Foreign Investment Law of Myanmar

STATEMENT ON FOREIGN INVESTMENT LAW OF MYANMAR

The Government has also envisaged such policy objectives as exploitation of abundant resources of the country with a view to catering to the needs of the nation in the first instance; exporting whatever surplus available; creation of new employment as the economic activities expand so that especially young people would have great job opportunities and privileges of learning on job training as well as technical training both inland and abroad; economic and social development of various regions of the State along with expansion and improvement of transport and communications.

Foreign investors who invest and operate on equitable principles would be given the right to enjoy appropriate economic benefits, to repatriate them, and to take their legitimate assets back home on closing of their business. They would also be given proper guarantee by the Government against nationalization of their business in operation. All these rights and privileges would be granted in the interest of the Union of Myanmar and its people.

At present, enquiries are being made by foreign companies and persons wishing to make investments in the State in a reasonable manner. Similarly, enquiries and contacts are also being made by citizens. It is desirous that a Commission of a high caIibre be formed so as to scrutinize the proposals and to co-ordinate all matters concerning enterprises which may be permitted.

As it is necessary to make legal provisions for the above-mentioned matter, the State Law and Order Restoration Council has enacted the Foreign Investment Law.

The State Law and Order Restoration Council

The Union of Myanmar Foreign Investment Law

[The State Law and Order Restoration Council Law

No. 10/88]

(30th November, I988)

The State Law and Order Restoration Council hereby enacts the following Law:-

CHAPTER I

Title and Definition

I. This Law shall be called the Union of Myanmar Foreign Investment Law.

2. The following expressions contained in this Law shall have the meanings given hereunder:--

(a) " Commission " means the Union of Myanmar Foreign Investment Commission;

(b) " Government " means the Government of the Union of Myanmar;

(c) " Citizen " includes an associate citizen or a naturalized citizen. The said expression also includes an economic organization formed with local investment only;

(d) " Foreigner " means a person who is not a citizen. The said expression also includes an economic organization formed with foreign investment only;

(e) " Promoter " means any citizen or any foreigner submitting an investment proposal to the Commission;

(f) " Proposal " means the prescribed application submitted by a promoter to the Commission for approval of an intended investment and the accompanying draft contract;

(g) " Permit " means the order in which the approval of the Commission of a proposal is expressed;

(h) " Foreign Capital " includes the following which are invested in an economic enterprise by any foreigner under a permit:

--foreign currency;--property actually required for the enterprise and which is not available within the State such as machinery equipment, machinery components, spare parts and instruments;

--rights which can be evaluated such as licences, trade marks and patent rights;

--technical know-how;

--re-investment out of benefits accrued to the enterprise from the above or out of share of profits;

(i) " Investor " means a person or an economic organization making an investment under a permit;

(j) " Bank " means any bank of the State.

CHAPTER II

Applicable Economic Activities

3. This Law applies to economic activities prescribed by the Commission from time to time with the prior approval of the Government.

CHAPTER III

Basic Principles

4. Foreign investments shall be made in accordance with the following basic principles:--

(a) promotion and expansion of exports;

(b) exploitation of natural resources which require heavy investment;

(c) acquisition of high technology;

(d) supporting and assisting production and services involving large capital;

(e) opening up of more employment opportunities;

(f) development of works which would save energy consumption;

(g) regional development.

CHAPTER IV

Form of Organization

5. Foreign investment may be made in any of the following forms:--

(a) investment made by a foreigner to the extent of one hundred per cent foreign capital;

(b) joint-venture made between a foreigner and a citizen.

6. (a) In forming under section 5:--

(i) a sole proprietorship, a partnership and a limited company may be formed;

(ii) if a joint-venture is formed the foreign capital shall be at least 35 per cent of the total capital.

(b) In forming as mentioned above, in carrying out the business and in liquidation on the termination of business, other existing laws of the State shall be complied with.

CHAPTER V

Formation of the Commission

7. The Government shall form the Commission.

CHAPTER VI

Duties and Powers of the Commission

8. The Commission may accept any proposal which in its opinion will promote the interests of the State and which is without prejudice to any existing law.

9. The Commission shall in scrutinizing a proposal take into consideration facts such as financial credibility, economic justification of the business enterprise and appropriateness of technology.

10. The Commission shall issue a permit to a promoter on a proposal being accepted.

11. In case an extension, relaxation or amendment of the term of the permit or the agreement is submitted by those concerned, the Commission may show thereof as it may deem appropriate.

12. The Commission shall take necessary and prompt action in respect of complaints made by investors on failure to receive fully, benefits entitled to under this Law.

13. The Commission may, at any time require a promoter or an investor to furnish such evidence or facts as the Commission may deem necessary.

14. The Commission may, for the purpose of carrying out the provisions of this Law form such committees and bodies as may be necessary.

15. The Commission may prescribe the bank which shall transact financial matters under this Law.

16. The Commission shall, from time to time report its performance to the Government. It shall also recommend to the Government measures necessary to facilitate and promote foreign investments.

CHAPTER VII

Contracts

17. In forming an economic enterprise under a permit, contracts shall be executed as may be necessary.

18. The Commission may, upon application by those concerned allow the extension, relaxation or amendment of the term of a contract or agreement as may be appropriate.

CHAPTER VIII

Insurance

I9. All economic organization formed under a permit shall effect insurance with the Myanma Insurance Corporation in respect of the prescribed types ofinsurance.

CHAPTER IX

Appointment of Personnel

20. In appointing personnel in an economic organization formed under a permit, preference shall be given to citizens, provided that the Commission may, if necessary, allow the appointment of experts and technicians from abroad.

CHAPTER X

Exemptions and Reliefs

2I. The Commission shall, for the purpose of promoting foreign investments within the State, grant the investor exemption or relief from taxes mentioned in sub-section (a) out of the following exemptions or reliefs from taxes. In addition the Commission may grant any or more than one or all of the remaining exemptions or reliefs from taxes:--

(a) in respect of any enterprise for the production of goods or services, exemption from income-tax for a period extending to 3 consecutive years, inclusive of the year of commencement of production of goods or services; in case where it is beneficial for the State, exemption or relief from income tax for a further reasonable period depending upon the success of the enterprise in which investment is made;

• (b) exemption or relief from income-tax on profits of the business if they are maintained in a reserve fund and re-invested therein within 1 year after the reserve is made;

• (c) right to accelerate depreciation in respect of machinery, equipment, building or other capital assets used in the business, at the rate fixed by the Commission to the extent of the original value for the purpose of income-tax assessment;

• (d) if the goods produced by any enterprise are exported, relief from income-tax up to 50 percent on the profits accrued from the said export;

• (e) right of an investor to pay income-tax payable to the State on behalf of foreigners who have come from abroad and are employed in the enterprise and the right to deduct such payment from the assessable income;

• (f) right to pay income-tax on the income of the above-mentioned foreigners at the rates applicable to the citizens residing within the country;

• (g) right to deduct from the assessable income, such expenses incurred in respect of research and development relating to the enterprise which are actually required and are carried out within the State;

• (h) right to carry forward and set-off up to 3 consecutive years from the year the loss is sustained in respect of such loss sustained within 2 years immediately following the enjoyment of exemption or relief from income tax as contained in sub-section (a), for each individual enterprise;

• (i) exemption or relief from customs duty or other internal taxes or both on machinery, equipment, instruments, machinery components, spare parts and materials used in the business, which are imported as they are actually required for use during the period of construction;

• (j) exemption or relief from customs duty or other internal taxes or both on such raw materials imported for the first 3 years' commercial production following the completion of construction.

CHAPTER XI

Guarantees

22. The Government guarantees that an economic enterprise formed under a permit shall not be nationalized during the term of the contract or during an extended term, if so extended.

23. On the expiry of the term of the contract, the Government guarantees an investor of foreign capital, the rights he is entitled to, in the foreign currency in which such investment was made.

CHAPTER XII

Foreign Capital

24. The Commission shall evaluate the foreign capital in terms of kyat in the manner prescribed, and register it in the name of the investor. In so registering, the types of the foreign capital and the type of the foreign currency evaluated shall be stated.

25. In the event of termination of business, the person who has brought in foreign capital may withdraw foreign capital which he is entitled to withdraw as prescribed by the Commission within the time stipulated.

CHAPTER XIII

Right to Transfer Foreign Currency

26. The following shall be transferable abroad in the relevant foreign currency through the bank prescribed by the Commission at the prevailing official rate of exchange:--

(a) foreign currency entitled to by the person who has brought in foreign capital;

(b) foreign currency permitted for withdrawal by the Commission to the person who has brought in foreign capital;

(c) net profits after deducting from the annual profits received by the person who has brought in foreign capital, all taxes and the prescribed funds:

(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 personnel during performance of service in the State.

CHAPTER XIV

Matters Relating to Foreign Currency

27. An economic organization formed under a permit shall open in the bank prescribed by the Commission, a foreign currency account in the type of foreign currency accepted by the bank, and a kyat account and carry out all financial transactions relating to the business enterprise.

28. Foreigners serving in any such economic organization shall open a foreign currency account and a kyat account in any bank prescribed by the Commission.

CHAPTER XV

General Provisions

29. The Commission shall hold meetings in the manner prescribed.

30. The decisions of the Commission made under the powers conferred by this Law shall be final and conclusive.

31. No suit, prosecution or other proceeding shall lie against any member of the Commission or committee or body or any public servant for any act done in good faith under this Law.

32. For the purpose of carrying out the provisions of this Law the Government may prescribe such procedures as may be necessary, and the Commission may issue such orders and directives as may be necessary.

PROCEDURES RELATING TO THE UNION OF MYANMAR

FOREIGN INVESTMENT LAW

THE GOVERNMENT OF THE UNION OF

MYANMAR NOTIFICATION NO.11/88

The I4th waning day of Tazaungmon, I350 B.E.

(7th December, I988)

In exercise of the powers conferred under section 3, of the Union of Myanmar Foreign Investment Law, the Government of the Union of Myanmar prescribes the following procedures:--

CHAPTER I

Title and Definition

I. These procedures shall be called procedures relating to the Union of Myanmar Foreign Investment Law.

2. The expressions contained in these procedures shall have the same meaning as are assigned to them in the Union of Myanmar Foreign Investment Law. In addition, the following expressions shall have the meanings given hereunder:--

(a) " Law " means the Union of Myanmar Foreign Investment Law;

(b) " Form " means the form attached to these procedures;

(c) " Member " means the Chairman or member of the Union of Myanmar Foreign Investment Commission.

CHAPTER II

Formation of the Commission

3. The Commission shall consist of the following persons:--

(a) Minister, Ministry of Planning and Finance (Chairman)

(b) Minister, Ministry of Trade (Member)

(c) Minister, Ministry of Industry No.(1) ( Member)

(d) Minister, Ministry of Industry No.(2) (Member)

(e) Minister, Ministry of Energy (Member)

(f) Minister, Ministry of Agriculture and Forests (Member)

(g) Minister, Ministry of Transport and Communications ( Member)

(h) Minister, Ministry of Mines (Member)

(i) Minister, Ministry of Construction (Member)

(j) Minister, Ministry of Livestock Breeding and Fisheries ( Member)

(k) Minister, Ministry of Co-operative (Member)

4. The Secretary of the Commission shall be appointed and assigned duties by the Chairman of the Commission.

CHAPTER III

Economic Activities which may be carried out

5. The Commission shall with the prior approval of the Government publish a list showing types of economic activities in which foreign investment may be made. In connection with this matter replies shall also be given when enquiries are made.

CHAPTER IV

Submission of Proposal

6. A promoter shall state the following particulars in submitting a proposal:--

(a) name of promoter, citizenship, address, place of business, place of incorporation, type of business;

(b) if investment is to be made by joint-venture, particulars mentioned in sub-clause (a) relating to the persons wishing to participate in the joint-venture;

(c) evidence in support of sub-clause (a) or sub-clause (b);

(d) commercial and financial references of the promoter or persons wishing to participate in the joint-venture;

(e) particulars relating to production or services enterprise in which investment is to be made;

(f) intended form of organization in which investment is to be made in the State;

(g) if a partnership is to be formed, draft partnership agreement, the ratio and amount of capital to be contributed by the partners, the profit sharing ratio and the rights and liabilities of the partners;

(h) if a limited company is to be formed, draft contract, drafts of the Memorandum of Association and Articles of Association, authorised capital of the company, types of shares, the number of shares to be subscribed by the shareholders;

(i) name, citizenship, address and designation of the executives of the organization in which investment is to be made;

(j) the total capital of the organization in which investment is to be made, the ratio of local and foreign capital, total amount of foreign capital to be brought into the State, the value of the various types of foreign capital and the period within which such foreign capital is to be brought in; brought in;

(k) the intended term of investment, the period of construction:

(1) place or places in the State where investment ,is to be made;

(m) techniques and systems to be used in the production and sale;

(n) the type and quantum of energy to be used;

(o) the quantity and value of the main machineries, equipment, raw materials and similar materials required to be used during the period of construction;

(p) the type and area of land required;

(q) volume and value of annual production of the enterprise and volume and value of services;

(r) annual requirement of foreign exchange to carry on the business and the estimated amount of foreign exchange earnings;

(s) volume and value of goods to be sold locally and abroad annually;

(t) the number, category and tenure of personnel required locally and from abroad;

(u) economic justification.

7. An application containing the above particulars shall be made in the attached Form (1) and shall be signed in person by the promoter and submitted. In addition, draft contract shall also be submitted together with the said application.

8. If it is an economic enterprise in which foreign capital to the extent of one hundred per cent is brought to the State and invested, the promoter shall submit together with the application, draft contract to be executed with an organization determined by the Ministry concerned.

CHAPTER V

Scrutiny of Proposal

9. The Commission shall scrutinize financial credibility in the following manner:--

(a) in cases where necessary, to examine the audited annual final accounts of the person who will bring in foreign capital;

(b) to require Myanma Foreign Trade Bank to make enquiries through its foreign correspondent banks regarding the business standing of the person who will bring in foreign capital;

(c) to call for supporting evidence and to scrutinize the same as to whether any citizen subscribing capital actually has sufficient capital or not.

10. The Commission shall scrutinize the following particulars with regard to the economic justification of enterprise in which investment is to be made:--

(a) estimated annual net profit;

(b) estimated annual foreign exchange earnings and requirements;

(c) recoupment period;

(d) prospects of new employment;

(e) prospects of increased national income;

(f) local and foreign market conditions;

(g) requirement for local consumption;

(h) prospects of foreign exchange savings.

11. The Commission may form technical bodies as may be necessary in order to scrutinize the appropriateness of technology.

12. The Commission shall scrutinize application containing the proposal and the draft contract after obtaining the opinion of departments or organizations concerned.

CHAPTER VI

Issue of Permit

I3. On approval of the proposal by the Commission, a permit in the attached Form (2) shall be issued.

CHAPTER VII

Termination of Business before the Expiry of its Terms

I4. On submission of a desire to terminate the business by mutual agreement before the expiry of the term of the contract, the Commission may, based upon the following particulars scrutinize as to whether or not it is correct and justified, and allow the termination:--

(a) substantial and continuous losses in the enterprise;

(b) breach of the terms of contract by one of the parties to the same;

(c) occurrence of force majeure;

(d) incapability of implementing the original aims and objects of the enterprise.

CHAPTER VIII

Insurance

15. An economic organization formed under a permit:--

(a) shall effect the following types of insurance with the Myanma Insurance Corporation:--

(1) Machinery Insurance;

(2) Fire Insurance;

(3) Marine Insurance;

(4) Personal Accident Insurance.

(b) may effect the following types of insurance, if so desired, with the Myanma Insurance Corporation:--

(1) Contractors' All Risks Insurance;

(2) Erection All Risks Insurance;

(3) Electronic Equipment Insurance;

(4) other insurance accepted by the Myanma Insurance Corporation.

16. In effecting insurance the details shall be worked out in consultation with the Myanma Insurance Corporation.

CHAPTER IX

Appointment of Personnel

17. An economic organization formed under a permit shall allow its personnel to enjoy, at least, the workmen's rights contained in the existing laws of the State.

I8. The Commission shall, in permitting the appointment of foreign experts and technicians, carry out the following:-

(a) prescribing the type, number and term of the required foreign experts and technicians according to the individual business organization;

(b) in cases where necessary, obtaining the opinion of the Ministry of Labour.

I9. An economic organization formed under a permit shall have the right to fix the salary and wage rates of its local personnel and foreign experts and technicians, to determine the payment of such salary and wages in kyat or foreign currency after consultation, and to terminate the services of such personnel.

20. An economic organization formed under a permit shall make arrangements for local and foreign training so as to ensure its local personnel proficiency in their work and promotion to higher ranks of services.

CHAPTER X

Exemptions and Reliefs from Taxes

21. The Commission may, either by notifying on its own motion or on the application of the promoter or the investor, grant exemptions or reliefs from taxes. In so granting, the type of exemption or relief shall be specified. In necessary cases the period for such enjoyment shall be stipulated. Where rates of depreciation have been prescribed and allowed on capital goods, such rates shall also be specified.

22. The Commission on receiving the application may, after necessary scrutinization as to whether it is justified or not, grant such exemption or relief and period thereof, as may be appropriate. Such exemption or relief shall be intimated to the promoter or investor, and the departments and organizations concerned.

23. In allowing a deduction of expenses for research and development relating to the enterprise from the assessable income, the said allowance shall pertain only to those works of research and development which cannot be conducted by any department or organization of the State.

CHAPTER XI

Evaluation and Registration of Foreign Capital

24. In evaluating foreign capital in terms of kyat for the purpose of registration by the Commission the following shall be carried out:--

(a) to cause to be brought in foreign currency in any type of foreign currency acceptable to the Myanma Foreign Trade Bank, and to evaluate the same at the prevailing official rate of exchange;

(b) to cause the value of the types of foreign capital other than the foreign currency to be stated in any type of foreign currency acceptable to the Myanma Foreign Trade Bank and to scrutinize whether the value of the respective foreign currency so stated is appropriate or not, and -to, evaluate such values so scrutinized at the prevailing official rate of exchange.

25. The Commission shall register the type of re-invested foreign capital in terms of kyat and in any type of foreign currency acceptable to the Myanma Foreign Trade Bank.

CHAPTER XII

Right to transfer Foreign Currency

26. Foreign currency entitled to be transferred abroad under section 26 of the Law shall be transferred through the Myanma Foreign Trade Bank.

27. In determining the net profits transferable abroad the following funds shall be deducted:--

(a) employees' bonus fund;

(b) contribution made by the employer to the employees' provident fund;

(c) employees' social and welfare fund;

(d) enterprise development fund;

(e) such other funds as are required to be reserved according to commercial practice.

28. In deducting the living expenses of the foreign personnel and of his family, the Myanma Foreign Trade Bank shall scrutinize on the basis of the following:--

(a) cost of accommodation;

(b) cost of messing;

(c) salary and wages paid to menials such as domestic help, cook and driver;

(d) household, medical and other expenses.

CHAPTER XIII

Matters relating to Foreign Currency

29. An economic organization formed under a permit shall, for the purpose of carrying out financial transactions such as depositing, withdrawing and transferring foreign currency and kyat relating to the business, open a foreign currency account and a kyat account in the Myanma Foreign Trade Bank.

30. Foreigners serving in any such economic organization shall open a foreign currency account and a kyat account in the Myanma Foreign Trade Bank.

CHAPTER XIV

Meetings

31. The Commission shall hold meetings at least twice a month.

32. The Chairman of the Commission shall preside at the meetings. When the Chairman is unable to attend, any member assigned by him may preside at the meeting.

33. Two-thirds of the members present at a meeting shall constitute the quorum.

34. The Commission shall make decision by majority vote of the members present at the meeting.

35. The Commission may invite to the meeting such persons as are required.