MYANMAR INVESTMENT GUIDE Oliver Massmann, Partner Duane Morris, Yangon, Myanmar No.10 Phoyazar street, 15 Ward, Baukhtaw Yankin Township,Yangon; U

The area of Bagan in Myanmar by Stefan Fussan / CC BY-SA 3.0 T 0

T 0

March 2013

© Mr. Oliver Massmann All rights reserved. This document and all its parts is protected by copyright, in particular the reproduction of its parts, photomechanical reproduction and storage on electronic media. Unfair copying, translation, microfilming, processing or transmission in electronic form is prohibited. Any use beyond the strict limits of the copyright law, without the permission of the publisher and the author, is forbidden and liable to prosecution. Date: March, 2013 Neither the Publisher nor the Author accept any responsibility for the accuracy of the information contained herein.

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Oliver Massmann, Partner Duane Morris Vietnam LLC Pacific Place Unit V1308, 13th Floor 83B Ly Thuong Kiet Street Hoan Kiem District, Hanoi Vietnam Phone: 84.4.3946.2205 Fax: 84.4.3946.1311 Email: [email protected]

Oliver Massmann practices in the area of corporate international taxation and on power/water projects, matters related to oil and gas companies and telecoms, privatization and equitization, mergers and acquisitions, and general commercial matters for multinational clients in relation to investment and doing business in Vietnam. Mr. Massmann is registered Arbitrator of the Vietnam International Arbitration Centre (The VIAC). He is the only foreign lawyer in Vietnam who is presenting to the National Assembly of Vietnam in Vietnamese language and teaching International law in Vietnamese language at the Ministry of Justice in Hanoi. Mr. Massmann is a 1994 graduate of Bochum Law University, first state exam and Ministry of Justice, Düsseldorf Germany, second state exam 1997, LLM in International Taxation, St. Thomas University, Miami, Florida, United States of America. He is admitted to the Bar Association in Berlin and a licensed foreign lawyer in Vietnam. After visiting Myanmar in 2012 and 2013, Mr. Massmann is currently cooperating with the Ministry of Energy in Myanmar to build the infrastructure for electricity.

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INTRODUCTION: Confucius never arrived – First impressions from Myanmar Oliver Massmann, January 2013

Dear Ladies and Gentlemen, I would like to briefly report about my recent trip to Myanmar. When I arrived, I was astounded about the country’s political developments, both compared to other Asian countries and compared to Myanmar’s outside reputation. I quickly noticed that many newspapers are available without signs of censorship. This stands in sharp contrast to many other countries in the region, especially Vietnam. When comparing the two countries, one realizes that Vietnam is several decades ahead of Myanmar in economic terms and with regard to international integration and international commitments (especially the WTO Service Sector Commitments). This is not surprising, given that Myanmar isolated itself over the last 15 years and only recently started opening itself again. On a political level, it is Myanmar which finds itself several decades ahead of Vietnam with a more democratic environment and a more effective rule of law, to name but a few differences. During my time in Myanmar, I had the good fortune of being able to stay for a week with my friend and superb host, Christian-Ludwig Weber-Lortsch, German Ambassador to Myanmar. Interestingly, his mansion finds itself situated on the same street where Aung San Suu Kyi, the world-famous opposition politician, lives. In my first discussion with my knowledgeable friend, I asked him about the differences between Vietnam (where he has also served as German Ambassador) and Myanmar. He summarized the situation in Myanmar with the following sentence: “Confucius has not yet arrived in Myanmar.” This sentence perfectly describes my own experiences in Myanmar. As I am a collector of traditional statues, I went to market in Myanmar where I found a beautiful Buddha statue. The salesperson asked for US$ 200. Knowing that bargaining is standard “protocol” in Asian countries, I tried to get a better price. Bargaining has worked in every Asian country I have been in so far. However, Myanmar turned out to be the exception of the rule. The salesperson refused to go down with the price, preferring for the statue to be left on the shelf instead of trading it for a slighter lower price. This was also the case with other tourists I saw who tried to bargain. Every time, the locals preferred to not make a deal at all instead of going down with the price even a little bit which made me think of my friend’s statement. Yes, Confucius has not yet arrived in

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Myanmar! Given the country’s resentment towards China, it should also be noted, that Confucius was probably never invited to Myanmar in the first place. Apart from that, I was positively surprised about the friendliness of the locals. If you approach them in a friendly fashion, you are treated with kindness in return. This stands in sharp contrast to Vietnam, where the smiles on the custom officer’s face increase with the amount of dollar notes you hand over. The bottom line is that Myanmar still finds itself at the very beginning of its economic growth journey. The country, which is twice the size of Vietnam, has an enormous potential. If you are interested in investing into Myanmar, we are happy to offer you qualified assistance and support through our cooperation office in Myanmar.

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INVESTING IN MYANMAR I.

Introduction

“Myanmar is a gold mine, any way you look at it. There’s no flight to, or hotel in, Myanmar that isn’t booked by business people looking at opportunities there to get involved in tourism, banking, telecommunications, and construction.” Craig Steffensen, the Asian Development Bank’s country manager for Burma and Thailand

Myanmar is often referred to as the Golden Land. And indeed it might become a Golden Land for investment opportunities in the coming decade. By investing early in Myanmar, you can become a trend-setter instead of a follower. With its natural and human resources and cultural and national heritage Myanmar represents excellent potential for business investment. Up to March, 2012, the total foreign investment in Myanmar was USD 40.699 billion. Myanmar welcomes foreign investments in all forms. The Government is intending to maintain good economic relationship with all foreign organizations and individuals, regardless of their political or social systems and is also attempting to build strong economic relations with all countries. Myanmar remains as an untapped market- rich in natural resources with a young population and a high number of English speakers. Firms involved in precious stone, agricultural products or other industries may find Myanmar a fascinating place to begin developing longer term interests. Myanmar is a fertile and resource-rich country strategically located in the heart of Asia, one of the world’s largest growing economic regions. Myanmar has a long coastline with good port access and shares land borders with Bangladesh, India, China, Laos and Thailand. It is also a member of ASEAN and stands to benefit from its increasing economic integration – the ASEAN region alone has a cumulative population of more than 500 million people and a GDP in excess of USD700 billion.

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Country Overview Location:

South-East Asia, borders with Bangladesh, China, India, Laos and Thailand

Capital:

NayPyi Taw

Area:

676,578 km2

Language:

Myanmar (Burmese)

Population:

estimated 54 to 60 million

Natural Resources:

Oil and gas, timber, cooper, lead, coal, marble, precious stones, hydropower, forests and fertile agricultural land, fisheries, etc.

Currency:

Kyat

Religion:

89% Buddhists, 4% Christians, 4% Muslims, 1% Animists, 2% Others

Largest City:

Yangon

Climate:

Tropical monsoon Rainy season (May to September): cloudy, rainy, hot, humid Dry season (October to April): scant rainfall, mild temperatures, lower humidity

Overview of the Legal System Myanmar’s legal system is a combination of Common Law (introduced when Myanmar was part of the British colony British-India) and customary law. Myanmar´s legal system is a work in progress. Whereas, some British era laws are still in place, the current government is updating its laws to create a market-based economy and opens up the country to much needed foreign investment; thus the new investment law, which makes away with previous restrictions in banking and foreign exchange, lease of real estate by foreign nationals creates a better framework for foreign investments in the country. Myanmar law provides for companies to resort to arbitration or alternative dispute resolution methods. 8

The country’s new constitution was passed in 2008 and updated in 2011. Important changes have been made and will continue to be made in favor of implementing the following principles (already included in the new Foreign Investment Law) adoption of a market oriented system, promotion of private investment and company formation, opening of markets to foreign investment and trade, and developing modern industry. These principles are aimed at encouraging exports, bringing along large scale investments, promoting technology transfer, as well as manufacturing and services, thus creating employment and training opportunities for Myanmar citizens. This law offers a range of tax incentives, support services and import duty concessions to companies looking to settle in Myanmar. The Constitution of Myanmar creates a federal system; however, it is unclear how state and regional governments will interact with the national government/parliament. As a special feature, Myanmar also has Special Economic Zones, quite different from the United Arabic Emirate’s free zones. These Special Economic Zones have a separate legal framework, and have been designed to encourage exports. All products manufactured by foreign companies within these zones must be sold to the international market, rather than in the domestic market. Investors in these Special Economic Zones are granted duty-free imports of machinery and raw materials. Myanmar’s judiciary was heavily criticized in the international media for not being effective and independent enough. A major setback for judicial independence happened when on September 7, 2012, the nine members of the Constitutional Tribunal resigned after a vote in the Lower House to impeach them; this followed a vote by the Upper House for impeachment the prior month. Even though the Constitutional Tribunal´s rulings are supposed to be “final and conclusive”, the parliament impeached the entire court because they were outraged over one of its decisions which limited the power of parliamentary committees to call and question government ministries. With regard to the recent law reform efforts, it has been criticized that they are being driven from the top by the President and a handful of key ministers and that the Myanmar government is trying to achieve too much too fast (for instance, the Union Attorney General´s office is in the midst of reviewing, drafting or reforming 400 pieces of legislation). A problem the legal profession in Myanmar faces is the lack of qualified lawyers: Only a few of the estimated 8,300 advocates (barristers) and 39,700 higher-grade pleaders (solicitors) are believed to be practicing or being capable of practicing law in a high-quality manner. There are only 200-300 law graduates annually in the entire country and the quality of information provided to law students is very low. As well, the Bar Association currently provides no quality control regarding the qualification of lawyers and monitoring or disciplining of their conduct. Myanmar is a State Party to a number of international treaties, including the Convention Against Corruption (UNCAC), the Convention on the Elimination of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), the ILO Forced Labour 9

Convention, 1930 (No. 29) and the ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). However, the Myanmar government hasn´t performed an assessment regarding the compatibility of existing Myanmar law with its obligations under international law so in practice a substantial gap remains between the international treaties signed by the Myanmar government and the actual implementation of rights.

II.

Trade and Investment in Myanmar

The country’s main trade partners are the ASEAN member states as well as China and India. Its leading export products are natural gas, timber, vegetables, fish, pulses, rice and precious stones - the top buyers are Thailand, India, China and Japan. The country imports textile material, petroleum products, fertilizers, plastics, machinery, transport equipment, cement, construction material, crude oil and foodstuffs - the main suppliers are China, Thailand, South Korea, Malaysia and Indonesia. Myanmar has newly issued the new Foreign Investment Law which received positive response from foreign businesses, guaranteeing more opportunities for tax exemption and relief and flexibility in investment ratios in joint ventures. Foreign investors can now set up a 100% foreign owned company or participate in a joint venture with a local partner. In the case of joint ventures, the ratio of the foreign and local capital is to be decided by the Parties, an improvement from the previous restriction which forced foreigners to contribute with 35 percent of the joint venture's capital. Any company with at least one foreign shareholder will be considered as a Foreign Company.

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General Types of Companies  Private Limited Liability Company  Public Limited Liability Company  Sole Proprietorship  Company Limited by Guarantee with Share Capital 10

 Company Limited by Guarantee without Share Capital  General Partnership  Branch of a Foreign Company

2.

Forms of Foreign Investment

The Myanmar Companies Act (1914) provides for the existence of private and public limited liability companies, and companies limited by guarantee with or without capital. The Foreign Investment Law allows foreigners to set up companies fully owned by them (whether this company was incorporated in Myanmar or abroad), or go into joint venture with any Myanmar citizen or the government of Myanmar. There is also the possibility of establishing a Special Company created under the Special Company Act of 1950 (where part of the equity belongs to the State). A Myanmar Company is defined as “a company having a share capital fully owned and controlled by citizens of Myanmar”, then, any company with one or more foreign shareholders is classified as a Foreign Company, thus subject to Foreign Investment Law rather than Myanmar Companies Act.

Foreign Companies A foreign investor may incorporate in Myanmar a 100% foreign owned company permitted by the Myanmar Investment Commission.

Branch of a Foreign Company A foreign company may establish a place of business or carry on business in Myanmar as a branch of a foreign incorporated company. Before a branch of a foreign company commences operation in Myanmar, it must first apply for a Permit to Trade from the Ministry of National Planning and Economic Development. 11

Representative Office of a Company - Incorporated Outside Myanmar Foreign companies with business relations or investment projects in Myanmar may apply to set up representative offices in Myanmar (this being a common practice for banks). In contrast with a branch, a Representative Office of a company incorporated outside Myanmar is not allowed to perform direct commercial or revenue generating activities in Myanmar. However, it is permitted to liaise with its head office and collect data useful for the head office. Joint Ventures A foreign investor can join with any individual, firm, company, co-operative or state-owned enterprise from Myanmar to establish a joint venture either as a partnership firm or a limited company on the basis of a joint venture contract. In the event of joint ventures of foreigners with Myanmar citizens, the ratio of the foreign and local capital is to be decided by the parties.

Special Company Act (1950) This Act governs all companies in which the State has equity share capital. When its memorandum and articles of association has been approved by the government, a notification will be issued by the Ministry of Commerce, classifying such a company as a Special Company.

3. Capital Requirements There are two classes of imported capital which concern foreign investors. First is the minimum capital required to register for a Permit to Trade. Second is the foreign capital required to qualify for a Myanmar Investment Commission Permit. Permit to Trade: Kyats 133,333,333 Kyats 66,666,666

for an industrial company for a trading company 12

Kyats 40,000,000

for a service company

Note: Fifty percent (50%) of the prescribed capital must be brought in as foreign currency before the Permit to Trade is issued and the balance 50% must be remitted within 30 days prior to the date of renewal of Permit to Trade.

Myanmar Investment Commission Permit The minimum amount of foreign capital required to be eligible under the new Foreign Investment Law is to be prescribed by the Myanmar Investment Commission according to the business activity. Foreign capital may be imported in the following forms:  Foreign currency  Property actually required for the business and which is not available within the State, such as machinery, equipment, machinery components, spare parts and instruments  Intellectual property rights, such as patents, licenses, industrial designs, trademarks and copyrights  Technical know-how  Re-investment of benefits accrued to the enterprise from the above, or out of share of profits

4. Application Procedures

Procedures for Permit to Trade Before a foreign company is set up in Myanmar, it is required to apply for Permit to Trade from the Ministry of National Planning and Economic Development before it can apply for registration of the company with the Registrar of the Companies Registration Office. The application shall be made in Form A. Court fee stamp must be affixed to Form A. An application fee of USD 100 must be paid before filling in the application form. The following documents must accompany Form A: 13

         

Draft copy of the company's Memorandum and Articles of Association The form Questionnaire duly completed Names, addresses and nationalities of shareholders List of Intended Economic or Business Activities to be carried out in Myanmar (Burmese) List of Established Expenditure of the Foreign Company to be New Set-up for the first year of operation Names, addresses and nationalities of directors Statement of Undertaking to bring in the prescribed amount in foreign currency physically into Myanmar and signed by the foreign investor Board of Director's resolution of respective foreign and local counterpart companies to set up a joint venture company in Myanmar (if the counterparts are companies) Business profiles of the respective foreign and local companies and Bank reference of the foreign and local counterparts or foreign and local companies.

Note: Permit to Trade shall not be understood in the common sense but means “Permit to do business” - trading activities are still restricted to Myanmar citizens.

Registration Procedures: After a Permit to Trade has been received, a Foreign Company can apply for incorporation with the Registrar of the Companies Registration Office. The following documents must be attached to the application:  Permit to Trade photocopy  Two sets of the Memorandum and Articles of Association, both of which must be printed in Myanmar (Burmese) and English and stamp affixed for Kyats 2,000. In the case of a joint venture with a State Enterprise, these documents must be approved by the Attorney General, and the Ministry of National Planning and Economic Development, who will notify the acceptance of these documents and classify the joint venture company as a Special Company under the Special Company Act (1950).  Translation Certificate by a Registered Accountant or a lawyer etc.  Statement as to which of the documents in Myanmar (Burmese) or English shall be the legal document  Full address of the registered office of the company in Myanmar  List of directors and managers, with names, nationalities and addresses  Receipts for payment of registration and filing fees  Statements specifying three main objectives of the company and 14

 Statements of undertaking to comply with the provisions of the Myanmar Private

Industrial Law For a Public Company, the following additional documents should be submitted:  List of persons to act as directors  List of persons who have consented to act as directors and  Agreement to take qualifying shares After the Registrar of the Companies Registration Office processes the registration documents, it issues the Certificate of Incorporation. Once a Certificate of Incorporation has been issued, a private company may commerce business. The same procedure generally applies to the formation of Public Companies. However, after a Public Company has been incorporated, it must also file a prospectus or a statement in lieu of prospectus.

5. Restrictions Activities prohibited by the Myanmar Foreign Investment Law:  Business which can affect the traditional culture and customs of the national races within Myanmar  Business which can affect public health  Business which can affect the environment and eco-system  Importation of hazardous or poisonous wastes into the country  Business which produce or use hazardous chemicals under international agreements  Production or manufacturing work or services which are activities reserved for citizens  The importation of technologies, medicines or utensils/paraphernalia without relevant permits, or not designated for use  Agricultural investment and plantation and cultivation for long and short terms which can be performed by citizens  Livestock breeding which can be performed by citizens  Marine fishing which can be performed by citizens

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 Foreign investment activities within 10 miles from boundary/borders between neighboring nations of Myanmar, except in State economic zones approved by the Myanmar Government The Myanmar Investment Commission has the power to grant permission to foreign investors to engage in activities under the prohibited/restricted list, if doing so would be in the best interest of the Nation. The Myanmar Investment Commission must request approval from the Union Parliament through the Union Government for any project which poses a significant impact on the security of the State and people, the economy, environment or socio-economic wellbeing.

6. Guarantees Investment Guarantee and Protection Enterprises operating under the Foreign Investment Law have the State guarantee against nationalization and expropriation. In the new Foreign Investment Law, the guarantee is subject to an exception if the nationalization or expropriation is in the natural interest, in which case the investor is to be compensated for the market value of the investment. The Government also guarantees that investment will not be terminated during the permitted term, and foreign capital will be transferred to investors upon the expiration of the term of the investment contract. Investment Protection Agreements Myanmar has investment protection agreements with China, India, Kuwait, Laos, the Philippines, Thailand and Vietnam.

7. Import and Export Regarding the import policy, import is allowed against the export earnings with a view to promote export and to overcome the balance of trade deficit problems. The import policy of Myanmar is to prioritize imports of capital goods, industrial machineries, other essential items, medical equipment, commodities which can be used in enhancing exports and encouraging export-substitution goods. An enterprise permitted under the Foreign Investment Law has to be registered as 16

exporter/importer upon business requirement with the Export Import Registration Office under the Directorate of Trade, Ministry of Commerce. The following persons or enterprises can be registered as exporters/importers: A citizen or an associate citizen or a naturalized citizen of the Union of Myanmar if the applicant is a sole proprietor  Partnership firms  Limited companies, inclusive of foreign companies and branches or joint ventures formed under the Meaner Companies Act(1914) and Special Company Act (1950)  Co-operative societies, registered under the Co-operative Society Law (1992) Myanmar products can be exported with the exception of some selected items or restricted items under the export license. All goods which are not prohibited by the respective Government departments can be imported under the import license. Permitted foreign investment enterprises can import the following without import licenses:  Capital investment items imported as foreign capital during construction and initial investment period  Raw materials required for the first three years commercial production

the

Import under Open General License is also allowed to those organizations permitted under the Foreign Investment Law.

8. Trademarks Trademarks maybe registered by means of document of declaration. As per current wellestablished practice, trademark is to be renewed in one of three options:  By reregistering once every three years after first registration  By republishing once every three years after first republishing  By the way of both reregistering and republishing A new trademark law is supposed to be enacted within this year. It is recommended to reregister all trademarks as soon as possible to assure that the new law applies for the registered trademarks.

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III.

Special Economic Zones

1. Generals Three Special Economic Zones have been set up in Myanmar and granted independent jurisdiction to promote export-oriented foreign investment. Goods manufactured or processed in a Special Economic Zone must be sold to the international market, and are not permitted to enter the domestic market. The businesses which are operated in foreign currency in the Special Economic Zone shall have the right to open foreign accounts with any bank in Myanmar and carry out the matters of receipt and payment in foreign currency in accord with the stipulation.

2. Special Economic Zones Law On 27 January 2011 the Government promulgated the Myanmar Special Economic Zone Law, Law No. 8/2011. This law also provides the land use for a foreign investor, with objectives to base on the framework of maintenance, protection and safeguarding the sovereignty of the State in allowing:  to operate foreign investment businesses; to develop the momentum of the economy of the State by establishing and operating the Special Economic Zones  to develop the industry and high technologies in the State  to improve the goods processing, trading and service business  to enable the citizens to train, learn and transfer the high technologies  to create more employment opportunities for the citizens and  to develop the infrastructure of the State

3. Incentives The investor who invests and operates business in the Special Economic Zone may apply for:  Income tax exemption on the proceeds of overseas sale for the first five years from the day of commencement of the production or service  50 percent relief on the income tax rate stipulated under existing law for the second five years on the overseas sale proceeds

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 For the third five years, if the profit obtained from export sale is reinvested, may apply for 50 percent relief on the income tax rate stipulated under existing law on such invested profit  After the expiry of exemption and relief period contained in subsections(a) and (b), if exemption and relief is not allowed again under this law, shall pay at the income tax rate stipulated under existing law

IV. Taxation 1. Income Tax In the past, a flat rate of 30% of net profits was applicable to enterprises operating under the Foreign Investment Law and those formed under the Myanmar Companies Act (1914). On 15 March 2012, notification 111/2012 was issued, prescribing an income tax rate of 25%. Resident and Non-resident Foreigners For income tax purpose, foreigners and foreign organizations are classified into “resident” and “non- resident” foreigners. A resident foreigner is:  In the case of an individual, a foreigner who lives in Myanmar for not less than 183 days during the income year  In the case of a company, a company formed under the Myanmar Companies Act (1914) or any other existing Myanmar law  In the case of an association of persons, other than a company, an association where the control, management and decision-making of its affairs are situated and exercised wholly within Myanmar and  Any enterprise or individual permitted under the Foreign Investment Law A foreigner or a foreign organization which does not satisfy the relevant criteria listed above is classified as a “non-resident”. A branch of a foreign incorporated company registered in Myanmar under the Myanmar Companies Act (1914)is considered a “nonresident” for the purposes of taxation. Withholding Tax The Ministry of Finance and Revenue issued Notification No 41/2010 on 10 March, 2010 prescribed a withholding tax regime. Effective 1 April 2010, persons responsible for disbursement of the following types of payments, other than under the head “salaries” must 19

at the time of payment deduct and remit tax in the currency the disbursement is made, at the rates below:  Interest paid to non-resident foreigners: 15%  Royalties: 15% on payments to residents, 20% to non-resident foreigners  Payments for purchase of goods and services: 2% on payments to residents, 3.5% on payments to non-resident foreigners

2. Commercial Tax All enterprises with sales of taxable goods and services exceeding or expected to exceed the applicable threshold in a year are required to pay commercial tax be registered with the Township Revenue Officer. The application for registration must be in the prescribed form and filed one month before the commencement of business. Irrespective of the level of its sales at any time, a registered enterprise is required to comply with all the provisions of the law including submitting returns, paying tax monthly and keeping records, until its name is removed from the register. Only registered enterprises are allowed to deduct input taxes incurred on their purchases. Schedule 7 of Notification No. 117/2012 prescribes commercial tax at 5% on 14 types of business activities.

3. Tax Incentives Foreign Companies are eligible for the following incentives and benefits:  Income tax exemption from the year of starting production or services activities, up to continuous five years  Exemption or relief from income tax on profit which is re-invested within one year  Exemption or relief from income tax up to 50% of the profit accrued from exports  Right to pay income tax on behalf of foreign employees and to deduct the same from the assessable income of the company  Right to accelerate depreciation  Right to carry forward and set off losses up to three consecutive years from the year the losses is sustained  Right to deduct from assessable income expenses incurred in research and development carried out in Myanmar (Burmese) 20

 Exemption or relief of commercial tax on goods produced for export  Right of relief of duty on the imported raw material for three years after establishment

4. Double Taxation Agreements There is no provision for unilateral relief. The Income Tax Law provides that if the government enters into an agreement with any foreign state or international organization relating to income tax, and if the agreement is notified, the terms of the said agreement will be followed notwithstanding anything to the contrary contained in any other provisions of the Income Tax Law. Myanmar currently has double taxation treaties with the United Kingdom, Singapore, Malaysia, Vietnam, South Korea, India and Thailand. The double taxation treaty with Thailand came into force for fiscal years beginning on 1 January 2012. Negotiations are undergoing for such a treaty between Japan and Myanmar.

V.

Financial Regulations

1. Exchange Control and Banking Foreign investors are allowed to make transfers abroad at the exchange rate prescribed for the relevant foreign currency through the banks allocated for that by the Myanmar Investment Commission. Foreigners may open foreign currency bank accounts and bank accounts in Kyats at the bank prescribed by such commission. Due to the sanctions imposed up until recently in Myanmar, the banking system has been detached from the international financial system. Currently, new private banks are emerging and the government is updating its banking regulations. The major banks are state controlled: the Myanmar Investment and Commercial Bank, and the Myanmar Foreign Trade Bank.

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2. Currency and Exchange Rate There are three main currencies in use in Myanmar: • Kyat (MMK): is the national currency for daily transactions among citizens and visitors in Myanmar • Foreign Exchange Certificate (FEC): are purchased (as required) with foreign currency by foreigners visiting Myanmar. One FEC technically is equal to one US Dollar. FECs are accepted by government agencies and certain vendors established to use by the Central Bank of Myanmar since 4 February 1993 • US Dollar (USD): is the preferred foreign exchange currency. US Dollars (cash) can be used legally by locals only at establishments licensed to accept US Dollars. Banks will also buy Euros and Singapore Dollars. For every day transactions US Dollars may be used, if foreign currency is accepted at all.

3. Transfer of Foreign Currency A person who has brought in foreign capital can transfer the following:

 Foreign currency entitlement of the person  Net profit after deducting all taxes and provisions  Foreign currency permitted for withdrawal by the Myanmar Investment Commission which may include the value of assets on the winding up of business  A foreign employee can transfer its salary and lawful income after deducting taxes and other living expenses incurred domestically

4. Repatriation of Capital A person who brought into Myanmar capital in foreign currency may transfer it back out of the country in such currency after having deducted all applicable taxes, such as income tax on profit. A foreign individual employed in Myanmar can transfer his salary abroad after deducting income tax and having paid all living expenses incurred during his stay.

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VI. Real Estate and Land Law 1. Restrictions on Land Ownership Before 30 September 2011, foreigners and foreign companies were not allowed to buy land in Myanmar or lease land for a term exceeding one year unless specifically permitted by the Government according to the Transfer of Immovable Property Restriction Law of 1987. There are exceptions for diplomatic missions and transfers for the benefit of the State. A company approved under the Foreign Investment Law could request a long-term right of lease from the government. Even as foreigners are still not allowed to invest in land, the restrictions placed upon them have been eased: foreigners can now lease not only from the state but from private individuals as well. Lease periods extend up to 50 years, depending on the type of operations of the company, be it industrial, agricultural or commercial. After this period has expired, the Myanmar Investment Commission may authorize an extension of further 10 years, renewable for another 10 years.

2. Land for Property Development Generally, land in Myanmar is owned by the State. Land administration is assigned to various government departments. While a foreign investor may not own land, land use rights can be obtained in either one of the following two ways: 1. Obtaining land use rights under a lease, from either the government or private citizens, approved by the government 2. Land use rights are contributed to a joint venture by a government agency

VII. Labour and Employment 1. Background According to the 1998/99 estimates, the population of Myanmar was 47.25 million. Of that figure, 33.3% were below 14 years of age, 59% were between 15 and 59 years of age and 7.65% were over 60 years of age. Also at that year the population of the cities of Yangon and 23

Mandalay were 4 million and 0.7 million respectively. Myanmar has a high literacy rate. The labour force is fairly well-trained. Every year, more than 30,000 students graduate from schools and academic institutions of higher learning, and about 80,000 trainees from vocational training schools. Most of them are proficient in Myanmar (Burmese) and English.

2. Labour Costs The labor cost in Myanmar is quite low compared to other neighboring countries. In the private sector it is usually fixed on mutual agreement between the employer and employee.A factory worker can earn from about Kyats 20,000 to Kyats 50,000 a month, depending on his skill level. Managers with an MBA degree could expect a salary in the range of Kyats 500,000 to Kyats 1m per month (USD 580 to USD 1,250) depending on years of experience. Accountants, which is apparently a very popular occupation in Myanmar where tax collection is yet to be improved, can earn anywhere from Kyats 300,000 to Kyats 500,000 (USD 240 to USD 580). Foreign companies may be the biggest driver of salaries and general improvements in the labor market in the country. More and more foreign companies with true international standards working in Myanmar will train managers and skilled employees. Their demand will also hopefully be reflected in the change in higher education patterns.

3. Working Hours

Companies, trading centers, factories

48 hours a week (Convention No. 30, 1930)

Oil field and mines

44 hours a week

Underground mines

40 hours a week

The Workmen's Compensation Act stipulates for compensation to be paid by the employer if a worker not covered by the Social Security Act (1954) suffers injury resulting in temporary or permanent disability or death in the course of performing his duties.

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4. Social Security Benefits Private enterprises employing at least five persons are covered by the Social Security Act (1954).The Social Security Act (1954) stipulates that at least 4% of insured wage should be contributed to social security scheme in the ratio of contribution 2.5% by employer and 1.5% by employee. The workers insured under the Act are entitled to free medical care, cash benefit for sickness, maternity and disability, funeral grants and survivors’ pension. Social Security Act (1954) provides for 66,6% of wages to be payable for a period of 12 weeks of maternity leave (the maximum maternity leave without losing employment is 26 weeks); 2/3 of wage to be paid in case of employment accident for the maximum duration of 52 weeks (a longer period is classified as permanent disability and there is a special benefit or pension allocated in this case); and a total of Kyats 40,000 (USD 50) to be paid as funeral grant to families of a “deceased insured worker”. The payment of social security benefits has increased from Kyats 381.6m in fiscal year 2000-01 to Kyats 1,260.37m (about USD 1.5m in the current exchange rate) in fiscal year 2008-2009 (statistical yearbook 2009).

5. Recruitment Procedures to recruit workers are simple and straightforward. A private enterprise wanting to employ five or more workers should apply on the prescribed form to the Township Labour Office which will prepare a list of candidates meeting the personnel specifications. The workers will be selected by the employer from the list. To assist foreign employers comply with the Myanmar Labour Law, the Department of Labour can examine employment contracts and work rules and advise accordingly. Employers can also recruit through employment agencies or directly through advertisements.

6. Leaves and Holidays Workers in a private enterprise are granted the following leaves and holidays' 6 days casual leave, 30 days medical leave, 10 days earned leave, and 21 public holidays in a year with wages. In addition, women workers in private enterprises covered by the Social Security Act (1954) are granted maternity leave with paid wages.

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7. Employment of Foreign Nationals Nationals must account for 25% of all skilled workers and technicians of the foreign company for the first two years of operation; 50% of the workers for years 3–4; and 75% for the years 5-6 of operation. All non-skilled workers must be citizens of Myanmar. Additionally, the company must provide training to the workers to enhance their technical skills so the company can meet the above limitations of hiring worker technicians.

8. Labour Laws Existing labour laws in Myanmar include: Employment and Training Act (1950), Employment Restriction Act (1959), Employment Statistics Act, (1948), Factories Act (1951), Labour Organization Law (2011), Leave and Holidays Act (1951), Minimum Wages Act, (1949), Oilfields Labour and Welfare Act (1951), Payment of Wages Act (1936), Shops and Establishments Act (1951), Workmen’s Compensation Act (1923), and two recent laws, Labour Dispute Settlement Law (2012), and Social Security Act (2012) (enacted but not yet in force). Most of these laws, although still effective, are outdated and do not stand the test of the changing economic and working reality even in Myanmar that lags behind many other countries in many aspects. They have been updated not only in terms of minimum wage, working hours and social security payments but also occupational safety. The latter is ignored by the majority of Myanmar companies as can be seen on construction sites in Yangon where construction workers do not wear any protective clothing or equipment because it is their responsibility, not employer’s, to provide it. The Ministry of Labour has issued an outline of Myanmar Labour Law booklet, which summarizes Myanmar labour laws. Attached to these laws is a model employment contract which must be used by all the companies when appointing Myanmar citizen employees.

9. Settlement of Labour Disputes The Ministry of Labour has set up an effective machinery for the settlement of labour disputes. Any disputes between an employer and a worker are first brought to the attention of the Township Workers Supervisory Committee for possible conciliation. If conciliation fails, the matter will be referred to the Township Trade Disputes Committee for arbitration. If the award made by the Township Trade Disputes Committee is not accepted by one of the parties, an appeal can be filed to the Trade Disputes Appeal Committee. The Trade Disputes Appeal Committee may uphold reverse or vary the terms of the award. If the 26

decision of the Trade Disputes Appeal Committee is not acceptable to one of the parties, a final level of arbitration can be sought from the Central Trade Disputes Committee. Here the decision is final.

10. The Labour Organization Law The Labour Organization Law has been enacted on 11 October 2011. It aims to protect the rights of the workers, to have good relations among the workers or between the employer and the worker and to enable to form and carry out the labour organizations systematically and independently. At present, there are 39 basic labour organizations, one labour federation and 10 employer organizations have been formed under this law. They have the right to carry out freely in drawing up their constitution and rules, in electing their representatives, in organizing their administration and activities or in formulating their programs.

11. Work Permit Processing and Requirements Employment of foreign experts and technicians by the enterprises formed under the permit issued by Myanmar Investment Commission is allowed. The following procedures would have to be completed to employ foreign experts and technicians:  The investor has to mention the number of foreign experts/technicians to be employed in the Investment Application Form submitted to the Myanmar Investment Commission  After obtaining Myanmar Investment Commission permit, the company has to apply for an appointment and stay-permit  With the endorsement of Myanmar Investment Commission, the company has to apply for a work permit from the Directorate of Labour under the Ministry of Labour, and for a stay permit and visa from the Immigration and National Registration Department under the Ministry of Immigration and Population

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VIII. Immigration Law Foreigners cannot enter Myanmar without a visa. A normal tourist visa is valid for 28 days. The following types of visas may be granted: • Tourist visa: Valid for 28 days, extendable for further 14 days. The holder is not allowed to work. Tourist visas must be obtained at the Myanmar Embassy in the visitor’s place of residence (this provision is handled very open, e.g. the Myanmar Embassy in Bangkok issues visas for everyone, not only for residents in Thailand). • Business visa: Normally, a business visa is issued for staying 70 days as a singleentry visa. This type of visa can be extended in Myanmar for a longer period. Business visa is also given for a period of staying of 6 months or 12 months as multiple-entry visas. Applying for the first time, a 70-days-visa is only issued. A sponsor letter written in English from a business partner in Myanmar stating the purpose of the visit and approximate period of stay is required for all business visas applications Foreigners doing business in Myanmar can apply for a Stay Permit for 3 months, 6 months or 9 months. A foreigner wishing to remain in Myanmar more than 90 continuous days must apply to the Immigration Department for a Foreigner’s Registration Certificate, which can be extended for a stay of one year with a recommendation letter from the employing company, subject to obtaining a recommendation from the relevant ministry.

IX. Energy Overlook Myanmar is a country with an abundance of energy resources (particularly hydropower and natural gas). Offshore gas is the country’s most important source of export revenues and Myanmar is one of the five major energy exporters in the region, particularly of natural gas. Myanmar’s energy exports in 2009 were the equivalent of 7.7 MTOE, or more than half of total energy supply. A third of the country’s foreign direct investment is in the oil and gas sector (as of September 2011).

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In 2009 (IEA’s latest estimates for Myanmar) the country’s total primary energy supply was about 15.1 million tons of oil equivalent (MTOE). The country’s primary energy supply includes coal, oil, gas, hydropower, and biomass. 69.9% of Myanmar’s energy supply was from biomass, 18.2% from natural gas and 8.5% from oil, 2.4% from hydropower and 0.9 % from coal. However, the coal production and the hydropower production are rapidly increasing (average annual increase from 2000 to 2009 of 15.1%, 9.7% annually and 9.2%, respectively).

Energy resources The hydropower potential of Myanmar’s four main rivers (Ayeyarwaddy, Chindwin, Thanlwin and Sittaung) is estimated at 100,000 megawatts (MW), less than 10% of which has been harnessed. Myanmar has identified 92 potential large hydropower projects with a total installed capacity of 46,101 MW. Proven gas reserves total 11.8 trillion cubic feet (tcf) with huge potential for discovery. According to the World Energy Council, in 2007, Myanmar had coal resources estimated at around 2 million tons, 447.7 TCF of natural gas (428 TCF onshore and 19.7 TCF offshore), and 206.9 million barrels (MMbbl) of oil (106 MMbbl onshore and 100.9 MMbbl offshore). Myanmar is undertaking ventures to exploit these energy resources with a view to both accelerate overall economic development and to provide direct social benefit to residents— especially through greater electricity supply to rural areas. However, to tap the huge potential of Myanmar’s energy sector requires strategic approaches, including foreign technical expertise and foreign investment for participation in its hydropower, oil, and gas subsectors. With regard to the political framework, it should be noted that seven ministries are responsible for energy matters whereas the Ministry of Energy is the focal point for overall energy policy and coordination. Energy consumption Myanmar has one of the lowest per capita energy consumption rates of electricity. The electrification rate is only 26 %. According to the IEA, Myanmar is an extreme example of “energy poverty.” However, overall final energy consumption in Myanmar is on the increase (between 2000 and 2009 by an average of 2.4% annually, from 11.1 MTOE to 13.8 MTOE). Annual increases in energy consumption: • • •

commercial sector: 5.4% industrial sector: 4.8% transport sector: –1.9%

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•

residential consumption: 1.3% (largest consumer of energy—mainly in the form of biomass)

COAL Coal Reserves Some 400 coal occurrences have been identified in Myanmar, many of them of minor importance. The most notable occurrences appear to be in the Ayeyarwaddy and Chindwin river basins, as well as in the southern part of Myanmar and the intra-mountain basins, including in Shan State. The estimated reserves of the 33 major coal deposits are totaling some 488.7 million tons in various categories. Only 1% of this estimated potential, however, has been confirmed.

Coal production From 1988 up to January 2009, 8,323 thousand tons of coal was produced. While to date there has been no importation of coal, the government is considering a zero import tax in the event that imports are necessary. Over the past 2 decades there have been limited exports of coal, the biggest was a 4.5 million tons export to Thailand from 1992 to 2009. Considering the vast untapped coal resources throughout Myanmar, the production and use of coal is expected to rise significantly. According to the 30-year plan prepared in FY2007, coal production is scheduled to increase by 16% annually, reaching 2,761 thousand tons by FY2016 and 5,654 thousand tons by FY2031. The Myanmar Mines Rules (1996), set out compliance measures for coal mine safety and for the prevention of accidents.

OIL AND GAS Both offshore and onshore gas discoveries have been significant. For instance, two major offshore gas fields, Yadana (5.7 TCF) and Yetagun (3.16 TCF), were discovered in the 1990s in the Gulf of Moattama. In 2004, Daewoo International Corporation announced the discovery of the Shwe field, off the coast of Sittwe, with estimated gas reserves of about 5 TCF. Recent estimates indicate approximately 10 TCF of recoverable gas in the nearby gas fields of Mya and Shwe Phyu. Since 1990, Total, Petronas Carigali, Daewoo, PTT Exploration and Production Public Company (PTTEP), and China National Offshore Oil 30

Corporation have signed 20 offshore production sharing contracts and are currently exploring and/or developing 21 blocks. In 2012, seven companies, Myanmar Petroleum Resources, Goldpetrol, China National Offshore Oil Corporation, Sinopec International Petroleum, Nobel Oil, Essar, and North Petro-Chem, were operating or developing nine onshore blocks. According to the Myanmar Investment Commission (MIC), as of September 2011, a total of 60 investment projects had been approved for the oil and gas subsector, totaling $13.2 billion. With regard to oil and gas reserves, seventeen geological sedimentary offshore basins have been identified of which only three have been thoroughly explored (Rakhine, Mottama, and Tanintharyi basins). Of the fourteen identified onshore basins, only three have been thoroughly explored (Central Myanmar, Pyay Embayment, and Ayeyarwaddy Delta basins), six have been explored to some extent while five have yet to be explored at all.

RENEWABLE ENERGIES Myanmar has abundant renewable energy resources, notably hydropower and biomass, but also potential for wind, solar, and other types of renewable energy. Among these resources, hydropower is 16 being developed and utilized on a commercial scale. The other renewable energy resources remain under research and in development or pilot stages.

X. Arbitration Myanmar is a party to the Geneva Protocol on Arbitration Clauses of 1923, but is not a party to the ICSID Convention. On March 6, 2013, the Parliament agreed to sign the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). There is no public record of any international commercial arbitration cases having been conducted under the English based, Myanmar Arbitration Act (1944). There have been very few international commercial arbitration cases conducted in Myanmar. This probably reflects the economic policy of Myanmar prior to 1988 of minimizing economic relations with foreign countries. Since 1988, there have been a number of contracts between public and private sector Myanmar parties and foreign companies, in which a foreign governing law and foreign arbitration rules are prescribed. 31

Myanmar is a party to the ASEAN Investment Protection Agreement (1987).Myanmar became a member of ASEAN in 1997, and is obliged to ratify 14 key agreements prescribed by ASEAN. The Protocol on Enhanced Dispute Settlement Mechanism (2004) is one of these agreements. The arbitration provision in the Myanmar Companies Act (1914) states: o A company may by written agreement refer to arbitration, in accordance with the Arbitration Act on existing or future differences between itself and any other company or person o Companies, parties to the arbitration, may delegate to the arbitrator power to settle any terms or to determine any matter capable of being lawfully settled or determined by the companies themselves, or by their directors or other managing body o The provisions of the Arbitration Act shall apply to all arbitrations between companies and persons in pursuance of this Act The arbitration procedure must always be in accordance with the Arbitration Act (1944). As a matter of government policy, most contracts between state-owned enterprises and foreign companies specify Myanmar law as the governing law, and prescribe that disputes be settled by arbitration under the Arbitration Act. In general, the Attorney General’s Office and Myanmar Investment Commission do not allow foreign arbitration provisions. In practice at present time, disputes between the contracting parties in Myanmar are settled by the Union of Myanmar Federation of Chamber and Commerce Industry in Yangon. On 8 March 2012 at the third Parliament session, it was proposed to amend the Arbitration (Protocol and Convention) Act and the 1944 Myanmar Arbitration Act. It was decided that the 1944 Act will be kept for the purposes of domestic arbitration, to adopt the UNCITRAL Arbitration Rules, and to accede to the New York Convention.

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References

 Myanmar Companies Act  Myanmar Foreign Investment Law No.21/2012  Burma Business Guide – British Embassy In Rangoon  Myanmar Special Economic Zones Law No.8/2011  Labor Realities in Myanmar – ThuraSwiss Research  Myanmar Rule of Law Assessment - New Perimeter, Perseus Strategies and the Jacob Blaustein Institute for the Advancement of Human Rights  Myanmar Energy Sector Initial Assessment - Asian Development Bank  Myanmar Business Guide – www.pwc.com  Doing Business in Myanmar – Myanmar Legal Services LTD  CIA Fact Book  www.nationalmultimedia.com U

 www.ilo.org U

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Index I.

Introduction…………………………………………………………………………7

II.

Trade and Investment in Myanmar……………………………………………10 1.

General Types of Companies

10

2.

Forms of Foreign Investment

11

3.

Capital Requirements

12

4.

Application Procedures

13

5.

Restrictions

15

6.

Guarantees

16

7.

Import and Export

16

8.

Trademarks

17

III.

Special Economic Zones………………………………………………………18 1.

Generals

18

2.

Special Economic Zone Law

18

3.

Incentives

18

IV.

Taxation…………………………………………………………………………19 1.

Income Tax

19

2.

Commercial Tax

20

3.

Tax Incentives

20 34

4.

V.

Double Taxation Agreements

21

Financial Regulations……………………………………………………………21 1.

Exchange Control and Banking

21

2.

Currency and Exchange Rate

22

3.

Transfer Foreign Currency

22

4.

Repatriation of Capital

22

VI.

Real Estate and Land Law……………………………………………………23 1.

Restrictions and Land Ownership

23

2.

Land for Property Development

23

VII.

Labour and Employment……………………………………………………..23 1.

Background

23

2.

Labour Costs

24

3.

Working Hours

24

4.

Social Security Benefits

25

5.

Recruitment

25

6.

Leaves and Holidays

25

7.

Employment of Foreign National

26

8.

Labor Laws

26

9.

Settlement of Trade Disputes

26 35

10.

The Labor Organization Law

27

11.

Work Permit Processing and Requirements

27

VIII.

Immigration Law……………………………..................................................28

IX.

Energy..............................................................................................................28

X.

Arbitration……………………………………………………………………….31

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APPENDIX 1

DRAFT 3/07-02-2013 (Unofficial Translation of the “Official Myanmar Version”)

Government of the Republic of the Union of Myanmar Ministry of National Planning and Economic Development Notification No.11/2013 (31 January 2013) The Ministry of National Planning and Economic Development, in exercise of the powers conferred under Section 56, sub-clause (a) of the Myanmar Foreign Investment Law, and with the approval of the Union Government, prescribes the following rules:

CHAPTER 1 Title and Definition 1. These rules shall be called Foreign Investment Rules. 2. The expressions contained in these rules shall have the same meaning as are assigned to them in the Myanmar Foreign Investment Law. In addition, the following expressions shall have the meanings given hereunder:-(a) “Ministry” means the Ministry of National Planning and Economic Development; (b) “Office of the Commission” means the Directorate of Investment and Company Administration (DICA), which is undertaking the activities of Myanmar Investment Commission; (c) “Director General” means the Director General of the DICA; (d) “Form” means the form attached to these rules; (e) “Schedule” means the schedule mentioned in these rules. (f) “BOT” means Build, Operate, and Transfer (g) BTO means Build, Transfer after the construction is completed to the concerned organization and Operate. (h) “Capital assets” means land, building, vehicle and equipment used in the economic activities. In this context, share, promissory note and other similar agreements are also included. CHAPTER 2 Applicable Economic Activities 3. The Commission shall, with the approval of the Union Government, prescribe, by notification, the economic activities related to Foreign Investment Law based on the following facts: (a) Labor-intensive enterprises that encourage employment growth; (b) Enterprises that will produce the more value on production of the State; (c) Large investment- enterprises; (d) High Technology-intensive enterprises; (e) Enterprises aiming at affordable consumption of goods and services by the citizens; (f) Manufacturing and Services Enterprises heading towards improvement of living standards of the citizens.

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4. The Commission shall prescribe the type of economic activities whether restricted or prohibited investment business, or investments which will allow only as joint-venture business with citizens, or investment businesses which will allow only on specific stipulated condition and submit to the Union Government for approval. 5. Upon approval from the Union Government, the Commission shall notify the type of economic activities whether restricted or prohibited business, or investments which will allow only as jointventure business with citizens, or investment businesses which will allow only on specific stipulated condition by Notification. 6. The Commission shall, with prior approval from the Union Government, amend , by notification, from time to time, the type of economic activities prescribed in the interest of the Union and citizens; 7. Manufacturing and services activities that citizens may carry out are prescribed as stated in Schedule (1); 8. Agriculture and short-term/long-term cultivation activities that can be carried out by citizens are prescribed as stated in Schedule (2); 9. Livestock breeding activities that can be carried by citizens are prescribed as stated in Schedule (3); 10. Sea-fisheries that can be carried out by citizens are prescribed as stated in Schedule (4); 11. The Ministry shall, with the approval of the Union Government, amend, by notification, from time to time, the type of economic activities prescribed in the rules 7, 8, 9, and 10. 12. The Commission may, with the approval of the Union Government, prescribe the collective manufacturing and services zones including industrial zones carried within 10 miles of the national borders , agriculture and livestock breeding zones, tourism zones, commercial zones as economic zones; 13. The Commission may submit to the Union government and get approval when stipulating economics zones mentioned in rule 12 above by the directions of the Union government, or when proposed by the concerned Regional or State government, private authorized division or state organizations, or when the concerned Regional or State government, private authorized division or state organizations or when the concerned Regional or State government, private authorized division or state organizations agreed the Proposal of the Investors or the Promoters. 14. If the foreign investor has proposed to carry out restricted or prohibited business activities, the Commission shall, in the interest of the Union and citizens especially the native people, scrutinize the Proposal based on the following conditions: (a) The opinion of relevant local population or civil societies on the proposed investment; (b) The opinion of relevant regional administrative entities on the proposed investment; (c) Depending on the region in which the business is to be carried out, the opinion of Nay Pyi Taw Council or the government of Region or State.

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15. The Commission shall, with its recommendation, submit the Proposal that meets the conditions contained in Rule 14 to the Union Government for approval. 16. Upon receipt of the approval of the Union Government, the Commission shall issue the foreign investment permit to the promoter or the investor. CHAPTER 3 Form of Investment 17. The investment may be carried out in any of the following forms: (a) investment made by a foreigner to the extent of one hundred per cent foreign capital except the business forms specified in Rule 5 by the Commission; (b) if a joint venture is formed between a foreigner and a citizen or the relevant Government department and organization, the ratio of foreign capital and citizen capital may be mutually agreed upon the terms of the contract; (c) In carrying out business activities by mutual contract, it shall be conducted systems with government and private jointly including the systems such as BOT, BTO or any other system. 18. In submitting investment proposal, permission to incorporate or register as a foreign company has to be applied simultaneously to DICA in accord with existing Company Law. 19. When the Commission approves the proposal and issue the investment permit, DICA shall issue foreign company incorporation or registration at the same time. If the investor or promoter requests for the issuance of foreign company registration in advance for the purpose of facilitating investment activities, the Director General may issue the Incorporation permit (temporary) or Registration (temporary) given justifiable reasons are provided. However, the Incorporation permit (temporary) or Registration (temporary) may not be regarded as an investment permit. 20. If a joint-venture is carried out with citizen in prohibited or restricted business, the ratio of foreign capital should not exceed 80 per cent of the total capital. This provision may be amended by the Commission, by notification, from time to time, with the permission of the Union Government. 21. Liquidation before the expiry of the term of the contract or on the conclusion of the business shall be exercised in accordance with existing Myanmar Companies Act with the prior approval from the Commission.

CHAPTER 4 Formation of the Commission and Meeting 22. The number of commission members shall be “odd” number; 23. The term of a commission member shall not exceed 3 years. However, depending on skill and other needs, the Union Government may assign a member more than three years. 24. If a commission member is, for any reason, no longer able to resume duty before the expiry of three year term, the member who replaces that position shall be responsible only for the remaining term of the his predecessor. 25. Commission meetings should be convened at least twice in a month.

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26. The Chairman of the Commission shall act as chairperson in the meetings. In the absence of the Chairman, Deputy Chairman as a chairperson, and the Secretary as a chairperson if both Chairman and Deputy Chairman are absent or any member shall act as the Chairperson. 27. The meeting is effective if the attendance is more than 50%. 28. The Commission shall make decisions with the agreements of the members, who attended the meeting. The absent members of the Commission shall not object, reject, or modify the decisions made by the attending members.

29. The Commission may, as required, invite the Minister of relevant Ministry or Deputy Minister, subject matter experts and others to the meeting. 30. The Commission shall allow the promoter or investor or their assistants to take part in the meetings to explain and discuss.

CHAPTER 5 Application for Permit 31. When a promoter or an investor submit proposal to the Commission, the following information contained in the Proposal Form (1) shall be completed and signed by the promoter: (a) name of promoter or investor, proof of citizenship, address, place of business, actual business conducted by relevant law, effective place of headquarter, place of incorporation, type of business; (b) if investment is to be made by joint-venture, particulars mentioned in clause (a) relating to the joint-venture partner; (c) evidence in support of clause (a) or clause (b); (d) commercial and financial evidences of the promoter or persons wishing to take part in the jointventure; (e) particulars relating to production or services activities in which investment is to be made; (f) the intended term of investment, the period of construction; (g) place or places in the Union where investment is to be made; (h) techniques and systems to be used in the production and sale; (i) the type and quantum of energy to be used; (j) the quantity and value of the main machineries, equipment, raw materials and similar materials required to be used during the period of construction; (k) the type and area of land required; (l) volume and value of annual production of the enterprise and volume and value of services; (m) annual requirement of foreign exchange to carry on the business and the estimated amount of foreign exchange earnings; (n) volume and value of goods to be sold locally and abroad annually; (o) economic justification; (p) environmental protection and conservation scheme complying with the existing laws; (q) intended form of organization in the Union where investment is to be made;

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(r) if a partnership is to be formed, draft partnership agreement, the ratio and amount of capital to be contributed by the partners, the profit (s) if a limited company is to be formed, draft contract, drafts of the Memorandum of Association and Articles of Association, authorized capital of the company, types of shares, the number of shares to be subscribed by the shareholders; (t) name, citizenship, address and designation of the executives of the organization in which investment is to be made; (u) the total capital of the organization in which investment is to be made, the ration of local and foreign capital, total amount of foreign capital to be brought into the Union, the value of the various types of foreign capital and the period within which such foreign capital is to be brought in; 32. The proposal shall be submitted together with the draft of the land lease contract entered into either with citizen or Government department and organization, or the draft contract of joint-venture in which two parties intend to carry out business by contract; 33. Proposals for the economic activities that are considered capital intensive by the Commission, and that are prescribed to undergo environmental impact assessment by the Ministry of Environmental Protection and Forestry have to be submitted along with Environmental and Social Impact Assessment. 34. If the proposed investment is natural resources based and related to State-owned Enterprises Law, the application has to be submitted to the Commission through the relevant Union Ministry; 35. Proposal for any business activity, which is not related to those of Rule 34, can be submitted directly to the Commission by the promoter or the investor; 36. Upon receipt of the proposal as per Rule 35, the Commission shall scrutinize whether or not sufficient information is provided, and if it is sufficient, accept it or if insufficient, explain the promoter to have it completed and resubmitted; 37. In order to scrutinize accepted proposals sector by sector, a Proposal Review Group, composed of high ranking officers from the following departments, is to be formed to perform preliminary scrutiny: (a) Directorate of Investment and Company Administration (b) Myanmar Customs Department (c) Internal Revenue Department (d) Department of Labour (e) Ministry of Electric Power (f) Department of Human Settlement and Housing Development (g) Directorate of Industrial Supervision and Inspection (h) Directorate of Trade (i) Reporting Department of Project Scrutinizing and Development (j) Environmental Conservation Department 38. In performing preliminary scrutiny as per Rule 37, subject matter experts from relevant Government departments or organizations shall be invited if necessary.

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39. The Director General shall be the head of the Proposal Review Group. 40. The Proposal Review Group shall meet once every seven day, and scrutinize the proposals received before the meeting and present the acceptable proposals to the Commission for further action in accord with the rules. If the proposal is approved, the Commission shall, by mail or other means of communication, inform the promoter and if is not approved, the Commission shall provide reasons for being rejected. 41. The promoter or the investor or its delegated person shall attend the meeting of the Proposal Review Group. CHAPTER 6 Further Actions on the Proposal 42. Once the proposal is accepted, the Commission shall, depending on the location, request for remarks from the Nay Pyi Taw Council or relevant government of the Region or State for comments on whether the proposal could be acceptable or not, and remarks from the Ministry of Environmental Protection and Forestry on the investor’s protection or mitigation measures on the social and environmental impact. 43. Upon receipt of the request for remarks from the Commission, Nay Pyi Taw Council, or the government of the Region or State shall scrutinize and reply with remarks signed by the Chairman of the Nay Pyi Taw Council or the relevant Prime Minister or the delegated person of the Region or State within seven days from the date of receiving the request to the Commission whether or not the proposed investment proposal is acceptable. 44. The Ministry of Environmental Protection and Forestry shall review the investor’s protection or mitigation measures on the social and environmental impact and reply with remarks to the Commission within seven days from the date of receiving the request by the Union Minister himself or its delegated person in the most efficient communication system. 45. The relevant Union Ministry shall reply to the Commission within seven days of receiving the Commission’s request for remarks on investment proposal. In order to timely respond to the request, respective Union Ministry shall form an Investment Assessment Group headed by a Director (or) any officer at the same level. The relevant Union Ministry shall lay down its own investment policies to be exercised by that group. The Commission should be informed of the duty assignments of that group and be updated on any change of the members of the group. 46. The Commission, after receiving the remarks, shall present the proposal to the most immediate Commission’s meeting.

CHAPTER 7 Scrutiny of Proposal 47. The Commission shall scrutinize investment proposals in the following manners:(a) scrutinizing whether or not the proposal is in conformity with the basic principles of Chapter 4 of Myanmar Investment Law;

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(b) scrutinizing financial credibility in the following manners:-1. scrutinizing banking statements; 2. scrutinizing audited final accounts of a most recent year of the company; 3. scrutinizing performance report of the company (c) scrutinizing economic justification based on the following particulars; 1. estimated annual net profit; 2. estimated annual foreign exchange earnings as well as foreign exchange requirement for the operation, 3. recoupment period; 4. prospects of new employment; 5. prospects of increased national income; 6. local and foreign market conditions; 7. local consumption needs; (d) scrutinizing appropriateness of technology by technical experts; (e) scrutinizing remarks from the Ministry of Environmental Protection and Forestry on the protection measures of social and environmental impact; (f) scrutinizing whether or not the investment is socially and economically responsible and is CHAPTER 8 Issuance of Permit 48. After the proposal is approved by the Commission, the Permit Form (2) shall be issued within 90 days from date the proposal was approved. The copy of the Permit shall be forwarded to the relevant Union Ministries.

CHAPTER 9 Further Actions after Obtaining Permit 49. After the permit is granted by the Commission, the promoter or investor shall complete the production or services activities within the construction period or within extended construction period if extension is granted. After the completion of construction activities, the final status of construction shall be reported to the Commission within 30 days of the completion date. 50. The investor shall commence production or services as soon as the expiry of the construction period. 51. During the course of operations, the investor shall, without failure, submit Progress Report Form (3) to the Commission every three month by mail or in any other mode of communication. 52. During the course of operation, should the investor encounter with any condition specified in Rule 121, the company shall report to the Commission within 24 hours. 53. Should a need arise to register, or obtain license/permit from the Government department or organization or relevant Union Ministry due to the nature of work or other matters , the investor shall proceed in accord with the prescribed terms and conditions. 54. The promoter or investor shall:

43

(a) comply with Environmental Protection Law in dealing with environmental protection matters related to the business; (b) shall carry out socially responsible investment in the interest of the Union and its people; (c) shall co-operate with authorities for occasional or mandatory inspection; (d) shall exercise due diligence to be in conformity and harmony with norms and standards prescribed by relevant Union Ministry in conducting construction of factories, workshops, buildings, and other activities; (f) shall exercise in conformity and harmony with terms and conditions, and standards prescribed by relevant Union Ministry in transporting, storing, and utilizing hazardous, toxic and other similar materials; (g) shall not carry out activities to the detriment of consumers in terms of product quality and standards; 55. The Permit for mineral exploration shall not involve any activity related to survey exploration or production. The investor, after conducting exploration, shall submit to the Commission through the Ministry of Mining for permit to conduct survey exploration and production. CHAPTER (10) Determining Construction Period 56. The investor shall, from the date that the Commission issued the Permit, complete the construction activities during the prescribed construction period. 57. In case an extension of construction period is needed for different reasons, the investor shall provide explanation of the cause(s) of the delay and apply for an extension to the Commission 60 days prior to the expiration of the originally prescribed construction period. 58. Upon receipt of application for an extension by the investor, the Commission may conduct necessary scrutiny and grant, subject to sound justification, an extension of construction period, which shall not exceeding 50% of the originally permitted construction period. 59. Extension of construction period shall not be granted more than once except it is due to unavoidable events such as natural disaster, emergency political instability, riots, demonstrations, State emergency, arm resistance, and war. 60. For exploration survey of oil and gas and minerals, processing for survey exploration, mining, promote development, and commercial production, construction period shall, with the approval of the Commission, be stipulated in accord with the terms and conditions contained in the agreement. 61. If the construction activities are not completed during the permitted construction period or extended period, the Commission may invoke the investment Permit. In this regard, the Commission

CHAPTER (11) Sub-lease, mortgage, transfer of share, transfer of business 62. During the tenure of permit, if the investor would like to sub-lease or mortgage the lands and buildings approved for investment without altering the type of business, the investor shall, with the agreement of a person entitled to lease of land or use of land, submit application in Sub-lease Form

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(4) or Mortgage From (5) to the Commission and proceed only with the approval of the Commission. If the land is Vacant, Fallow, and Virgin, approval of the Union Government has to be attached and submitted. 63. Upon receipt of application as per Rule 62, the Commission shall scrutinize the following facts:-(a) whether or not the reason to sub-lease or mortgage is correct; (b) whether or not it is detrimental to the interest of the State and it’s people, due to the sub-lease or mortgage; (c) whether or not the beneficiary of the sub-lease or mortgage could keep on carrying out the business successfully; 64. If sub-lease or mortgage is considered to be permissible based on the findings of the scrutiny, the request should be submitted to the most immediate Commission’s meeting whether the request is to be approved or not in accord with the decisions of the Commission. 65. If the investor would like to transfer all shares to a foreigner or a citizen for good, the Share Transfer Form (6) shall be filled out and submitted to the Commission. In apply for share transferring, the transferor shall obtain and enclose tax clearance from the Internal Revenue Department. If the land is Vacant, Fallow, and Virgin, approval of the Union Government has to be enclosed and submitted. 66. Upon receipt of application as per Rule 65, the Commission shall scrutinize the following facts:-(a) whether or not the reason to transfer all shares is accurate; (b) whether or not the interest of the Union and it’s people could be detrimental due to the transfer of all shares; (c) whether or not the beneficiary of the transfer of all shares could keep on carrying out the business successfully; 67. If the transfer of all shares is considered to be permissible based on the findings of the scrutiny, the request should be submitted to the most immediate Commission’s meeting whether the request is to be approved or not in accord with the decisions of the Commission. 68. If approval is granted, the transferor (seller) shall return his Permit to the Commission. 69. If the transferee (buyer) is a foreigner, application for registration or incorporation as a foreign company has to be submitted to DICA in accord with the existing laws. If the transferor agrees, the existing name of the company may continue to be used. 70. If the transferee (buyer) is a citizen, application for permit has to be submitted to the Commission in accord with Myanmar Citizen Investment Law. After obtaining the permit from the Commission, the transferee shall register as a citizen company with DICA in accord with the existing Company Law. 71. In the issuance of the new permit, if the period of exemptions and reliefs, as per Section-27 of Exemptions and Reliefs of Myanmar Foreign Investment Law, of the original investor remains, the transferee (buyer) is entitled to enjoy the said remaining period of exemptions and reliefs. If the period of exemptions and reliefs has already expired, the transferee (buyer) shall not further enjoy the said exemptions and reliefs because of the issuance of the new permit.

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72. If partial shares are to be transferred to a foreigner or a citizen for good, Share Transfer Form (7) shall be completed and submitted to the Commission. 73. Upon receipt of application as per Rule 72, the Commission shall scrutinize the following facts:-(a) whether or not the reason to transfer partial shares is accurate; (b) whether or not the interest of the Union and it’s people could be detrimental due to the transfer of partial shares; (c) whether or not the beneficiary of the transfer of partial shares could keep on carrying out the business successfully; 74. If partial transfer of shares is considered to be permissible based on the findings of the scrutiny, the request should be submitted to the most immediate Commission’s meeting where the request is to be approved or not in accord with the decisions of the Commission. 75. If approval is granted, application for registration of share transfer has to be submitted, enclosed with the Commission’s approval, to DICA. 76. In carrying out functions of scrutiny contained in Rule 63, 66, and 73, a scrutinizing group, which will be composed of experts from relevant Government departments and organizations may be formed with the approval of the Commission.

CHAPTER 12 Insurance 77. All economic organization formed under a permit shall effect insurance with any authorized local insurance enterprise in respect of the followings types of insurance:-(a) machinery insurance; (b) fire insurance; (c) marine insurance; (d) physical injury insurance; (e) natural disaster insurance; (f) life insurance 78. In addition to the insurance types stated in Rule 77, an economic organization shall acquire other types of insurance prescribed by any existing law based on the category of economic activity.

CHAPTER 13 Appointment of Staff and Workers 79. In submitting the proposal, the investor shall specify the number of skilled workers, technicians and staff for skilled business as well as the number of unskilled workers. 80. By the time the business begins commercial operation, skilled citizen workers, technicians and staff for skilled business shall be appointed in accord with Section (11), Clause 24 of the Myanmar Foreign Investment Law. In carrying out appointment, the wages will not be less than the minimum level prescribed in accord with relevant rules, regulations, by-laws, procedures, notifications, orders, and directives.

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81. In appointing staff and workers, the investor shall comply with and exercise in accord with the existing labor laws. 82. After appointing the citizen staff and workers or foreign staff and workers, the investor shall, within 30 days, enter into employment agreement in accord with the terms and conditions prescribed by the Ministry of Labor, Employment and Social Security. 83. The investor shall send and submit to the Commission the annual program for practicing and training for improvement of working skills for the citizen workers before 31 January every year. 84. For foreign staff and worker working for the investment business under the permission, the investor shall, as recommended by the Commission, apply for work permit in accord with Foreign Workers Law from the Ministry of Labor, Employment and Social Security in Work Permit Form (8). Local residence permit has to be applied for at the Commission in Local Residence Form (9). 85. Upon receipt of the application as per Rule 84, the representative of the Departmental Coordination Group, which is attached to the Commission, shall scrutinize and issue the permit. 86. The investor shall have all workers, who are receiving wages either in Myanmar currency or foreign currency, registered with the Social Security Board. 87. The investor shall be registered with the Social Security Board within 15 days of the commencement of the business and submit the copy of the registration card from the Social Security Board to the Commission. 88. In order to keep on investment activities, the recommendation from the relevant social security office indicating that there is no payable balance to the social security system shall be submitted to the Commission every 6 month. 89. Before receiving reimbursement of benefits granted at the expiry of agreement, the recommendation from the relevant social security office indicating that there is no outstanding payable contribution to the social security system shall be submitted. 90. Disputes arisen between workers or workers’ organization and employer or employer’s organization shall be settled in accord with The Settlement of Labor Dispute Law. 91. Immigration of foreigners related to investment activities shall be complied with and exercised in accord with existing immigration law and rule, procedure, order, notification, regulation.

CHAPTER 14 Exemptions and Reliefs 92. The promoter or the investor shall apply for one or more or all exemptions or reliefs by submitting Tax Exemption and Relief Form (10) to the Commission in accord with Section 12, Clause 27 (b) to (k) of the Foreign Investment Law. 847575_3.doc 15

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93. If the investor or promoter has applied for exemptions and reliefs specified in Rule 92, the Commission may scrutinize and grant it as necessary. In scrutinizing it, the Commission may ask for necessary evidences and documents from the investor or promoter, relevant government department, organization, and other relevant organization. 94. Commencement on commercial scale to any business for the production of goods or services shall be prescribed as follow:-(a) for production business for export, the date on Shipping Documents or Airway Bill or any similar document commonly used in international commerce; that date shall not be beyond 180 days from the completion date of construction period; (b) for production business for domestic market, the date that the business starts earning revenue; that date shall not be beyond 90 days from the completion date of construction period; (c) for services business, the date of opening the business operation; that date shall not be beyond 90 days from the completion date of construction period; 95. The promoter or investor shall submit Report Form (11) to the Commission to report the commencement date of production or services in accord with Rule 94. 96. The Commission shall, in allowing tax exemption or tax relief, scrutinize and approve the date of commencement on commercial scale based on the submission of the promoter or investor. In doing so, the type of tax exemption or tax relief shall be specified, and relevant departments or organizations and investor shall be informed of such arrangement.

CHAPTER 15 Rights to Use Land 97. The Commission may, to carry out any business permitted by the Commission, permit the lease of the land of the person entitled to lease of land or use of land to the investor the following lands with the prior approval of the Union Government: (a) government-administered lands; (b) lands owned by the government department, organization (c) private lands owned by citizens 98. The investor may, in accord with the Vacant, Fallow, Virgin Land Management Law, be permitted to lease land for carrying out agricultural, livestock breeding businesses on commercial scale by using the vacant, fallow and virgin lands and works for economic development relating to it. 99. The Commission may permit the investor to lease the land for the term actually required based on the category of business and investment volume up to initial 50 years from a person entitled to lease the land or a person the right to use land. 100. The Commission may, if the investor is desirous to continue to carry out after the expiry of the term permitted to the investor under Rule 99 and if the agreement is obtained from the person entitled to lease land or the person having the right to use land, permit to extend two consecutive terms of 10 years based on investment volume and category of business. 101. In carrying out investment activities in agricultural, livestock breeding businesses on commercial scale by using the vacant, fallow and virgin lands and works for economic development

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relating to it, application shall be submitted to the Central Management Committee for Vacant, Fallow, Virgin Land in accord with the Vacant, Fallow, Virgin Land Law. In this regard, the investor may, as stipulated in the said Law, be permitted the lease period or use period up to initial 30 years of the vacant, fallow, virgin land based on the investment volume in agriculture and livestock breeding. For continuation of business after the expiry of the term permitted, further lease of the land, depending on the category of business and investment volume, may be permitted in accord with the Vacant, Fallow, Virgin Land Management Law. 102. The investor may carry out a joint-venture business with citizen in agriculture and livestock breeding on appropriate technology and capital ratio basis on the Vacant, Fallow, Virgin Land allowed to the citizen for carrying out business. 103. The person who is allowed to lease or use vacant, fallow, virgin land shall pay the insurance premium in accord with the provisions of Vacant, Fallow, Virgin Land Management Law. 104. The person who is allowed to lease or use vacant, fallow, virgin land shall sell, exchange or transfer the land in other way only with the approval of the Union Government. 105. The investor may carry out seasonal contract farming of fruit and vegetable on the land permitted to citizen only by joint-venture with the citizen. 106. The investor may carry out a joint-venture business with citizen in agriculture and livestock breeding on appropriate technology and capital ratio basis on the land permitted to the citizen. 107. The Commission may, for the purpose of the development of the entire Nation, approve longer land lease period than the period stipulated in the Rule 99 and 100 or 10 years more than the leased period to the investors who invest in the least developed and less accessible regions with prior approval of the Union Government. 108. In order to lease the land to carry out a business, the investor or the promoter shall fill out and submit to the Commission the Land Lease Form (12) enclosed with agreement from a person entitled to lease of land or a person entitled to use of land. 109. If application has been submitted as per Rule 108, the Commission shall, depending on the region of the business activities, obtain the comments from the Nay Pyi Taw council or the government of the Region or State whether or not the application to use land is agreeable or not. 110. If the proposed land is the land owned or administered by the government department or government organization, the application should be enclosed with the agreement from the relevant government department or organization to lease land. 111. In carrying out the matters of land lease after obtaining the permit of the Commission, a person entitled to lease land or a person having the right to use land and the investor shall conclude the land lease agreement and send to the Commission. 112. Regarding the rate of lease of land owned by the government department or organization, the Commission may approve the rate stipulated by the relevant Union Ministry.

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113. The rate of the rental of the land leased by the investor from a person who is entitled to lease land or a person having right to lease land and conclusion of agreement yearly in accord with the current price according to the lease period shall be discussed, determined and submitted the rate of rental of the land lease to the Commission. 114. In determining the rate of land lease rental, the rate to be paid once for 365 days from the date of the beginning of the lease shall be basically calculated and leased. 115. In leasing Government department-owned land or Government organization-owned land, the relevant Government department or Government organization shall demand land lease premium from the investor. 116. The Commission may terminate the business related to the following land lease issues: (a) If a person entitled to lease land or a person having right to use land submits to the Commission that the investor fails to pay land lease rental in accord with the promise contained in the contract or fails to comply with other promises contained in the contract, (b) if the Commission knows, after making necessary investigations, that the investor violates any existing law on the leased land; (c) if the investor is declared black list or, if the Court or any organ of power decides to close the business after it was adjudicated in accord with law due to violation of any existing law. 117. The investor shall: (a) if desirous to terminate the business due being out of calculation, loss or other causes, shall submit to the Commission at least six months in advance. (b) inform, within 24 hours, the Commission about the discovery of treasures, natural resources, ancient objects on the land permitted for carrying out agriculture, livestock breeding and any other legally approved businesses; (c) re-transfer the land within seven days from the day of liquidation by both parties to a person entitled to lease land or a person having right to use land after carrying out in accord with the promises contained in the contract concluded by him and a person entitled to lease land or a person having right to use land. (d) if the business is terminated before the expiry of the term of lease contract due to the causes specified in Rule 116 or to other causes, it shall be transferred only after fully paid the rental up to completion of the period contained in the original contract so as not to aggrieve to a person entitled to lease land or a person having right to use land. 118. The relevant person entitled to lease land or the person having right to use land shall inform and submit within seven days from the day of acceptance of the land that he has leased. 119. The works that is not related to business contained in the original investment proposal shall not have the right to be carried out on the land that is leased and being used by the investor. 120. The natural resources, above and under the ground, at the land that is leased and being used by the investor shall not be explored.

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121. If the investor finds natural resource or antique object not included in the original agreement that is not relating to business permitted, above and underground of the land of which the investor is entitled to lease or use shall inform with 24 hours to the Commission. As soon as the Commission is informed, it shall consult with relevant Union Ministry, relevant Region/State government. If the Commission permits as agreed by the relevant Union Ministry, it may be continued to carry out on such land. If the permission is not obtained, it shall transfer to the place arranged in substitution and carry out. 122. The investor has the right to repair, alter amend and use the natural surface appearance or altitude of the land for which the investor has obtained the right of lease or use only with the approval of the relevant Union Ministry or a person entitled to lease land or a person having right to use land. 123. If it is scrutinized and found out that the investor has carried out business that causes environmental pollution or has not taken action to minimize environmental pollution at the land for which he is entitled to lease or use, or if it is scrutinized and found that the work carries out causes nuisance to the persons who reside around such place due to noise or by culture and if relevant persons officially object, the Commission may terminate the lease or tendering right to use after making necessary inquiry. 124. The investor does not have the right to carry out any other works except the works relating to farm crops cultivation and production without the approval of the Union Government in leasing and carrying out the farms on which the citizen has obtained the right to carry out in accord with the existing laws. 125. The investor, for operating any business, does not have the right to lease and carry out the following lands: (a) religious lands; (b) cultural heritage and natural heritage regions designated by relevant Ministries; (c) lands restricted for Union defense and security; (d) lands under litigation; (e) lands restricted by the State from time to time; (f) lands where exists place or building which may cause situation such as impact on public environment noise, pollution, impact on culture within urban residential area due to the business of the investor. 126. The investor shall, if it is necessary to transfer and clear houses, buildings, farm and garden lands, fruit trees and edible plants etc, on the land on which work is carried out relating to carrying out of invested businesses, discuss and carry out with the approval of the relevant Government department, Region and State Government together with the statement of agreement and satisfaction of the relevant owner on the transfer and resettlement of them, paying in local current price and paying damages. In place that public not desirous to transfer and vacant, it shall not have the right to lease the land and invest. 127. The investor shall use the land that he has obtained the right to lease or use in accord with the terms and conditions prescribed by the Commission and terms and conditions contained in the contract.

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128. The investor shall carry out any matter on sub-lease, mortgage transfer of share, transfer of business of the land that he has obtained the right to lease or use with the permission of the Commission to any other person within the stipulated period of term only with the approval of the Commission. 129. If the investment business includes establishment of city, construction of hotel, school, hospital, residential buildings, establishment of mill and factory, depending on the location in which the business is to be carried out, it shall be submitted to the Commission and carried out only when it is allowed in accord with the city development plans of the relevant Nay Pyi Taw Council, Government of the Region and State, relevant Development Committee and Government department, Government organization. 130. The investor shall carry out only when the permission of the Commission is obtained for altering and carrying out other business after terminating the originally proposed business, extending and operating other business in addition to the business originally proposed on the land he has leased. 131. Vacant, Fallow, and Virgin Land Management Central Committee can, under the following situations, acquire minimally required piece of vacant, fallow, and virgin land that was already approved for investment; (a) discovering ancient heritage on the approved vacant, fallow, and virgin land; (b) a need arise to carry out infrastructure project or special project in the interest of the Union; (c) discovering different type mineral resources other than the intended mineral for which exploration was approved on the vacant, fallow, and virgin land; 132. In reacquiring the land in accord with the rule, the Vacant, Fallow, and Virgin Land Management Central Committee will, for the purpose of arranging compensation within appropriate term, coordinate with relevant department or organization to calculate the current value of the cost already incurred for the actual investment by the person entitled to lease or use the land.

CHAPTER 16 Foreign Capital 133. The investor shall open an account and deposit the foreign currency contained in the proposal in conformity with the permit of the Commission for any business in a bank within the State which has the right to operate work in foreign currency. 134. In proposing to invest, except the appropriated money for the matter proposed for capital in kind contained in clause (ii) of sub-article (i) (2) to be imported, the matters contained in clauses (iii) and (iv) of sub-article (f) of article 2. The foreign currency proposed for local investment shall be deposited in full or if it is carried out step by step according to the period of years, the volume of foreign currency to be invested and used shall be deposited according to Rule 133 to the bank by opening the account. 135. The investor shall submit in advance to the Commission the appropriated foreign currency amount which is to be brought in yearly upon the whole foreign currency amount which is to be brought in to State for the business to be invested by the investor.

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136. The investor shall after having opened the bank account, send and submit within seven days to the Commission mentioning the address of a bank where he has opened account number and person who is entitled to draw attached the copy of bank statement. 137. The investor has the right to make account transfer from his bank account for the following expenditures: (a) for the matters to be paid in foreign currency in the country; (b) for the matters to make bank account transfer to the affiliated company business in the country or the citizen or the citizen-owned company business for the matters related to business which the investor has invested. 138. The investor shall not draw and expend, make bank account transfer the foreign currency from his bank account for other matters not related to business that he has invested. 139. The investor shall, according to appropriation sent in advance to the Commission as contained in Rule 135, fill the foreign currency to be filled to his bank account in lump sum or in installments within the limited period. 140. In filling the foreign currency as contained in Rule 139, it shall not account transfer and fill so by account transferring form foreign bank account opened at any bank in the country by any foreigner or citizen or both of them in the State for doing any business. 141. If the investor refill foreign currency brought from aboard to his bank account shall inform and submit to the Commission together with bank statement within seven days from the day of entering into the foreign currency account of the bank account. 142. The investor shall send and submit in advance to the Commission the appropriation to be filled relating to foreign currency which is to be brought in and refilled the State for extending investment amount and carrying out and; extending and carrying out business in accord with the permission of the Commission. 143. The investor shall amend and draw, as may be necessary, the appropriation to be filled of foreign currency that is originally sent to the Commission in respect of reducing his investment amount, decreasing business by the permission of the Commission and send again and submit to the Commission. 144. The investor shall assign to any auditing business recognized by the Union which is registered and carrying out business in the State and accept regular audit once in 365 days for each business invested by him. In undergoing audit, all documents and lists submitted as evidence shall be submitted either in Myanmar or English. If written in other language, notarial translation of English has to be submitted together. 145. The investor shall send and submit the audit report to the Commission within 30 days after accepting the audit as contained in Rule 144.

CHAPTER 17 Right to Transfer Foreign Currency

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146. The investor may transfer the following currencies abroad through the bank prescribed by the Commission in the relevant foreign currency: (a) following foreign currency entitled to by the person who has brought in foreign capital; 1. foreign currency permitted for withdrawal by the Commission to the person who has brought in foreign capital; 2. indemnity received in accord with existing law (b) foreign currency permitted by the Commission for withdrawal to the person who has brought in foreign capital; 1. entitled share proceeds received by the foreign investor after transferring shares in accord with law; 2. transfer of entitled distribution after liquidating the invested business; 3. foreign currency received after returning the Permit to the Commission on the expiry of permit term; 4. foreign currency equivalent to the amount reduced from investment due to scaling down of the investment; (c) net profit after deducting all taxes and the relevant funds from the annual profit received by the person who has brought in foreign capital (d) legitimate balance, after causing payment to be made in respect of taxes and after deducting in the manner prescribed, living expenses incurred for himself and his family, out of the salary and lawful income obtained by the foreign staff during performance of service in the Union. 147. If the investor would like to make non normal account transfers to outside of the Union, the Foreign Currency Transfer Form (13) enclosed with the following supporting documents shall be addressed to the Commission: (a) Auditor’s report for the relevant investment business; (b) Bank statements 148. The Commission may permit to transfer as per Rule 147 the same amount as applied or lesser than such amount after scrutiny for the application by the investor to transfer foreign currency outside the country. 149. The investor has the right to make account transfer in foreign currency from the foreign account opened in the bank by a citizen or a citizen-owned business in the State after submitting the sufficient documents of the local kyats obtained from carrying out business that he has invested. 150. The investor shall, if desirous to extend and invest the business without transferring to outside the country the profits obtained from carrying out the economic business that he has invested to the Commission and submit obtain permission. 151. The investor shall not deposit into his bank account the kyats obtained by selling any invested assets by converting as foreign currency without the permission; 152. The investor shall not buy and use any foreign capital to be brought from abroad mentioned in his proposal in kyat in the country without the permission of the Commission.

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153. The investor shall not pay the expenditures to be expended in the State in kyat obtained by selling any assets imported from abroad as contained in the proposal for the business invested by him. 154. Capital shall not be transferred outside the country before the commencement of investment on commercial scale.

CHAPTER 18 Matters on Foreign Currency 155. The investor shall: (a) Be transferable abroad through any bank within the Union which has the right to carry out foreign banking in the relevant foreign currency at the stipulated exchange rate; (b) carry out financial matters relating to the business by opening a foreign account in the category of foreign currency accepted by the bank within the Union which has the right to carry out foreign banking or a kyat account (c) the investor may exchange his legally earned Kyats with any foreign currency being handled by the local banks permitted to do foreign currency transaction. 156. The foreigners serving in any economic organization formed under the permit shall open a foreign account in the category of foreign currency accepted by the bank within the Union which has the right to carry out foreign banking or a kyat account.

CHAPTER 19 Departmental Coordinating Team 157. In order to accelerate, facilitate, monitor, and streamline the tasks related to foreign investment activities in accord with Clause 14 of the Foreign Investment Law, the Inter-departmental Coordinating Taskforce shall be formed with high level officers from the following departments: (a) Myanmar Central Bank; (b) Ministry of Electric Power; (c) DICA; (d) Custom Department; (e) Directorate of Trade; (f) Department of Labor; (g) Department of Immigration and National Registration; (h) Industrial Supervision and Inspection department; (i) Internal Revenue department 158. Deputy director of DICA shall head this group. 159. The office of the Departmental Coordinating Team shall be enclosed to the DICA. If necessary, branch offices may be formed. 160. Relevant departments shall confer the right to endorse as well as a decision making authority of high level officers of Inter-departmental Coordinating Taskforce. Should need arise, relevant departments should respond to the submission of the relevant high level officer.

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161. In order to monitor and inspect the progress of the construction of business permitted, to determine the date of commencement for commercial operation, to analyze the operational situation, the Departmental Coordinating Team shall perform field research and report to the Commission. 162. Departmental Coordinating Team will carry out duties under the supervision of the Director General.

CHAPTER 20 Administrative Penalties 163. The Commission may form an investigation team when it finds out or was informed of or reported of violations against any of the provisions of the Myanmar Foreign Investment Law, rules, regulations, by-laws, procedures, notifications, orders, directives issued under this Law or terms and conditions contained in the permit. 164. The investigation team, headed by any member of the Commission, shall be composed of highly respected subject matter experts from relevant government departments, organizations, and societies. The size of the investigation team should not be smaller than three members including the head. 165. The investigation team is authorized to request and examine documents and evidences related to the case from relevant government departments, organizations, individuals from societies and other individuals. 166. The investigation team shall submit the findings of investigation within 21 days from the date of notification of organization of the team. In doing so, the team should review and submit which administrative penalties contained in Section (18) Clause (42) of Myanmar Investment Law should be applied. 167. The Commission shall present and discuss about the case in the meeting regarding passing of administrative penalties. The investor being investigated for the case should also be allowed to attend the meeting. 168. Penalty shall be in effect on the day that the Commission made the decision.

CHAPTER 21 Settlement of Disputes 169. If any dispute arises in respect of the investment business, dispute arisen between persons of dispute shall be settled amicably; 170. If such disputes cannot be settled under Rule 169: (a) it shall be complied and carried in accord with the existing laws of the Union if the dispute settlement mechanism is not stipulated in the relevant agreement; (b) it shall be complied and carried in accord with the dispute settlement mechanism if it is stipulated in the relevant agreement; 171. If disputes arise, the investor shall describe the circumstances and inform the Commission;

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172. In settling the disputes, the investor shall inform the Commission which dispute settlement mechanism under Rule 170 will be used; 173. In settling the disputes, the investor may, if necessary, submit the supporting documents of the Commission as evidences. If other evidences are needed, he may request from the Commission; 174. If the need arise to have a staff of the Commission witnessed in the court, the investor shall request for permission from the Commission.

CHAPTER 22 Miscellaneous 175. The investors who continued to enjoy exemptions and relief under the Union of Myanmar Foreign investment Law (which was cancelled by the Myanmar Foreign Investment Law) shall continue to enjoy the entitlements under Chapter 12 of the Myanmar Foreign Investment Law. 176. The investors whose exemptions and relief under the Union of Myanmar Foreign investment Law has expired shall not enjoy again the entitlements stipulated under Chapter 12 of the Myanmar Foreign Investment Law. 177. If the credible evidence is appeared that the investor intentionally make false statement or conceal the accounts, instrument documents, financial documents, employment documents attached to the proposal prepared and submitted to the Commission, relevant Government department and organization, the Commission shall take action against the investor in accord with law. 178. If the investor, who is carrying out business in accord with the terms and conditions under the Union of Myanmar Foreign investment Law, would like to carry out business in accord with the provisions of Myanmar Foreign Investment Law, he shall apply to the Commission. 179. The investment activities by not-for-profit production and services enterprises are not subject to these rules. 180. These rules shall not be applicable to activities conducted particularly for trading. 181. The Ministry may collect service charges, by notification, from the promoter for the services rendered by the Commission in respect of approving the proposal submitted by the promoter.

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APPENDIX 2 THE REPUBLIC OF THE UNION OF MYANMAR Myanmar Investment Commission NotificationNo.1/2013 (31stJanuary 2013) Prescribe the Type of Business Activities In exercising Foreign Investment Law Section 56 sub-section (b), MIC announced the list of business activities which are not allowed to do, the list of business activities allowed to do joint venture with citizens, type of allowed business depends on the opinion of the respective Ministry, those are included in Foreign Investment Law Chapter -2, with the approval of the Government of the Union of Myanmar as follows: The list of business activities which are not allowed to do Sr. No.

Type of Business Activities

1

Production of defence services, arms and ammunition and related services.

2

Mangrove forest, religious sacred reserved area, traditionally worshipping area pasture, hill plantation area, paddy fields, works related to deteriorating to water resources.

3

Agricultural business activities which are not related to occasionally stipulated.

3

Agricultural Law, Fertilizer Law, Seeds Law, manufacturing workshops and factories.

4

Locally installed factories after importing waste materials from abroad.

5

Production of 34nosHydrobromofluoro-carbon (HBFC), 1no Bromo-chloromethane, 5nosCholoroflurocarbon, 10nos Halogenated (CFC), 3nos Halon, 1noCarbontetrachloride which are the prohibited elements affecting ozone layer, as per Vienna Convention and Montreal annexed treaty pertaining to prevention and protecting of ozone layer.

6

Environmental polluted everlasting organic materials, production of 21 nosorganic material which are prohibited relating to defence services Stockholm Convention.

7

Unsuitabletouselocallyandusedfactoryabroadormachineriesorworksandfactoryproducingdangerousmaterials or usedbusinessactivitieswhichareaffectingtoenvironmentinshorttermandlongterm,according to Environmental Conservation Law. Rules and Procedures that are enacted occasionally.

8

Natural forest management and maintenance works.

9

Exploration of jade and gems, survey and testing and production.

10

Small and medium production of minerals.

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11

Production and distribution of construction of material made by Asbestos.

12

Managing business of electric power system.

13

Trading in electric power.

14

Inspecting business on electric power.

15

Manufacturing of MTBE (MethylTertiaryButylEther), TEL(Tetra EthylLead) importing business which are the chemical affecting to environment and health.

16

Factories and workshop business which are producing rays, minerals, chemicals, sound, dust, smell, fume, that are polluted to earth, water and air, endangering to public health

17

Exploration of mineral resources including gold in river route.

18

Services controlling air traffic.

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