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is, amicable efforts should not be a
bar to starting a legal proceeding,
because it is too vague and it allows
the defaulting party to cause even
more delays. In many disputes it is
actually quite clear who is at fault,
and it is just a matter of getting
paid. Rules like this may allow a
defendant, who knows very well
he will lose, to argue that a court
or a tribunal may not hear the case
yet, as amicable discussions are still
underway. It is possible for one to
protract those discussions. The start
of a proceeding never precludes No more in the 2016 IL. All the protections and rights are granted to investors, or
parties from having settlement foreign investors, defined as a foreign or Myanmar citizen or a business entity
discussions anyway, so it should be incorporated or registered in accordance with applicable laws (s. 2 p) of the 2016 IL.
a bar to starting a case. In our view, Foreign investor includes foreign companies, branches, and other entities (actually a
this is a lost opportunity. branch is not a legal entity) incorporated in accordance with the Myanmar Companies
Act or any other applicable laws, and entities incorporated in accordance with the laws
4. Some new uncertainties have been of a foreign country (s. 2 o) of the 2016 IL.
introduced. (s. 68 j) of the 2016
IL for example, provides an In other words, everyone who invests in Myanmar is an investor under the 2016 IL,
obligation to pay workers even in whether one has an MIC Permit or not. The 2016 IL leaves investing undefined,
case of temporary closure, leaving but investment is defined (in line with BITs) as a business entity, property, shares,
lots of unanswered questions. The IP, contracts and rights under contracts. So, service companies, branches and other
MIC may also refer some projects investments which never received an MIC Permit in the past, are now presumably
to the National Assembly via the investors under the 2016 IL. That also goes for foreign owned companies and
Cabinet if the project, in the opinion branches (without MIC Permit) which were already in existence before the 2016 IL was
of the MIC, may have considerable issued. The 2016 IL provides that this law shall apply to any existing or new enterprises
effects on the security, economy, in the territory of Myanmar at the time that this law takes effect (s. 4) of the 2016
environment and social interests of IL. There is thus little doubt that with the stroke of a pen, all foreign owned business
the State and its people (S. 49) of entities, regardless of MIC Permit, can invoke the protection of the 2016 IL as soon as
the 2016 IL. it comes into force.
Investment Law also applies This would also mean that various obligations upon investors will apply to, well, pretty
to already existing companies, much any foreign owned company, branch or sole proprietorship in Myanmar, also
branches even without MIC Permit those without an MIC Permit. As most of these obligations found in the 2016 IL are
just restatements of existing obligations who bind everyone enterprise anyway (such
In the 2012 FIL, an investor is a foreign as preparing financial statements, compliance with laws, etc.), this is not a reason for
person who received an MIC Permit. concern. That everyone investor, even those without any MIC Permit or approval must
All the benefits and protections of the notify the MIC of a sublease, mortgage or transfer of enterprise (s. 75) of the 2016 IL
2012 FIL are only available to those who does not make much sense from that perspective but this rule may be implemented
received an MIC Permit. The countless differently in practice.
foreign invested businesses in Myanmar
which never asked for or received an MIC Two MIC processes: Permit and Approval
Permit, cannot invoke its provisions.
One of the, in our view, more insightful changes introduced by the 2016 IL is the
triage of proposals into two tracks: one for the full MIC Permit, and one approval
for permission to use land and a request to obtain tax, which is supposedly a faster
process.
You will only need an actual MIC Permit, with a proposal, for strategic, large or
environmentally or socially impactful projects, or when the MIC says you do.
Foreign exchange remittances: nice g. Earnings and other remuneration So, the 2016 IL just refers to the FEMLs
drafting but no additional rights for of expatriate personnel legally categories, which are less than entirely
investors employed in Myanmar. clear. The default position of the FEML is
that each payment is a capital account
The new chapter on transfer of funds This list was not invented by the drafters. payment, if it is not a current account
starts out very encouraging. It lists the An almost identical list can be found in payment. And very few things (such as
payments that foreign investors are many bilateral investment treaties (BIT), payment for goods and services under a
allowed to transfer without forgetting particularly with the US and Canada (a contract) are current account payments
some of the important types of payment nearly identical provision on the transfer under Myanmar law. This is by the
as the 2012 FIL did: capital, profits, gains, of funds can be found in both the US way in and of itself not in line with the
royalties, technical and management and the Canada Model BIT) but also in IMFs Article 30(d)) as per the Proposed
fees, awards, compensation, payment other BITs such as the Japan-Korea BIT. second amendment to the Articles
under a loan are all mentioned: Myanmar has adopted a free transfer of Agreement of the International
article in a number of its BITs as well such Monetary Fund (International Legal
a. Capital that complies with the as with China, Japan and Thailand. Materials, vol. 15, pp. 546-590). From
regulations in relation to capital the perspective of Myanmars IMF
accounts as may be specified by the Unfortunately, the subsequent sections obligations, payments arising from
Central Bank of Myanmar; s. 60 and 64 of the 2016 IL point out current transactions include not only
that actually, the foreign investor is only payments relating to trade and services
b. Profits, capital gains, dividends, allowed to transfer them insofar as these but also a number of investment-related
royalties, license fees, technical are current account payments under payments. Specifically, they include:
the Foreign Exchange Management all income arising from investments,
Law (FEML), or, as far as loans are including interest on loans and other
concerned, insofar as the CBM has debt instruments, net of any income
approved the transfer or receipt. As tax that may be levied by the country
Two MIC processes: s. 64 of the 2016 IL provides, Investors from which the payment is to be made
may transfer funds under s. 59 that fall (UNCTAD, Transfer of Funds, 2000, p. 12).
Permit within the classification of a current
account payment under the FEML. Despite the hopeful list made in s. 59
and of the 2016 IL, and mention of awards
The 2016 IL does attempt to ensure that for compensation, the 2016 IL does
Approval compensation under a court judgement not seem to add any actual additional
or an arbitration award owed by a protection for foreign or Myanmar
Myanmar national to a foreign investor investors seeking to transfer foreign
can be transferred freely. (s. 61 c) of the currency beyond what the FEML itself
2016 IL provides that Myanmar citizen already provides.
investors may, without delay and freely,
remit from Myanmar awards resulting Tax incentives curtailed or improved?
from the settlement of a dispute
Its a mixed bag. You could say improved
including a court decree, arbitral award,
because under the 2016 IL one could
. Is CBM permission needed for this?
now obtain a 7 year income tax holiday,
Under the FEML it seems so, as this is
whereas 5 year was the maximum under
not a current account payment. Likewise
the 2012 FIL. But, under the 2012 FIL
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every investor who receives a Permit would have to be given a 5 year income tax holiday. No discretion for the MIC. That compulsory
5 year is now gone. The MIC could grant an income tax holiday as per zones of establishment, or not, up to its discretion.
We think that eliminating the compulsory 5 years was unavoidable. It is unpractical for regulators. Some projects must receive a
Permit because they lease land or they manufacture, but it makes no sense from a policy perspective to hand out a tax holiday to
every single project.
The 2016 IL has reproduced the common international standards of protection found in BITs, notably National Treatment (NT),
Most Favoured Nation (MFN) and Fair and Equitable Treatment (FET). These standards are a hallmark of international investment
law.
Compensation for expropriation interest must be present. That is 4. A prompt, fair, adequate and
however international law, and effective compensation is paid
The 2012 FIL contained the this rule in the 2016 IL will have to to the investor. Again, this
internationally unusual (but from be applied and read in accordance rule reproduces a standard in
Myanmar perspective understandable) with Myanmar law. international investment law,
provision that expropriation of property the so-called Hull Formula.
of investors is not allowed. This is not 2. It is non-discriminatory; The Compensation is deemed
sustainable. There may very well be expropriation may not target prompt if it is paid without delay;
perfectly reasonable and legitimate specific investors or groups of adequate, if it has a reasonable
circumstances for a state to take the investors without a justified ground, relationship with the market value
property of a foreign investor. Pretty i.e. an expropriation of investors of the investment concerned; and
much every country in the world from a specific country. effective, if the price was paid in
has rules permitting this, subject to money that can be converted and
conditions. 3. Due process was followed; remitted. There is a long standing
This refers to process of law and debate in international law on how
That is now recognized in the 2016 IL, administration being followed. compensation for expropriated
which allows expropriation or measures There are international standards property should be calculated.
tantamount to expropriation in case the of due process found in BITs and Should the investor be paid the
measure meets four internationally fairly applied by international tribunals, market price (see art. 14 ASEAN
well established conditions which are such as right to a fair hearing and Comprehensive Investment
taken from BITs: impartial adjudicator, review and Agreement), and the future profits
appeal, duty to inform and notify they will miss? Or just the cost price
1. The measure is in the public investors, provide reasons for of their investment? A balanced
interest; This means that there decisions and transparency. approach is now often favoured
is some public welfare motive
to the expropriation rather
than an individual interest. In
international investment law, the
concept has more recently been
interpreted strictly. In ADC v.
Hungary , the Hungarian Ministry
of Transportation took over the
works which a private company was
carrying out at the airports under
a contract with the state-owned
transport company. It was deemed
not sufficient to merely refer to
public interest, but an actual public
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in international law, allowing for Related vDB LOI Publications
something less than the market
value if the public interest so 2016 IL in Client Alert: All Foreigner
justifies. That is also the approach Registration Certificates
chosen in the IL as s. 56 of the 2016 IL line with expire on 30 November
mitigates the Hull Formula in
Client Alert: MOHT suspends
(s. 55 d) of the 2016 IL. international the issuance of hotel licenses
The above rules are in line with investment in 5 Myanmar cities
Myanmars international obligations Myanmar Government seeks
in some of its BITs such as the BIT with rules partner for Thaton tire and
Japan. The Myanmar BITs with The
Philippines, China and India (referring to rubber factory
just and equitable compensation, but Tax Notes: Myanmar: How to
adding a definition referring to market get a Demand Note?
value) do not explicitly refer to the Hull
Formula, but they have largely the same Myanmar Government Seeks
substance. LNG Partnership: Key Things
To Know for Your Expression
Furthermore, s. 57 of the 2016 IL provides of Interest
that regulatory measures, if they are of The rule in the 2012 FIL which states
general application, cannot be deemed that foreign staff and Myanmar staff
A Beautiful Spectrum
an expropriation which requires must have the same salary for the same Auction? Game Theory
compensation. It is internationally well qualifications (s. 24 f) of the 2012 IL, no Comes to Myanmar as the
recognized that regulatory measures longer appears in the 2016 IL. PTD Dishes out Frequency
(police powers) should not normally
require compensation if they meet A set of employer obligations is Our offices in Myanmar
certain conditions. mentioned in Chapter 16 which were
not mentioned in the 2012 FIL:
Employment
1. Investors can only cease or close
The 2016 IL does away with the arbitrary
their business after compensating
thresholds of 75%, 50% and 25% foreign
workers (s. 68 i) of the 2016 IL;
employees. Instead, investors may
2. Workers need to be paid during a
appoint qualified personnel regardless
temporary closure of an enterprise
of nationality.
(s. 68 j) of the 2016 IL; and
3. Investors must pay compensation
There is no mention of the need for work
owed for workplace injury, sickness,
permits in Chapter 13, although s. 63 of
death or loss of limbs (s. 68 k) of the
the 2016 IL does mention it. YANGON
2016 IL.
Level 8, Centrepoint Towers
No. 65 Sule Pagoda Road & Merchant
Street, Kyauktada Township
T: +95 137 1902 / +95 137 1635
F: +95 124 1238
Contact
Edwin Vanderbruggen is the senior partner of VDB
Loi in Myanmar. He and his team assist the Myanmar
Government with transactions and privatizations in
the energy, transport and communications areas.
He has advised 4 of the supermajors on their oil and
gas interests, worked on several farm-ins in recent
years and is acting on the proposed purchase of a
producing gas and pipeline interest.
Edwin Vanderbruggen Edwin is highly praised by peers and clients alike
Partner, VDB Loi NAY PYI TAW
as a seasoned and informed professional (Asia
edwin@vdb-loi.com
T: +95 137 1902 Law) with very high standards (Legal 500) while No. S-204, Tha Pyay Kone Ward
the firm is widely considered a power house (Asia Zabu Thiri Township
+95 137 1635
T: +95 678 108 091
www.vdb-loi.com Law).
F: +95 678 108 092
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