and thus need to have equal treatment. I've seen too many prospective investors in Indonesian Islamic banking industry come to our country and discuss the possibilities of establishing a new Islamic bank in Indonesia only to cancel their plan due to the tax issues. Whenever we reach the taxation issues, we know from the look of the investors' faces, that establishing an Islamic bank is not a viable option for them as long as the tax issued has not been resolved.

I hope that by focusing on the same tax treatment, the regulators will realize that they will not lose any potential tax objects, but instead gain access to a lot more of taxable incomes due to the development of Islamic banking industry in Indonesia. There is still a lot of homework for this issue, but no matter what this issue must be resolved without any further due. Being silent will not solve it at all. How can we expect for a real booming on Islamic banking industry if the Government cannot provide tax certainty to the industry?
4. Regulatory Issues

First of all, there is no single and binding interpretation of Islamic law around the world, as each different school of Islamic jurisprudence (mazhab) has its own methods in constructing and interpreting the Islamic law, especially for those aspects which fall under the term of muamalah (day to day life aspects), such as commercial and financing transactions. That is why in most of the Islamic countries, their Governments are actively involved in stipulating regulations in order to unify the implementation of Islamic law.

The case is similar in Indonesia. It is just recently that we are having an umbrella Law on Islamic Bank. Prior to the issuance of such Law, most of the regulations are issued by Bank Indonesia or the National Shari'a Board (Dewan Syariah Nasional). while these regulations are important, they are lacking specific provisions and need further implementing regulations. Something which have not yet been resolved until today.

It is a common thing that without clear guidance and regulations, business players are not willing to conduct the business because they may be exposed to uncertain risks and liabilities. To add the problem, before the industry can build a solid basis on their knowledge on Islamic finance, the Government issued an amendment to the Law on Religious Court, stating that all disputes related to Shari'a finance transactions should be brought to the Religious Court.

This is quite shocking.
Based on my discussions with a Director of one of the major Islamic investment banks in Dubai, it is pretty unusual even in the Middle East for bringing a dispute on Shari'a finance transactions to Religious Court which mainly deals with Islamic family law. Considering the fact that there is no single codification on Islamic commercial law, most Islamic banks prefer to have the Shari'a aspect reviewed by their respective Shari'a supervisory board (Dewan Pengawas Syariah) and thus any dispute made with respect to the transactions should merely focus on the financing aspects, such as repayment of the financial obligation of the customer, restructuring of the financing, etc.

Having to dispute the Shari'a aspects while in fact we don't have clear regulations and enough experts to deal with the issues is clearly not efficient for the development of the Indonesian Islamic banking industry. It is indeed fortunate that the Law on Islamic Banking has provided an exit clause for this issue by giving the opportunity for the Parties involved in Islamic finance transactions to choose their method of dispute settlement, including choosing a district court.

It is important to note that this does not mean that I'm trying to suggest the Islamic banking industry to not pay much attention to the Shari'a compliance aspect of their business. The Shari'a compliance aspect is without a doubt the core of the Islamic finance transactions. But at this current time, the role for maintaining the Shari'a compliance of the banking products should be given to the respective Shari'a supervisory board of the Islamic banks. An implementing regulation stating the power, authorities and qualification of the members of these Shari'a supervisory boards are absolutely necessary in this current conditions.

Further, as the Indonesian Islamic banking industry is subject to Indonesian laws, it is important to adopt all the relevant Shari'a aspects under the positive law of Indonesia. Bank Indonesia's plan to establish a Shari'a Banking Committee (Komite Perbankan Syariah) to adopt DSN's fatwas into BI Regulation is much appreciated since it will give a clear binding power of those fatwas upon the Islamic banks.

As discussed above, most of the regulatory problems can only be handled by the regulators. However, through this Article I would like to point out the necessity of those who are involved in establishing the regulations to always work together and ensure that all important aspects of the Islamic banking industry can be putted into certain regulations. Like it or not, there would only be one applicable laws in Indonesia, and that is Indonesian laws. As a result of which, Islamic law principles shall not have binding power unless they have been adopted and implemented in Indonesian laws and regulations. To protect the interest of all parties involved in the Islamic banking industry, it would be prudent to have all these scattered principles gathered into a single binding law.

The above paragraph concludes the first part of my article. On the second part of the article, I will discuss some challenges related to risk management and segmentation of the Indonesian Islamic banking industry.

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Monday, August 03, 2009

On Capitalism

"It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest"
(Adam Smith - British Economist and Father of Capitalism)

What is Capitalism?


In the simplest way, Capitalism can be described as the economic system which maintains the idea that owning and accumulating private wealth are the basic rights of every person, and those rights must be preserved and protected by the State on a first priority basis.

In general, Capitalism believes that the preservation of the above rights and the freedom of people to enjoy such rights will enable the society, as a whole, to gain maximum prosperity.

However, we must always remember that Capitalism is not a divine system established by God. It is an economic system created and developed by men through countless trials and errors. There are many ways in implementing Capitalism in various parts of the world and even until today, we have not found yet a definitive and final form of Capitalism. To make it short, Capitalism is still evolving and I believe that the process itself is unlimited.

In this article, I will explain some of the basic concepts of Capitalism. I'm not an economist, but my job as a corporate lawyer is directly related to the practice of Capitalism. Through my job, I realize that Capitalism makes sense and its principles are built on a solid basis. As I will further argue in this article, and despite the critics and the current global financial crisis, I still consider Capitalism as the best economic system that men ever have.

What Are the Basic Principles of Capitalism?

Capitalism is derived from three basic principles:

1. a common man will put his self interest as his first priority;

2. all men are interdependent; and

3. free competition is the most effective safeguard mechanism of Capitalism.

Could You Explain the First Principle of Capitalism?

Capitalism believes that a common man will put his personal interest as his first priority. It is not surprising that, using the above argument, many people claim that capitalists are evil individualists who only think about themselves and who will do anything to obtain what they want. But, those people are exaggerating, too exaggerating. I even dare to say that they are actually fooling themselves for not letting to believe their exact nature as men.

Let us go through this simple test. Say that you are an average man, having some decent work with a considerable good salary for living and you are not in a dire need. Then, you somehow get the opportunity to receive US$10 legally from someone. Now, answer these questions truthfully. Would you really want to reject that money and say to the generous man that the money should be given to other people in dire need?

Then, try increase the number into US$100, US$1,000, US$10,000, and so on. And then keep asking the same question, would you reject that money? How about if you are also in a dire need, will your answer remain the same?

Or, try to imagine this: Having work really hard in your office, you soon realize that up to 30% (depends on the amount of your gross salary) of your salary is going to our beloved country for paying your income tax, which means in one year, there is a probability that you might spend more than 3 months doing charity work, working without any payment, acceptable or not?

For the first question, I'll be honest, I'll take the money for sure (especially when the amount is significant). For the second question, I must be damned if I call that kind of legalized robbery as acceptable (though the new Indonesian Income Tax Law provides a lower tax rate and a higher limit of taxable income, for which I say Hooray!!!).

I bet my X-BOX 360 that most people will also take the money and reject the high rate of tax (or even the tax itself). This is natural, it's in our blood. You're not turning into a bloody parasitic dark lord for pursuing your self interest, you're basically trying to survive in this vast world. Capitalism happily embraces this fact and establishes it into its first principle.

Interestingly however, some people pretend to forget their own nature on these issues and say crap things publicly about the need to promote social interests above individual interests while in reality these guys would absolutely chase their own interests before even thinking about the interests of the society. By this, I refer to the majority of the politicians.

How Come the Pursuit of Self-Interest Are Not Causing Misery?

You see, after acknowledging the basic nature of men, Capitalism puts the second basic principle: not a single man can pursue his self-interest without cooperating with others. Thus, every man is interdependent with another man. Whether they like it or not, they need to work together and reach mutual understanding in order to satisfy their needs. What a beautiful concept!

Have you ever imagined how you can get your nice nasi padang at the Sederhana Restaurant? Who supply the rice, the meat, the coconut milk and those other spices? Who cook the tasty food? Who serve the food? Who provide the place of the restaurant? The creation of Nasi Padang Sederhana actually involves a huge amount of actions, actors and factors, from the production of the rice to the distribution of the Sederhana franchise (including the recipes).

The most interesting part of the above scheme is the fact that none of the actors involved in such scheme are doing their part of actions due to their compassion for the greater good of the society. All of them are pursuing their own needs and interests! The farmers grow and sell the rice so that they can earn some cash to buy their needs, the waiters at the restaurant serve the guests nicely so that they can earn their salary (and maybe some tip) and buy their needs, and so on. And amazingly, no one actually have a global and full control over such process despite its complexity. If you think that there is a conspiracy back there which force all of the above actors to work together in order to provide a Nasi Padang, you must be crazy.

So, in the end it is all interrelated. Capitalism believes that the pursuit of self interest should not cause misery to each other, because through the existence and exchange of various self interests, men can actually satisfy their needs. The words of Adam Smith stated in the opening of this Article would be excellent to summarize this second principle.

I must also add a note that this second principle is being greatly supported by the existence of money. With money, people has an easier mechanism to value goods or services that they want to produce or obtain. I will reserve the discussion about money on a separate article.

I Don't Buy This Idea, There is Something Missing, Isn't It?

True, as beautifully crafted as it may be, there is still a weak point in the second principle: not all men have equal power and status. Though all men are interdependent, the difference of power may disrupt the balance and thus opening a way for the emergence of the darkest part of human soul, the hunger for everything, even if it costs other people's life and needs. Without any safeguard mechanism, Capitalism will definitely crumble into dusts as a result of this problem (as once predicted by Karl Marx).

Thus came the third principle of Capitalism:
Free Competition. Too simplistic? Not at all. Free competition is actually a brilliant way of ensuring that power is distributed efficiently among men. The concept is actually simple and can be explained by the following example:

Some years ago, there were only two telecommunication providers in Indonesia using a dual-monopolistic system. To cut it short, these two companies have absolute control over the Indonesian telecommunication services. Result? Expensive telecommunication tariff and poor infrastructure. In 2004,
it only cost me Rp.80,000 per hour to make an international call from Seoul to Jakarta using a Seoul public telephone. That was very cheap at that time compared to the cost for doing international calls from Jakarta to Seoul.

But now, with the increasing number of telecommunication providers, we see the new era of cheap telecommunication services. Those telecommunication providers spend billions of Rupiah just for claiming in TVs and radios that they are the cheapest operator. Indeed, they don't have many choices. If they don't cut their prices, provide better services, and make the most entertaining advertisement, other operators will claim their customers and in the long run, losses will become the end result.

Of course, how can they cut their prices if they can't increase their business efficiency? Like it or not, this competition game forces those operators to find new ways in increasing their business outputs. Efficiency, creativity, innovation, name it, and they will get it. Such are the results of competition, incredible!

In fact, the free market, the free competition, is actually doing better than the Anti Monopoly Supervisory Committee (KPPU) in the telecommunication sector. This is related to one case when KPPU brought the case of Temasek, a Singaporean State Owned Company, to Indonesian public attention for having control in two major Indonesian telecommunication companies. In that case, KPPU claimed that such control has caused monopoly and unfair competition and thus increasing the consumer cost for getting telecommunication services.

So much hours and money are wasted to force Temasek to release its majority ownership in one of the operators and to cause those two operators to reduce their tariff. Yet, without having to wait for the final judgement, those two telecommunication operators have already reduced their tariffs for the sake of winning the competition. And this is the current trend, as I've once discussed it with an executive of a major telecommunication provider.

Do we actually need a better example for understanding the power of free competition? I guess not.

Okay, Enough with Capitalism Principles, What About the Market?


Ah, good timing!
As discussed in the second principle of Capitalism, all men are interdependent. But, how can they cooperate with each other? The answer is the market.

The market is the most important facility of any economic system, even for the so called communism, since it provides a place for people to meet, trade and exchange their self-interests. Of course, I'm not referring to a traditional market in a remote village where you can find living stocks and fresh vegetables. I'm referring to the concept of market as an abstract place, a structure where goods and services are offered and traded, where supply meets demand, where buyers meet sellers.

There are countless numbers of markets in this world, telecommunication market, energy market, stock market, financial market, commodities market, you name it. But the basic is same, within the respective market, people may look out for what they want and try to obtain those things with certain price.

The issue of price brings us to one of the most important aspects of the market under the system of Capitalism, one that has become a never ending subject of debate, the market equilibrium and the self-efficiency of the market. Until today, no one has ever reached a perfect theory which can explain how the market can reach those conditions, where the prices of each goods and services reflect the actual supply and demand, and all market participants have obtained the necessary information in making their economic decision.

It is almost impossible for me to explain those complicated issues within a single article without having the readers getting lost in understanding the concept. So, let me put this simply. Under the basic principles of capitalism, the market will work best if there is a minimum intervention from forces outside the market, BUT, it does not mean that the market itself can always maintain its equilibrium and efficiency, some interventions would be need for certain cases, especially when the principle of fair competition has been breached due to unfair or illegal activities.

The key issue here, is to find the best policy that can HELP the market to avoid its own weaknesses without having to sacrifice the freedom and the unlimited opportunities that market can produce through free enterprises. I can't answer that yet, but am hoping through the times of my journey here, I would be able to provide certain solutions and insights on how we can create such best policy.

Why Promoting Capitalism?

Simply because Capitalism is applicable in every part of the world, even in the so called Communist Republic of China, and because it has survived for many times during the last 200 years. Economic crises come and go for many times, people have gone through some pessimistic and optimistic periods in doing their business.

You know, during crisis, like in 1933, 1987, 1997, and 2008, people always claim about the end of capitalism. Of course this is a politically correct maneuver and it is easy to reach such conclusion. But, if you analyze it further, in the end it is a part of a grand business cycle. What goes up, will go down, and vice versa. During the Asia financial crisis in 1997, most people blame us for our fragile economic fundamentals, and you know how the western countries see Asia at that time, a failure. But now, it is Asia who has a better economic fundamentals and can maintain such fundamentals despite the crisis in the US. Amazingly, most of Asia Countries and US use capitalism principles in making their economic policy.

I believe that
the basic nature of human is always the same, everyone want the same opportunity to do business and reap profits, and they want to do it without too much of restrictions and inefficiency, the way that capitalism has always preached about. In general, the application of Capitalism principles has created an accumulation of wealth and development in many countries, and Indonesia, without a doubt, has also received benefits from capitalism.

Of course, like I've said in the beginning of this article, Capitalism is not without any flaws, there will always be a problem, such as the problem of distribution of wealth, power disparity between market players, etc. But, we can't stop using a system or even try to replace it in entirety because of some flaws, that would be horrendous. It is our job to modify and fix the flaws in capitalism to ensure that it can work properly rather than spending times on building a new entire system which would be most likely not efficient. This is a never-ending process, and I expect to see many new developments in the future of capitalism.

To end this article, I would like to share a piece of wisdom from Milton Friedman, an American Nobel Laureate, "What kind of society isn't structured on greed? the problem of social organization is how to create an arrangement under which greed will do the least harm; capitalism is that kind of a system."

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