The government’s effort to update and streamline its foreign and domestic investment laws has finally been achieved with the enactment of the Myanmar Investment Law (MIL) in October 2016. Apart from extending automatic investment protections to citizen and foreign investments, which cover a range of asset classes including shares and property, the MIL also introduces a new regulatory mechanism allowing investors to enjoy additional investment benefits, such as the capacity to enter into long-term leases of land and enjoy tax and Customs exemptions, namely the so-called Myanmar Investment Commission (MIC) Endorsement.
Unlike an investment permit (or MIC Permit), which will continue to be required for certain restricted investment categories outlined in the MIL, the MIC Endorsement is intended to provide a more speedy recourse to secure investment benefits that were not available under the previous foreign and domestic investment laws.
In addition to the MIL, which was passed towards the end of the year, several key pieces of legislation were also adopted in 2016 which showcase the Myanmar government’s efforts to further modernise the country’s commercial and legal framework. These include the Arbitration Law, the Financial Institutions Law, the Mobile Financial Services Regulations, the Condominium Law and the updated laws on labour and employment.
What follows is a discussion of the current legal and regulatory framework in Myanmar, which takes into account the foregoing legal and regulatory changes as they affect investment facilitation and protection in the country.
Vehicles for investment
Foreign investors who wish to undertake specific business activities in Myanmar may rely on the foreign investment framework available under the Companies Act (1914), the MIL and the Special Economic Zone (SEZ) Law of 2014. Through these laws, foreign investors may choose to establish a foreign branch office in Myanmar, incorporate a private limited company, apply for and secure an investment permit or endorsement from the MIC, or apply for and secure an investment permit from the relevant Myanmar SEZ Management Committee, which is also known as a SEZ permit.
Entities under the companies act (1914)
Under Myanmar law, a branch office is considered an extension of its foreign parent company and is a non-resident entity for the purposes of Myanmar taxation. It is authorised to engage in revenue-generating activities in Myanmar that are related to the primary business of its foreign parent company.
The registration of a branch office is also necessary for foreign investors who wish to establish a representative office in Myanmar, as there is no separate concept of a representative office under existing Myanmar law, except for foreign banks, which are permitted by the Directorate of Investment and Company Administration (DICA) to establish a representative office in the country.
For these bank representative offices, the provisions of the Financial Institutions Law of Myanmar (FILM) of 2016 require the formal registration of the representative office with the DICA, but also prescribe a separate prior approval to be sought from the Central Bank of Myanmar (CBM). In both cases – that is, branch offices which are to serve as representative offices of foreign businesses or formal representative offices of banks – the scope of business is limited to non-revenue generating activities. Such undertakings include marketing, liaison services and market research.
On the other hand, and unlike a branch office, a private limited company has a juridical personality separate from its shareholders, and is considered a resident entity for the purposes of Myanmar taxation. Furthermore, this private limited company may be incorporated as a wholly owned subsidiary of a foreign parent or be partly held by local Myanmar ownership. Moreover, this private limited company may engage in and provide a myriad of activities and services, although care must be taken to ensure that the scope of business thus applied for and undertaken does not require an MIC Permit.
Both branch offices and private limited companies are required to secure a “Form of Permit”, previously known as a Permit to Trade, as a precondition of their commencement of business. The Permit to Trade enumerates the business scope that the branch or company is permitted to conduct in Myanmar and is considered to be the general business licence of the branch or company. Furthermore, the minimum investment capital for both a branch office and a private limited company is $50,000. The minimum investment capital may vary however, depending on the specific rules and regulations of the relevant regulating authority.
What is notable regarding the passage of the MIL is that entities registered under the Companies Act (1914), even without having obtained any additional permits or approvals from the MIC, would already be covered by the investment protections. These investment protections include equality of treatment between domestic and foreign investments; and non-nationalisation or non-expropriation (subject to certain conditions and payment of appropriate compensation).
It is also worthwhile to mention that the Companies Act (1914) is currently in the process of being amended, which could result in a change being made to the definition of citizen-owned companies. The proposed amendments to the Companies Act (1914), which are expected to be approved by the end of the first half of 2017, would allow foreign shareholdings in locally owned companies. MIC PERMIT: Foreign investors who wish to engage in certain so-called restricted categories will need to apply for a MIC Permit pursuant to the MIL. These restricted categories are: (a) business activities which are strategic for Myanmar; (b) capital intensive ventures; (c) projects which have the potential to negatively affect the environment of local communities; (d) business activities that will use state-owned land and buildings; or (e) business activities that are designated by the government to require the submission of a proposal to the MIC.
It is unclear at present what exact business activities will be included under the restricted categories, although it is expected that the MIC will issue implementing rules and notifications which will provide further details by spring 2017.
At present, Notification No. 26/2016, which is implemented under the previous foreign investment law, which enumerates prohibited and restricted activities and may, therefore, provide some guidance on what business activities may be considered covered by the restricted categories outlined within the MIL.
MIC endoresement under the MIL
For foreign investors who seek to engage in non-restricted activities but who wish to be permitted to enter into long-term leases of land and apply for additional benefits and exemptions, the MIL introduces a new form of approval by way of an MIC Endorsement. Although the framework for this approval has been outlined in the MIL, the procedural details of its application and approval have yet to be forthcoming through the issuance of corresponding implementing rules, which are to be released by the end of the first quarter of 2017. The expectation, in any event, is that the application process for an MIC Endorsement will be less stringent than an application for an MIC Permit, which is required for restricted activities.
Guarantees under the MIL
The MIL expands the scope of investor protections by providing guarantees to non-restricted enterprises. Hence, all investments, be they local or foreign, are entitled to the basic guarantees of non-nationalisation or non-expropriation, and foreign investors are granted the right to transfer funds overseas.
Along with this expansion, however, the MIL has adopted a more restrictive legal framework for the granting of fiscal benefits and concessions, particularly relating to income tax holidays. In particular, while the previous foreign investment law provided an automatic five-year income tax holiday to grantees of MIC Permits, the MIL has removed this automatic concession. Instead, investors must apply separately to the MIC, either through an MIC Endorsement (for non-restricted business activities) or an MIC Permit (for restricted activities) to enjoy income tax holidays.
In this regard, the MIL empowers the MIC to issue a notification dividing Myanmar into three geographical zones for purposes of identifying the duration of the income tax relief that may be granted, all with the view to providing exemptions only to those areas of the country which are generally considered underserved in terms of investments. Thus, for “least developed zones”, the MIC may grant seven consecutive years of income tax holidays, for “moderately developed zones” five consecutive years of income tax holidays and for “adequately developed zones” the MIC may grant three consecutive years of income tax holidays.
Investment permit under SEZ law
Foreign investors may also wish to locate to a SEZ and for this they will need to apply for a SEZ Permit. Foreign investors granted a SEZ Permit generally enjoy certain benefits and guarantees under the SEZ Law. The benefits or guarantees available will depend on whether the foreign investor is located in a free-zone area, categorised as a free-zone business, located in a promotion zone area or categorised as a promotion zone business. The above terms are all defined under the SEZ Law.
For free-zone businesses, the benefits include an exemption from income tax for the first seven years from commencement of commercial operations, the opportunity to lease and develop land for a period not exceeding 50 years (renewable for 25 years), the ability to engage in import and export activities in Myanmar and a mechanism for the repatriation of capital and profits. Promotion zone businesses, on the other hand, are granted an exemption from income tax for the first five years from the commencement of commercial operations, with the same period given for lease of land within the SEZ. Benefits also include limited exemption from Customs duties and other taxes, and a mechanism for the repatriation of capital and profits.
Three SEZs have been established in Myanmar to date: (1) Thilawa SEZ (TSEZ) located south-east of Yangon, (2) Dawei SEZ in the southern part of Myanmar; and (3) Kyauk Phyu SEZ situated in the western part of the country in the Rakhine State. Among these, only TSEZ has commenced operations in its Zone A. The developer and the management committee have taken preparatory steps for the development of Zone B which, it has been proposed, will include 262 ha of industrial area and 267 ha of logistics area as well as another 169 ha for use as residential and commercial areas.
Trading restrictions
Even with the registration of a private limited company or the granting of an MIC Permit or MIC Endorsement, foreigners are, as a general rule, restricted from engaging in any kind of trading activities. There is no specific definition of what constitutes “trading activities” for purposes of this restriction, although it is generally understood that these include the importation of goods for the purposes of resale and the procurement of local goods for the purposes of resale.
Nonetheless, Myanmar authorities have routinely applied policy exceptions, thereby permitting foreigners to engage in trading activities. The policies have been separately issued and applied by the MIC for entities operating under an MIC Permit (or an MIC Endorsement), the TSEZ Management Committee for TSEZ and the Ministry of Commerce (MoC) for foreign-invested companies registered under the Companies Act (1914) but without any other additional investment approvals.
The MIC for its part has generally given permission to foreign companies operating with a MIC Permit (and it is expected, under an MIC Endorsement) to sell and distribute products they have manufactured, in whole or in part, in Myanmar.
The TSEZ Management Committee has issued Instruction 2/2015, providing for guidelines by which locators to TSEZ may engage in trading activities. Under this instruction, businesses in the so-called “promotion zone” of TSEZ may engage in retail trading activities inside TSEZ, as well as wholesale trading activities both inside and outside of the TSEZ. Businesses in the so-called free zone, on the other hand, are not allowed to engage in any retail trading activities, but are permitted to engage in wholesale trading activities inside and outside of TSEZ, provided that the aggregate value of these wholesale trading activities constitutes no more than a quarter of the total value of the free-zone businesses’ annual sales.
At the same time, and notwithstanding the ability of such businesses to engage in the foregoing trading activities, the TSEZ Management Committee has also defined a certain class of “specified products”, which may not be sold in the retail or wholesale sector. The instruction had not yet provided a definitive list of these specified products at the time of press, although it does already include four-wheel vehicles or motorcycles.
Meanwhile, the MoC, through Notification Nos. 19/2015, 20/2015, 96/2015 and 56/2016 has permitted foreigners, without obtaining separate investment or other approvals apart from the registration of a private limited company under the Companies Act (1914), to engage in the trading of certain goods subject to the terms and conditions provided therein. Notification Nos. 19/2015 and 20/2015 set out the rules and regulations under which foreigners may enter into a joint venture with a Myanmar citizen and open a car showroom for the purpose of engaging in direct distribution activities of the motor vehicles in Myanmar.
Meanwhile, Notification No. 96/2016 relaxes the trading restrictions on the sale of certain agricultural products and health care equipment. Under the notification, foreign businesses are permitted to establish a private limited company under a joint venture with Myanmar citizens, for the specific purpose of importing and on-selling fertilisers, insemination seeds, pesticides and hospital equipment in the domestic market.
Finally, in July 2016 the MoC issued Notification No. 56/2016 allowing foreign joint venture companies to trade construction materials with the objective of enabling domestic construction firms to utilise better quality construction materials.
Alternative trading/retail structures
If the foreigner’s proposed business activity is not among those covered by the exemptions previously discussed for the trading of particular products and goods in Myanmar, foreigners may nonetheless participate in the retail market in Myanmar by entering into contractual structures, such as licensing and distributorship arrangements with qualified Myanmar entities which are 100% Myanmar-owned. Under these alternative structures, the qualified Myanmar-owned entity will be responsible for importing the goods for its own account, and shall directly engage in the distribution and sale of the foreigner’s goods. The participation of the foreign partner will thus be limited to entering into the contractual arrangement for licensing or distribution. At the same time, the foreigner may consider entering into service arrangements with a qualified Myanmar entity to assist in marketing activities to promote the sale of its goods; however, the terms and conditions of the proposed arrangement must be negotiated at arms length in order to avoid any impression that the foreign investor is indirectly engaging in trading activities in Myanmar.
Dealings with land
There is, at present, no single piece of legislation that governs land ownership and land use in Myanmar. Instead, there exists a patchwork of laws that mainly relate to the type of land regulated, from forest land, farm land, fallow land and industrial land, to name only a few. Myanmar law does recognise freehold rights, which are reserved exclusively for Myanmar nationals. These are applied to “ancestral lands”, which were granted when Myanmar was under British colonial rule.
The government, however, no longer grants such freehold interests, and as a result much of the land held by private individuals in Myanmar is in the form of “grants” from the state or from other private persons. Grant land exists mostly in large cities and towns, including Yangon and Mandalay, and the grant holder is permitted to use the land for a stipulated period of time, the majority of which usually has a term of 60 to 90 years. Grant land is transferable and persons with leasehold interests in such lands may carve out and divest lesser interests.
An important limitation on land use relevant to foreign investment is found in the Transfer of Immoveable Property Restriction Act of 1987, which generally prohibits any sale, transfer or exchange of land to any foreigner or foreign company. In addition, foreigners and foreign companies are only allowed to lease land for a term not exceeding one year. Fortunately, the act allows exemptions from these prohibitions if granted by the relevant government ministry, when extended to foreign governments, diplomatic missions or other organisations of individuals. For purposes of foreign investment, such exemptions are secured through an MIC Permit or MIC Endorsement under the MIL or through a SEZ Permit under the SEZ Law, both of which allow foreign investors the right to lease land for a term of at least 50 years (for the initial term).
Condominium law
In light of the limitation on land use by foreigners under the Transfer of Immoveable Property Restriction Act of 1987, the enactment of the Condominium Law was highly anticipated, as it was viewed as a vehicle by which foreigners could obtain rights over a specific type of immoveable property.
The Condominium Law appears to have carved out an exception to the current restriction on foreigners, who are now permitted to purchase from the developer up to 40% of the housing units in a condominium, provided that the source of funds for the purchase of the condominium units comes from abroad. While formally passed, however, the formal registration of condominiums covered by the law has yet to proceed pending issuance of the corresponding implementing regulations.
To qualify as a condominium, the law provides that it must be a high-rise building with six floors or more, constructed as a collectively owned building on collectively owned land registered under the law, and includes common property and housing units for the use of collective owners. The land on which the condominium is built should be at least 20,000 sq feet, and collectively owned and registered as such with the Office of the Registry of Deeds and Assurances. Land intended to be registered as collectively owned should be: (1) of a type which may be utilised for housing development under prevailing laws; (2) capable of being transferred; and (3) in accordance with the specification prescribed by relevant authorities for urban planning.
Government-reserved sectors
While most economic activities are generally open for investment under Myanmar’s liberalised foreign investment regime, there are specific sectors that have been traditionally reserved for the Myanmar government and its state-owned enterprises. These include, among others, the exploration, extraction and sale of petroleum and natural gas; postal and telecoms services; pilotage and air navigation services; power generation and distribution; and the cultivation and conservation of forest plantations.
Under relevant legislation (including the recently issued MIC Notification No. 26/2016), however, the government has the discretion of allowing non-government persons, including foreigners, to participate in some of these otherwise reserved sectors, either through a joint venture with the government or under specified requirements and conditions. Approval for foreign engagement in these reserved sectors usually proceeds from a recommendation given by the relevant ministry or government-owned entity which has been granted jurisdiction over the reserved sector, as well as an investment permit from the MIC.
Strengthening financial institutions
The past two years witnessed the liberalisation of the Myanmar banking industry, with the CBM conducting two rounds of licensing to foreign bank branches in October 2014 and March 2016. Previously, foreign banks were only allowed to operate in Myanmar through representative offices. Currently, duly licensed foreign banking institutions are allowed to perform limited commercial banking activities, such as foreign currency corporate banking to foreign-owned business entities registered in Myanmar. There are now 13 foreign banks that have been granted banking licences to engage in these limited commercial banking activities.
The government’s efforts to develop the banking industry and the rest of its financial institutions continues with the issuance of the FILM (2016) early in the year. The FILM prescribes stricter and more definitive capital funds and reserve funds, and the acquisition of significant ownership requirements. In particular, the FILM imposes a paid-up capital requirement of a minimum of $20m for banks incorporated in Myanmar, and not less than the equivalent of $75m for branches or subsidiaries of foreign banks, whereas the old law did not specify definitive amounts. Additionally, the FILM includes provisions relating to the acquisition of interests in financial institutions and contemplates not only potential acquisitions but also sanctions mergers between banks, subject to relevant regulatory consents being secured.
Also notable under the FILM is the recognition and regulation of so-called non-bank financial institutions, which comprise financing activities, as well as leasing, factoring, credit-card and money service businesses. Implementing rules are pending issuance from the CBM, although a number of foreign finance companies have proceeded to submit applications for a non-bank financial institution licence by first registering a representative office with the CBM and the DICA.
Apart from significant changes made to the regulatory framework for banks and non-bank financial institutions, the passage of the Mobile Financial Services (MFS) Regulations has opened the door to wider access to financial services. The regulations provide an alternative platform which allows customers to deposit, withdraw or transfer money through their mobile accounts. The MFS Regulations allow both mobile network operators, duly licensed under the Telecommunications Law (2013), and non-bank financial institutions to provide mobile financial services by obtaining the required registration from the CBM.
Dealings with foreign currency
The promulgation of the Foreign Exchange Management Law (FEML) in 2012 has significantly liberalised the ability of both locals and foreigners to deal with foreign currency in Myanmar, although the law requires all foreign exchange transactions to occur through banks which have been authorised by the CBM to deal in foreign exchange. As such, foreign investors are now permitted to open foreign currency accounts in authorised banks in Myanmar, maintain foreign currency accounts overseas and remit foreign exchange abroad, subject to the approval of the relevant government authorities.
With the enactment of the MIL, all foreign investors are able to transfer or remit abroad foreign currency brought into Myanmar for purposes of the investment. This includes net profits, dividends received by shareholders who brought foreign capital into Myanmar and amounts receivable upon liquidation of the enterprise.
Apart from the remittance of foreign currency by foreign investors, the FEML also enumerates the following foreign currency transactions called “ordinary transferred payments”, which, according to the law, cannot be restricted:
- Trading and services, and payments for short-term bank loans;
- Interest payable on a loan, and net profit accrued from investments;
- Repayments of a loan in instalments, or depreciations for direct investments; or
- Remittance of money earned locally or abroad for family living.
Notwithstanding such language, Myanmar banks still generally require the approval of the CBM for any loan repayments of any shareholders’ and offshore loans. The practical effect is that foreign investors will be required to obtain the prior approval of the CBM for any intended inward remittance of shareholders or offshore loans and intended outward remittance of principal, interest and profits. The CBM in its Notification No. 7/2014, otherwise known as the Foreign Exchange Management Regulations of 2014 (FEMR), affirms its role in approving any inward or outward remittances of foreign currency.
Under the FEMR, foreign investors remitting funds into Myanmar are required to present the document reflecting that a remittance was made to a foreign exchange licensee to the CBM. This requirement applies to all investors. In addition, internal residents obtaining offshore loans will need to request prior permission from the CBM by presenting the loan agreement and other such documents as may be required by the CBM. The FEMR expressly provides that internal residents, which include companies or branch offices established under Myanmar law shall, when obtaining offshore loans, request prior permission from the CBM.
Offshore loans
In July 2016 the CBM published its criteria in evaluating offshore loans. The criteria takes into consideration the company’s invested equity, its debt/equity ratio, among other things. The published criteria are as follows: (1) whether the company concerned has invested equity or brought in capital of at least $500,000; (2) whether the entity obtaining the offshore loan is a business entity which has regular foreign income; (3) if the entity does not have foreign income, whether it has the ability to repay the loan from local income and whether it has plans to protect against fluctuations of the exchange rate; (4) whether the entity has brought in at least 80% of the equity amount mentioned in the MIC Permit; (5) whether the debt/equity ratio is within the stipulated range of between 3:1 and 4:1; (6) whether the loan-related terms and conditions concerning the company are sufficient and valid; and (7) whether the repayment tenure of the loan agreement is medium term or long term and whether the repayment schedule is appropriate to the loan agreement.
In March 2016 the CBM issued Directive No. 2/2016 liberalising Directive No. 13/2013 and FEMD-15/2012, and enabling privately owned banks holding authorised dealer licences to participate in the trading of foreign currencies. The directive also removes the restriction on government departments, government organisations, state-owned enterprises and joint ventures with the shares of the state-owned enterprises that required direct permission from the Ministry of Finance and Revenue (now the Ministry of National Planning and Finance) to open current accounts in foreign currencies at privately owned banks.
Labour & employment law
While there is no overarching labour legislation or employment code in Myanmar, various labour laws are in place providing the minimum standards for employment. In early 2016 the Myanmar government updated several key labour laws and enacted the following: (1) the Shops and Establishment Law (SEL) of 2016; (2) the Payment of Wages Law (PWL) of 2016; and (3) the amendment to the Factories Act. The SEL prescribes the terms and conditions of work, the most significant of which is the permitted hours of work and overtime. Under the SEL, workers in commercial establishments may not, subject to certain exceptions, be required to work for (1) more than four consecutive hours without a rest period of 30 minutes; (2) more than eight hours in one day without payment of overtime; and (3) more than 48 hours a week. The total number of hours of permitted overtime in a week is 12 hours, but in special cases it shall not exceed 16 hours in a week. Employees are also prohibited from working after midnight. The rules on overtime do not apply to managers as defined under the law.
The PWL provides for the standard definition of a wage and a list of permitted deductions. Under the PWL, any form of remuneration and salary, including overtime payment or bonuses paid by the employer for the employee’s performance, constitutes a wage. The definition of a wage does not include: (1) temporary expense or special allowances for travelling; (2) temporary expenses of a pre-settlement made between the parties; (3) social security entitlements; (4) contributions made for the employee under any prevailing law; (5) accommodation and meal expenses, electricity bills, water bills and taxes; (6) medical expenses and entertainment expenses; (7) severance pay and gratuity; (8) pension and retirement gratuity; (9) other payments prescribed by the Ministry of Labour, Immigration and Population, with the approval of Union Government by way of a notification, as not being applicable to the wages stated in the PWL.
The PWL also provides for the list of permitted deductions, namely deductions for: (1) wages for unworked days, except for paid-leave days and public holidays; (2) accommodation fees and ferry fares, meal expenses, electricity bills and water bills, which are not included in the wages and are arranged by the employer; (3) the employee’s income tax; (4) mistaken overpayments; (5) any advancement payment, expense and savings for the employee, which have been requested by the employee or for any contribution under the law; (6) pursuant to the decision of the court or the tribunal council or the tribunal.
The PWL also permits deductions for loss or damage to property by the employee or deductions for an employee’s breach of the fineable workplace rule. However, in order to avail of the deductions, the employer must obtain prior permission from the labour department on the proposed deduction, and after satisfying the other conditions and procedures provided in the PWL.
Finally, the amendments to the Factories Act clarify the scope of the law which, as amended, expressly provides for persons employed as part of the manufacturing process as well as persons employed in a clerical capacity in a place related to the manufacturing process. The amendment also provides for an updated rule on the substitution of holidays for factory employees. Under the amendment, the substitution of holidays shall only be valid if it is: (1) with the approval of the employee; (2) with prior permission from the Factories and General Labour Laws Inspection Department at least three days in advance; and (3) understood that the worker shall not work for more than 10 consecutive days without having a day off.
Alternative dispute resolution
Earlier this year the much-awaited Arbitration Law was passed, which provides for the legal framework for the enforcement of foreign arbitral awards. Foreign arbitral awards may be recognised and enforced under the Code of Civil Procedure in the same manner as a decree of the court. The Myanmar courts, however, may refuse to recognise foreign arbitral awards based on the grounds provided under the law, which include but are not limited to, the incapacity of the parties referred to in the arbitration agreement, and the failure to give proper notice of the appointment of an arbitrator. The Arbitration Law therefore serves as the municipal legislation enforcing the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which was acceded to by Myanmar in 2013.
Yangon stock exchange
The Yangon Stock Exchange, which was inaugurated in December 2015, is continuing with the processing of applications for the listing of public companies. To date, there are currently three listed companies on the exchange, namely: First Myanmar Investment Company, Myanmar Thilawa SEZ Holdings Public and Myanmar Citizens Bank.
The fourth company, First Private Bank, is scheduled to be list on 20 January 2017. To date, only Myanmar citizens are permitted to invest in companies which are listed on the stock exchange. It is possible, however, that additional legal mechanisms will be put in place once amendments to the Companies Act (1914) are passed.
Conclusion
The year 2016 marked the transition from the outgoing military-backed Parliament to the current administration, with a significant number of seats held by the party led by Daw Aung San Suu Kyi. The beginning of this marked significant reforms at the institutional level, with the merging of several line ministries to centralise the functions of related ministries, streamline operations and ensure harmony in its decision-making.
Notwithstanding these institutional changes, the development of Myanmar’s legal framework is unceasing. The government’s commitment to reshaping the legal framework in order to enhance investment facilitation in the country is notable. With the new rules in place, much awaits in the enforcement and implementation of these laws. The next step, therefore, is for the line ministries and agencies, which are being reorganised and streamlined, to implement these objectives.
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