WT/TPR/M/293/Add.1
11 June 2014
(14-3387)
Page: 1/94
Trade Policy Review Body
11 and 13 March 2014
Original: English/Spanish
anglais/espagnol
inglés/español
TRADE POLICY REVIEW
MYANMAR
MINUTES OF THE MEETING
Addendum
Chairperson: H.E. Mr. Joakim Reiter (Sweden)
This document contains the advance written questions and additional questions by WTO
Members, and replies provided by Myanmar.1
Organe d'examen des politiques commerciales
11 et 13 mars 2014
EXAMEN DES POLITIQUES COMMERCIALES
MYANMAR
COMPTE RENDU DE LA RÉUNION
Addendum
Président: S.E. M. Joakim Reiter (Suède)
Le présent document contient les questions écrites communiquées à l'avance par les
Membres de l'OMC, leurs questions additionnelles, et les réponses fournies par Myanmar.1
Órgano de Examen de las Políticas Comerciales
11 y 13 de marzo de 2014
EXAMEN DE LAS POLÍTICAS COMERCIALES
MYANMAR
ACTA DE LA REUNIÓN
Addendum
Presidente: Excmo. Sr. Joakim Reiter (Suecia)
En el presente documento figuran las preguntas presentadas anticipadamente por escrito y
las preguntas adicionales de los Miembros de la OMC, así como las respuestas facilitadas por
Myanmar.1
1
In English and Spanish only./En anglais et espagnol seulement./En inglés y español solamente.
WT/TPR/M/293/Add.1
-2Explanatory Note
This document contains Myanmar's answers to Members' advance written questions. As roughly one
quarter of these questions concerned various aspects of Myanmar's new foreign investment regime,
particularly the legal framework, rather than provide each Member with similar written answers to
their questions on this subject, a general answer is found on the next page. With this general answer
providing background to recent developments regarding the legal framework, more specific
individual answers to each Member's questions on foreign investment are then provided elsewhere in
this document.
WTO Secretariat Report:
General Answer on Investment
Myanmar has initiated a broad reform process to improve its legal and regulatory framework since
the new Government took office in 2011. In line with the wide-ranging reform program of the new
Government, there were considerable expectations from stakeholders concerning a rapid
improvement of Myanmar's investment framework. In order to create a more open and secure
investment environment, the New Foreign Investment Law (FIL) was enacted in November 2012,
followed by its accompanying implementing rules (Notification No 11/2013) as well as Notification
No 1/2013 in respect of the negative list of prohibited activities (see Table 1 below). The
investment framework for domestic investors was also updated and enacted in July 2013 with the
New Myanmar Citizens Investment Law (CIL). Although the 2012 FIL offers undeniable
improvements over the earlier 1988 law, there were shortcomings, notably with respect to
investor protection and procedures for business entry.
Table 1 Investment-related Laws and Regulations
Date
November 2012
Investment-related Laws & Regulations
New Foreign Investment Law (FIL)
January 2013
Foreign Investment Rules, Notification No: 11/2013
January 2013
Notification No: 1/2013 (Negative list of prohibited activities)
July 2013
New Myanmar Citizens Investment Law (CIL) (Domestic
investment)
New Myanmar Special Economic Zone Law (Unified law for SEZs)
January 2014
enterprise
[March/April 2014] Revised FIL Notification No: 1/2013 (Reduced list of prohibited activities)
[March/April 2014] FIL Notification No: 2 (Clarification of conditions attached to tax exemptions)
[March/April 2014] FIL Notification No: 3 (Clarification of Environmental and Social Impact
Assessments)
[May 2014]
New Myanmar Companies Act
[End of 2014]
Myanmar Investment Law (Merging the New FIL and New CIL)
In terms of investor protection, some of the core standards, such as MFN and national treatment,
expropriation with fair market value compensation and dispute settlement, remained absent from
the new legal framework.
In view of the urgency in reforming Myanmar's investment framework, the draft New FIL was
formulated without the assistance of international technical expertise or a broad-based
consultation process of stakeholders (other than Parliament). However, the shortcomings of the
new legal investment framework were quickly recognized and the New Government welcomed
offers of technical assistance from several international organizations, notably the Organization for
Economic Cooperation and Development (OECD), the Asian Development Bank (ADB), the
International Finance Corporation of the World Bank Group (IFC), the Japanese and German
international agencies (JICA and GIZ) and others.
The ongoing legislative work program on investment is now focusing on: the imminent adoption of
three sets of FIL regulations; the formulation of an overall Myanmar Investment Law that will
WT/TPR/M/293/Add.1
-3merge the New FIL and New CIL into one coherent investment framework, thereby removing the
perception that foreign and domestic investors were treated differently; and a New Myanmar
Companies Law.
Concerning the adoption of FIL regulations, three Notifications are awaiting adoption by
Parliament:
1) Revised Notification No.1 aims at addressing a number of weaknesses in the activities that
were initially reserved for domestic investors and thus prohibited for foreign investors. It is
now proposed to reduce the number of activities on the "negative list" of prohibited
activities closed to foreign investors from 21 to 11, thereby considerably reducing the
scope for discretion. It is also proposed to reduce the scope of economic activities in which
joint ventures between foreign and domestic partners are required.
2) Notification No. 2 aims at clarifying the tax incentives and conditions attached to them.
3) Notification No. 3 aims at clarifying the activities subject to environmental and social impact
assessments.
As regards formulation of an overall Myanmar Investment Law, several ambiguities have emerged
as a result of the enactment of two parallel laws: one for foreign investment, i.e. New FIL, and one
for domestic investors, i.e. New CIL. Myanmar's authorities are now actively working with the
assistance of international experts with a view to merging these two laws into a single coherent
investment law that will address the shortcomings of the existing legal framework, notably matters
concerning MFN and national treatment, expropriation with compensation at fair market value,
transparency, the alleged discretionary authority of the Myanmar Investment Commission, and
dispute settlement, all of which are under consideration. The aim is to finalize the draft law during
the fall 2014, carry out consultation with stakeholders and, ultimately, submit the draft law to
Parliament at the end of 2014.
The Ministry of National Planning and Economic Development is also responsible for two other
important economic laws: the Myanmar Companies Act (1914); and the recently enacted New
Myanmar Special Economic Zone Law.
The Myanmar Companies Act of 1914 contains a number of complicated provisions that are out of
step with today's operating environment. With ADB technical and financial assistance,
modifications are underway to align its provisions with the current economic environment and
comply with international standards. The aim is to finalize the draft in May 2014.
In respect of Special Economic Zones, two parallel laws, the Myanmar Special Economic Zone Law
and Dawei Special Economic Zone Law were enacted shortly before the new Government took
office in 2011. However, the two laws were found to be deficient in inducing foreign and domestic
investors to locate their investments in these SEZs. Moreover, the two laws raised doubts about
the harmonization of the regulatory framework across zones. Therefore, the two laws have been
merged into a new Myanmar Special Economic Zone Law, which was enacted in January 2014.
Chapter I. Economic Environment
Page 11, para 1.9, Exchange Rate Policy, China Q1-2:
Are the rules on lifting restrictions on current payments and transfers abroad and those on
holding and use of foreign exchange applicable to trade in services and other forms of
trade?
If so, what are those other forms of payments that are permitted for transfers abroad
besides those transactions through letter of credit?
Answer:
The Foreign Exchange Management Law stipulates as follows:
Article 2 (1) Payments for current transactions means payments which are not for the
purpose of transferring capital:
(i) All payments due in connection with foreign trade, other current business,
including services, and normal short-term banking and credit facilities;
(ii) Payments due as interest on loans and as net income from other investments; and
WT/TPR/M/293/Add.1
-4(iii) Payments of moderate amounts for amortization of loans or for depreciation of
direct investments.
Article 24. No restriction shall be imposed, directly or indirectly, on inward payments and
transfers for current international transactions.
Article 25. No restriction shall be imposed, directly or indirectly, on the making of
payments and transfers for current international transactions.
On the whole, there is no restriction on the current payments and transfers such as
payments for imported goods and payments for invisibles no matter how the authorized
dealers (AD) execute the payments and transfers. Such payments and transfers like these
transactions can be conducted after the scrutinizing of the authorized dealers.
Nonetheless, the transactions like investing abroad or seeking loans abroad shall be
subjected to scrutiny by the Central Bank of Myanmar.
Page 12, para 1.14, Monetary Policy, China Q3:
Are all market entities, no matter state-owned enterprises or private enterprises or
individuals, permitted to purchase foreign exchange according to their needs?
If so, whether there are any specific foreign exchange requirements on the purchasing
procedures or maximum quotas?
How long does it typically take to finalize one foreign exchange transaction of such?
Answer:
Individual resident may purchase the maximum amount of US$10,000- or equivalent
foreign currency from ADs or money changers by showing the identity card, and if an
individual intends to purchase more than the said amount, he/she may purchase that
amount by submitting documents relating to the objective of purchasing to the ADs or
money changers. As these transactions can be done by the judgment of the ADs or money
changers, it usually takes very short time. This practice is also the same for all market
entities and in addition there is no quota or specific amount for business entities to
purchase foreign exchange from ADs.
Page 12, para 1.15, Fiscal Policy, China Q4:
Please comment on the accessibility of financing services to private sectors in general.
What are those main criteria for the banks to calculate and determine their credit
extension to private enterprises?
Are there more stringent collateral requirements to private enterprises, comparing to
state-owned enterprises?
Answer:
The private sector can seek financing services due to the type and value of collateral and
their credit worthiness accessed by financial institutions.
If a private institution applies financing services by using their own real estate, gold,
Government Treasury Bond, immovable assets or machineries as the collateral, financial
institutions will generate loans or other financing services about 70% of appraised value of
that collateral by the bank officials.
Although SEEs do not need to apply with secured collateral, private enterprises still need
to apply with the said collaterals to get financing services.
If the SEEs require the working capital, Government will support the working capital with
the approval of the Union Cabinet meeting.
Page 17, para 2.3, NCDP export of agri. & pharmaceutical, Argentina Q1: (NPEDPlanning)
Cuáles son las condiciones para la exportación de productos de los sectores de la
agroindustria, tecnología en fármacos y medicina nuclear en el marco del Plan Nacional de
Desarrollo Global y Nacional (2011-12 y 2030/2031) y del proceso de liberalización de las
importaciones de Myanmar?
Unofficial translation "What are the conditions for the export of products from the agroindustry, pharmaceutical and nuclear medical sectors in the context of the National
Comprehensive Development Plan (NCDP) 2011/12-2030/31 and the import liberalization
process of Myanmar?"
WT/TPR/M/293/Add.1
-5Answer:
National Comprehensive Development Plan (2011/12 to 2030/31) (NCDP) is a framework
for a sequence of 4 medium-term and that will specify particular strategies, programs and
projects building on each other and intended to take Myanmar to successive stages of
development and structural transformation.
The NCDP is being development in two parts. The initial part sets out the scene in the
context of development challenges that is being faced by Myanmar and establishes the
goals and strategic directions. The second part concentrates upon the sectoral and regional
foundations for Long-Term-Development.
Using a participatory approach the NCDP formulation process has involved consultation
with private sector, academia, citizens, and international donor partners as well as various
level of Government.
Hence, NCDP is under formulation and hoping to be complete in draft by early 2015. It will
be published after discussion at Hluttaw (Parliament) and also available on MNPED website
www.mnped.gov.mm.
Concerning Myanmar's import liberalization, the Government made a first significant
change to the import license regime in June 2012 by replacing the former non-automatic
import license regime by a new automatic regime covering all imports. Under the new
regime, importers must submit: an application on the company's letterhead; the original
pro-forma invoice or original sales contract; and, if required, recommendations from
relevant Government Departments and/or organizations. Most licenses are now authorized
within a period of 8 working hours.
In March 2013, the Government further eased licensing requirements by eliminating
import license requirement for 166 commodities classified in over 1,900 HS tariff lines and
representing about 35% of total import. A consultation process is underway involving the
Ministry of Commerce, the Customs Department and representatives from the private
sector to make recommendations about the identification of additional imported goods for
which import license requirement will be removed. The Government intends to gradually
phase out the license regime through a series of announcements in 2014 and 2015 that
would each represent about 10 to 15% of total import. By the end of 2015, there will still
be few products subject to import license requirement.
Following the election of the New Government in 2011 and the implementation of its
reform agenda, the Ministry of Commerce removed six items on the restricted list of both
land border and sea trade out of 15 items on 23 December 2011. Moreover, on
4 February 2013, the Ministry of Commerce further reduced the scope of the restriction by
maintaining only four items subject to import restriction (liquors, beer, cigarette and
prohibited products as per existing laws and international conventions) and also a
temporary restriction items (seasonal fresh fruits) for both land border and sea trade.
With a view to further the trade liberalization agenda, a consultative process has been
established regrouping the Ministry of Commerce, National Planning and Economic
Development, the Customs Department and representatives of the private sector,
including both national and foreign participants. The consultation covers not only the issue
of import restriction but also related-issues, such as taxation, duties, national treatment
and standards for the protection of consumers. The consultative group is expected to
submit its recommendations in mid-2014 for future actions by the Government.
Page 17, para 2.5, Legal framework, EU Q1:
Is the Parliament approval necessary for the conclusion of international trade and
investment agreements?
Can the government elaborate more on the list and the scope of the laws which are
subject to the Parliament's consideration?
Answer:
In Sections 21 (a) of the Law amending the law relation to PyidaungSu Hlutaw,
International Conventions and Agreements, regional treaties and agreements shall be
submitted by the President for the decision of the Hluttaw (Parliament). According to this
provision, Parliament approval is necessary for the conclusion of international trade and
investment agreements.
WT/TPR/M/293/Add.1
-6Pages 18 & 26, para 2.7 & 2.41, International agreement, EU Q2:
Can the government confirm that in the country's legal order, international Agreements/
Treaties prevail over the domestic legal framework or is this the case only for bilateral
investment treaties as reported in paragraph 2.41 page 26?
Answer:
Though in Britain and in the United States, International law is deemed to be part of the
land, the position is different in Myanmar. Even an international agreement, as such is not
part of Myanmar municipal law save as may be determined by Parliament. Myanmar legal
system is practicing the combination of common law and civil law legal system. So, if
Myanmar entered into International Convention (or) Treaties, domestic law will be enacted
to undertake the obligation of this International Convention (or) Treaties. Therefore
International Agreements/Treaties cannot prevail over the domestic legal framework.
Chapter 2. Trade Policy Regime: Framework and Objectives
Pages 20-22 and 28-30, para 2.24, 2.51-52 and Tables 2.2 and 2.6, Notifications, USA
Q1:
The Secretariat's report notes many notifications are outstanding and that the Government
faces significant capacity constraints, which we recognize. What plans does the
Government have for submitting the required notifications?
Is the Government seeking assistance from the Secretariat or other donors in this regard?
Answer:
The new Government has intention to set up necessary plan for submitting the required
notifications. However, the Government faces significant capacity constraints as mentioned
in the question. In this regard the Government wishes to request WTO's secretariat to
provide any assistance for us.
Pages 22-24, ASEAN chair, New Zealand Q1-4:
Myanmar is chairing ASEAN this year.
Q1: What are Myanmar's priorities during its chair year in 2014 for the economic agenda
of ASEAN?
Answer:
Priority areas during Myanmar's chairmanship in 2014 for the Economic agenda of ASEAN
are as follows: 1) Strengthening regional cooperation for SME development; 2) Enhancing
public private partnership for infrastructure development; and 3) Moving ASEAN and AEC
beyond 2015.
Q2: How has Myanmar's membership of ASEAN contributed to its own economic reform
measures?
Answer:
Myanmar has embarked on a Government-wide ranging reform agenda covering fiscal,
monetary, trade and investment areas, which has contributed to revitalize the economy
and already lead to an increase in foreign direct investment flows. Capacity building
activities offered under the ASEAN's program designed to narrow the development gap has
already contributed to make a great support to Myanmar's reform agenda. Therefore,
Myanmar participation within ASEAN has been of a great support in the implementation of
its reform agenda.
Q3: How will Myanmar as ASEAN chair advance the undertaking of ASEAN members to
realise the ASEAN Economic Community by 2015?
Answer:
Myanmar, as a Chairmanship of ASEAN 2014, has been implementing AEC measures
incorporated in Strategic Schedule of AEC Blueprint which will be revealed and take in
action 2014-15 that AEM key deliverables and AEC key deliverables for 2014.
Q4: What steps does Myanmar plan to take as ASEAN chair to advance the negotiation of
the RCEP?
WT/TPR/M/293/Add.1
-7Answer:
According to Section 43 of Foreign Investment Law, if any dispute arises in respect of the
investment business:
a) Dispute arisen between the disputed persons shall be settled amicably;
b) If such dispute cannot be settled under sub-section (a):
(i) It shall be complied and carried out in accord with the existing laws of the Union if
the dispute settlement mechanism is not stipulated in the relevant agreement;
(ii) It shall be complied and carried out in accord with the dispute settlement
mechanism if it is stipulated in the relevant agreement.
The above dispute process also applies in respect of commercial disputes between foreign
companies and SEEs. In the upcoming Myanmar Investment Law, some dispute settlement
provisions will likely be modified.
Page 25, para 2.35, Border agreements, Chinese Taipei Q1:
According to the Secretariat Report, Myanmar has signed five separate border trade
agreements with China, India, Bangladesh, Thailand, and Lao PDR. Could Myanmar please
explain the concrete steps that have been taken by Myanmar to encourage border trade
with each neighbouring country and specific details of such border trade agreements?
Answer:
The main objectives of Border Trade agreements are: 1) to enhance bilateral friendship
with neighbouring countries; 2) to promote trade and keep it on the track of conventional
trade; 3) to ensure the full realization of revenues to be levied by the state; 4) to provide
favourable condition for private businessmen by which to earn reasonable benefit; and
5) to help facilitate the flow of goods. The Ministry of Commerce (known as Ministry of
Trade at that time) had issued the Notification for the establishment of the Department of
Border Trade on 28 August 1996.
Since that time, Myanmar had signed three border trade agreements with India, Thailand
and Bangladesh, one MoU with China and one protocol with Laos. Apart from Laos,
Myanmar had opened the respective border trade posts in border areas.
In order to promote border trade, the Ministry of Commerce has been performing the
transaction by promulgating the separate vision, mission, strategies and tactics.
Generally, opening border trade posts, as expressed in signed agreements, and organizing
the integrated team called One Stop Services (License, Bank, Tax and Duty, Immigration
and Police), consisting of the concerned Departments as the initial steps to encourage
border trade. Installation of Border Trade Online System (BTOS) has also begun as a trade
facilitation measure.
The establishment of border trade related committees, such as Joint Border Trade
Coordinating and Cooperating Committee with China in 2006; Border Trade Committee
with India in 2012; Joint Working Group Border Trade Official with Bangladesh in 2011 are
one of the concrete steps taken to discuss border trade-related matters.
Also annual border trade fairs have been jointly organized with China since 2000.
Discussions are ongoing to organize similar fairs with other border partners.
In addition, new border trade posts were established in addition to the designated posts
mentioned in trade agreements/ MoU and protocol in accordance with the seven
fundamental points: (Myeik, Maw Taung and Htee Khee border trade posts in MyanmarThailand border; Chin Shwe Haw, Kan Pyke Tee posts in Myanmar-China border; and
Sittwe post in Myanmar-Bangladesh border).
Page 25, para 2.36, Trade disputes and consultations, EU Q3-5:
Q3: Are local companies allowed to resolve commercial disputes with foreign companies
through arbitration and, if so, can they chose the applicable law, the seat of arbitration
and the applicable rules (for example, International Chamber of Commerce, Stockholm
Chamber of Commerce, London Court of International Arbitration, Singapore International
Arbitration Court, etc.)?
Answer:
Commercial disputes between local companies and foreign companies can be resolved by
arbitration. The agreement of contracting parties can chose the applicable law, the place of
arbitration, the number of arbitrators and applicable rules. Arbitration between companies
and person is subject to the Arbitration Act 1944 as a domestic law. The law sets out
WT/TPR/M/293/Add.1
-8provisions dealing with appointment of arbitrators, the enforcement of award in the civil
court and appeal from an award to the Supreme Court. As a matter of commercial disputes
and consultations, the Methods of settlement of dispute are referred to UNCITRAL Rules,
Singapore International Arbitration Centre and other international Arbitration rules which
are agreed by the parties to the Contract. In practice at the present time, some disputes
between the contracting parties in Myanmar are settled by the UMFCCI in Yangon, when
both parties of the dispute are members of the UMFCCI.
Q4: What is the legal framework applicable to resolve commercial disputes between
foreign companies as well as commercial disputes between foreign companies and
State-Owned Economic Enterprises (SEEs)?
Answer:
According to Section 43 of Foreign Investment Law, if any dispute arises in respect of the
investment business:
a) Dispute arisen between the disputed persons shall be settled amicably;
b) If such dispute cannot be settled under sub-section (a):
(i) It shall be complied and carried out in accord with the existing laws of the Union if
the dispute settlement mechanism is not stipulated in the relevant agreement;
(ii) It shall be complied and carried out in accord with the dispute settlement
mechanism if it is stipulated in the relevant agreement.
In the upcoming Myanmar Investment Law, some dispute settlement provisions will likely
be modified.
Q5: Does the government plan to become a signatory to International Convention for the
Settlement of Investment Disputes in order to increase investors' confidence? If not, why?
Answer:
Myanmar has become the 149th State party to the 1958 Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, or the New York Convention, having
deposited its instrument of accession on 16 April 2013. The New York Convention entered
into force on 15 July 2013. So far, we have not yet prepared to access the International
Convention for the Settlement of Investment Disputes (ICSID).
Page 25, para 2.37, New York Convention, EU Q67:
"In April 2013, Myanmar became a party of the New York Convention" (New York
Convention on the Recognition and Enforcement of Foreign Arbitral Awards). What
measures has the government taken or considers taking to ensure that arbitral awards can
be recognised and enforced promptly and effectively? Please detail.
Answer:
Myanmar's accession to the New York Convention demonstrates the Government's intention
to establish a friendly environment for foreign investment by enabling foreign investors to
resolve commercial and investment-related disputes offshore and enforce foreign arbitral
awards within Myanmar. Office of the Union Supreme Court is drafting domestic law to
enforce foreign arbitral award.
Page 25, para 2.38, Foreign investment regime, EU Q6-7:
Q6: Are there any restrictions in foreign capital remitted into/ repatriate outside Myanmar?
If the answer is yes, what are they?
Answer:
There are no restrictions on repatriation outside Myanmar. Provisions of the right to
transfer the foreign currency mentioned in Chapter XVII of Foreign Investment Rules. In
the upcoming Myanmar Investment Law, some related provisions will likely be modified.
Q7: Does the government consider establishing more transparent conditions as to what is
restricted in terms of FDI and what is allowed?
Answer:
See General Answer on Investment.
WT/TPR/M/293/Add.1
-9Page 26, para 2.42, Foreign investment, China Q5-6B:
Q5: Comparing to previous FIL (Foreign Investment Law), what are those exact sectors or
activities on which the new FIL lessen its restrictions or lift its bans?
Answer:
The previous Foreign Investment Law of 1988 uses a positive list and the new Foreign
Investment Law uses a negative list. The list of those activities is available from the
following website: http://www.dica.gov.mm/includes/FIL-notification%20_English_%20
A4.pdf.
Q6A: Whether there are any measures taken to reduce equity restrictions and/or grant
more tax incentives to foreign investors?
Answer:
According to Foreign Investment Law, only prohibited or restricted activities have equity
restrictions. If the volume of investment is increased and the original investment business
is expended during the permitted period, exemption or relief from custom duty or other
internal taxes or both may be granted on machinery, equipment, instruments, machinery
components, spare parts and materials used in the business which are imported as they
are actually required for use in the business expanded. If the goods produced for export
are exported, exemption or relief from commercial tax. If investor invests in the region
where the economy is less developed and difficult to access, he is allowed to enjoy extra
land lease period for a maximum of 10 years than the use term for the investors who has
invested in the region where the economy is less developed and difficult to access.
Q6B: Does the Government have plans to increase the list of restricted or prohibited
sectors, or to impose more equity restrictions in future?
Answer:
We are revising Notification No. 1/2013. It is envisaged that about half of the existing
activities will be eliminated from the existing negative list.
Pages 26 & 63, para 2.44 & 4.72, Foreign investment, China Q18:
Please clarify that what is the definition of traditional medicine in the law of Myanmar, and
whether FDI are allowed to deal with traditional medicines that do not originate from
Myanmar, for instance Chinese traditional materia medica and Chinese traditional
medicine?
Answer:
Traditional drug means a local concoction for use either directly or indirectly, whether
internally or externally, in the diagnosis, prevention and treatment of diseases, promotion
of health or for any beneficial effect in human begins and animals. This expression also
includes substance determined as a traditional drug by the Ministry of Health by
notification from time to time.
Traditional medicine means medicine for the physical well-being and longevity of people in
accordance, with anyone of the four naya (systems) of traditional medicine, namely:
Desana naya (systems); Bethitsa; Netkhata veda naya; and Vissadara naya.
Pages 25, 26, 48, para 2.43-44, 4.8, FIL agriculture products, EU Q8:
Could the authorities provide details as to the extent of this reservation and whether it
covers the transformation and processing of agricultural or plantation goods?
Answer:
In the proposed revision to Notification No. 1/2013, it is envisaged that these prohibited
activities will be liberalized.
Pages 25-26, para 2.38, 2.40, 2.43, FDI, New Zealand Q5:
New Zealand welcomes Myanmar's efforts to increase inward FDI. We commend Myanmar
on the promulgation of a new Foreign Investment Law in 2012 and the shift of its approach
from a positive list to a negative list of sectors where investment is allowed. What further
measures does Myanmar intend to introduce to further increase FDI and remove
restrictions on the sectors open to foreign investment?
WT/TPR/M/293/Add.1
- 10 Answer:
It is envisaged that about half of the existing activities will be eliminated from the existing
negative list.
Page 26, para 2.43-44, Investment, ASEAN Q1:
We applaud Myanmar for the significant change of the foreign investment regime from the
positive list approach for the sectors allowed for foreign investors to the current list
indicating prohibited sectors for foreign investment. Does Myanmar plan to further open its
investment regime by reducing the list of prohibited sectors or adjust other rules and
restrictions with regard to foreign investment?
Answer:
Yes. Myanmar has plans to further open its investment regime. It is envisaged that about
half of the existing activities will be eliminated from the existing negative list.
Pages 26-27, para 2.44-45, Myanmar citizens & MIC Notification, EU Q9:
How does Myanmar reconcile the two sets of list and which one prevails in case of
contradiction?
Answer:
In the context of revised Notification No. 1/2013, it is envisaged to remove these
inconsistencies. In the case of reserved joint venture activities for Myanmar Citizens, these
activities will be eliminated. Moreover, in any event, the Foreign Investment Law takes
precedent over other Laws.
Page 27 para 2.45, MIC notifications, EU Q10-15 (no Q11):
Q10: Could the authorities provide details as to the scope of this prohibition and what is to
be considered an "environmentally hazardous activity"?
Answer:
In the context of revised Notification No. 1/2013, it is envisaged to remove this restriction.
Q12: What are the sectors in the reserved list in which the authorities have allowed or
plan to allow Joint Ventures with the private sector, including with foreign companies?
Answer:
Rules 7, 8, 9 & 10 of Foreign Investment Rules (Notification No. 11/2013) prescribe
reserve activities for local citizens. So far, Myanmar has no plan to allow those activities to
joint ventures with private sector. This Notification No. 11/2013 is available from the
following website: http://www.dica.gov.mm/includes/FIL%20RulesEnglish%20Versions__
31.5.13__Latest_.pdf.
Q13: How can foreign investors be aware of the opening of a given sector? Are legal
services supplied by foreign providers allowed? If so, under which modalities?
Answer:
MIC Notification No. 1/2013 provides details lists of economic activities for foreign
investors. This MIC Notification No. 1/2013 is available from the following website:
http://www.dica.gov.mm/includes/FIL-notification%20_English_%20A4.pdf.
Q14: In the State-owned Economic Enterprises (SEEs) reserved list, "extraction and sales
of teak may be permitted for a JV between SEEs and foreign entities (up to 80%) in the
interest of the government of Myanmar". However, according to Foreign Investment Rules
(11/2003), activities related to natural forest is permitted only to Myanmar citizens.
Answer:
Extraction and sales of teak is a different activity from the administration and maintenance
of natural forest activity. The second activity is reserved to Myanmar Citizens. Whereas
extraction and sales of teak activity is covered by the SEEs Law and therefore it is
reserved for the Government. However, the Government may enter into joint venture with
private participants whether or not there are foreign or national. Moreover, both activities
are subject to the Environmental Conservation Law and the Forest Law.
WT/TPR/M/293/Add.1
- 11 Q15: The EU is interested to obtain clarification on the inconsistencies between the
reserved list for the SEEs and the restricted list under the MIC Notification 1/2013, for
example for postal services; exploration, extraction and exports of metal; exploration,
exploitation and production of oil and gas; electricity generating services and etc.
Answer:
Once the proposed revised Notification No. 1/2013 is approved, the negative list under FIL
will be very similar to the reserved list under SEEs Law.
Page 28, para 2.46, Sectors reserved to the State, EU Q16-18:
Q16: Are these sectors reserved to the State consistent with the prohibited sectors listed
in the MIC Notification 1/2013 and Foreign Investment Rules or are these sectors
additional areas of activities that are reserved to the State?
Answer:
Banking and Insurance Service, Broadcasting and Telecommunication Service under SEEs
Law are different activities from MIC Notification No. 1/2013. Banking and Insurance
Service is targeted to be allowed for foreign investors by 2015.
Q17: What are the criteria applied to determine whether an investment is considered to be
"beneficial to the citizens and particularly the ethnic nationalities"?
What are the criteria applied to determine those "large foreign investment projects" which
are considered to bring "substantial benefit to public security, improve surrounding areas
and the living conditions of citizens and will require the approval of the Union Parliament".
Answer:
Myanmar has no specific criteria for determining the national interest or the substantial
benefits. However, that project must be consistent with the national interest as expressed
by local people and Parliament.
Q18: Could the Government provide examples of such past, present and foreseen large
foreign investment projects and the process leading to their approval or rejection?
Answer:
Until now, there is no project that has been rejected on the ground of national interest.
Page 28, para 2.48, FIL & MIC, Korea Q1:
The government of Myanmar made efforts to improve foreign investment environment by
enacting the new FIL and implementing regulations during 2012 and 2013. But, we see
that the new FIL and its implementing regulations still lack of specificity with regard to the
wide-ranging discretionary authority of the Myanmar Investment Commission (MIC) by
which investment projects are evaluated. We would like to call for the Government of
Myanmar to clearly delineate the Commission's powers and procedures in the new FIL
implementing regulations.
Answer:
Under the revised Notification No. 1/2013, the alleged MIC discretion will be reduced in
line with the substantial reduction proposed in the negative list. Further reductions are
likely to be considered in the context of the preparation of the upcoming Myanmar
Investment Law.
Page 28, para 2.50, Minimum capital requirement, EU Q19:
What is the rationale for the minimum capital requirement and does the government
intend to adjust those requirements to attract more FDI?
Answer:
Under the new Foreign Investment Law (2012), there is no minimum capital requirement.
However, for company incorporation, foreign investor needs to bring capital brought in
US$150,000 for manufacturing, construction and hotel business and US$50,000 for
services business. This amount may be paid by two instalments.
WT/TPR/M/293/Add.1
- 12 Page 29, para 2.52, Tax & tariff exemption, Singapore Q1:
Singapore notes that the Myanmar authorities offer various tax incentives to attract
foreign investment. The new Foreign Investment Law (FIL) allows tax incentives for up to
five years (three years under the previous Law), with the possibility of extension. We
would appreciate it if Myanmar could share additional details on incentive programmes
which grant import tariffs exemption?
Specifically, (a) how would companies be able to qualify for such incentives, and
(b) would the import tariff exemptions apply to imports regardless of origin or would the
import tariffs exemption apply only to imports of certain origin?
Answer:
We don't have any additional incentive programs to grant import tariffs exemption.
According to Foreign Investment Law, investors can benefit from the following exemptions
but these exemptions are not available for cutting, making and packaging (CMP)
investment project:
a) Exemption or reliefs can be enjoyed for importation of machineries and equipments
which are actually required for use during the construction period;
b) Exemption or reliefs can be enjoyed for 3 years for import of raw materials for
production after the completion of construction of business;
c) Exemption or reliefs can be enjoyed if the volume of investment is increased with the
approval of the Commission and the original investment business is expanded during
the permitted period.
Page 29, para 2.52, Tax & tariff exemption, China Q7:
Please explain how to make the judgment on whether one investment is "beneficial to the
State'' or not, and provide concrete and detailed criteria, if any.
Answer:
Myanmar has no specific criteria for determining the national interest or the substantial
benefits. However, that project must be consistent with the national interest as expressed
by local people and Parliament.
Page 30, Sub 2.7.2, Investment procedures, China Q8:
As to foreign investment admittance, what are those new amendments to the examination
and approval procedures in the FIL (2012)?
Are there any plans to simplify and streamline the procedures in general in future?
Answer:
Yes, we are preparing to merge the Foreign Investment Law and Domestic Investment
Law. The unified Law will likely be simpler with more streamlined procedures.
Page 30-31 para 2.58, Foreign company and trade license, EU Q20-22:
Q20: Could Myanmar indicate how it determines that a foreign company is "engaged solely
in trade" and when it considers that that company is "a manufacturer of finished goods for
export"?
Answer:
Foreign companies cannot "engage solely in trade" means that foreign companies cannot
import the goods and distribute and sell them into the domestic market. Also foreign
companies cannot export the goods by purchasing from domestic production. Foreign
company registered as a service company under Myanmar Company Act 1914 has been
allowed to import the necessary equipments for doing their services business as of
15 October 2013. The Government is currently considering measures that would allow
foreign companies to engage in wholesales service in the domestic market.
Q21: What is the duration of the exporter/importer licence?
Under what procedures and conditions can it be revoked or withdrawn?
WT/TPR/M/293/Add.1
- 13 Answer:
The duration of the exporter/importer registration card is five years. It is continuously
extendable for another five years term. If the company does not continue the operation of
the business, they can return the exporter/importer registration card. Under the following
conditions, the company will be revoked or withdrawn the registration card: 1) the
registration card which are no more validity extension or renew as the Ministry's
regulation; and 2) the company which infringes the existing regulations of the Ministry.
Q22: What possibilities does the foreign company have to challenge any decision relating
to the granting/rejection/withdrawal of the licence?
Answer:
As the present, there are no appeal procedures. However, we intend to seek international
assistance to study this matter.
Page 31, para 2.60, MIC decision, Thailand Q1:
Under the new FIL, how can foreign investors challenge a decision of the MIC in the event
of denial of the application or the issuance of an approval adverse to the interests of a
foreign investor under Myanmar law?
Answer:
Section 18(d) of the Foreign Investment Law mentioned that submitting to the
Commission to re-scrutinize and amend in order to obtain the rights which he is entitled to
enjoy fully in accord with the existing law. In case, if investor is denied his rights (e.g. tax
incentives) given by Foreign Investment Law, he can request MIC to re-scrutinize. This
matter is likely to be addressed in the context of the upcoming Myanmar Investment Law.
Page 31, para 2.60, MIC decision, EU Q23:
Could Myanmar clarify if and how investors can challenge a decision of the MIC, including
with regard to a land lease or extension to a land lease?
Answer:
Section 18(d) of the Foreign Investment Law mentioned that submitting to the
Commission to re-scrutinize and amend in order to obtain the rights which he is entitled to
enjoy fully in accord with the existing law. In case, if investor is denied his rights (e.g. tax
incentives) given by Foreign Investment Law, he can request MIC to re-scrutinize. This
matter is likely to be addressed in the context of the upcoming Myanmar Investment Law.
Pages 31 & 51, para 2.61 & 3.54, Mergers & Acquisition, EU Q24:
Will the new competition law cover mergers and acquisitions including when one of the
parties concerned is not a national company (given that the new law on FDI does not cover
mergers and acquisitions)?
If not, what would be the legislative framework covering mergers and acquisitions
involving a foreign entity?
Answer:
In accordance with Myanmar's commitments in the context of the ASEAN Blueprint, a draft
competition law is under preparation with a view of its promulgation in 2015. Some of the
main objectives of the draft are: 1) to protect and prevent arrangements that injure public
interests through monopolization or manipulation of prices to endanger fair competition in
the economic; 2) to control unfair competition upon internal and external trade and
economic development; 3) to protect and prevent abuse of dominant position; 4) to review
mergers and acquisitions for their potential anti-competitive impacts; and 5) to investigate
and eliminate restrictive agreements or arrangements among business operators. It is
envisaged that all economic sectors will be subject to the law and a Competition
Commission would be established to enforce it. So far, Myanmar has not received
international assistance in preparing the draft law. Alleged anti-competitive dimensions of
mergers and acquisition involving foreign investors could be investigated under the review
provisions and also under the prevention of abuse of dominance provisions.
There will be M&A provisions in the upcoming New Myanmar Companies Act. Under the
existing New Foreign Investment Law, only foreign investors can sell shares to any other
WT/TPR/M/293/Add.1
- 14 foreign investor or Myanmar citizen, with the approval of the Myanmar Investment
Commission.
Page 31 para 2.62, Mergers & Acquisition, Singapore Q2:
Singapore notes that neither the old nor the new FIL contains provisions on mergers and
acquisitions by foreign investors, and it is not possible for foreign investors to acquire
shares from local companies. The Implementing Rules of the new FIL allows a foreign
investor to acquire shares from a Myanmar shareholder in foreign-invested companies
(and vice versa). Any such transfer is subject to the approval of the MIC as are the foreign
equity limits (if any). We would like to know if Myanmar has any plans to create laws that
govern the mergers and acquisitions by foreign investors in Myanmar?
Answer:
In accordance with Myanmar's commitments in the context of the ASEAN Blueprint, a draft
competition law is under preparation with a view of its promulgation in 2015. Some of the
main objectives of the draft are: 1) to protect and prevent arrangements that injure public
interests through monopolization or manipulation of prices to endanger fair competition in
the economic; 2) to control unfair competition upon internal and external trade and
economic development; 3) to protect and prevent abuse of dominant position; 4) to review
mergers and acquisitions; and 5) to investigate and eliminate restrictive agreements or
arrangements among business operators. It is envisaged that all economic sectors will be
subject to the law and a Competition Commission would be established to enforce it. So
far, Myanmar has not received international assistance in preparing the draft law. Alleged
anti-competitive dimensions of mergers and acquisition involving foreign investors could
be investigated under the review provisions and also under the prevention of abuse of
dominance provisions.
Chapter 3. Trade Policies and Practices by Measure
Page 32, para 3.1 & 3.4, Import procedures, China Q9-10:
Q9: Please explain the major difference between the Sea Customs Act and Land Customs
Act, and clarify how the two laws are coordinated in implementation within the customs
territory of Myanmar.
Answer:
The Sea Customs Act was enacted in 1878 and only covered sea trade. It is in 1924 that
land border trade was covered into a law, the Land Customs Act. To insure consistency of
customs procedures, Section 9 of the Land Customs Act referred to the Sea Customs Act.
So in terms of implementation, both Acts follow the same procedures.
Q10: Please list all those governmental institutions that will get involved in the
implementation of the "ASEAN single window" and also identify the lead agency in charge
of task coordination in this regard.
Answer:
The National Single Window Steering Committee was established and it is headed by the
Customs Department of Ministry of Finance and it is composed of 24 other Government
Agencies such as: Directorate of Trade and Department Commerce and Consumer Affairs
of the Ministry of Commerce, Myanmar Port Authority, Forest Department, Livestock
Breeding and Veterinary Department, Department of Fisheries, Department of Historical
Research, National Museum and Library, Department of ASEAN Affairs, Department of
Agricultural, Central Bank of Myanmar, Myanmar Foreign Trade Bank, Myanmar
Investment and Commercial Bank, Myanmar Economic Bank, National AFTA Unit, Myanmar
Investment Commission, e-National Task Force, Department of Food and Drugs
Administration, Department of Public Health and Laboratory, Department of
Telecommunication, Central Association of preventing and controlling from the risks of
Narcotic Drugs and Myanmar Gems Enterprise.
WT/TPR/M/293/Add.1
- 15 Page 32, para 3.2, Trade laws, USA Q2:
According to the Secretariat's report, only nationals may engage in trade and import into
the country. Please explain the Government's plans to expand this authority so that nonresidents, including corporations, are authorized to import.
Answer:
Foreign companies cannot "engage solely in trade" means that foreign companies cannot
import the goods and distribute and sell them into the domestic market. Also foreign
companies cannot export the goods by purchasing from domestic production. Foreign
company registered as a service company under Myanmar Company Act 1914 has been
allowed to import the necessary equipments for doing their services business as of
15 October 2013. The Government is currently considering measures that would allow
foreign companies to engage in wholesales service in the domestic market.
Page 32, para 3.3, Trade Laws, USA Q3:
The Secretariat's report notes, "In April 2013, import licensing requirements were
abolished for 166 import commodities, corresponding to more than 1,900 tariff lines." The
loosening of some import approval requirements is welcome.
Q3A: Please share more information on the government's plans to further liberalize these
restrictions. Is there a timetable?
Answer:
With respect to the import license regime, the Government made a first significant change
to the import license regime in June 2012 by replacing the former non-automatic import
license regime by a new automatic regime covering all imports. In March 2013, the
Government further eased licensing requirements by eliminating import license
requirement for 166 commodities classified in over 1,900 HS tariff lines and representing
about 35% of total import. A consultation process is underway involving the Ministry of
Commerce, the Customs Department and representatives from the private sector to make
recommendations about the identification of additional imported goods for which import
license requirement will be removed. The Government intends to gradually phase out the
license regime through a series of announcements in 2014 and 2015 that would each
represent about 10 to 15% of total import. By the end of 2015, there will still be products
subject to import license requirement.
Q3B: Regarding remaining restrictions – is the licensing process transparent and nondiscriminatory, with licenses available to all interested applicants?
Answer:
The license procedures are applied on a non-discriminatory basis and are available on the
website in Myanmar language at the following site:
http://www.commerce.gov.mm/my/category/%E1%80%9E%E1%80%BC%E1%80%84%
E1%80%B9%E1%80%B8%E1%80%80%E1%80%AF%E1%80%94%E1%80%B9%E1%80
%9C%E1%80%AF%E1%80%95%E1%80%B9%E1%80%91%E1%80%B6%E1%80%AF%
E1%80%B8%E1%80%9C%E1%80%AF%E1%80%95%E1%80%B9%E1%80%94%E1%80
%8A%E1%80%B9%E1%80%B8-%E1%80%86%E1%80%AD%E1%80%AF%E1%80%
84%E1%80%B9%E1%80%9B%E1%80%AC-%E1%80%B1%E1%80%80%E1%80%
AC%E1%80%80%E1%80%B9%E1%82%8F%E1%80%AF%E1%80%90%E1%80%B9%E1
%80%81%E1%80%BA%E1%80%80%E1%80%B9
The Ministry of Commerce also publishes in Myanmar language a weekly journal
"Commerce Journal" and the monthly booklet "Trade News".
Q: Are some licenses restricted to preferred companies and/or trading partners?
Answer:
Whoever applies for an import or export license and meets the specified requirements shall
be granted the relevant license.
WT/TPR/M/293/Add.1
- 16 Q: Are licenses for the same commodities priced differently for different applicants?
Answer:
When some commodities were subject to price control measures, it was part of the
procedure to verify declared prices. Since 2011, there are no more procedures to verify
declared prices for import license purposes.
Q3C: What is the role of domestic business associations in the licensing process?
Answer:
Before 2012, the Domestic Business Associations issued the recommendation for holding of
stocks on some commodities such as rice, pulses & beans. Starting from 2012, they have
been no more involved in the licensing process due to the liberalization process of the
Government.
Q: Is it a potential conflict of interest for local industry to have a role in determining
whether import license applications are granted or denied?
Answer:
May be. Up to the present, we have not received any case. We have intention to get the
international assistance to study such kind of possible conflict and solution.
Page 32, para 3.2/3.4, Containers & Single window, EU Q41-43:
Q41: There has been indication that the Government intends to implement a new
regulation that would require all goods imported into Myanmar to be taken out of the
container. Can the authorities confirm such intention?
If so, what would be the rationale and the proportionality of such measure if it were to
apply to all shipments rather than on basis of risk analysis?
Answer:
Although Myanmar Customs has not yet applied an automated system, since 2013 a risk
management System has been introduced manually by using three channels, namely
green, yellow and red. Daily throughputs of containers are 70% by the green channel is
70%, 20% by the yellow, 10% by the red.
Q42: What is the state of play of the National Single Window project and what is its
scope?
Will it be a complete electronic system integrating e-certification and e-licensing?
Answer:
In order to implement the NSW, the Myanmar Automated Cargo Clearance System
(MACCS) has been developed since July 2013, with technical assistance provided by JICA
Grant Aid. Monthly discussions between Myanmar Customs and Japanese technicians have
been conducted since June 2013. The Brief Design was finished at the end of the 2013 and
the Detailed Design was introduced at the beginning of 2014.
Q43: What are the intentions of the government regarding Authorised Economic Operators
(AEOs)?
Answer:
Although Myanmar Customs, as a member of WCO, signed the SAFE Framework
Agreement, the AEO standard cannot yet be implemented. Nevertheless, Myanmar
Customs has been learning the AEO guidelines and seeking the technical assistance in this
regard.
Page 32, para 3.2/3.4, Pre-arrival & License, EU Q44:
Can the authorities give more explanation on the pre-arrival pre-departure information
required on products entering and leaving the country?
How does this fit in the framework of the regime of import licensing and export
licensing/export authorisations?
WT/TPR/M/293/Add.1
- 17 Answer:
Myanmar Customs is in the process of establishing a system of advance rulings. Pre-entry
classification has been applied since 1998 upon the request by the importer; pre-arrival
valuation is approved by Myanmar Customs. In addition, Pre-Arrival Processing Procedures
(PAPP) are allowed especially in the case of importation of fuel oil (diesel, petroleum). In
terms of pre departure procedures, customs clearance has to be processed before
shipment.
Page 32, para 3.2/3.4, Trade facilitation and Bali, EU Q45-46:
Q45: The Secretariat reports that currently custom clearance requires about three days.
However various reports including the WB's Doing Business Report points to long
procedures and heavy documentation requirements. Are there plans to remedy the
situation and reduce the administrative burden on import and export?
Answer:
In the context of the Government wide reform process, trade-related Ministries were
instructed to review their procedures affecting international trade with a view to minimize
the administrative burden and transaction cost on trade operators.
A manual risk management system has been established in March 2014 with technical
assistance provided by the ADB. A Time Release Study will be conducted with a view to
speeding up customs clearance. The MACCS System, which is expected to launched by
2015, will also expedite customs clearance of cargo.
Q46: What are the intentions of the government regarding the implementation of the
Trade Facilitation agreement of Bali?
Answer:
In the context of WTO commitments, it is necessary to establish a National Committee on
Trade Facilitation. In preparation for the WTO Bali Conference, representatives from
relevant ministries have met but the formal establishment of this coordination structure
has not yet been finalized.
Page 32, para 3.4, CV & Single window, Korea Q2-3:
Q2: Korea notes that customs valuation in Myanmar is based on the "real value" set by the
authority, rather than the provisions of the WTO Customs Valuation Agreement. Does
Myanmar have any plans to apply the WTO Agreement to ensure more fair and uniform
system for the valuation of goods for customs purposes?
Answer:
Myanmar has a plan to apply the WTO Customs Valuation Agreement. For the time being,
we are using the Sea Customs Act 30 (a and b). The revised legislation is on the way to
enactment waiting for the approval of higher authority. (www.myanmarcustoms.gov.mm)
Q3: According to the Secretariat report, Myanmar intends to implement the ASEAN Single
Window by 2015. What steps are the Myanmar authorities taking to meet this goal?
Answer:
The Customs Department is now implementing the MACCS (Myanmar Automated Cargo
Clearance System) with assistance of JICA and Japan Customs NACCS (Nippon Automated
Cargo and Port Consolidated System) which is a vital step for the National Single Window.
Page 32, para 3.4, Customs valuation, USA Q4:
According to the Secretariat's report, the Government does not apply the WTO Customs
Valuation Agreement. What are the Government's plans for implementing the Agreement?
Will new legislation or regulations be required?
Is the Government seeking assistance from donors in this regard?
Answer:
Myanmar has a plan to apply the WTO Customs Valuation Agreement. For the time being,
we are using the Sea Customs Act 30 (a and b). The revised legislation is on the way to
enactment subject to approval of Parliament. (www.myanmarcustoms.gov.mm)
WT/TPR/M/293/Add.1
- 18 Page 32, para 3.4, Customs valuation, Chinese Taipei Q2:
Does Myanmar have any plan to implement the WTO Customs Valuation Agreement?
If so, could Myanmar please elaborate on its plan and anticipated schedule?
Answer:
Myanmar has a plan to apply the WTO Valuation Agreement. For the time being, we are
using the Sea Customs Act 30 (a and b). The revised legislation is on the way to
enactment waiting for the approval of Parliament. (www.myanmarcustoms.gov.mm)
Page 32, para 3.5, Import appeal procedure, China Q11-12:
Q11: Please clarify whether there are any restrictive conditions or external supervision
mechanism put in place to prevent the abuse of power during the course of modifying,
reversing or upholding of decisions and orders in ways as mentioned above. If any, what
are those restrictive conditions, checking mechanisms, and procedures?
Answer:
Appeals procedures against customs decisions or orders are clearly stated in section 191 of
the Sea Customs Act. According to section 191(2b), the President of the Union may, at any
time and on application or otherwise, request the record of any case disposed of by any of
customs or the financial commissioner for the purpose of satisfying himself as to the
correctness, legality or propriety of any decision order made and may make such an order
as he thinks fit. (The financial commissioner is now the Minister of Finance.)
Q12: If such actions to previous decisions and orders do occur, please confirm whether
the new decisions and orders are retrospective to previous customs-related cases and
actions.
Answer:
This is done on a case-by-case basis.
Page 33, para 3.8 & GR page 17, para 5.3, Tariffs, EU Q25:
For which categories of products is the government considering to bind its tariffs and by
what timeline?
Answer:
Myanmar is willing to bind more of its tariff lines for various categories of products in the
DDA negotiations, provided mutually satisfactory results can be achieved.
Page 33, para 3.9, Tariffs, Canada Q1:
Could Myanmar please explain the discrepancy between the Secretariat's assessment and
Myanmar's assessment of the number of tariff lines where applied rates exceed bound
rates?
When does Myanmar anticipate that these tariffs will be rectified to be within its WTO
commitments?
Answer:
With regard to the 32 tariff lines where applied MFN rates appear to exceed bound rates,
some brief historical background concerning the Myanmar Customs Tariff (MCT) may help
clarify this matter. Prior to adopting the Harmonised System (HS) code in accordance with
Myanmar's WTO commitments, the Burma Customs Tariff (BCT) was used, which consisted
of 193 tariff lines. However, as a result of Myanmar becoming a Member of the WCO on
25 March 1991, Myanmar Customs correlated and transformed these 193 tariff lines into
the HS on 1 April 1992. At that time, it would appear that Myanmar Customs overlooked
some of the tariff commitments concerning bound rates made at the WTO in 1988. When
the WTO Secretariat brought this oversight to the Government's attention while
undertaking this Review, Myanmar Customs directly correlated the MCT with the HS tariff
and found that for two of the 32 tariff lines, namely 2620.1900.00 and 8708.9910.00, the
applied rates of 1% did exceed the bound rates of zero. The Government intends to reduce
these two applied rates to zero very soon.
As regards the other 30 tariff lines (nearly half of which are also subject to applied rates of
only 1% and the rest mostly 5%), Myanmar does not agree with the Secretariat's
assessment. Accordingly, while attending the upcoming TPR Meeting in Geneva, Myanmar
WT/TPR/M/293/Add.1
- 19 will seek to resolve this matter with the WTO Secretariat. In the event that there are any
other breaches in Myanmar's tariff bindings, these too will be rectified as soon as possible.
Page 33, para 3.10, Tariff binding, Korea Q4:
Myanmar has been keeping the bound tariff rate at a relatively high level, while
maintaining its applied MFN tariff rate at a relatively low level (5.5% on average, as of
2013). Also, its binding coverage is less than 19% of all tariff lines, giving the authorities
considerable scope to raise tariffs, which may undermine tariff predictability. Korea would
like to ask if Myanmar has plans to expand its binding coverage.
Answer:
Myanmar is willing to bind more of its tariff lines, provided mutually satisfactory results
can be achieved in the DDA negotiations.
Page 33, para 3.12, Tax, duty and license, EU Q26-27:
Q26: Can the authorities confirm their intention to reform the licensing regime and the
rates of taxation, duties?
If so, can the authorities elaborate on the content of the reforms under consideration? Has
the government considered ensuring that any proposed reforms avoid price shocks, taking
into consideration the possibility of exacerbating informal/illicit markets?
Answer:
The Government is still under consideration and consultation with the relevant lined
Ministries and relevant stakeholders for the rates of taxation and duties. The Government
is considering quality control, adjustment of domestic production, import and consumption,
prevention of illegal import and negative effect on Public Health to put in the content of the
reforms.
With respect to the import license regime, the Government made a first significant change
to the import license regime in June 2012 by replacing the former non-automatic import
license regime by a new automatic regime covering all imports. Under the new regime,
importers must submit: an application on the company's letterhead; the original pro-forma
invoice or original sales contract; and, if required, recommendations from relevant
Government Departments and/or organizations. Most licenses are now authorized within a
period of 8 working hours.
In March 2013, the Government further eased licensing requirements by eliminating
import license requirement for 166 commodities classified in over 1,900 HS tariff lines and
representing about 35% of total import. A consultation process is underway involving the
Ministry of Commerce, the Customs Department and representatives from the private
sector to make recommendations about the identification of additional imported goods for
which import license requirement will be removed. The Government intends to gradually
phase out the license regime through a series of announcements in 2014 and 2015 that
would each represent about 10 to 15% of total import. By the end of 2015, there will still
be few products subject to import license requirement.
Q27: What are the government's intentions regarding the current ban on import of
alcoholic beverages other than for the duty free market and luxury hotels?
What are the intentions regarding taxation issues and duties for alcoholic beverages?
Would the government consider alternatives such as a transparent liquor licensing and
investment regime and enter into constructive discussions with stakeholders with the view
to reform the tax and licensing regime?
Answer:
Following the election of the New Government in 2011 and the implementation of its
reform agenda, the Ministry of Commerce removed six items on the restricted list of both
land border and sea trade out of 15 items on 23 December 2011. Moreover, on
4 February 2013, the Ministry of Commerce further reduced the scope of the restriction by
maintaining only four items subject to import restriction (liquors, beer, cigarette and
prohibited products as per existing laws and international conventions) and also a
temporary restriction items (seasonal fresh fruits) for both land border and sea trade.
With a view to further the trade liberalization agenda, a consultative process has been
established regrouping the Ministry of Commerce, National Planning and Economic
Development, the Customs Department and representatives of the private sector,
WT/TPR/M/293/Add.1
- 20 including both national and foreign participants. The consultation covers not only the issue
of import restriction but also related-issues, such as taxation, duties, national treatment
and standards for the protection of consumers. The consultative group is expected to
submit its recommendations in mid-2014 for future actions by the Government.
Page 37, para 3.17, Import licence, Korea Q5:
We acknowledge the efforts of the government of Myanmar in 2012 to ease import
licensing requirements for 166 commodities. Still, most goods imported into Myanmar
require import licenses. Does the government of Myanmar have a plan to ease the
licensing requirements for a greater number of commodities?
Answer:
The Government made a first significant change to the import license regime in June 2012
by replacing the former non-automatic import license regime by a new automatic regime
covering all imports. Under the new regime, importers must submit: an application on the
company's letterhead; the original pro-forma invoice or original sales contract; and, if
required, recommendations from relevant Government Departments and/or organizations.
Most licenses are now authorized within a period of 8 working hours.
In March 2013, the Government further eased licensing requirements by eliminating
import license requirement for 166 commodities classified in over 1,900 HS tariff lines and
representing about 35% of total import. A consultation process is underway involving the
Ministry of Commerce, the Customs Department and representatives from the private
sector to make recommendations about the identification of additional imported goods for
which import license requirement will be removed. The Government intends to gradually
phase out the license regime through a series of announcements in 2014 and 2015 that
would each represent about 10 to 15% of total import. By the end of 2015, there will still
be few products subject to import license requirement.
Page 37, para 3.17, Import licence, New Zealand Q6:
New Zealand welcomes Myanmar's decision to ease import licensing requirements for
166 commodities (1,900 tariff lines). Does Myanmar have any plans to extend this to all
import products?
Answer:
The Government made a first significant change to the import license regime in June 2012
by replacing the former non-automatic import license regime by a new automatic regime
covering all imports. Under the new regime, importers must submit: an application on the
company's letterhead; the original pro-forma invoice or original sales contract; and, if
required, recommendations from relevant Government Departments and/or organizations.
Most licenses are now authorized within a period of 8 working hours.
In March 2013, the Government further eased licensing requirements by eliminating
import license requirement for 166 commodities classified in over 1,900 HS tariff lines and
representing about 35% of total import. A consultation process is underway involving the
Ministry of Commerce, the Customs Department and representatives from the private
sector to make recommendations about the identification of additional imported goods for
which import license requirement will be removed. The Government intends to gradually
phase out the license regime through a series of announcements in 2014 and 2015 that
would each represent about 10 to 15% of total import. By the end of 2015, there will still
be few products subject to import license requirement.
Page 38, para 3.19, Prohibition, Thailand Q2:
The Ministry of Commerce of Myanmar issued a list of 15 items of prohibited imports
through border trade between Thailand and Myanmar, most of which are consumer
products. Even though Myanmar has recently removed 7 items of products from the list,
Thailand would like to know the reasons behind Myanmar's maintaining of the list of the
remaining 8 items of import prohibitions from Thailand. Does Myanmar expect to remove
the remaining 8 items of products?
Answer:
Following the election of the New Government in 2011 and the implementation of its
reform agenda, the Ministry of Commerce removed six items on the restricted list of both
land border and sea trade out of 15 items on 23 December 2011. Moreover, on
WT/TPR/M/293/Add.1
- 21 4 February 2013, the Ministry of Commerce further reduced the scope of the restriction by
maintaining only four items subject to import restriction (liquors, beer, cigarette and
prohibited products as per existing laws and international conventions) and also a
temporary restriction items (seasonal fresh fruits) for both land border and sea trade.
With a view to further the trade liberalization agenda, a consultative process has been
established regrouping the Ministry of Commerce, National Planning and Economic
Development, the Customs Department and representatives of the private sector,
including both national and foreign participants. The consultation covers not only the issue
of import restriction but also related-issues, such as taxation, duties, national treatment
and standards for the protection of consumers. The consultative group is expected to
submit its recommendations in mid-2014 for future actions by the Government.
Page 38, para 3.22, Drug imports, Japan Q2: (MOH-FDA)
According to the Secretariat report, all drugs and medicines to be imported must be
registered with the Department of Food and Drug Administration. The report also mentions
that the importer must provide a drug importation approval certificate, a drug wholesaler's
license and drug registration certificate for the issuance of the import license. Are there
such restrictions for import medical devices?
Answer:
National Drug Law was promulgated in 1992 and the Ministry of Health subsequently
issued the Notification for registration, manufacturing, importation, sell & distribution of
pharmaceuticals. Chapter V states that a person desirous of manufacturing, importing,
exporting, storing, distributions & selling pharmaceutical raw material of drug shall
registered the relevant drug with the Board of Authority in the prescribed manners.
Import regulations of medical device and test kits are prescribed in accordance to ASEA
Medical Device Directive (AMDD). Importers have to apply for an import recommendation
(or) notification of the medical devices. Imports of disposal medical devices and rapid
diagnostic test kits are also subject to an import recommendation requirement. The
Department of Food and Drug Administration takes about 3 to 4 weeks to complete the
recommendation process. This process includes document assessment and laboratory
testing.
Myanmar is going to endorse the AMDD in 2014 and Department of Food and Drug
Administration will promulgate the Myanmar Medical Device rules and regulations
accordingly.
Page 38, para 3.23, Seasonal imports, Thailand Q3:
Thailand is interested to learn whether Myanmar imposes import restrictions on the certain
fruits depending on their production periods, as indicated in the paragraph, from ASEAN
Member countries? In another word, are ASEAN Member countries subject to the import
restrictions indicated under the paragraph?
Answer:
No. It is applied to all countries.
Page 38, Sub 3.1.5, Re-exports, China Q13:
Please confirm that the seven eighths of the customs duty, that paid on goods can be
easily identified, is a fixed rate of refund, or can be adjusted once deemed necessary.
How to define the "goods that can be easily identified"?
Answer:
It means that it is a fixed rate of refund.
Easily identified goods are those that are re-exported and whose classification is consistent
with the imported inputs (such as chassis, model year, engine number etc.)
Page 39, para 3.27, Trade remedy law, USA Q5:
According to the Secretariat's report, authorities have stated that they are in consultations
with various donor agencies, with a view to introducing antidumping, countervailing duty
and/or safeguard legislation in the near future. Please provide more specifics as to the
status of introducing proposed legislation, the contents of such proposed legislation, and
WT/TPR/M/293/Add.1
- 22 an expected timetable in which the President's Office, Cabinet and Parliament may
consider that proposed legislation.
Answer:
With the implementation of ASEAN-related tariff reductions and other liberalization
measures, Myanmar should have WTO-consistent trade remedy authorities to deal as need
be with potentially injurious trade situation. In this connection, Ministry of Commerce is
building up its understanding of trade remedy measures and it is currently receiving
technical assistance notably from UNESCAP on the drafting of safeguard provisions. With
limited human resources and significant work load in implementing autonomous
liberalization measures and in following up on existing multilateral, regional and bilateral
trade commitments, work on drafting WTO-consistent anti-dumping and countervailing
measures has so far not received high priority. Recognizing our limited capacity, the
drafting of trade remedy laws is an area where Myanmar would welcome additional
international technical assistance.
Page 40, para 3.30, Construction, Chinese Taipei Q3:
Q3A: In order to facilitate a foreign company's participation in construction projects, could
Myanmar consider eliminating the recommendation by the Embassy of Myanmar
requirement?
Answer:
Requirement for the recommendation of the Embassy of Myanmar was applied in the past
however it was abolished in early 2014.
Q3B: Is the bid bond amount of US$500,000 a fixed sum for all construction projects
regardless of the value of any given project?
Answer:
Bid bound amount is varied on the cost of the project and maximum amount is
US$500,000.
Page 40, para 3.30, Construction, Thailand Q4:
With respect to bidding for construction projects, Thailand is interested in learning how the
Myanmar Government administers the process of selecting bidders for certain projects?
What are the criteria in the selecting process under the law or regulations?
Answer:
Bidder for construction must provide a certificate of registration, company profile, past
performance project records, total value of construction work performed according to the
project, particular experience concerning the project and a bid security. The amount of
total value of past construction work and bid security (bid bond) will vary according to the
cost of the project. The companies or enterprises listed in Specially Designated Nations are
not eligible bidders.
The process of selecting bidders for certain projects are: 1) the related Ministry (or) client
(or) auction house will determine the price floor and the price ceiling; 2) it will be cancelled
the higher and lesser prices than the determined price; and 3) the tender committee will
consider only within the determined price.
The selection criteria of bidders under the law or regulations are as follows: 1) number of
professional engineers, Senior and registered engineers and their experience work for the
company; 2) the company-owned machines, equipment and vehicles in hand; 3) the
company's working capital/money in circulation; 4) company's previous experience and its
achievements; 5) the recommendations and rejections of previous jobs in the ministry and
corresponding comments; and 6) the level of the company's position based on Myanmar
Engineering Council classification.
Page 40, para 3.30, Registration, Singapore Q3:
Singapore notes that Myanmar requires bidders for public sector construction projects to
provide a company profile, bank account details, certificate of registration, certificate of
manufacturer, certificate of supplier, record of past performance and in the case of a
foreign company a recommendation by the Embassy of Myanmar. The report does not
mention whose certificate of registration (home country or host country) is required as
WT/TPR/M/293/Add.1
- 23 part of the bid submission. We would appreciate it if Myanmar could clarify the following
questions:
Q3A: If it is the host country's certificate of registration which is required, which Myanmar
authority issues the certificate and what are the criteria used for registering the
companies?
Answer:
In April 2013, President Office issues Directives (1/2013) relating to Tender Rules for
permission of investment activities and business activities. Since then, investor needs to
follow the tender rules. It is available in Myanmar language from the following website:
http://www.dica.gov.mm/includes/ Investment%20 Tender.pdf.
Q3B: What is the rationale/basis for the requirement of the Myanmar Embassy's
recommendation for a foreign company to participate in the bid?
And on what basis would the Myanmar Embassy issue the recommendation?
Answer:
Requirement for the recommendation of the Embassy of Myanmar was applied in the past
however it was abolished in early 2014.
Q3C: Is there a need for foreign consultants such as architects and engineers to be
registered with the Myanmar Authorities?
If so, which authorities are they and what are the registration criteria?
Answer:
There is a need for foreign consultants such as architects and engineers to be registered
with the respective Myanmar Professional Regulatory Authorities to ensure that they are
eligible to practice in the respective profession field and to ensure that they take the
liability.
The Professional Regulatory Authority for Engineering is the Myanmar Engineering Council.
According to the ASEAN Mutual Recognition Arrangement on Architectural Services signed
on 19th November 2007, the Ministry of Construction is the Professional Regulatory
Authority (Architecture), regulating the Architectural Professional in Myanmar.
According
to
the
Ministry
of
Construction
Notification
No.175/2013
of
19th September 2013, Board of Architects of Myanmar is an authorized agency of the
Professional Regulatory Authority.
Myanmar Architect Council Law that will govern the Architectural Profession is in the
approval stage.
The foreign Architects who wish to practice in Myanmar need to have a valid license for
practicing architecture in his or her own country and need to have a local counterpart who
is a senior licensed architect in Myanmar. It is a common practice agreed upon by the
ASEAN Architect Council and practiced throughout ASEAN. The reason for having a local
counterpart is to ensure that local rules and regulations as well as culture is respected.
Page 40, para 3.30, Construction, EU Q28-29:
Q28: Can the authorities give clarification on the margin of preference and explain the
rationale for it and its functioning?
Are the fields mentioned in the Secretariat report the only fields where the margin applies?
Could the authorities indicate which legislation provides for such preference and whether
the preference applies to all procurement activities in these fields mentioned by the
Secretariat?
Answer:
The President's Office has recently issued a directive with rules that Departments need to
follow with respect to tenders. According to the rules under Directive No. 1/2013, Ministry
of Education carried out public procurement and construction in the education sector.
The tender rules provide for the need for transparency, accountability, responsibility and
the possibility to inspect the conduct of the respective investment activity and economic
activity by Departments and governmental organisations.
WT/TPR/M/293/Add.1
- 24 The rules set forth a number of general rules that the Departments must follow with each
tender they organise, whether it is for purchasing goods or services, construction projects
or allowing an economic activity by enterprises.
Q29: It is reported that the Embassy of Myanmar in a given country has to give a
recommendation to allow foreigners from that country to bid for construction projects. Can
the authorities elaborate on that condition and on its implementation?
Answer:
Requirement for the recommendation of the Embassy of Myanmar was applied in the past
however it was abolished in early 2014.
Page 40, para 3.32 & GR page 8, para 3.13, Public procurement, EU Q30:
What are the intentions of the government regarding the legislative framework for public
procurement in particular regarding the current lack of appeal possibilities for bidders in
case they witness an irregularity as in the EU view, the law on anti-corruption cannot be a
substitute to a law on public procurement?
Answer:
At present, Myanmar does not have any specific legislation that governs public
procurement. However, all government agencies must adhere to notification issued by the
President's Office on 2 June 2012 and 5 April 2013, which stipulate that every government
agency must use the open tender system. All government agencies/departments as well
as, sub-central entities must submit their recurring expenditure requirements for the
construction works and procurement of machinery, equipment and vehicles to the Budget
Department of the Ministry of Finance and their capital expenditure requirements to the
planning department of the Ministry of National Planning and Economics Development.
According to the procedure, public procurement system is concern with the Ministry of
Finance. Tender /Auction selection committee was formed to conduct invitation. The
invitation for bids need to be published in two local papers and the government website.
The committee reviews the proposals of each company and invites qualified ones to the
tender opening. Sealed bids are opened in the presence of all qualified bidders and the
lowest bid is selected and sent to the minister for approval. After approval by the minister,
the respective agency can proceed with the procurement.
Bidders for construction projects need to provide a company profile, bank account details,
certificate of registration, certificate of manufactures, certificate of suppliers and record of
past performance. Bid bound amount is varied on the cost of the project and maximum
amount is US$500,000.
Anti-Corruption Law has been enacted on 7 August 2013 by Union Parliament Law No. 23
and
came
into
force
by
President's
Office
notification
No.73/2013
on
17 September 2013.That Law has been related not only to public sector but also to private
sector. The law can also take legal action of the member of director, member of
committee, authorized personnel or representatives of the public organization, joint
venture companies, boards, corporations or other organizations.
At present, Myanmar does not have any specific legislation that governs public
procurement. However, all government agencies must adhere to Notification issued by the
President's Office on 2 June 2012 and 5 April 2013, which stipulate that every government
agency must use the open tender system. All government agencies/departments as well
as, sub-central entities must submit their recurring expenditure requirements for the
construction works and procurement of machinery , equipment and vehicles to the Budget
Department of the Ministry of Finance and their capital expenditure requirements to the
Planning Department of the Ministry of National Planning and Economics Development.
Accordingly, the Ministry of Finance has established public procurement procedures, such
as: 1) each agency and entity establish a Tender /Auction Selection Committee was
formed to conduct invitation; 2) the invitation for bids need to be published in two local
papers and the Government website; 3) the committee reviews the proposals of each
company and invites qualified ones to the tender opening; 4) sealed bids are opened in the
presence of all qualified bidders and the lowest bid is selected and sent to the relevant
Minister for approval; and 5) after approval by the Minister, the respective agency or entity
can proceed with the procurement.
Bidders for construction projects need to provide a company profile, bank account details,
certificate of registration, certificate of manufactures, certificate of suppliers, record of past
WT/TPR/M/293/Add.1
- 25 performance. Bid bound amount is varied on the cost of the project and maximum amount
is US$500,000.
The newly enacted Anti-Corruption Law of August 2013 replaces the former law on the
suppression of corruption of 1948. The law provides for the establishment of the
Anti Corruption Commission which is mandated notably to scrutinize the nature,
mechanism and procedures of Government Agencies and non-Government Agencies, to
dispel and devoid bribery within Government Agencies. It has been enacted on
7 August 2013 by Union Parliament Law No.23 and came into force by President's Office
notification No.73/2013 on 17 September 2013. The Law relates not only to public sector
but also to private sector. The law can also take legal action of the member of director,
member of committee, authorized personnel or representatives of the public organization,
joint venture companies, boards, corporations or other organizations.
Page 40, para 3.34-3.39, SPS, EU Q31:
Can the authorities clarify the role of the Ministry of Livestock, Fisheries and Rural
Development in the area of SPS controls?
Answer:
Department of Fisheries under the Ministry of Livestock, Fisheries and Rural Development
inspects and certifies the export of fish and fishery products. It ensures the quality and
safety of concerned products to protect consumers and to meet importing country
requirements and also to comply to international standards, guidelines or
recommendations, such as CODEX standards and ASEAN regional guideline.
Under the Livestock Breeding and Veterinary Department, the Research, Animal Feed and
Veterinary Medicine Section (Formerly referred to Veterinary Assay Laboratory) is
responsible for analyzing maximum residue limits of pesticides, chemical and veterinary
drug in meat, milk and egg in accordance to the guidelines of Codex Alimentrius
Commission.
Page 40, para 3.34-3.39, Standards, EU Q32:
How are standards enforced and monitored on imported and domestically produced goods?
Answer:
Under the Science and Technology Development Law (1994), Myanmar Scientific and
Technological Research Department (MSTRD) is responsible for conducting: 1)
standardization and specifications of weights and measures, equipment and machinery,
raw materials and finished goods; and 2) conformity assessment and metrology
infrastructure. MSTRD is the focal point of National Quality Infrastructure of Myanmar.
For TBT matter, the Ministry of Commerce is the WTO contact point of Myanmar and
Ministry of Science and Technology is the WTO/TBT contact point of Myanmar, Regarding
with Technical Barrier to Trade of Myanmar, it can be divided into two parts such as
standards and technical regulation. Director General of the Myanmar Sciences and
Technology Research Department is the contact person of WTO/TBT.
For the standards matter, the Ministry of Science and Technology has prepared a draft
Myanmar Law Standardization Law and carried consultation with stakeholders. The draft
Law has was submitted to Parliament for approval. The draft Law provides for the
establishment of the Standardization National Standard Council, the National Standard
Committee and 19 Technical Committees. Some of the technical committees have already
drafted some Myanmar National Standards in advance of the approval of draft law. Shortly
after its enactment, these standards would be approved as Myanmar Standards.
Myanmar will use the ISO/IEC Guide 21-1 and 2-2005 as a national guide to adopt
international standards as national standards or technical regulations. Once Myanmar's
first TPR is completed, the GOM intends to turn its attention to notifying these as well as
other measures to the WTO as soon as possible, in so far as its limited capacity permits.
The GOM would be very grateful for any TA from the WTO in providing this and other
outstanding notifications.
Page 40, Sub 3.1.10, Labelling, Honduras Q2-4:
Q2: The Government of Honduras understands that a tobacco control proposal by the
Ministry of Health would require 90% of the packet of cigarettes/tobacco products to be
covered by Graphic Health Warnings (GHW). The Government of Honduras would
specifically like to seek the view of the Government of Myanmar with regard to this
WT/TPR/M/293/Add.1
- 26 proposal, which we believe will amount to quasi plain packaging for tobacco products.
Specifically, has the Government of Myanmar considered the compatibility of this
legislation with both the TBT Agreement and the TRIPS Agreement of the WTO?
Answer:
Being the member country of WHO Framework Convention on Tobacco Control and for
promoting and preventing the public health, the Ministry of Health has implemented the
tobacco control measures base on the WHO FCTC and its Guidelines. To alert and remind
the public about the health risk associated with tobacco, it is proposed to have the pictorial
health warning covering 90% of the principal display area of tobacco packets and
packages. Myanmar's pictorial health warning is based on internationally-agreed standards
and is compatible with the TBT Agreement. In respect of its compatibility with the TRIPs,
until proved otherwise, we have no reasons to believe that the propose measure is
incompatible with the TRIPs Agreement.
Q3: The Government of Honduras actively participates in the Framework Convention for
Tobacco Control and we fully share the objective of protecting public health through
effective tobacco control measures. We also believe that tobacco control measures have to
meet the criteria set out in the TBT and TRIPS Agreement of the WTO. In that context, has
the Government of Myanmar considered less trade restrictive alternatives that still meet
the FCTC minimum requirements of 30% Graphic Health Warning for tobacco products?
Answer:
According to Article 11 of the WHO FCTC, the pictorial health warning sign should be 50%
or more of the principal display areas but shall not be less than 30% of the principal
display areas. As an ASEAN member country, Myanmar has also learned from other
countries' best practices. Our review shows that for Singapore, Thailand, Vietnam, Brunei
and Malaysia, the pictorial health warning cover between 50 and 85% of the principal
display areas. In Indonesia, who is not a WHO FCTC member country, its pictorial health
warning covers 40% of the principal display areas. We also noted that for Honduras the
concerned percentage is 50%. The Guideline for Article 11 mentioned that the
effectiveness of health warnings and massages increases with cover more than 50% of the
principal display areas and aim to cover as much of the principal display areas as possible.
So, Myanmar is planned to implement the effective health warnings as much as possible.
Q4: Honduras has initiated WTO dispute settlement proceedings against a similar measure
implemented by Australia (plain packaging for tobacco products). In light of the foregoing,
we would respectfully request Myanmar to review its decision on the implementation of
extreme graphic health warnings for tobacco products and delay the implementation of
similar measures until the WTO has had the opportunity to assess and review the
legitimacy of plain packaging in the context of the WTO.
Answer:
Myanmar became the 11th member country of the WHO FCTC in April 2004 and the
relevant provisions entered into force in 2005. Article 11 of the FCTC specifies that the
member country should adopt and implement effective health warnings within a period of
three years after entry into force. In effect, Myanmar's implementation has already
exceeded the prescribed delay.
Page 41, para 3.42, SPS certificates, USA Q6:
The Secretariat reports states, "The Plant Protection Division of the Ministry of Agriculture
and Irrigation is the competent authority to issue SPS certificates, as provided for under
the Plant Pest Quarantine Law of 1993." Please confirm that this refers to the
recommendation from a relevant government department needed to obtain an import
license as noted in 3.41.
Is a Pest Risk Analysis (PRA) for such products required?
If so, what will be the policy with regard to ongoing imports of these products that have
been established without a PRA?
WT/TPR/M/293/Add.1
- 27 Answer:
With regard to the question, Plant Protection Division (PPD), Department of Agriculture
issues the import certificate not only to obtain an import license but also to import the
seeds, plant and plant products. Commodities under no license requirement regime
necessary to have the certificate of SPS from competent authority of the exporting or
importing country need to show the certificate at the customs clearance.
Pest Risk Analysis (PRA) is required. The requirements for import regulatory system are as
follows: 1) Pest list of respective country / exporting country; 2) Phytosanitary certificate
of country origin; and 3) Inspection of imported products at entry points by plant
quarantine inspectors according to the import procedures.
At current situation, PPD restricts quarantine pests entering to importing country by
following the import procedures that is attached.
Page 41, para 3.43, Inspection permits, USA Q7:
The Secretariat report says that "Import inspection permits are also needed for imports of
live animals, animal products, and animal feed and veterinary drugs." Please confirm that
this refers to the recommendation from relevant government departments needed to
obtain an import license.
If so, please confirm that, consistent with international practices, importers are not
required to obtain shipment-specific health certificates from the exporting country prior to
the issuance of this recommendation.
Answer:
The consignment of animals shall be accompanied by a valid import licence issued by
Government authority of Myanmar, import inspection permit of competent authority of
Myanmar, certificate containing a full description or identification of the animals and the
veterinary health issued by a competent veterinary officer of the Government veterinary
authority of the country of export.
Page 43, Tables 3.6 & 3.7, Teak exports, Japan Q3:
Please explain why "Teak and conversions" and "Timber and conversion" are listed in
parallel in Table 3.6 while Teak is a kind of wood species.
Answer:
Under the Paragraph 3.51, Table 3.6 & 3.7, "Teak and conversions" and "Timber and
conversion" are listed in parallel while Teak is a kind of wood species. It is because that
Teak means "teak log" while "conversions" refers to teak sawn timbers. Similarly, as
mentioned in parallel, "Timber" means as Hardwood log (Non teak wood) while
"conversions" represents Hardwood sawn timbers. Thus the former one means to Teak and
the latter is intended to other hardwood (Non teak wood). That is why "Teak and
conversions" and "Timber and conversion" are listed in parallel.
Page 43, para 3.54, Export license details, Thailand Q5:
As the Report indicates that Myanmar is restructuring its export licensing regime and
152 types of goods no longer require export licences, Thailand would like to learn some
detail of what are the goods which longer require export licenses from 2013?
Answer:
Our export policy is mainly to extend and explore the foreign market by utilizing natural
and human resources effectively and to promote the export of traditional and value-added
products.
Regarding export licensing, exporters require to get export license except 152 types of
goods (983 tariff lines). Moreover, Ministry of Commerce intends to liberalize export
licensing requirement for the rest goods except so- called sensitive commodities such as
national food security and emergency needs, the protection on exhaustion of natural
recourse, the protection of environmental damages and deforestation, and prevention of
traditional and cultural art. For this intention, we are learning legal basis and practice of
international and regional especially in current transformation period. In this connection,
we need technical assistance for our further policy considerations and legal basis to
maintain current export licensing regime.
This is the link to check the list of commodities available in Myanmar language.
http://www.commerce.gov.mm/sites/default/files/documents/2013/08/16-2013.pdf.
WT/TPR/M/293/Add.1
- 28 Page 44, para 3.60, SEZ, Thailand Q6:
Does Myanmar set up target timeframes for the three special economic zones (SEZs) to be
completed and operationalized?
If so, could you please share with us the information?
Furthermore, does Myanmar provide investment incentives and/or privileges for investors
in the special economic zones? If so, please also share with us the detail.
Answer:
The new Myanmar Special Economic Zone Law was enacted on 23rd January 2014.
Myanmar currently has three SEZs: Kyauk Phyu SEZ; Dawei SEZ; and Thilawa SEZ.
The investor is entitled to the following income tax exemptions and reliefs:
(a) for investment business in the free zone or the free zone business, there shall be
income tax exemption for the first seven years from the commencement of the
commercial operation; whereas for investment business in the promotion zone or other
businesses in the boundary of the special economic zone, there shall be income tax
exemption for the first five years from the date of commencement on commercial
operation;
(b) The investment business in the free zone and promotion zone shall be entitled to 50%
relief on the income tax rate stipulated under the existing law for the following five
years;
(c) The investment business in the free zone and promotion zone shall be entitled to 50%
relief of the income tax rate stipulated under the existing law for the subsequent five
years on the profit which is obtained from the business and reinvested within one year
in the business after keeping it as a separate fund.
The developer is entitled to the following income tax exemptions and reliefs:
(a) income tax exemption for the first eight years from the commencement of the
business operation;
(b) 50% relief on the income tax rate stipulated under the existing law for the following
five years and
(c) 50% relief of the income tax rate stipulated under the existing law for the subsequent
five years on the profit which is obtained from the business and reinvested within one
year in the business after keeping it as a separate fund.
Regarding the Dawei Special Economic Zone, it has been carrying out to compete from
investor and developer in project area in accordance with the tender procedures.
Regarding the Thilawa Special Economic Zone, basic infrastructures are being carried out
in first stage of 400 hectares and it is expected to commercialize by 2015. To establish
Kyauk Phyu Special Economic Zone, it has been arranging to invite tender for developer.
Page 44, Sub 3.2.4.3, Export Finance, China Q14:
Please confirm whether the Government plans to extend sovereign guarantee in future, if
so, to whom and in which sectors or fields?
Answer:
On behalf of the Government, the Ministry of Finance has extended sovereign guarantees
to some SEEs borrowing from abroad (notable in connection with hydro-electric projects).
Page 44, paras 3.59 & 3.74, WTO notification, USA Q8:
The Secretariat report identifies various tax and duty reductions or exemptions for
businesses located in special economic zones under the Special Economic Zone Law of
January 2011. What are the Government's plans for notifying these incentives, as well as
additional tax incentives identified in paragraph 3.74, under Article 25 of the SCM
Agreement?
Answer:
Once Myanmar's first TPR is completed, the GOM intends to turn its attention to notifying
these as well as other measures to the WTO as soon as possible, in so far as its limited
capacity permits. The GOM would be very grateful for any TA from the WTO in providing
this and other outstanding notifications.
WT/TPR/M/293/Add.1
- 29 Page 45, Sub 3.3.1.1, Company Act & Investment Law, EU Q33:
Can the government confirm that the Companies Act and Investment laws are to be
revised?
If so, by what timeframe and if so, what consultations are considered for stakeholders?
Answer:
Yes, see General Answer on Investment.
Page 46, para 3.69, National treatment, Korea Q6:
According to Schedule 1 of the Commercial Tax law, 70 items are exempt from commercial
tax if they are produced domestically, while a 5% tax is levied on imported goods. Korea
would be grateful if the Myanmar government could clarify how this aligns with the
obligation of national treatment and identify these 70 items.
Answer:
While the TPRM "is not intended to serve as a basis for the enforcement of specific
obligations" under the WTO agreements, the GOM is nonetheless glad to clarify the
rationale for these exemptions from commercial tax. These exemptions apply mainly to
primary agricultural products, including Myanmar species, sold by farmers directly to
consumers. Their main purposes have been to simplify administration of the tax and
alleviate the compliance burden on farmers and owners of small enterprises, many of
whom are not sufficiently literate and have very small farms or businesses. These farmers
and owners of small enterprises have not been entirely exempt from commercial tax,
however, as such taxes may nonetheless be levied on the agricultural and other inputs,
such as fertilizer and tools, that they need to purchase, and cannot receive credits for the
taxes paid on such inputs, as in the case of a value-added tax (VAT), for example. In
accordance with international best practices, a VAT usually involves a threshold, whereby
small producers may be exempted from the tax on administrative and compliance grounds.
In the medium term, with the assistance of the Fiscal Affairs Department of the IMF, the
World Bank, the ADB and Myanmar's other development partners, the GOM aims to reform
the existing commercial tax so as to bring it into line with international best practices with
respect to internal consumption taxes. This will involve converting the commercial tax,
which is a hybrid of VAT and excises, into a broadly-based VAT on goods and services
supplemented by a special commodities tax on excisable products on selected goods and
services. Both of these taxes will apply equally to imported and domestically-produced
goods and services.
Page 46, para 3.69, National treatment, Canada Q2:
Under Schedule 1 of the Commercial Tax Law, 70 items are exempt from commercial tax
(Table A3.2) if they are produced domestically, while a 5% tax is levied on the imported
goods, indicating different treatment for domestically produced and imported goods. Could
Myanmar please elaborate on how this measure is consistent with GATT Article III?
Answer:
While the TPRM "is not intended to serve as a basis for the enforcement of specific
obligations" under the WTO agreements, the GOM is nonetheless glad to clarify the
rationale for these exemptions from commercial tax. These exemptions apply mainly to
primary agricultural products, including Myanmar species, sold by farmers directly to
consumers. Their main purposes have been to simplify administration of the tax and
alleviate the compliance burden on farmers and owners of small enterprises, many of
whom are not sufficiently literate and have very small farms or businesses. These farmers
and owners of small enterprises have not been entirely exempt from commercial tax,
however, as such taxes may nonetheless be levied on the agricultural and other inputs,
such as fertilizer and tools, that they need to purchase, and cannot receive credits for the
taxes paid on such inputs, as in the case of a value-added tax (VAT), for example. In
accordance with international best practices, a VAT usually involves a threshold, whereby
small producers may be exempted from the tax on administrative and compliance grounds.
In the medium term, with the assistance of the Fiscal Affairs Department of the IMF, the
World Bank, the ADB and Myanmar's other development partners, the GOM aims to reform
the existing commercial tax so as to bring it into line with international best practices with
respect to internal consumption taxes. This will involve converting the commercial tax,
which is a hybrid of VAT and excises, into a broadly-based VAT on goods and services
WT/TPR/M/293/Add.1
- 30 supplemented by a special commodities tax on excisable products on selected goods and
services. Both of these taxes will apply equally to imported and domestically-produced
goods and services.
Page 46, paras 3.69 & 3.70, Tax incentive & notification, USA Q9:
The Secretariat's report identifies exemptions under the Commercial Tax Law that appear
to favour domestic goods over imported goods. Please explain these incentives in light of
the provisions under Article 3.1(b) of the SCM Agreement regarding subsidies contingent
upon the use of domestic over imported goods?
What are your plans for notifying these incentives under Article 25 of the SCM Agreement?
Answer:
These exemptions from commercial tax apply mainly to primary agricultural products,
including Myanmar species, sold by farmers directly to consumers. Their main purposes
have been to simplify administration of the tax and alleviate the compliance burden on
farmers and owners of small enterprises, many of whom are not sufficiently literate and
have very small farms or businesses. These farmers and owners of small enterprises have
not been entirely exempt from commercial tax, however, as such taxes may nonetheless
be levied on the agricultural and other inputs, such as fertilizer and tools, that they need
to purchase, and cannot receive credits for the taxes paid on such inputs, as in the case of
a value-added tax (VAT), for example. In accordance with international best practices, a
VAT usually involves a threshold, whereby small producers may be exempted from the tax
on administrative and compliance grounds.
In the medium term, with the assistance of the Fiscal Affairs Department of the IMF, the
World Bank, the ADB and Myanmar's other development partners, the GOM aims to reform
the existing commercial tax so as to bring it into line with international best practices with
respect to internal consumption taxes. This will involve converting the commercial tax,
which is a hybrid of VAT and excises, into a broadly-based VAT on goods and services
supplemented by a special commodities tax on excisable products on selected goods and
services. Both of these taxes will apply equally to imported and domestically-produced
goods and services.
Page 48, para 3.78, Bankruptcy law, EU Q34:
Given that the absence of a bankruptcy law may have an impact on foreign operators, is
the intention of the Government to remedy situation by adopting related legislation?
Answer:
It has Insolvency Act rather than out dated and GOM has intern to modify this law
hopefully with technical assistance.
Page 48, para 3.79, Business registration, New Zealand Q7:
What measures does Myanmar intend to take to further improve the business
environment, particularly in the area of registration of companies, settlement of claims and
the cost of registering a business?
Answer:
Myanmar has already liberalized registration process (in 2011, temporary company
registration certificate was issued and after finishing necessary internal procedure, original
company registration replace the temporary one. Since 25th November 2013, five years
terms of company registration certificate are being issued within three days), tenure of
Company (in November 2011, the tenure of company was three years and since
February 2013, it was extended to five years). Previously, cost of register (US$2,500)
used to be paid to bank. Now, cost of register (Kyat 1 million) has to be paid to Directorate
of Investment and Company Administration.
Page 48, para 3.82, SEEs, China Q15:
As to privatization of business sectors reserved for the State, whether the government has
explicit plans and timetable?
Answer:
SEEs which have under capacity and could not efficiently use inputs will be priority for the
privatization. There are 42 Nos. of SEEs and those are fully owned by the government.
WT/TPR/M/293/Add.1
- 31 Now, there is no special treatment for import, purchase and sale of SEEs. The followings
are the list of 42 SEEs;
Name of Ministry
Ministry of Information
Ministry of Agriculture and Irrigation
Ministry of Environmental Conservation
and Forestry
Ministry of Finance
Ministry of Finance
Central Bank of Myanmar
Ministry of Construction
Ministry of Livestock, Breeding, and
Fisheries
Ministry of Communications and
Information Technology
Ministry of Labour, Employment and
Social Security
Ministry of Mines
Ministry of Cooperatives
Ministry of Transport
Ministry of Hotels and Tourism
Ministry of Industry
Ministry of Industry
Ministry of Rail Transportation
Ministry of Energy
Ministry of Electric Power
Name of SEEs
Printing and Publishing Enterprise
News and Periodicals Enterprise
Myanmar Motion Picture Enterprise
Myanmar Agricultural Development Bank
Myanmar Timber Enterprise
Myanmar Economic Bank
Myanmar Investment and Commercial Bank
Myanmar Foreign Trade Bank
Myanmar Insurance Enterprise
Myanmar Small Monetary Inspection Enterprise
Central Bank of Myanmar
Public Construction Work
Livestock, Feedstuff, and Dairy Products Enterprise
Myanmar Posts and Telecommunications Department
Social Security Board
No. (1) Mining Enterprise
No. (2) Mining Enterprise
No. (3) Mining Enterprise
Myanmar Gems Enterprise
Myanmar Salt and Marine Chemical Enterprise
Myanmar Pearl Enterprise
Cooperative Export Import Enterprise
Inland Water Transport
Myanmar Port Authority
Myanmar Shipyards
Myanmar Airways
Myanmar Hotels and Tourism Services
No. (1) Heavy Industrial Enterprise
No. (2) Heavy Industrial Enterprise
No. (3) Heavy Industrial Enterprise
Textile Industries Enterprise
Pharmaceutical and Foodstuff Enterprise
Paper and Home Utility Enterprise
Myanmar Railways
Road Transport
Myanmar Oil and Gas Enterprise
Myanmar Petrochemical Enterprise
Myanmar Petroleum Products Enterprise
Hydro Power Generation Enterprise
Myanmar Electric Power Enterprise
Electricity Supply Enterprise
Yangon City Electricity Supply Board
Myanmar Privatization Commission was established in 1995 and carried out the duties of
the privatization of state owned enterprises in order to achieve the purpose of the
WT/TPR/M/293/Add.1
- 32 commission based on the adopted policy. At present, the new Myanmar Privatization
Commission was re-established and headed by the Vice-President of the State. Private
Public Partnership (PPP) methods will be used in privatizing SEEs to upgrade the roles of
both SEEs and privatization. The commercialization and corporatization are going to be
started in Myanmar and the public owned companies will also be started.
The Government's current policy towards public enterprises is as follow: 1) to encourage
the development of State and regional organizations, cooperatives, joint venture, private
entrepreneurs, partner with foreigners, public companies for the economic development of
the State; 2) to focus more on the public services; 3) to maintain the enterprises which
should be kept under the guidance of the government for public interest without
transferring to private; 4) to include the Public-Private Partnership method in privatization
process; and 5) to continue the original business of the privatized enterprises without
changing to another kinds of business in order to maintain the public interest. If changing
is required for some purpose, the analysis should be taken.
772 entities have been transferred to private sector between 1995 and 2011. The
remaining 42 SEEs left to be privatized are being planned to include in the new procedure
of privatization process. The procedures to be used the following methods: 1) franchise;
2) sale; 3) PPP; 4) Joint Venture; 5) sharing system; and 6) contracting out for
transferring of SEEs to private parties.
Page 52, para 3.99, Copyright, USA Q10:
The Secretariat's report states that "[t]he Copyright Act, dating back to 1914, does not
appear to provide effective copyright protection. It is not clear whether copyright must be
registered to be protected, or for how long copyright is protected under the current
legislation. There is no specific policy on copyright protection on the internet. "Please
describe how the proposed copyright legislation currently under consideration will address
these issues. In particular, please clarify the Government's interest in addressing
obligations from the two WIPO Treaties (WCT and WPP, mentioned above), both which
provide international standards for copyright protection in the digital age.
Answer:
Under the Copyright Act (1914), there is no Copyright Registration System and the term
for which copyright shall subsist, except as otherwise expressly provided by this Act, be
the life of the author and a period of 50 years after his death.
Under the proposed copyright legislation, the registration of copyright is voluntary. Any
author or owner of copyright, if desirous, may file an application to obtain a certificate
from the Myanmar IP Office to be established. In case where the copyright owner needs to
demonstrate its rights in Courts, he can use its IP Certificate as a Prima Facie Evidence.
Regarding with the copyright protection in the digital age, Myanmar is not a party to
two WIPO treaties (WCT & WPPT) and, hence, is under no obligation to implement these
provisions.
Page 52, para 3.100, Patent, Japan Q4:
The Secretariat's report states that there is currently no legislation on patents in Myanmar.
Could Myanmar explain when a new Patent Law is likely to be introduced?
Answer:
The objectives of the draft Patent Law are as follows: 1) to contribute to the creation of a
competitive and more efficient business environment and to utilize the patent system as a
power tool for economic development; 2) to contribute to the promotion of technological
innovation and to the transfer and dissemination of technology; 3) to facilitate access of
the Republic of the Union of Myanmar to international markets and promote free trade and
foreign direct investment; 4) to discourage commercial parasitic and unfair practices; and
5) to implement the provisions in respect of patents contained in conventions, treaties and
agreements relating to intellectual property for which the Republic of the Union of
Myanmar is responsible to implement in accordance with this Law.
Infringements of Patent rights are enforced only by Civil Procedure. The Intellectual
Property Court established by the Supreme Court of the Union or any other Court
competent to adjudicate cases arising from this Law shall have the authority to order
prompt and effective provisional measures on the enforcement of infringement of IPRs.
Depending on the merits of the case, the Court will impose penalties for patent
infringements on a case by case basis.
WT/TPR/M/293/Add.1
- 33 Myanmar has obtained WIPO technical assistance throughout the formulation of the draft
Patent Law. It is envisaged that the Patent Law will be enacted in 2014.
Page 52, para 3.101-2, Trademarks, EU Q35-36:
Q35: How will the Government ensure that trademarks fulfil their essential function of
distinguishing products and services?
Answer:
Trademarks fulfil their essential functions of distinguishing products and services by the
provisions stating in the Trademark Law and the following up regulation. For example, in
the drafted Trademark Law, it includes some definitions of mark, trademark, service mark,
certification mark, trade name, etc. Other necessities will be followed up in regulation.
The objectives of the draft Trademark law are as follows: 1) to develop trade and
commerce by protecting the marks, trade names and well-known marks; 2) to give
protection to the interests of the owner of the marks, trade names and well-known marks;
3) to take effective action on infringement of the rights in marks, trade names and
well-known marks under this Law; and 4) to implement the provisions in respect of the
marks contained in conventions, treaties and agreements to which Myanmar is a party.
The right holder who has sufficient grounds for suspecting that the importation of alleged
counterfeit trademark goods into the territory of Myanmar is taking place or has taken
place, may submit a written request for the suspension to the Customs authority. Customs
may issue suspension order that the importation of alleged counterfeit trademark goods
into the territory of Myanmar. Infringements of trademark rights will be enforced by Civil
and Criminal Procedures.
Myanmar has obtained WIPO technical assistance throughout the formulation of the draft
Trademark Law. It is envisaged that the Law will be enacted in 2014.
Q36: How will the government organise the examination of the re-application for the
existing trademarks under the new law within its new Intellectual Property office?
Answer:
Trademarks fulfil their essential functions of distinguishing products and services by the
provisions stating in the Trademark Law and the following up regulation. For example, in
the drafted Trademark Law, it includes some definitions of mark, trademark, service mark,
certification mark, trade name, etc. Other necessities will be followed up in regulation.
After examination of the application with grounds for refusal under New Trademark Law, if
consistence, it can be used continuously, if not, its name or something should be changed
according to the new law.
In examining the application for the registration of marks under the proposed Trademarks
Law, the original owner of the mark must reregister its mark. If the mark is identical or
similar to the previous mark, the Registrar will issue the receipt of acknowledgement to
the original owner. There are transitional provisions in the proposed Law and details will be
elaborated in subsequent regulation.
Page 52, para 3.101-2, Trademarks, Honduras Q1:
The Government of Honduras would like to commend the Government of Myanmar for the
reforms it is undertaking especially in the context of its review of trademark legislation,
amongst other reforms. In this context, could the Government of Myanmar reassure that
in formulating legislation, across a variety of product and service categories, it will provide
strong IP protection which will in turn ensure that trademarks fulfil their essential function
of distinguishing products and services?
Answer:
Trademarks fulfil their essential functions of distinguishing products and services by the
provisions stating in the Trademark Law and the following up regulation. For example, in
the drafted Trademark Law, it includes some definitions of mark, trademark, service mark,
certification mark, trade name, etc. Other necessities will be followed up in regulation.
The objectives of the draft Trademark law are as follows: 1) to develop trade and
commerce by protecting the marks, trade names and well-known marks; 2) to give
protection to the interests of the owner of the marks, trade names and well-known marks;
3) to take effective action on infringement of the rights in marks, trade names and
WT/TPR/M/293/Add.1
- 34 well-known marks under this Law; and 4) to implement the provisions in respect of the
marks contained in conventions, treaties and agreements to which Myanmar is a party.
The right holder who has sufficient grounds for suspecting that the importation of alleged
counterfeit trademark goods into the territory of Myanmar is taking place or has taken
place, may submit a written request for the suspension to the Customs authority. Customs
may issue suspension order that the importation of alleged counterfeit trademark goods
into the territory of Myanmar. Infringements of trademark rights will be enforced by Civil
and Criminal Procedure.
Myanmar has obtained WIPO technical assistance throughout the formulation of the draft
Trademark Law. It is envisaged that the Law will be enacted in 2014.
Page 52, para 3.101, Trademarks, Japan Q5:
The Secretariat's report states that there is no specific law on trade marks, or specific
provision on the registration of trade marks in Myanmar. Could Myanmar explain when a
new Trademark Law is likely to be introduced?
Answer:
The objectives of the draft Trademark law are as follows: 1) to develop trade and
commerce by protecting the marks, trade names and well-known marks; 2) to give
protection to the interests of the owner of the marks, trade names and well-known marks;
3) to take effective action on infringement of the rights in marks, trade names and wellknown marks under this Law; and 4) to implement the provisions in respect of the marks
contained in conventions, treaties and agreements to which Myanmar is a party.
The right holder who has sufficient grounds for suspecting that the importation of alleged
counterfeit trademark goods into the territory of Myanmar is taking place or has taken
place, may submit a written request for the suspension to the Customs authority. Customs
may issue suspension order that the importation of alleged counterfeit trademark goods
into the territory of Myanmar. Infringements of trademark rights will be enforced by Civil
and Criminal Procedure.
Myanmar has obtained WIPO technical assistance throughout the formulation of the draft
Trademark Law. It is envisaged that the Law will be enacted in 2014.
Page 52, para 3.103, Copyright, USA Q11:
The Secretariat's report notes that "[t]he authorities state that most copyright problems
are solved through coordination by the parties concerned rather than through legal
procedures." Please state whether the IPR laws currently under consideration include legal
procedures for the resolution of copyright disputes, and, if so, please describe those
procedures.
Answer:
The objectives of draft Copyright Law are as follows: 1) to encourage more development of
the literary and artistic works, performances, producing phonograms and broadcastings;
2) to give protection on the copyright of literary and artistic work of the author and the
owner of copyright in accordance with Law; 3) to protect the related rights of performer,
producer of phonogram and broadcasting organization; 4) to implement the provisions in
respect of copyright contained in conventions, treaties and agreements relating to
intellectual property to be implemented by the Republic of the Union of Myanmar in
accordance with this Law; and 5) to contribute to the protection and promotion of
traditional cultural expressions and folklore.
The right holder who has sufficient grounds for suspecting that the importation of alleged
pirated copyright goods into the territory of Myanmar is taking place or has taken place,
may submit a written request for the suspension to the Customs authority. Customs may
issue suspension order that the importation of alleged pirated copyright goods into the
territory of Myanmar. Infringements of rights of Copyright are enforced by Civil and
Criminal Procedure. The Intellectual Property Court established by the Supreme Court of
the Union or any other Court competent to adjudicate cases arising from this Law shall
have the authority to order prompt and effective provisional measures on the enforcement
of infringement of IPRs. Offences and penalties related to copyright shall be punished with
imprisonment for a term not exceeding 3 years or with fine or with both in respect of initial
offences and longer imprisonment terms in instances of subsequent conviction.
WT/TPR/M/293/Add.1
- 35 Page 52, para 3.103-5, Illegal imports, EU Q37:
Customs are reported as responsible for detecting illegal imports of IPR related goods. The
Secretariat notes that data are not available on enforcement of IPR protection. What steps
does Myanmar take/considers adopting to improve the situation in terms of enforcement?
Is the Government considering harmonising IPR laws and the Customs Act taking into
account that certain legal framework in this area is already embodied in the Sea Customs?
Answer:
Myanmar will take the drafting Registration against IP infringement as the first step to
improve the situation in terms of enforcement on IPR protection. Then, the enforcement
will be implemented according to the following outline:
(1) Administrative Enforcement:
(a)
IP office, Ministry of Science and Technology: To administer IP rights in
Myanmar, a national IP Office will be established under one Ministry and it will be
responsible for all operations related to IP. As Ministry for IP, currently, an IP Section
under MOST will be submitted the proposed IP Office Organization to parliament
together with the IP legislations. The IP office will conduct various activities to prevent
and suppress infringement upon IPRs in cooperation with the police, other government
agencies and right holders.
(b)
The Custom department: Customs seizes goods infringing on IPRs, as per Part
III, Section 4 of TRIPS Agreement. The provisions in our draft IP Laws and existing
Laws allow Customs to provide an effective and efficient level of IPR protection and
enforcement at its borders. These provisions are included in the following laws: Draft
Trademark Law; Draft Copyright Law; Sea Customs Act; Land Customs Act; Specific
Relief Act. To protect a right holder from importation/exportation of goods infringing
on its IPRs, the right holder, or in some cases an authorized person, must submit a
written request for the suspension of release to the Customs authority.
(2) Judicial Enforcement (Civil):
(a)
The Court: IP Court means IP Court established by the Supreme Court of the
Union or any other Court competent to adjudicate cases arising from this law. The
Court has the power to adjudicate both civil and criminal cases regarding IP. The Court
was established by the Act of Judiciary Law, 2010.
(b)
Primary proceedings regarding civil remedies: Payment of damages and
injunctions will be the primary remedies against the infringement of IPRs. Before the
plaintiff files a lawsuit seeking a remedy, he can file a request for a tentative
injunction, under section 80 of draft Trademark Law that are established according to
section 50(1)(a) of the TRIPs Agreement.
(3) Judicial Enforcement (Criminal):
(a)
IP Court: Means IP Court established by the Supreme Court of the Union or any
other Court competent to adjudicate cases arising from this law. The Court has the
power to adjudicate both civil and criminal cases regarding IP. The Court was
established by the Act of Judiciary Law, 2010.
(b)
Investigation Authorities: The Police Department is under the Ministry of Home
Affair in Myanmar. The organization of prosecutors in Myanmar is under the Union
Attorney General Office and is comprised of township level, district level and State
level.
Moreover, there are many tasks planned to be done to improve enforcement in
Myanmar including: education people regarding IP related issues; training of officials
from Customs, judge and police department; conducting other seminars, workshops
and meeting relating to IPR enforcement; learning IPR enforcement systems of other
countries; and setting up a plan to improve Myanmar's enforcement system. The
Government is also considering harmonizing IPR Laws and Customs Acts, such as the
Sea Custom Act and the Land Custom Act.
Page 52, para 3.105, Counterfeit, USA Q12:
The Secretariat's report states that law enforcement has the authority to detain and seize
imports and exports of goods bearing counterfeit trademarks.
Q12A: Please describe the processes and procedures involved with such enforcement
actions and provide examples of recent enforcement actions.
WT/TPR/M/293/Add.1
- 36 Answer:
The Ministry of Science and Technology is the WIPO focal point for IP matters. Under the
current enforcement rules, civil action can be taken by demanding perpetual injunction and
the criminal action can also be used under the Penal Code, Sections 478 to 489.
Q12B: Do authorities have similar authority to seize imports and exports of pirated goods?
Answer:
Myanmar Customs is implementing the Sea Customs Act of which Section 18(d) is dealing
counterfeit trademark and false trade description. Myanmar Customs do not allow imports
and exports of goods bearing counterfeit trademarks and without trademarks goods. When
goods with counterfeit trademarks or without trademarks are found, Customs detain and
seize them. The National Police is also authorized to seize imports and exports of pirated
goods.
The Ministry of Science and Technology is the WIPO focal point for IP matters. Under the
current enforcement rules, civil action can be taken by demanding perpetual injunction and
the criminal action can also be used under the Penal Code, Sections 478 to 489.
Q12C: Is there a process for a trademark or copyright owner to request such action from
border enforcement authorities (commonly known as an application for action), and if so,
please describe it.
Answer:
In the proposed Copyright and Trademarks Laws, the right holder who has sufficient
grounds for suspecting that the importation of pirated goods into the territory of Myanmar
is taking place or has taken place, may submit a written request for the suspension to the
Customs authority.
Q12D: The report further states that persons involved in any such offence are liable to pay
a fine. Are there other penalties including criminal penalties associated with such
enforcement actions? Please provides examples if any.
Answer:
Myanmar Customs is implementing the Sea Customs Act of which Section 18(d) is dealing
counterfeit trademark and false trade description. Myanmar Customs do not allow imports
and exports of goods bearing counterfeit trademarks and without trademarks goods. When
goods with counterfeit trademarks or without trademarks are found, Customs detain and
seize them. The National Police is also authorized to seize imports and exports of pirated
goods.
The Ministry of Science and Technology is the WIPO focal point for IP matters. Under the
current enforcement rules, civil action can be taken by demanding perpetual injunction and
the criminal action can also be used under the Penal Code, Sections 478 to 489.
Chapter 4. Trade Policies by Sector
Page 53, para 4.3, Agricultural programs, Canada Q3:
Could Myanmar give more information on the types of measures carried out by the
Government to achieve these policy objectives, more specifically those related to
maintaining a positive annual growth rate of value-added for agriculture?
Answer:
The Government intends to carry out to achieve agricultural policy objectives according to
following measures:
To Increase the use of high-yield variety (HYV) and high-quality seeds: 1) dedicate more
of MOAI's registered and certified seed production to high-quality varieties, such as
Pawsan and Immayebaw, as a critical source of quality seed supply to the rice farmers;
2) Invest in best-practice infrastructure at MOAI's seed farms, including irrigation,
drainage, and the segregation of nursery land from normal farm land; 3) Use
public-private partnerships as another means of setting up companies to supply quality
seed, matching private best practices and public development goals; 4) Switch seed
varieties through campaigns to raise farmers' awareness of the yield- labour and pricerelated advantages of better seed varieties; 5) Expand MOAI's seed distribution network
WT/TPR/M/293/Add.1
- 37 by engaging farmers in each village to produce certified seeds in all regions; 6) Conduct
investment promotion activities, particularly investor outreach to attract foreign seed
companies to establish sales offices and manufacturing plants in Myanmar, as a way of
increasing supply of the quality seeds, quality fertilizer, pesticide, and insecticide available
to farmers; and 7) Attract foreign manufacturers of farm machinery to establish sales
offices and manufacturing plants in Myanmar.
To Increase production and use of fertilizer and pesticide: 1) Conduct awareness-raising
campaigns among farmers for the types, benefits, procurement channels, and proper
application of fertilizers and pesticides; and 2) Invite joint ventures in the fertilizer
production.
To Increase farm mechanization: 1) Open training centres for mechanized farming across
the major rice-producing regions; 2) Set up Mechanized Farming Service Stations to
support mechanization across the major rice-producing regions; and 3) Attract foreign
manufacturers of farm machinery.
To Expand and upgrade infrastructure for irrigation, drainage, and electricity in producing
regions: 1) Conduct feasibility study to determine irrigation needs and options for major
producing areas, including irrigation types, technologies, and costs; 2) Mitigate harmful
flooding by (i) repairing drainage pipes severed by new roads and (2) implement policy of
preserving drainage systems when laying new roads; and 3) Engage with MOEP and the
World Bank-led project to devise a national electrification strategy. Prioritize electrification
of the producing areas of Ayeyarwady, Yangon, and Bago Divisions, which account for 83%
of rice production, as a way of facilitating farm mechanization, drying, and milling without
relying on costly generators.
To develop new markets and new higher value-added rice products: 1) Provide sector with
market research (price, quality standards, etc.) on regional markets for high-quality;
2) Facilitate market entry for inexperienced processors and exporters by sharing the costs
of innovation through a public-private centre for the design, research, and development of
rice products; 3) Invest in training and equipment for greater R&D capacity at MOAI and
state agricultural institutes to support processors in the production of higher value-added
and more innovative products; and 4) Invest in training and resources for greater capacity
at MOAI to provide the sector with internationally recognized organic certification.
Pages 54-55, para 4.11 & 4.14, Rice, Canada Q4-6:
Q4: Could Myanmar elaborate on the mechanism whereby the National Rice Reserves
Supervisory Committee purchases rice, such as how the purchase price is determined and
factors used to determine the volume of purchases?
Answer:
The main objective of the Rice Reserved Supervisory Committee is to maintain the stability
of domestic rice price and to release rice at the time of emergency in the states/regions.
The Rice Reserved Supervisory Committee sets up the bidding rules and regulations and
determines the region where rice will be purchased, and the price and volume to be
purchased by region. The Committee considers the lowest purchase price based on
production cost of farmers, and upon consideration of this price, bidding floor price is set
as the purchase price. The volume of reserved rice to be purchased is considered upon
yield and market price of local and neighbouring countries. At the present, The Committee
does not authorized import or export transaction of rice.
Q5: Are these purchased stocks sold to consumers at market prices or is there a
government subsidy to consumers?
Answer:
Reserved rice is sold to the population in disaster area at the purchase price plus overhead
cost. In order to prevent the deterioration of rice in stocks, there is a need to rotate the
quantity in the stocks, this is performed by selling and buying on the basis of "fifo" stock
management method, i.e. first in first out. These transactions are performed at prevailing
market price condition.
Q6: At what price are these purchased stocks exported?
Does the National Rice Reserves Supervisory Committee export its surpluses?
WT/TPR/M/293/Add.1
- 38 Answer:
Rice Reserves Supervisory Committee has never considered disposing rice surplus on the
export market.
Page 55, para 4.16, Agriculture support, Canada Q7:
Could Myanmar provide further details regarding research and extension services being
made available to producers, including specific programs and their respective policy
objectives, and the average yearly levels of funding attributed to them?
Answer:
According to the data in 2002, Myanmar had only 619 full time researchers and spent
US$8 million on agricultural research activities. Ministry of Agriculture and Irrigation
(MOAI) allocated less than 1% of its total budget to research and education purpose until
2006-07, or approximately US$131 million. It increased to 1.36% in 2007-08, but
10 years average budget allocation for researches and education is still less than 1% from
2001-10. Yezin Agricultural University (YAU) which is under the administration of MOAI
gives sound weight on academic researches and course works. The role of Yezin
Agriculture University (YAU) in research and extension is to deliver research-based
knowledge to the students who will become professional in agriculture, and rural
development. All final year students and graduate students involve in current research
activities and many faculties also involve in doing researches which are being funded by
the government or by the international organizations such as ACAIR, JICA or by the local
NGOs or by their own budget. YAU conducts laboratory to form approach for the most
efficient applied researches. Annual total budget increase is 86% from 2005-06 to
2013-14. Budget allocation for research expenditure was less than 1% annually until
2011-12. However, the research expenditure shared 3.5% of total budget in 2012-13.
Pages 56 & 43, para 4.23 & 3.52, Log export, Japan Q6:
Please explain how the log export prohibition, starting from 1 April 2014 with a view to
encouraging domestic small and medium-sized manufactures of wood-based products,
conforms to the WTO rules (especially GATT article 11).
Answer:
While the TPRM "is not intended to serve as a basis for the enforcement of specific
obligations" under the WTO agreements, the GOM is nonetheless glad to clarify the
rationale for this ban on exports of round logs. The main purpose of this export ban is to
preserve Myanmar's rapidly dwindling forests. In particular, teak forests that covered
about half of the country in 2005 now occupy less than a quarter of it, and[, according to
the Environmental Investigation Agency (EIA),] will virtually disappear within the next
decade if logging continues at its current pace. Indeed, Myanmar is currently the only
country without such an export ban (which is arguable more transparent than a prohibitive
export tax) on virgin teak. Although this export ban may not be the best way to achieve
this objective, given the urgency of preserving Myanmar's remaining forests, it is a
measure that the GOM can implement relatively easily and quickly with a view to
eventually evaluating its effectiveness (compared to an export tax, for example) in
achieving this objective. The ultimate aim is to design a forestry management and
resource tax system that harvests Myanmar's remaining forests in a sustainable way,
hopefully with the help of international expertise.
It is true that the ban, like the 50% export tax it will replace, could also assist domestic
small and medium manufacturers of wood-based products, and thereby develop a
sustainable and competitive hardwood timber export industry in the near future. After all,
Myanmar's teak processing ("milling") industry, for example, has been declining rapidly
from 37% of production in 1995-96 to a mere 4% in 2005-06, while exports increased
from 49% to 90% during the same period.
Page 59, para 4.41, Energy laws, Singapore Q4:
Singapore notes that Myanmar's main laws and regulations governing petroleum and
natural gas include the Petroleum Act 1934, the Petroleum Rules 1937, the Oilfields Act
1918, the Oilfield Rules 1936, the Essential Supplies and Services Act 1947, the Oilfields
(Labour and Welfare) Act 1951, the Petroleum Resources (Development Regulation) Act
1957, the Law Amending the Petroleum Resources (Development Regulation) Act 1969,
and the Myanmar Petroleum Concession Rules 1962. In accordance with the State-owned
WT/TPR/M/293/Add.1
- 39 Enterprise Law, the Government has the sole right to carry out exploration, extraction, and
sale of petroleum and natural gas, and production thereof. We would appreciate it if
Myanmar could share if it is considering updating the existing laws and regulatory
frameworks to manage the increased exploration activities and the development of its
energy infrastructure.
Answer:
The Ministry of Energy is updating the existing Laws, Rules, Acts, etc. The Myanmar
Petroleum Act 1934 has already been drafted, for the time being it's under process to
submit the parliament.
Moreover, the Petroleum Rules 1937; the Petroleum Resources (Development Regulation)
Act 1957 and the Law Amending the Petroleum Resources (Development Regulation) Act
1969 are still drafting. The Oilfields Act 1918 and the Oilfields Rules 1918 are starting to
amend in line with the existing situation.
The essential Supplies and Services Act 1947 has already been enacted by Parliament in
2012. After that, the Ministry of Energy will continue to update the Oilfields (Labour and
Welfare) Act 1951 and the Myanmar Petroleum Concession Rules 1962.
Page 60, para 4.50, FDI power, Chinese Taipei Q4:
Myanmar allows foreign investors to invest in power generation, subject to the conditions
and procedures established by the Government. We would like to know the differences in
the approval procedures and conditions between those applied to foreign investors and
those to domestic private investors, as well as the causes of these differences. To our
understanding, administrative procedures required to complete foreign investment
application seem to be too complicated. Is there any possibility of simplification in the
future?
Answer:
There are no differences in the approval procedures and conditions between foreign
investors and domestic private investors. Future plan is related to Ministry of Electric
Power.
Upon reviewing the existing procedures, the more easy way to follow the procedures may
be revised in future if necessary.
Page 61, para 4.60, FDI approval, Thailand Q7:
"Under the Foreign Investment Law 2012, FDI is restricted in "manufacturing and
marketing of most food products, any kinds of spirits or beer, drinking water, plastics,
rubber, leather, paper, certain chemical products and raw materials for medicines and
pharmaceuticals". Prior approval is required for FDI in production/distribution of soft
drinks, mineral water, and beer. FDI is allowed only in the form of joint ventures in: the
production/distribution of certain foodstuff (biscuits, noodles, chocolates); and the
production of paper, pharmaceuticals, plastic, and packaging. FDI is not allowed in:
production of traditional food; manufacture of religious materials and equipment;
manufacture of traditional and cultural materials and equipment; manufacture based on
handicrafts; and manufacture of traditional medicines." We would appreciate if Myanmar
could explain the reasons behind the restriction on FDI under the Foreign Investment Law
2012 in the sectors indicated under the paragraph.
Why are particular sectors subject to prior approval and others subject to the requirement
of investment to be formed only as joint ventures?
Answer:
The main reason is to protect our traditions, our environment and our indigenous people.
Depending the types of business and Ministries concerned, prior approval is required and
FDI must be in the form of joint ventures. In a transition economy, it is necessary to
nurture infant industries and to give time to small enterprises to improve their productivity
so that they can eventually compete with larger domestic and foreign enterprises.
Page 62, para 4.71, Services, China - Q-16 - 17:
Q16: Does the Government of Myanmar have any plan to further open its service sector to
allow deepened involvement of private sectors and foreign enterprises in the development
of Myanmar's economy?
WT/TPR/M/293/Add.1
- 40 Answer:
Myanmar is willing to expand its list of commitments pertaining to those service sectors
covered by the GATS, provided mutually satisfactory results can be achieved in the DDA
negotiations.
Q17: If any, please elaborate on policy considerations contained in the plan and its
proposed timetable for implementation.
Answer:
Myanmar is willing to expand its list of commitments pertaining to those service sectors
covered by the GATS, provided mutually satisfactory results can be achieved in the DDA
negotiations.
Page 63, para 4.73, GATS adjustment, ASEAN Q2:
The report indicates that Myanmar made specific commitments in two out of 12 major
sectors in its GATS schedule in 1994. Does Myanmar have a plan to expand the list of its
specific commitments?
If so, what will be such sectors?
Answer:
Myanmar is willing to expand its list of commitments pertaining to those service sectors
covered by the GATS, provided mutually satisfactory results can be achieved in the DDA
negotiations.
Page 63, para 4.74, Foreign bank services, Japan Q7:
According to paragraph 4.74., there are very few foreign-owned financial services
providers. We would like to know how many foreign-owned financial services providers are
operating in each sector of banking, finance, and insurance in Myanmar.
Answer:
At the present time, there is no bank, finance and insurance company owned by foreign
institutions in the financial sector of Myanmar. But there are five foreign-owned micro
finance companies among 189 microfinance companies and institutions.
Among these microfinance companies and institutions, there are 84 local companies,
5 foreign-owned companies, 75 cooperatives, 19 Non-government Organizations (NGO,
i.e. owned and organized by local people) and 6 International Non-government
Organizations (INGO, i.e. owned and organized by International Organizations, e.g. PACT,
GRET). As these institutions and companies have different objectives and are also
registered with the various Ministries and Departments, the structure of microfinance
sector is quite complex. Anyway, the Microfinance Law was adopted in November 2011 and
then allows local and foreign investors as well as other institutions to establish
microfinance institutions legally.
Page 63, para 4.74, State owned banks, Japan Q8:
According to paragraph 4.79., regulatory regime is the same for state-owned banks and
private banks. With regard to this statement, Japan would like to seek the clarification
whether state-owned banks would have advantages over private banks.
Answer:
Although the state-owned banks and the private banks are on the equal terms, there are
some advantages of state-owned banks over private banks such as the banking
experience, numbers of correspondent banks, experienced staff. In addition, state-owned
banks are not complying with some prudential measures such as the accumulation of
foreign currency more than the appropriate position limit due to their base capital.
However, the Central Bank has become an independent entity since the new Central Bank
Law was enacted on 11th July 2013, and in addition, the new Financial Institutions Law will
be promulgated during this year, and thus the banks will be regulated and supervised by
the Central Bank on an equal footing.
Pages 63-64, paras 4.76 & 4.85, FDI in banks, New Zealand Q8:
What does Myanmar consider to be the key challenges facing its domestic banking sector
and the process towards further liberalisation in this sector?
WT/TPR/M/293/Add.1
- 41 Answer:
Although there are a lot of exertions to modernize and liberalize the banking service in
Myanmar, there also has inadequate harmonization among all stakeholders. In addition,
most of Myanmar people did not have sufficient confidence in the banking system because
some people regarded that the service in the banking sector were both inefficient and
corrupt. It was because some customers of private commercial banks experienced a lot of
trouble with the liquidity crisis in the banking sector in 2003.
Therefore, it is essential for the Central of Myanmar to build the relationship based on trust
and understanding among the banking system and the people of Myanmar. To this end,
the capacity and efficiency of the banking service have to be enhanced; moreover the
banking sector has to facilitate the customers quick and easy access to the required
service; all stakeholders in the banking sector must have expertise in banking, affability
and enthusiasm for the development of the banking service.
Page 64, Table 4.1, State owned banks, Japan Q9:
According to Table 4.1, the total assets of State-owned banks between 2012 and 2013
increased dramatically. We would like to know the background of this.
Answer:
Previously, the foreign currency assets of the State-owned banks were converted into Kyat
(MMK) with the SDR-pegged rate, i.e. 1 US$ = 6 MMK, for valuation. However, the
Managed-float Exchange Rate regime was adopted on 1 April 2012 and thus the average
Central Bank's Reference Rate in FY 2012/13 reached to 1 US$ = 856 MMK which has also
been used as the exchange rate for valuation. That different exchange rate for valuation
contributed to the surge of the State-owned banks' assets.
Page 64, para 4.85, Foreign banks, Hong Kong, China Q1:
We note that the CBM intends to develop the banking sector in three phases. We are
interested to know the latest development of this initiative. Has the CBM made any
decision or plan on this initiative? If so, what are the details of this initiative?
Answer:
According to the banking sector development master plan and foreign banks entry plan,
the establishment of foreign banks inside the domestic banking sector will be allowed by
the CBM by the end of this year (2014).
The model and format among three categories: joint venture, subsidiary and full branch
has not been clearly decided yet by the CBM as there still needs to make sure that the
forthcoming model or models are to comply with the existing laws. The Financial
Institutions of Myanmar Law stipulates that the financial institutions can be established as
a financial institution with foreign capital or as a branch of a foreign bank. However, that
Law did not mention the joint venture model or equity participation of foreign banks in the
domestic banks. On the whole, the Banking and Financial Institutions Law (new) has
already been drafted by the CBM with the TA of the World Bank and to be submitted to the
Parliament in the near future. Hopefully, this new law will be promulgated during this year
and provide room for any model of foreign banks entry, and thus the entry of foreign
banks can be commenced by the end of this year (2014).
Page 64, para 4.85, Master plan & foreign banks, Australia Q9:
Q9A: Can the Government of Myanmar provide more information on its master plan for
the development of the financial sector and the re-write of the Financial Institutions of
Myanmar Law Chapter? What is the expected timeframe for completion?
Answer:
According to the banking sector development master plan and foreign banks entry plan,
the establishment of foreign banks inside the domestic banking sector will be allowed by
the CBM by the end of this year (2014).
The model and format among three categories: joint venture, subsidiary and full branch
has not been clearly decided yet by the CBM as there still needs to make sure that the
forthcoming model or models are to comply with the existing laws.
The Financial Institutions of Myanmar Law stipulates that the financial institutions can be
established as a financial institution with foreign capital or as a branch of a foreign bank.
However, that Law did not mention the joint venture model or equity participation of
WT/TPR/M/293/Add.1
- 42 foreign banks in the domestic banks. On the whole, the Banking and Financial Institutions
Law (new) has already been drafted by the CBM with the TA of the World Bank and to be
submitted to the Parliament in the near future. Hopefully, this new law will be promulgated
during this year and provide room for any model of foreign banks entry, and thus the entry
of foreign banks can be commenced by the end of this year (2014).
Q9B: What are the Government of Myanmar views on the net effect to date of increased
investment flows on economic development and growth?
Answer:
Whereas inward FDI amounted US$1.4 billion in FY 2012/13, during the first 11 months of
FY 2013/14 (beginning on 1 April) it more than doubled to reach US$3.6 billion (of which
roughly half flowed into manufacturing and 20% into the telecommunications sector). Real
GDP growth has accelerated from 5.1% in fiscal year (FY) 2009/10 (year ending March) to
an estimated 6.4% in FY 2012/13 and 6.8% in FY 2013/14.
Q9C: Can the Government of Myanmar provide more details on its plan to develop the
banking sector in three phrases? What are some of the practical examples of that plan's
implementation?
Answer:
According to the banking sector development master plan and foreign banks entry plan,
the establishment of foreign banks inside the domestic banking sector will be allowed by
the CBM by the end of this year (2014).
Although there are three models or formats: joint venture, subsidiary and full branch, the
Central Bank of Myanmar still needs to make sure that the forthcoming model or models
are to comply with the existing laws. The Financial Institutions of Myanmar Law stipulates
that the financial institutions can be established as a financial institution with foreign
capital or as a branch of a foreign bank. In addition, that Law does not mention the joint
venture model or equity participation of foreign banks in the domestic banks and so do the
Myanmar Company Act. Therefore, other two models rather than joint venture or equity
participation will be allowed at the present time according to the Laws. Hopefully, the entry
of foreign banks will be commenced by the end of this year (2014) in accordance with the
provisions of the existing laws. On the other hand, the Banking and Financial Institutions
Law (new) has already been drafted by the CBM with the TA of the World Bank and to be
submitted to the Parliament in the near future and will be promulgated during this year
and could provide room for any model of foreign banks entry.
Q9D: How many new licences will be granted to foreign banks wanting to establish either
wholly owned locally incorporated subsidiaries or open direct branches?
Answer:
As things stand, the CBM has determined the models for the participation of foreign banks
in the domestic banking sector and been considering the application procedure and the
number of new licences to be granted to foreign banks.
Page 64, para 4.85, Master plan, Japan Q10:
According to 4.85., the CBM intends to develop the banking sector in three phases. We
would like to know what the expected timeline for the transition from one phase to another
is.
Answer:
According to the banking sector development master plan and foreign banks entry plan,
the establishment of foreign banks inside the domestic banking sector will be allowed by
the CBM by the end of this year (2014).
Although there are three models or formats: joint venture, subsidiary and full branch, the
Central Bank of Myanmar still needs to make sure that the forthcoming model or models
are to comply with the existing laws. The Financial Institutions of Myanmar Law stipulates
that the financial institutions can be established as a financial institution with foreign
capital or as a branch of a foreign bank. In addition, that Law does not mention the joint
venture model or equity participation of foreign banks in the domestic banks and so do the
WT/TPR/M/293/Add.1
- 43 Myanmar Company Act. Therefore, other two models rather than joint venture or equity
participation will be allowed at the present time according to the Laws. Hopefully, the entry
of foreign banks will be commenced by the end of this year (2014) in accordance with the
provisions of the existing laws. On the other hand, the Banking and Financial Institutions
Law (new) has already been drafted by the CBM with the TA of the World Bank and to be
submitted to the Parliament in the near future and will be promulgated during this year
and could provide room for any model of foreign banks entry.
As things stand, the CBM has determined the models for the participation of foreign banks
in the domestic banking sector and been considering the application procedure and the
number of new licences to be granted to foreign banks.
When it comes to the commencement of the stock exchange, the most crucial item i.e.
legal framework has been adopted. The Securities Exchange Law was enacted on
31st July 2013 and provides the concrete measures, procedure and practices of a typical
stock exchange. On the other hand, the Daiwa Institute of Research Ltd. with the
cooperation of Tokyo Stock Exchange Group has supported the necessary TA and IT
infrastructure to develop a full-fledged securities market. As things stand, the
transformation of private companies (family businesses) to the public listed companies,
knowledge sharing activities and developing the IT infrastructure for settlement have been
already kick started. All things being equal, a new securities market will be inaugurated by
the end of 2015.
Page 64, para 4.85, Foreign banks & Stock market, EU Q38:
What is the estimated timeline for the start of the entry of foreign banks in Myanmar?
Is it correct to understand that Myanmar envisage a sequencing of the opening up or
would it give investors a choice on which model to choose (subsidiary, joint venture, or
direct branching)?
Can the authorities inform about any possible set-up of the Stock Market?
Answer:
According to the banking sector development master plan and foreign banks entry plan,
the establishment of foreign banks inside the domestic banking sector will be allowed by
the CBM by the end of this year (2014).
Although there are three models or formats: joint venture, subsidiary and full branch, the
Central Bank of Myanmar still needs to make sure that the forthcoming model or models
are to comply with the existing laws. The Financial Institutions of Myanmar Law stipulates
that the financial institutions can be established as a financial institution with foreign
capital or as a branch of a foreign bank. In addition, that Law does not mention the joint
venture model or equity participation of foreign banks in the domestic banks and so do the
Myanmar Company Act. Therefore, other two models rather than joint venture or equity
participation will be allowed at the present time according to the Laws. Hopefully, the entry
of foreign banks will be commenced by the end of this year (2014) in accordance with the
provisions of the existing laws. On the other hand, the Banking and Financial Institutions
Law (new) has already been drafted by the CBM with the TA of the World Bank and to be
submitted to the Parliament in the near future and will be promulgated during this year
and could provide room for any model of foreign banks entry.
As things stand, the CBM has determined the models for the participation of foreign banks
in the domestic banking sector and been considering the application procedure and the
number of new licences to be granted to foreign banks.
When it comes to the commencement of the stock exchange, the most crucial item i.e.
legal framework has been adopted. The Securities Exchange Law was enacted on
31st July 2013 and provides the concrete measures, procedure and practices of a typical
stock exchange. On the other hand, the Daiwa Institute of Research Ltd. with the
cooperation of Tokyo Stock Exchange Group has supported the necessary TA and IT
infrastructure to develop a full-fledged securities market. As things stand, the
transformation of private companies (family businesses) to the public listed companies,
knowledge sharing activities and developing the IT infrastructure for settlement have been
already kick started. All things being equal, a new securities market will be inaugurated by
the end of 2015.
Page 65, para 4.93, Foreign insurance, Japan Q11:
According to 4.93, currently the IBSB only accepts applications for insurance from
domestic companies. We would like to know what the reason for this is and whether
WT/TPR/M/293/Add.1
- 44 Myanmar has any concrete plan for allowing investors from non-ASEAN countries to
operate insurance business in Myanmar.
Answer:
At present all domestic private insurance companies are still infant ones so they are not
ready to compete with financially strong and well-experienced foreign insurance
companies. As a result, IBSB needs to nurture them. When the domestic private insurance
companies become mature to some extent, the IBSB intends to allow foreign investors
from not only ASEAN but also non-ASEAN countries to operate insurance business.
Page 66, para 4.100, Telecom mobile, USA Q13:
The Secretariat's report states, "Currently only the MPT is authorized to provide mobile
services." However, in paragraph 4.105, it is noted that under the Foreign Investment Law
of 2012, 100% foreign ownership is allowed in telecommunications services. According to
the Government report, the Government awarded licenses to Telenor (Norway) and
Ooredoo (Qatar) for mobile telephone operations in June 2013. The Secretariat report
notes that authorities envision allowing two further licenses to international operators and
another local operator for mobile services.
Q13A: Please explain how Telenor and Ooredoo will be able to provide mobile services, if
MPT is currently the only authorized provider.
Answer:
Upon acceptance of the license, Teleport Myanmar aims to launch services within eight
months and Ooredoo Myanmar aims to launch services within six months to provide mobile
communications services to people across Myanmar.
Q13B: When does the Government expect to issue licenses for two additional international
mobile operators?
Will they be permitted to have 100% foreign investment, or must they partner with MPT or
another domestic telecommunications services provider?
Answer:
Ministry of Communications and Information Technology granted Nationwide
Telecommunications Licence to Ooredoo Myanmar Limited on 30th January 2014 and to
Telenor Myanmar Limited on 5th February 2014 respectively.
100% ownership of foreign company is allowed in telecommunications services.
Page 66, para 4.101, Telecom Law, USA Q14:
The Secretariat's report notes that a new Communications law is in the process of being
drafted. However, it is our understanding that the telecommunications law has now been
finalized.
Q14A: Is our understanding correct? Is the new law currently in effect?
Answer:
Yes. The Parliament enacted the Telecommunications Law on 8th October 2013, since then
the law has been effected.
Q14B: Can you briefly describe the major changes that are being made pursuant to the
new Communications law?
Answer:
The Telecommunications Law brings out Telecommunications Services that will be able to
provide high quality and worthy services to the users by allowing fair and transparent
competitions from domestic and abroad in the telecommunications sector which is
developing.
Q14C: Does the new Communications law provide for a telecommunications regulator that
will be independent of the Ministry of Communications and Information Technology (MCIT)
and the Myanmar Posts and Telecommunication (MPT)?
WT/TPR/M/293/Add.1
- 45 Answer:
The Union
Commission
appropriate
contained in
Government shall establish the independent Myanmar Communications
within two years from the date of this Law comes into force, led by an
person at the Union level in order to carry out the functions and duties
this law regarding Telecommunications Services.
Page 67, para 4.105, Telecommunications services, EU Q39:
The Secretariat report indicates that" 100% ownership is allowed in telecommunications
services". Is there any foreign control restriction in the sector, such as special composition
requirements of the board of directors, or the nation of dominance?
Answer:
100% ownership of foreign company is allowed in telecommunications services.
Page 67, para 4.108 & 4.113, Foreign air carriers, Hong Kong, China Q2:
We note that the Myanmar air transport authorities intend to reduce the foreign equity
participation rate to less than 50%. As of July 2013, there was a civil aviation carrier in
Myanmar with 67% foreign equity participation. What is the reason for reducing the
foreign equity participation rate?
Will the authorities consider granting exemption to the existing civil aviation carrier with
67% foreign equity participation?
Answer:
Myanmar's concerned authorities is going to set a limit of 49% on foreign equity
participation in air carriers, so as to maintain substantial ownership and effective
regulatory control of the air carriers in the Myanmar nationals' hand by maintaining the
said air carriers' ownership and control. Myanmar could:
ensure regulatory oversight of its air carriers in terms of safety and security, as
they are of paramount importance in civil aviation,
avoid the risk of losing its traffic rights because of its designated air carrier's
foreign ownership, as most states still maintain the criteria of substantial
ownership and effective regulatory control by nationals and/or the government.
prevent the potential emergence of "flags of convenience"
have stable operations which meet public interest requirements.
The limitation mentioned above will be formally adopted by the Ministry of Transport very
soon.
Page 68, para 4.120 & GR page 23, 6.14, Air services, Australia Q2:
Will the Government of Myanmar allow foreign companies to provide the auxiliary air
transport services, including ground handling? If so, what will be the process?
Answer:
According to the Notification (1/2013) issued by the Myanmar Investment Commission
(MIC) in exercise of the powers conferred under the New Foreign Investment Law (2012),
foreign entities will be allowed to provide (18) auxiliary air transport services in Myanmar
under the specific conditions. If a foreign entity wishes to provide one of those services, it
will need to submit a proposal to the MIC through the Ministry of Transport. Please refer to
the website posted by the Directorate of investment and Company Administration,
www.dica.gov.mm, for more information.
Page 69, para 4.130, Ports, Chinese Taipei Q5:
There are 9 ports in Myanmar, all of which are permitted to engage in international trade.
International trade throughput in these ports was 20.7 million tons in 2012, up 19% over
2011. Could Myanmar please give further comparisons among these ports with regard to
cargo throughput, primary contact ports and import and export products?
Answer:
Comparisons of International Trade by Ports, 2011 and 2012
Sr
Port Name
1
2
Yangon
Sittwe
2011
Import
(M'Ton)
11708
9
Export
(M'Ton)
5664
17
Total
(M'Ton)
17372
26
2012
Import
(M'Ton)
13812
6
Export
(M'Ton)
6862
17
Total
(M'Ton)
20674
23
Growth Rate
Import
Export
(M'Ton)
(M'Ton)
17%
21%
(-) 33%
-
Total
(M'Ton)
19%
(-) 11%
WT/TPR/M/293/Add.1
- 46 Sr
Port Name
3
4
5
6
7
8
Kyauk Phyu
Thandwe
Mawlamyine
Dawei
Myeik
Kawthaung
Total
2011
Import
(M'Ton)
1
15
4
35
137
Export
(M'Ton)
11
11
161
1282
Total
(M'Ton)
1
11
26
4
196
1419
2012
Import
(M'Ton)
164
20
3
25
43
142
Export
(M'Ton)
1
6
15
937
1221
Total
(M'Ton)
165
6
35
3
35
980
1363
Growth Rate
Import
Export
(M'Ton)
(M'Ton)
163%
(-) 45%
33%
36%
775%
22%
481%
3%
(-) 4%
Total
(M'Ton)
164%
(-) 45%
35%
775%
400%
(-) 3%
Remarks: Among 9 ports, above mentioned 8 ports are operationalized. Exports
Commodities are Petrol Oil & Lubricants (POL), Rice & Rice Products, Timber,
Mineral and General Cargo imports Commodities are Petrol Oil & Lubricants
(POL), General Cargo.
Page 70, para 4.132, SEZ & Ports, Chinese Taipei Q6:
Please give a brief explanation of the differences between the Myanmar Special Economic
Zone Law and the Dawei Special Economic Zone Law.
Answer:
The new Myanmar Special Economic Zone Law was enacted on 23rd January 2014.
Myanmar currently has three SEZs - Kyauk Phyu SEZ, Dawei SEZ and Thilawa SEZ. The
new Myanmar Special Economic Zone Law was enacted on 23rd January 2014. By enacting
this law, the Dawei Special Economic Zone Law and Myanmar Special Economic Zone Law
(2011) have been revoked. The new Myanmar Special Economic Zone Law is only law for
SEZs in Myanmar.
The investor is entitled to the following income tax exemptions and reliefs:
(a) for investment business in the free zone or the free zone business, there shall be
income tax exemption for the first seven years from the commencement of the
commercial operation; whereas for investment business in the promotion zone or other
businesses in the boundary of the special economic zone, there shall be income tax
exemption for the first five years from the date of commencement on commercial
operation;
(b) The investment business in the free zone and promotion zone shall be entitled to 50%
relief on the income tax rate stipulated under the existing law for the following five
years;
(c) The investment business in the free zone and promotion zone shall be entitled to 50%
relief of the income tax rate stipulated under the existing law for the subsequent five
years on the profit which is obtained from the business and reinvested within one year
in the business after keeping it as a separate fund.
The developer is entitled to the following income tax exemptions and reliefs:
(a) income tax exemption for the first eight years from the commencement of the
business operation;
(b) 50% relief on the income tax rate stipulated under the existing law for the following
five years and
(c) 50% relief of the income tax rate stipulated under the existing law for the subsequent
five years on the profit which is obtained from the business and reinvested within one
year in the business after keeping it as a separate fund.
Page 70, para 4.134, Maritime transport, Hong Kong, China Q3:
Can you share with us the details of any initiative regarding private sector participation in
the port reform?
Are there any plans to encourage foreign participation?
In addition, what are the criteria to select partners to form joint ventures?
Answer:
With regard to the such initiative for private sector participation in the port reform,
Myanmar Port Authority (MPA) has invited local and foreign investors who were interested
to newly develop port facilities and operate port business at Yangon and Thilawa port area
depending on available water front land area and back-up area especially for international
port by Build, Operate and Transfer-BOT system and/or Joint Venture-JV system. MPA
thoroughly evaluated and scrutinized proposed port development project proposal whether
their proposal are basically met MPA requirements in term of investment amount, land
WT/TPR/M/293/Add.1
- 47 rental amount to be paid to MPA, past port operation experience, enhancement of more
employment opportunities and so on. MPA selected most appropriated project proposal and
submitted selected project proposal to Myanmar Investment Commission for granting and
issuing of permit to be enjoy exemptions and reliefs from taxes in accordance with
Myanmar Citizen Investment Law and Foreign Investment Law respectively.
In some cases, local and foreign investors who were interested to newly develop port
facilities and operate port business, are welcome to propose for signing of Memorandum of
Understanding-MOU with regard to conducting of feasibility study firstly, based on their
interested such as development of deep sea port where potential areas are available.
In fact new Foreign Investment Law has already adopted in 2012. The new Foreign
Investment Law (FIL) 2012 has been giving more incentives and attraction such as more
tax holiday and longer land lease period compare to previous FIL for encouraging of
foreign participation.
The criteria and basic principles for selection of partners to form joint ventures are:
1) acquisition of high and modern technology; 2) causing to support for enabling to
exchange the information and technology; 3) not affect the sovereign power and public
security; 4) intellectual enhancement of citizen; and 5) amount of investment to be
injected to the port business and profit sharing ratio to be payable.
Page 70, para 4.139, Hotel permit, Hong Kong, China Q4:
In order to operate a hotel business or logging-house business, hotel operators need to
obtain licence from the Government. Licence is not transferable without the permission of
the authorities. What are the requirements of hotel licence?
Did the Myanmar authorities refer to any international practices or standards in
formulating the requirements?
How long does an application for a licence usually take?
Answer:
Myanmar enforced a range of minimum standard requirements for Hotel business. For
example, hotel must contain at least 20 bedrooms and each bedroom, bathroom and toilet
must meet specified minimum size and ceiling height dimensions. Various security and fire
prevention requirements must be met by applicants. In formulating its requirements,
Myanmar has followed by good practices set by international and regional organizations,
including those of the World Tourism Organization.
A completely filled-up application together with necessary supporting documents, is
typically dealt with in about one week from the date of its official receipt. More detailed
information about the law, procedures and license application can be downloaded at
following website:
http:// www.myanmartourism.org/abouts/htlaw.htm.
Page 70, para 4.139, Hotel permit, Canada Q8:
Please explain the criteria used by the Ministry when reviewing applications for ministerial
permission to operate a hotel business or lodging-house business.
Answer:
The main criteria considered by the Ministry of Hotel and Tourism when reviewing
application for prior permission to make Hotel and lodging-house construction and
renovation works are as follows: 1) Regional development; 2) Prospects of new
employment opportunity; 3) Increase in individual and family income; 4) Supporting and
assisting State economy; 5) Cultural and environmental conservation; 6) Reference for the
business and financial standing; and 7) The documents of company formation and others
necessary documents.
Page 70, para 4.139-41, Tourism, EU Q40:
Are any environmental criteria taken into account before licenses are granted to hotel
businesses, tour operators or tour guide businesses?
How does Myanmar envisage promoting sustainable tourism?
Answer:
Environmental conservation measures to be undertaken in the establishment of hotel
businesses are already parts of the procedure. The promotion of sustainable tourism is an
WT/TPR/M/293/Add.1
- 48 integral element of Myanmar's tourism policy. More details about Myanmar's Responsible
Tourism Policy can be downloaded at:
http://www.tourismtransparency.org/news-and-reports/myanmars-new-responsibletourism-policy
GOVERNMENT REPORT (G/293)
Chapter 1. Overview
Pages 4 & 21, para 1.1 & 6.7, FESR, Philippines Q1:
With respect to the Framework for Economic and Social Reforms (FESR), adopted in late
2012, could Myanmar provide additional or supplementary information on how these
reform agendas intersect with the priorities of the ASEAN Economic Community?
Answer:
Although Myanmar has highlighted 10 priorities in FESR as a quick win strategy, Chapter 9
of FESR has set outline strategies for Myanmar to reposition herself in the international
community through strategic engagements with neighbouring economies as well as the
ASEAN Economic Community (AEC). Under the liberalization of trade and investment, it is
clearly mentioned that the AEC targets and objectives for 2015 are an important driver of
further reforms.
In addition, it is identified in FESR that one of the short and long-term goals are the full
implementation of economic integration with ASEAN in accordance with its AEC 2015
schedules.
At the same time, FESR has stressed that the highest priority to working with other ASEAN
countries is attached by government to achieve an integrated AEC by 2015. Similarly, it is
mentioned that the remaining works like across all of the pillars between now and 2015,
including ensuring that already signed ASEAN-wide agreements are integrated into
national laws and that there are no further delays in the implementation of specific
initiatives.
The government is committed to speeding up these processes ahead of Myanmar's
chairmanship of ASEAN in 2014 and indeed the government's overall reform strategy and
the measures outlined earlier in FESR will all be of great help in ensuring that Myanmar is
able to meet its obligations according to the AEC timeframe.
Moreover, it is clear stated that intensive work will be required across many different
government ministries and agencies. To facilitate this work and ensure that it is completed
on time, the Ministry of Foreign Affairs, Ministry of National Planning and Economic
Development and Ministry of Culture have taken responsible with the coordination of the
work required to meet the AEC targets and objectives.
The government also recognizes and appreciates the flexibility granted to Myanmar and a
number of other lower income ASEAN countries with respect to the timetable for
implementation of some of the agreed measures and believes that this flexibility combined
with the efforts under the initiative for ASEAN integration to provide specific support to
Myanmar and other lower income ASEAN countries will further enhance the benefits to
Myanmar from the formation of the AEC.
The above factors are strongly related to the reforms agenda and the priorities of ASEAN
Economic Community.
Chapter 3. Transparency and other institutional Developments
Page 7, para 3.7, Website for laws & regs, Chinese Taipei Q7:
Q7A: Myanmar is gradually opening up and transparency really helps investors to
understand the relevant laws and regulations of government policies. We appreciate
Myanmar's efforts toward transparency. As described in paragraph 3.5, the Ministry has
set up two websites (www.commerce.gov.mm and www.myanmartradenet.com.mm)
where business people can obtain trade information. We would like to know if there are
any other websites through which we can understand the various laws and regulations of
Myanmar.
WT/TPR/M/293/Add.1
- 49 Answer:
All promulgated Laws are uploaded on the website of AGO. Laws enacted before 2012 can
be available in both Myanmar and English Language. But, the law enacted after that
period, it is only available in Myanmar Language. www.uago.gov.mm.
However, regulations can be available in Myanmar Language which are uploaded on the
website of the relevant Ministries.
Q7B: The Secretariat's report 2.12 (page 18) states that Myanmar is preparing other
trade-related laws such as a competition law, a comprehensive IP law, a standardization
law, a metrology law, a consumer protection law, an SME law and a telecommunications
law. Does Myanmar have any future plans to establish a website of all the laws and
regulations?
Can we search this information in English so that all stakeholders can better understand
the policies?
Answer:
As an ASEAN member country, according to the Article 13 of ATIGA, member has to
establish National Trade Repository-NTR to link with ASEAN Trade Repository. When after
the project has been carried out, all trade related laws, regulations and information will be
available.
Page 7 & 20, para 3.2/3.4/3.7 & 5.27, Upcoming laws, EU Q49-53:
Q49: Can the government inform on the roadmap for the adoption of upcoming laws and
their state of preparation?
Answer:
The government informs the procedure of upcoming laws at the press conference and
government newspapers from time to time.
Q50: Can the government confirm that for all draft laws there is a framework ensuring
consultations with relevant stakeholders, including foreign investors, and/or the public at
large?
If so, at which stage are the draft laws subject to such consultations? If not, for which
sectors would this policy not apply and for what reasons?
Answer:
In the stage of draft law, it is confidential stage for government office. So, Ministry which
carries out the draft law can consult their legal consultants. However, the Bill is pressed to
public, in this stage foreign investors and stakeholders can review and consult upon that
Bill.
Q51: Is there an obligation to publish implementing regulation and "procedural rules"?
Answer:
Most of laws provide that to issue rules and regulations for implementation of the laws.
Mostly it is mentioned in the miscellaneous of that law. The relevant Ministry is conferred
power to issue the rules and regulations by that law. Under the law, the Ministry shall
obligate to publish regulation and procedural laws for the implementation of that law with
the approval of Union Government.
Q52: If relevant, can the authorities give all the references to access the draft laws that
have been published? (in particular for the IPR area, for the new laws on land reform, the
draft law on national standards, the new SEZ law, the future competition law and the
future agency for competition, the law on public and private partnership that are
mentioned in the Secretariat and the Government reports).
Answer:
The authorities can give all the references to access the draft laws that have been
published.
Q53: What concrete measures does Myanmar intend to take to guarantee the
independence and impartiality of the judiciary?
WT/TPR/M/293/Add.1
- 50 Answer:
The presence judicial system was adopted under the Union Judiciary Law, 2010 and the
Constitution of the Union of Myanmar 2008. The Constitution of Myanmar provided the
principles of separation of powers and independence of judiciary. In order to take
guarantee the independence and impartiality of judiciary, the Supreme Court of the Union
has instructed that all levels of judges have to decide the cases without paying attention
any interference and have to try all cases impartially according to law without fear or
favour. In order to prevent corruption, actions against corruption are being taken strictly
by the Supreme Court. Then, the Supreme Court of the Union is paying attention upon the
ethics if the judges, judicial officers and court staffs by taking methods of reward and
punishment and, supervision.
Page 7, para 3.10, Extractive Industry Transparency Initiative, EU Q54:
Can the government provide an update on plans to apply to join the Extractive Industries
Transparency Initiative, particularly on efforts to develop effective collaboration with civil
society?
Answer:
Progress of Myanmar Extractive Industry Transparency Initiative (MEITI):

Multi Stakeholders Group (MSG) formation is finalized and ready to announce by
Government Notification in March 2014;

MSC is composed of 6 representatives from Government, 9 representatives from
Civil Society Organizations and 6 representatives from Private Sector- total
21 members;

1st MSG meeting was conducted at Naypyitaw on 8 February 2014; and

MSG TOR and work plan preparation is under the process of finalize the draft to
2nd MSG meeting in first week of March.
Process of MEITI implementation is creating enabling environment for all stakeholder
engagement and CSO selected and nominated their representatives freely in their own.
Focal person from MEITI coordinator office, support and participate with the events and
meeting organized by CSO as awareness giving training, seminar and developing work
plan and TOR in collaboration with different stakeholders from MSG representatives. In this
aspect, throughout the process of MEITI implementation, it tries to build good relationship
and mutual understanding among different stakeholders by improving coordination and
working together to finalize the work plan and TOR including preparation for requirements
for submitting application by the end of March 2014.
Page 8, para 3.14, Appraisal Task Force, EU Q55:
It is stated that "The Public Services Performance Appraisal Task Force gathered
information from business groups, consumers and bureaucrats. Some 70 key business
representatives were gathered for a day session on customs, commercial tax and other
trade problems such as export and import licence. What are the main areas where the said
Task Force has developed conclusions in particular on trade and investment issues which
may impact on the Government's road map and priorities in the future?
What are the recommendations from the said Task Force that the government has
implemented or/and intends to implement?
Answer:
The GOM has established Task Force in order to find out reasonable solutions and policy
formulation stage by stage. For the first stage, the Task Force prioritizes political reform
area by soliciting public opinion and feedback on service essential delivery. And then the
Task Force explores in the area of social reform by ensuring effective and efficient delivery
public services that generate tangible and concrete benefit to the citizen as the second
stage. Finally, the Task Force goes to the area of governance reform by facilitating public
administrative restructuring and service reform. The Task Force is trying to support
regional and international economic integration by stream-lining liberalization and reform
measure to the international standard while achieving the rightful ranking of Myanmar in
the international comparative indices.
The recommendations from the Task Force that the Government has implemented or/and
intends to implement are as follow: 1) To review trade and investment policies, rules and
regulations; 2) To take action on public opinion and feedback; 3) To facilitate trade; 4) To
liberalize matter related to bank transition and foreign investment; 5) To improve trade
WT/TPR/M/293/Add.1
- 51 procedures; 6) To coordinate among government agencies in order to be smooth flow of
trade and capacity building activities; and 7) To support domestic procedure to be
compatible with international practices.
Page 9, para 3.19, BIMSTEC, Chinese Taipei Q8:
Could Myanmar please indicate the goals of BIMSTEC and the concrete steps that have
been taken by Myanmar and other BIMSTEC members concerning the level of progress in
areas such as preferential tariff, trade facilitation, investment and technical cooperation?
Answer:
BIMSTEC member countries agreed to establish the BIMSTEC Free Trade Area Framework
Agreement in order to stimulate trade and investment in the parties, and attract outsiders
to trade with and invest in BIMSTEC at a higher level. The Trade Negotiating Committee
(TNC) was set up in September 2004 and its negotiation agenda covers trade in goods and
services, investment, economic cooperation, as well as trade facilitations and also technical
assistance for LDCs in BIMSTEC. It was agreed that once negotiation on trade in goods is
completed, the TNC would then proceed with negotiation on trade in services and
investment.
Agreement on two MoAs and one MoU have been reached during the 16th BIMSTEC
Summit held in Myanmar on 1st March 2014: the MoA on the establishment of the
BIMSTEC Permanent of Secretariat; the MoA concerning establishment of BIMSTEC Centre
for Weather and Climate; and the MoU on the BIMSTEC Cultural Industries Commission
and BIMSTEC Cultural Industries Observatory.
The TNC met for the last time in July 2012 and since then it has not been able to complete
the Tariff Schedule Commitments. It is envisaged that the commitments on the Tariff
Schedules will be discussed at its next meeting that shall be held shortly. Regarding the
BIMSTEC Services and Investment Agreements, negations are slowly progressing.
Page 9, para 3.19 & SR pages 18-19, para 2.3.2, Policy formulation, EU Q56:
Do the authorities consider establishing a national inter-ministerial committee on trade
policy formulation and implementation to ensure consistency across the many policy areas
that are impacted by the international commitments taken by Myanmar in particular but
not only in the WTO?
Answer:
Inter-ministerial coordination on trade policy and implementation issues in Myanmar is
usually carried out on a project by project basis. The ongoing WTO TPR project has
however demonstrated the necessity and usefulness of the inter-ministerial committee for
dealing effectively with the multi-dimensional issues across a range of ministerial
departments and related stakeholders. In the context of the post-TPR project, the Ministry
of Commerce intends to further its consideration about how best Myanmar's trade policy
interests could be formulated effectively. As example of the project-based inter-ministerial
coordination structure, there are the following:
EIF National Steering Committee: In April 2013, Myanmar became one beneficiary country
under the Enhanced Integrated Framework (EIF). The National Steering Committee has
not yet been established. Decisions to that effect shall be done in the near future.
WTO TPR Committee: Following the decision to be reviewed under the WTO Trade Policy
Review (TPR) exercise, an inter-ministerial committee was established and it is chaired by
the Deputy Minister of the Ministry of Commerce. It is composed of 55 members
representing both ministries and relevant private associations.
ASEAN Coordination Committee:
To coordinate ASEAN economic related implementation
issues, a Committee has been established and chaired by Union Minister of the Ministry of
National Planning and Economic Development. Main objective of the Committee is to fully
participation to implementation of AEC Blueprint targets and oversees a structure of
15 working Committees each dealing with specific policy coordination issues. The
Committee members are Deputy Ministers who are chaired of 15 Working Committees. The
15 Working Committees are as follow:
(1) Free Flow of Goods Working Committee
(2) Free Flow of Services Working Committee
(3) Free Flow of Investment Working Committee
(4) Freer Flow of Capital Working Committee
(5) Free Flow of Skilled Labour Working Committee
WT/TPR/M/293/Add.1
- 52 (6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
Competition Policy Implementation Working Committee
Consumer Protection Working Committee
Intellectual Property Rights (IPRS) Implementation Working Committee
Infrastructure Development Working Committee
Taxation Working Committee
E-commerce Working Committee
SMEs Development Working Committee
Initiative of ASEAN Integration (IAI) Working Committee
Integration into Global Economy Working Committee
Statistics Working Committee
The monthly coordinating meeting is regularly held and discussed respective outstanding
issues. The meeting is also exchanged views and solved cross cutting issues.
National Export Strategy (NES): The NES was established in 2013 and it is chaired by the
Director-General from the Department of Trade Promotion of the Ministry of Commerce. It
is composed of 13 core team members and 74 national strategy team members.
National Trade Facilitation Implementation Plan: In the context of WTO commitments, it is
necessary to establish a National Committee on Trade Facilitation. In preparation for the
WTO Bali Conference, representatives from relevant ministries have met but the formal
establishment of this coordination structure has not yet been finalized.
Foreign Aid Management Central Committee: This Committee chaired by the President was
set up as a state body to manage aid coordination (as noted in the Secretariat Report,
paragraph 6.6). The Foreign Economic Relations Department (FERD) of NPED serves as the
secretariat for the Central Committee.
Chapter 4. Recent Macro-Economic & Structural
Page 10, para 4.3, Exchange rate, Korea Q7:
Myanmar's exchange rate system has made a remarkable change to be connected again to
the world's financial system. Yet, many foreign banks have been slow to update their
internal prohibitions on conducting businesses in Myanmar given the long history of its
financial isolation. What is Myanmar's plan to solve such incongruity?
Answer:
According to the banking sector development master plan and foreign banks entry plan,
the establishment of foreign banks inside the domestic banking sector will be allowed by
the CBM by the end of this year (2014).
Although there are three models or formats: joint venture, subsidiary and full branch, the
Central Bank of Myanmar still needs to make sure that the forthcoming model or models
are to comply with the existing laws. The Financial Institutions of Myanmar Law stipulates
that the financial institutions can be established as a financial institution with foreign
capital or as a branch of a foreign bank. In addition, that Law does not mention the joint
venture model or equity participation of foreign banks in the domestic banks and so do the
Myanmar Company Act. Therefore, other two models rather than joint venture or equity
participation will be allowed at the present time according to the Laws. Hopefully, the entry
of foreign banks will be commenced by the end of this year (2014) in accordance with the
provisions of the existing laws. On the other hand, the Banking and Financial Institutions
Law (new) has already been drafted by the CBM with the TA of the World Bank and to be
submitted to the Parliament in the near future and will be promulgated during this year
and could provide room for any model of foreign banks entry.
As things stand, the CBM has determined the models for the participation of foreign banks
in the domestic banking sector and been considering the application procedure and the
number of new licences to be granted to foreign banks.
Page 10, para 4.3, Foreign exchange, China Q19:
Please explain "the auction mechanism" and its way of operation.
Please elaborate on the main contents of the new Foreign Exchange Management Law, its
date of effect, as well as its impact on the international balance of payment and foreign
reserves of Myanmar.
WT/TPR/M/293/Add.1
- 53 Answer:
The Central Bank of Myanmar has established the Foreign Exchange Auction Mechanism
since 2 April 2012 just after switching to the Managed- float Exchange Rate Regime from
the SDR pegged system on 1 April 2012. With the aim to determine the daily CBM's
reference rate and intervene when needed, the CBM conducts the FX auction, i.e. the
auction of US$ in MMK (Kyat) every business day at 9 sharp. An auction team has been
also organized with the participation of departments concerned from CBM namely: the
Foreign Exchange Management Department, the Monetary Policy Affairs Department, the
Financial Market Department, the Payment and Settlement Department, the Information,
Inspection and Survey Department and the Financial Institution Supervision Department.
These team members meet thirty minutes before the FX auction and discuss about the
situation of the domestic market and the international market, the trend US$ of against
the crucial foreign currencies and the role of the CBM whether to intervene or not. At the
auction time, the team members open the sealed envelopes submitted by the ADs in which
ADs present the bid/offer rate and the desired amount of US$ to purchase or/and sell.
After compiling the data of the banks, the team members sort the bids in a list in
descending order (highest bid price to lowest bid price), with bids to buy foreign exchange
and bids to sell foreign exchange in separate columns. The team then discusses on the
exact level and volume of its own participation in the auction based on the findings of
initial discussion, whether to buy or to sell US$; this will determine the cut-off price for the
auction. And then the auction teams decides the cut-off rate and thus bids to buy US$ at
or above the cut-off rate, or to sell foreign exchange at or below the cut-off price, are
satisfied. This cut-off rate is announced to the public as the CBM's Reference Rate. Based
on the CBM's reference rate, cross exchange rates of other 37 foreign currencies are
described on the CBM's website at www.cbm.gov.mm.
The main contents of the new Foreign Exchange Management Law are as follows:

Foreign exchange operations;

Holding of foreign currency and opening and using of a bank deposit account in
foreign currency;

International payment and transfer of Kyat;

Foreign exchange dealers and authorized dealers;

Bringing foreign currency and jewellery in or out of the country;

Payments and transfers for current transactions;

Payments and transfers for capital transactions;

Administrative of Central Bank; and

Prohibitions.
As the new Foreign Exchange Management Law liberalizes the current transfers and
payments, the current account deficit became inevitable. However, the overall balance as
well as international reserves has remained positive due to other types of foreign exchange
inflow.
Page 13, para 4.21, Minimum wage, Chinese Taipei Q9:
We would appreciate it if Myanmar could provide an update and details on its laws
concerning regulatory minimum wages. In this regard, please kindly provide us with
relevant information in English.
Answer:
Minimum Wage Law has been enacted as Pyidaungsu Hluttaw Law No.7/2013 on 22 March
and its Rules have also been issued by the Union Minister for the Ministry of Labour,
Employment and Social Security on 12 July 2013. The following schedules have been laid
down to prescribe the minimum wage for the workers: 1) Formation of the Committees to
prescribe the minimum wage for the workers; 2) Holding the workshops and meetings,
and conducting surveys relating to the facts which should be based in determining the
minimum wage; 3) Collecting advices for the determination of minimum wage;
4) Declaring the proposed rates of minimum wage; and 5) Publishing the notifications on
minimum wage.
As for the first schedule, Notification Committee has been formed by President's
notification, on 20 December 2013, in order to prescribe the minimum wage for the
workers with representatives of the relevant Government departments and organizations,
representatives of worker and employer, and other persons who are expert in minimum
wage prescribing matters in fair way. Union Territory Committees, Region Committees and
States Committees comprising the representative of the Government department and
WT/TPR/M/293/Add.1
- 54 organizations, representatives of worker and employer and experts will also be formed
during these months.
As for the second schedule, the consultation workshops were conducted in Yangon,
Mandalay, Sagaing and Bago Division with the representative of workers and employer
during the period from October 2013 to January 2014.
The First Meeting of National Committee was also held on 16 January 2014 and the
discussions were made for laying down the ways forward. Moreover, a workshop on
concepts of minimum wage was held on 7 February 2014, to share the knowledge
experience of ILO Regional Wage Specialist. In parallel, Myanmar Development Resource
Institute (MDRI), in cooperation with International Labour Organization (ILO), has
conducted the surveys to analyse the living wages, which should be based in determining
the minimum wage, in Yangon, Mandalay and Bago. In addition, the ILO has assigned the
Myanmar Market Research Development (MMRD) to conduct surveys in the same areas to
observe the full picture of garment sectors.
Third schedule in collecting advices for the determination of minimum wage, fourth
schedule in declaring the proposed rates of minimum wage, and fifth schedule in
publishing the notifications on minimum wage will also be carried out accordingly during
2014.
Update of Minimum Wage Law can be found on the Ministry of Labour, Employment and
Social Security website of http://www.mol.gov.mm/mm/wp-content/uploads/downloads/
2013/05/ MinimumWagesLawenacted.pdf.
Page 13, para 4.21, Labour law, USA Q15:
The report notes that the Ministry of Labour, Employment and Social Security drafted and
presented to Parliament a law on Employment and Skill Development.
Q15A: What is the current status of the law?
How long will it take for the process of approval and the final enacting of this law?
Answer:
The Employment and Skill Development Law is already enacted on 30th August 2013.
The objectives of this Law are to manage and maintain the facilities and measure to help
for selection of employment, obtaining employment for employment seeker suitable
according to his age, energy; persistency in employment and skill development, and to
help employers for obtaining suitable worker. Update of Employment and Skill
Development Law can be found on the Ministry of Lab our, Employment and Social
Security website.
Q15B: In addition, the Ministry also has drafted a new Foreign Labour Law with the
assistance of the ILO. What is the current status of this law?
Is the government open to consultations with other international stakeholders in
developing the law?
Answer:
The Situation after discussing about Alien Worker Law (draft) drafting Committee is
organized to draw foreigner labour law (draft). That law (draft) had been discussed four
times by leading Union Minister office of the Ministry of Labour, Employment and Social
Security and five times by leading deputy Minister of the Ministry of Labour, Employment
and Social Security. That law was discussed by inviting the delegators of respective
departments and got their advices. We submitted to the cabinet concerned with that draft
on 30 April 2009 and discussed by inviting respective ministries.
On 30 July 2010, we discussed by meeting with Attorney General Office. We submitted to
Attorney General Office on 1 August 2012 after discussing with Directors General from
respective Department and lawyers on 11 May 2011.
On 14 September 2012, it was supplemented with adjustments and discussions after with
Lawyers and Directors at the Department of Labour. On 21 August 2013, we had discussed
on the Alien Worker Law (draft) till chapter (4) by leading Union Minister and further
discussions are being made in 2014.
Page 13, para 4.21, Labour law, Australia Q3:
Can the Government of Myanmar provide further information on what will be covered in
the proposed Foreign Labour Law?
WT/TPR/M/293/Add.1
- 55 Answer:
The objectives of Alien Worker law are: 1) To provide production and economic
development of the nation; 2) To develop the skill level of national workers; and 3) Not to
lose the rights of foreign labours and to obey the Principles and customs of the nation.
Page 13, para 4.21, Labour law, EU Q57:
There is a real lack of skilled labour in some important sectors where the government
wishes to attract FDI. Given the obligation for investors to recruit local employees,
operators are concerned in specific sectors that the current lack of skilled labour force may
deter FDI. Would the government consider reviewing the existing obligations in
consultation with stakeholders?
Answer:
The government would consider reviewing the existing obligations in consultation with
stakeholders.
Page 13, para 4.21, Education, EU Q58:
How does the government envisage to strengthen its human resources base, particularly in
terms of primary education, vocational training and higher education?
Answer:
In term of basic education, vocational training and higher education the government
envisages to strengthen its human resources development as follows:
To be reformed education sector systematically, Comprehensive Education Sector ReviewCESR (2012-14) is being implemented. Now phase 1 Repaid Assessment and Phase 2 Indepth Analysis has been completed and Phase 3 Development of Costed Education Sector
Plan is ongoing. This CESR will support the achievement of the vision of Ministry of
Education. To create education system that will generate a learning society capable of
facing the challenges of the knowledge age. According to the result of CESR the whole
education sector reform will be carried out.
In basic education sector, free compulsory primary education and free lower secondary
education are being implemented. The basic education structure reform from existing
KG+4-4-2 to KG+5-4-3 will be implemented near future based on the readiness for the
implementation. Basic on the basic education structural reform, basic education curriculum
reform is also being implemented.
In term of vocational training, Technical, Vocational Education and Training-TVET is one of
the key sectors in CESR, based on the CESR findings, TVET sector will be reformed in
accord with the present conditions of Myanmar and requirement of Myanmar.
For the Higher Education Sector reform is being implemented based on the
recommendations of CESR Phase 1 and Phase 2 reports.
The Forum for Pragmatic Reform in Education Sector was held on 7th October 2013 at
MICC, Nay Pyi Taw. According to the result of this forum, Education Promotion
Implementation Committee-EPIC was formed. Under this committee Special Taskforce,
Advisory Board and 18 sector working groups were formed and opened the EPIC office in
Diamond Jubilee Hall in Yangon. These 18 working Groups are working on the development
of policies, finding out the activities to be carried out urgently and the activities to be
carried out for the long run. The consultation meeting with Development Partners on the
policies and activities coming out from the working groups in each and every sub-sector
was conducted on 16th December 2013 and the consultation meeting with Rectors from
Universities and Degree Colleges and Education Colleges was also conducted
17th December 2013 in Ministry of Education Nay Pyi Taw. These 18 working Groups are
working for pragmatic reform of education sector until the finalization of the draft policies
and activities for short term and long term.
Page 14, para 4.22, Labour Union Law, USA Q16:
The Government report notes that the Labour Organization Law was recently adopted,
which grants labour groups the right to freely establish trade unions and representative
associations while guaranteeing basic rights of workers. The creation of the legal
framework allows the establishment and operation of trade unions.
Q16A: What plans does the Government have in terms of implementing this law and
ensuring its enforcement? For example, are there administrative changes that are being
WT/TPR/M/293/Add.1
- 56 implemented to facilitate the legal establishment of unions and changes to labour
inspection protocols to ensure the new law is enforced?
Answer:
After Myanmar transformed into a Democratic country and at the time of new Government,
the Labour Organization Law was enacted at Pyidaungsu Hluttaw Law No.7 dated
11th October 2011 in accord with section 24 of the Constitution of the Republic of the
Union of Myanmar, in order to protect the rights of the workers, to have good relations
among the workers and between the employers and workers and to enable to form and
carry out the Labour organizations systematically and independently. Rules of this Law
were issued on 29-2-2012 by Notification No.1/2012 by the Ministry of Ministry of Labour,
Employment and Social Security.
Q16B: What plans does the government have to protect employees from potentially
punitive measures from their employers in the event they form or join unions?
Answer:
Under the Labour Organization Law 2011, (1004) Labour Organizations were registered up
to date.
A Chief Technical Advisor from the ILO was appointed to assist concerning with Freedom of
Association Convention (87) at June 2012 in Myanmar. Freedom of Association Programme
has been implementing cooperation with him. The total (46) awareness raising workshops
has been held tripartite workshops for government officials, employers and workers and
bipartite workshops for employers and workers.
The Settlement of Labour Dispute Law was enacted at Pyidaungsu Hluttaw Law No.5 dated
28th March 2012 in accord with the Constitution of the Republic of the Union of Myanmar.
Labour disputes issues are settle by the tripartite system of government, employer and
employee according with the Labour Dispute Law.
Page 14, para 4.23, Infrastructure priorities, EU Q59:
Can the authorities elaborate on the longer term strategy and program for infrastructure
development and what will be the main priorities?
It is reported that Myanmar does not have enough capacity in its harbour to address more
import or export volumes. Could the Government indicate whether there are intentions to
address this problem and if so which measures are being contemplated in that respect?
Answer:
For infrastructure development, the line ministries which are responsible for transport,
electricity, education, Health and water are preparing their master plans respectively.
To be economic development especially for free flows of goods and resources, the Ministry
of Construction will give priority to build infrastructure projects for regional connectivity
like ASEAN Highway, local interstate highway which connect various parts of the country to
the economic center and rural-city connection for regional equality.
Regarding the Dawei Special Economic Zone, it has been carrying out to compete from
investor and developer in project area in accordance with the tender procedures.
Regarding the Thilawa Special Economic Zone, basic infrastructures are being carried out
in first stage of 400 hectares and it is expected to commercialize by 2015. To establish
Kyauk Phyu Special Economic Zone, it has been arranging to invite tender for developer.
At present, The National Transport Development Master Plan is being formulated by the
assistance of Japan, JICA with the objectives; to formulate, long term visions, goals,
strategies of transport sector development, realizing integrated and harmonized transport
network with good connecting among different modes to meet the demand, to achieve
security and safety of transportation, to reduce the environmental negative impacts, to
achieve an efficient allocation of funds/resources and enhance private sector participation.
It will be completed at the end of this year. After that, development workshop including
participants from relevant departments, private organizations, international donors and
investors will be conducted. According to the Master Plan, necessary transport
infrastructure across the nation will be upgraded with the cooperation of private
organizations, donors and investors from inside and abroad. In parallel with the Master
Plan Formulation, two new port terminals are being constructed in Thilawa port area with
Japanese ODA Loan.
WT/TPR/M/293/Add.1
- 57 Page 14, para 4.23, Private Public Partnership framework, EU Q60:
What is the state of preparation of the legal framework on PPPs?
Answer:
There is no legal framework on Private Public Partnership (PPP) and it is not yet decided
which Ministry leads to this matter.
Page 14, para 4.27, Energy & power, Singapore Q5:
Singapore notes that a master plan is being prepared concerning power supply, which is
one of the most pressing economic challenges facing Myanmar. Singapore understands
that Myanmar's National Energy Management Committee (NEMC) is drafting a national
energy policy to address its growing domestic energy demand. Could Myanmar share the
considerations, areas of focus, timeline and stakeholders involved for the conceptualisation
of this policy?
Answer:
Under the JICA technical assistance program, NEWJEC Inc is implementing the project for
formulation on the National Electricity Master Plan in Myanmar in coordination with the
Ministry of Electric Power. The National Electricity Master Plan is expected to be finished at
the middle of 2014.
On the other hand, National Energy Management Committee is drafting a national energy
policy. Energy policy is reviewing by NEMC and related ministries, after that it will be
submitted to the Cabinet and Parliament. We can share these plans after finalization. The
National Electricity Master Plan will process like that way.
Page 14, para 4.27, Infrastructure priorities, China Q20:
How will Government of Myanmar manage to deal with challenges posed by the needs to
both developing its power industry and protecting the environment now and in future?
Answer:
For future power development and system stability, Ministry of Electric power is planning
to implement various kinds of power generation projects. All projects have to be carried
out of the study of EIA, SIA issues and their impacts at first. According to the study report
the government makes the approval for the implementation of project. The approval for
the implementation of project depends on overcoming of technical and geological
challenges and environmental and social impacts.
For coal fired power plants, clean coal technology has to be applied.
Page 14, Sub 4.3.3, Power master plan, Australia Q4:
Can the Government of Myanmar provide further information on its master plan concerning
power supply including timeframes for completion?
Answer:
Under the JICA technical assistance program, NEWJEC Inc is implementing the project for
formulation on the National Electricity Master Plan in Myanmar in coordination with Ministry
of Electric Power. The Master Plan of Power is expected to be finished at the middle of
2014. After finishing it will be submitted to the Cabinet and Parliament and we can share it
to you.
Pages 15 & 21, paras 4.29 & 6.4, SEE & privatization, USA Q17:
The Government's report notes that state owned economic enterprises largely or entirely
control the industries of energy, forestry, construction, telecommunications, fish breeding,
metal extraction and export, rice, sugar, rubber, cotton, jute and teak. Further, the
Secretariat report (paragraph 4.6) notes that all land is owned by the State.
Q17A: Please explain any plans the Government may have to liberalize these industries
further in the future and permit the privatization of some or all of these industries.
Answer:
The increasing of private involvement and the reduction of State participation will be
carried our simultaneously under the reform of private sector development. The most SEEs
have been privatized. Their presence is large only in energy, forestry, construction,
WT/TPR/M/293/Add.1
- 58 telecommunications, social and public administration. There is no specific plan for the
privatization.
Q17B: Please explain how the state-owned economic enterprises take commercial
considerations into account when making purchases or sales, and how such enterprises
treat imports.
Answer:
Under the SEE Law of 1989, SEEs operate commercial basis and use the marketdetermined exchanged rate and Commercialization. Now, there is no special treatment for
import, purchase and sale of SEEs.
Page 16, Sub 4.3.7, Land reform, Australia Q5:
Can the Government of Myanmar provide further information on how it plans to overhaul
its land use policy to allow certainty for foreign investors while addressing the needs of
local communities?
Answer:
In the previous Land Law, the farmers were not allowed to sell, lease, and mortgage.
Exchange and gift on the whole or part of the right to use the farmland. As a result,
farmland disputes were supposed to be found due to illegal transaction of farmlands.
However, new Farmland Law (2012) was promulgated. According to the section 14 of
2012, Farmland Law, the person who has the right to use the farmland shall not sell,
mortgage, lease, exchange or gift on the whole or part of t the right to use the farmland
without permission of the Government to any foreigner or any organization in which the
foreigner is included. Although the foreigners were not allowed to rent, and buy, the
farmlands, they are allowed to conduct joint cooperation with Myanmar Citizens in accord
with the section 9, sub –section, (e) and (f).
The section 9 sub – section (e) of 2012, Farmland Law stated that "the person who has the
right to use the farmland shall have the right to use common interest with the investment
of village cooperative or with the private investors for the development of agriculture in
the farmland" and the section 9 sub-section (e) and (f), the person who has the right to
use the farmland will have the opportunity to cooperate with international and domestic
investors.
Page 16, para 4.34, Land reform forest, EU Q63:
With the expected increase in FDI, and the privatization of land, how will the Government
ensure that population that is dependent on forest is not marginalised?
Answer:
The Union of Myanmar Presidents office decreed to plan for safe and secure livelihood of
the rural people in national scale: who have been living as encroached persons in our
Forest Reserves Land's for a certain period.
For the land managed by the Ministry of Environmental Conservation and Forestry, a plan
for thorough survey and reallocation of illegal residents in reserved forests and protected
public forests since many years ago.
According to the plan adopted, the concrete data for illegal residents in forest lands were
recorded by supervision of management committees in State and Region levels through
collaboration with in line ministries and respective local governments.
Illegally occupied land includes village land, paddy field, farmland, home gardens,
perennial crop land and religious/ communal land, settled by communities were identified
and systematically recorded during the survey mission.
As a first step, 50 households and above which had been nominated by Ministry of Home
Affair including village land, paddy field and religious/ communal occupied by communities
were submitted to the President's office for approval to de-gazette from the forest lands.
Certificates for Community Forests will be issued for farm lands and home gardens so that
they can get permission to use those lands with agro-forestry base CF for 30 years. The
occupied land with perennial crops/plantations will be legalized and permitted the long
lease in the forest land according to the existing procedures practiced by the Ministry.
WT/TPR/M/293/Add.1
- 59 Page 16, para 4.34, Land entitlement, EU Q64:
Recently, much attention has been given to the growing issues on land disputes as a result
of "land confiscation" for the use of large-scale projects and investments by
domestic/foreign investors. Concerns around the new land laws have been expressed by
some civil society organisations. They specifically raised concerns that new laws will
substantially increase the extent of large scale transactions in land to investors and may
adversely affect existing land users. How does Myanmar plan to address this problem?
What is the current level of land entitlement (percentage of farmers holding a clear land
title on the land they cultivate) in Myanmar?
Answer:
Farmland Law 2012, chapter 9 section 26 clearly stated to reduce the issue on land
confiscation and a rule of the Farmland Law 2012, chapter 8 states the clear procedures.
Thus, domestic and foreign investors will be safe if they follow the rules and regulations.
In accord with the 2012 Farmland Law about 8.4 million of farmer holdings have been
issued the certificate of right to use the farmland up to (17.2.2014). The person who has
the right to use the farmland can get the rights to sell, mortgage, lease, exchange and gift
on the whole or part of land use right in compliance with the section 9 sub-section (b) of
2012, farmland Law. Therefore, the existing land users will be provided as a liquidity of
farmland asset in compliance with section 9 sub – section (b) of 2012, Farmland Law.
Page 16, Sub 4.3.8, Competition, Australia Q6:
Can the Government of Myanmar provide further details on what is covered in its draft
competition law, including enforcement measures?
Answer:
In accordance with Myanmar's commitments in the context of the ASEAN Blueprint, a draft
competition law is under preparation with a view of its promulgation in 2015. Some of the
main objectives of the draft are: 1) to protect and prevent arrangements that injure public
interests through monopolization or manipulation of prices to endanger fair competition in
the economic; 2) to control unfair competition upon internal and external trade and
economic development; 3) to protect and prevent abuse of dominant position; 4) to review
mergers and acquisitions; and 5) to investigate and eliminate restrictive agreements or
arrangements among business operators. It is envisaged that all economic sectors will be
subject to the law and a Competition Commission would be established to enforce it. So
far, Myanmar has not received international assistance in preparing the draft law. Alleged
anti-competitive dimensions of mergers and acquisition involving foreign investors could
be investigated under the review provisions and also under the prevention of abuse of
dominance provisions.
Page 16, para 4.36, Environmental protection, China Q21:
Does the Government have any concrete programs to develop clean energy?
Are there any law making plans on environment protection and clean energy promotion?
Answer:
The Environmental Conservation Law was prescribed on 30th March 2012 and The
Electricity Law is being drawn at present. Clean and Renewable Energy are being used for
the current Electricity Generation and Clean Coal Technology process is also being used for
Coal-fired Thermal Power Projects.
Page 16, para 4.36, Environmental impact & FDI, EU Q61:
What steps does the government take to ensure that Environmental Impact Assessments
are effectively embedded into the investment approval process?
What criteria are being used and how are these criteria effectively applied across
ministries?
Answer:
See the General Answer concerning the upcoming Notification No.3. The responsibility for
establishing criteria in respect of environmental and social impact assessments rests on
the Ministry of Environment Conservation and Forest.
WT/TPR/M/293/Add.1
- 60 Page 16, para 4.37, Illegal log export, EU Q62:
According to reports from World Food Organisation (WFO) and United Nations Environment
Programme (UNEP) Myanmar is the most deforestated country in the region. What
concrete measures does the Government intend to take to avoid illegal logging, illegal
cross border trade of logs, forest degradation and deforestation?
Answer:
To avoid forest degradation and deforestation, Myanmar will implement eradication
scheme of shifting cultivation and will introduce the mechanism called "Reducing Emission
from Deforestation and Forest Degradation (REDD+)" under the United Nations Framework
Convention on Climate Change (UNFCCC). The Ministry of Environmental Conservation and
Forestry has formulated the National REDD+ Roadmap and Strategy, and the
implementation activities are well underway which will: 1) adopt log export ban and reduce
the amount of annual round log production from natural forests starting from fiscal year
2014; 2) create enabling conditions for private sector to invest in the reforestation scheme
of the country; 3) create the Dry Zone Greening Department to combat the deforestation
in the areas of Central Myanmar where low precipitation is receives; 4) promote
Community Forestry implementation throughout the country in accordance with
Community Forestry Instructions prescribed in 1995 with support of Forest Law; and
5) promote international cooperation in institutional strengthening, capacity development
and research & development of forestry sector.
To avoid illegal logging, Myanmar intends to: 1) create forest conservation arm forces
forest and free so that forest law enforcement is strengthened; and 2) exercise more
cooperation and coordination actions with related stakeholders including government
institutions, business, NGOS, CSOs and local communities.
To avoid illegal cross border trade of log, Myanmar intends to: 1) consult with
neighbouring countries so that cross border logs and forest product poaching is eliminated;
and 2) strengthen law enforcement activities at the areas where illegal cutting and
poaching is taken place.
Chapter 5. Trade and Investment Policies
Page 17, para 56, Licence, EU Q47-48:
Q47: It is said that the government has eliminated licences on import to cover 1928 HS
Tariff lines. Could the authorities provide the list of these lines or list the commodities for
which licensing is no longer required?
Answer:
Yes. The authorities can provide the list in the official website.
http://www.commerce.gov.mm/sites/default/files/documents/2013/09/H.S%20Code%281
928%2910-9-2013.pdf .
Q48: Could the authorities clarify if, for these commodities, 100% foreign-owned
enterprises can be considered as "importers" or do these 100% foreign owned entities
need to use a Myanmar trade house as an intermediary?
Answer:
At the present situation, Foreign Companies cannot import and resell in domestic market.
And Foreigners or Foreign Companies cannot export by purchasing from domestic
production.
However, if they are registered under the FIL as a manufacturer of finished goods for
export, they may import machinery and equipment for the establishment of the factory,
and raw materials for production and export their finished products. Moreover, Foreign
Company registered as a service company under Myanmar Company Act 1914 has been
allowed to import the necessary equipments for doing their services business.
Other Foreign Company can do import through Myanmar Trading Company.
Page 17, para 5.6, Export licences, China Q22:
What are the policy considerations and legal basis for the Government to maintain export
licensing regime to sensitive commodities?
WT/TPR/M/293/Add.1
- 61 Answer:
Our export policy is mainly to extend and explore the foreign market by utilizing natural
and human resources effectively and to promote the export of traditional and value-added
products.
Regarding export licensing, exporters require to get export license except 152 types of
goods (983 tariff lines). Moreover, Ministry of Commerce intends to liberalize export
licensing requirement for the rest goods except so- called sensitive commodities such as
national food security and emergency needs, the protection on exhaustion of natural
recourse, the protection of environmental damages and deforestation, and prevention of
traditional and cultural art. For this intention, we are learning legal basis and practice of
international and regional especially in current transformation period. In this connection,
we need technical assistance for our further policy considerations and legal basis to
maintain current export licensing regime.
Page 17, Sub 5.2.5, Trade remedy, China Q23:
Please confirm whether there is a timetable set for the making of remedy laws and
regulations.
Does Government of Myanmar have any requirements regarding the contents and forms of
capacity building cooperation with other members?
Answer:
With the implementation of ASEAN-related tariff reductions and other liberalization
measures, Myanmar should have WTO-consistent trade remedy authorities to deal as need
be with potentially injurious trade situation. In this connection, Ministry of Commerce is
building up its understanding of trade remedy measures and it is currently receiving
technical assistance notably from UNESCAP on the drafting of safeguard provisions. With
limited human resources and significant work load in implementing autonomous
liberalization measures and in following up on existing multilateral, regional and bilateral
trade commitments, work on drafting WTO-consistent anti-dumping and countervailing
measures has so far not received high priority. Recognizing our limited capacity, the
drafting of trade remedy laws is an area where Myanmar would welcome additional
international technical assistance.
Page 18, para 5.12, State trading, USA Q18:
The Government's report states that state trading monopolies were largely abolished in
November 2011 and that private individuals and enterprises can now import and export all
but a few products. Please identify these products and explain why such restrictions
remain.
Answer:
The increasing of private involvement and the reduction of State participation will be
carried out simultaneously under the reform of private sector development. Even-though
in the reserved list of SEEs, the large foreign investment projects are considered to bring
substantial benefit to public security, improve surrounding areas and the living conditions
of citizens, the MIC issues the permission to private sector investment after the
government approval. E.g. The MIC issued the permit for the investment to Telenor and
Ooredoo.)
Page 18, para 5.13, SEZ, Chinese Taipei Q10:
The investors are very concerned about the progress of the SEZs. Could Myanmar please
provide updated information regularly along with relevant regulations for these economic
zones?
Answer:
The new Myanmar Special Economic Zone Law was enacted on 23rd January 2014. The
rules of said law are being drafted.
Page 18, para 5.13, SEZ, China Q24:
Please elaborate on the main features of Myanmar's Special Economic Zones and the
major policy preferences applicable to SEZs.
WT/TPR/M/293/Add.1
- 62 Answer:
The new Myanmar Special Economic Zone Law was enacted on 23rd January 2014. The
major policy is to support the main objectives of the national economic development plan.
The main features of MSEZ Law are formation of the Central Body, Central Working Body
and Management Committee, the establishment of Special Economic Zone, prescription of
Free Zone and Promotion Zone, types of investment business, the duties and the
exemptions of the investor, development business types, exemptions and reliefs on the
import revenue of the developer and the investor, withholding tax, bank and finance
management and insurance business, matters relating to labour and land use.
Page 18, para 5.13, SEZ, Australia Q7:
Can the Government of Myanmar provide further information on progress towards the
establishment of special economic zones, including development and implementation of
relevant legislation?
Answer:
Myanmar currently has three SEZs - Kyauk Phyu SEZ, Dawei SEZ and Thilawa SEZ. The
rules of said law are being drafted. Basis infrastructure such as road, power plant is being
constructed.
Page 18, para 5.13, Special Economic Zones, EU Q65:
Can the government elaborate on the specificities of the new SEZs, compared to the
previous legal framework?
Are there exemptions from the labour law or labour legislation, or parts thereof, currently
in place or foreseen for the SEZs?
Answer:
Compared to previous legal framework, new SEZ Law is more comprehensive. See the
main differences in the following Table:
Old SEZ Law
Chapter 1(Definitions)
-
Chapter 4 (Formation of Central
body, Central working body
Management Committees and
functions and duties thereof)
Nil
Chapter 5 (Special Privileges of
Investors)
First 5 years income tax exemption
50% relief of the income tax rate for
second 5 years
50% relief of the income tax rate for
third 5 years
New SEZ Law
Chapter 1(Definitions)
Free Zone, Promotion Zone
Activities of Free Zone
Other activities
Infrastructure
Citizens, foreigners
Assets, Capital gains
Chapter 3 (Formation of Central body and its
functions and duties)
Chapter 4 (Formation of Central Working body and
its functions and duties)
Chapter 5 (Formation of Management Committees
and its functions and duties)
Chapter 7 (Descriptions of Free Zone and
Promotion Zone)
Chapter 8 ( Investment Activities, duties and
exemptions of investor)
First 7 years income tax exemption in free zone
First 5 years income tax exemption in promotion zone
50% relief of the income tax rate for second 5 years in
free zone and free zone businesses
50% relief of the income tax rate for third 5 years in free
zone and free zone businesses
WT/TPR/M/293/Add.1
- 63 Old SEZ Law
Chapter 5 (Specific duties of
Developer or Investor)
Exemption on custom duty and other
taxes for 5 years from
commencement of commercial
operation and 50% relief on custom
duty and other taxes for consecutive
5 years
New SEZ Law
Chapter 9 (Development Activities, duties and
exemptions of Developer)
First 8 years income tax from commencement of
commercial operation
nil
nil
50% relief of the income tax rate for second 5 years
50% relief of the income tax rate for third 5 years
Chapter 10 ( exemption and relief on import of
developer and investor)
Chapter 11 ( Dispute Settlement)
Chapter 17 (Land Use)
50+25 years
nil
Chapter 7 (Land Use)
30+15+15 years
In 1990, Department of Labour carried out the nation-wide labour Force Survey and will do
a new Labour Force Survey in 2014 with technical assistance provided by the ILO.
Department of Labour has arranged to establish Labour Exchange Office Management
System (ILO Management System) which are needed for job seekers and Employers.
The issue of foreign Workers Registration Cards as Permitted By Myanmar Investment
Commission Permits
Foreign Workers Who Entered into Myanmar and work legally as permitted by MIN permits
are performed Foreign Workers Registration Cards and Revalidation Rapidly in
Departmental Coordination Group MIC Starting From 10 April 2013.
Labour Matters
When employing skilled citizen workers, technicians and staffs, the investor shall send, to
the employee, the employment agreement mutually concluded between the employer and
the employee in accordance with the existing labour law and rules.
For work where expertise is not required, the investor shall hire citizens only.
Among skilled workers, technicians and staffs, at least 25% must be citizen during the first
two years from the commencement of commercial operations; at least 50% must be
citizens during the second two years; and at least 75% must be citizens during the third
two years.
The work permits for foreign employees who are working in the special economic zone
shall be issued by the Labour department representative office at the one stop service
department in the special economic zone.
The occupational safety and Health law (Draft) has been discussed with ILO experts and
Kosha experts of Korea.
Page 19, para 5.18, FDI, Chinese Taipei Q11:
Q11A: The government of Myanmar has gradually established a more open foreign
investment regime, but there are still many restricted or prohibited items for foreign
investment, especially in the services sector. Will the government of Myanmar review and
revise the foreign investment "negative list" in the future in order to allow foreign
investment in more sectors? Is there schedule for this?
Answer:
See General Answer on Investment.
Q11B: Is there any focal point or reference centre for foreign investors to obtain the
information regarding the investment issues (laws, regulations and any other public
notices)?
Answer:
DICA is focal point.
WT/TPR/M/293/Add.1
- 64 Page 19, para 5.18, SEZ, China Q25-28:
Q25: How effectively has the 2012 Foreign Investment Law worked in attracting foreign
investment so far?
Answer:
Inbound FDI rose sharply from US$1.4 billion in FY 2012/13 to US$3.6 billion in the first
11 months of FY 2013/14. Roughly half of this FDI in FY 2013/14 was in manufacturing
and 20% in telecommunications.
Q26: What are those investment protection measures, if any, applicable to foreign
investment in mainstream sectors, including agriculture?
Answer:
Chapter XIII of the Foreign Investment Law guarantees no nationalization or expropriation
within the term of the contract, no termination during the permitted and extended period,
and the right to repatriate capital and profits.
Q27: Please list the sectors or activities that are designated as prohibited or restricted in
the new FIL.
Answer:
You can see the sectors or activities that are designated as prohibited or restricted in
Myanmar Investment Commission Notification No. 1/2013. The information regarding the
investment issues (laws, regulations and any other public notices) can be available at
http://www.dica.gov. mm/includes/FIL-notification%20_English_%20A4.pdf.
Q28: What are the strategic considerations behind the policy shift to liberalization
reflected in the new FIL from a "positive list" approach to a "negative" one?
Answer:
To get clear picture, Myanmar change from a "positive list" approach to a "negative" one.
Page 20, para 5.25, Privatization, EU Q66:
What measures does Myanmar consider or has taken to ensure more open tendering in
respect of privatisation and other government contracts?
What are the areas covered by "other government contracts"?
Answer:
Cabinet has already instructed to the Ministries and regional governments to follow the
rules for the Ministries and regional governments to follow the rules for the tender and
contracts. The instruction covered by construction works. Government also instructed to
do open tender with the transparency.
Telecom and exploration of oil and gas are also do open tender system.
Page 20, para 5.26, IPR, USA Q19:
The Government reports it is "taking steps to overhaul its outdated IPR laws and ensure
that these laws are enforced. Accordingly, IPR laws in line with the TRIPs Agreement are
being finalized subject to advice from the World Intellectual Property Organization (WIPO).
These laws concern patents, industrial design, trademarks and copyright."
Q19A: Please provide an update on the current status of this legislative overhaul as well
as a timeframe of when the text of these new IPR laws will be made public.
Answer:
The IP legislation that is being drafted are finalizing now. Some provisions concerning with
Enforcement and some provisions from the draft Trademark Law are being discussed with
WIPO experts. After finalizing and translation, these draft laws need to pass the internal
procedures such as AGO, President Office and Cabinet to get approval. After these steps
and getting the approval, they need to continue submit the Parliament.
So, we assume that the above procedures would be during 2014.
Q19B: Considering that these laws are being prepared with WIPO, please advise whether
the Government has also asked WIPO to include advice regarding its additional copyright
WT/TPR/M/293/Add.1
- 65 treaties, including the 1996 WIPO Copyright Treaty and the WIPO Performances and
Phonograms Treaty.
Answer:
Yes, the Government has also asked WIPO to include advice regarding its additional
copyright treaties, including the 1996 WIPO Copyright Treaty and the WIPO performances
and Phonograms Treaty.
Q19C: The report further mentions that WIPO is assisting the Ministry of Science and
Technology with "enforcement provisions." Please describe the range of enforcement
provisions anticipated (e.g. civil, criminal, border) and whether it is anticipated that these
enforcement provisions will appear in each of the IP laws, as well as any other civil or
criminal codes. How does the Government plan to implement the special border measure
requirements (Articles 51-60) of the TRIPs Agreement?
Answer:
Infringement of rights of Trademark and Copyright are enforced by Civil and Criminal
Procedure, for Patent and Industrial Design only Civil Procedure is applied. Regarding the
Border Measure, one chapter for Protection on rights by the customs is added in
Trademark and Copyright Laws in line with the TRIP Agreement, Articles (51-60) for the
protection only importation.
Page 20, para 5.26, Copyright & IPR, Japan Q1:
According to paragraph 3.3.6.1 of the report by Secretariat, the Copyright Act does not
appear to provide effective copyright protection in Myanmar.
Q1A: Please explain in detail the current status of the Copyright Act amendment.
Answer:
The objectives of draft Copyright Law are as follows: 1) to encourage more development of
the literary and artistic works, performances, producing phonograms and broadcastings;
2) to give protection on the copyright of literary and artistic work of the author and the
owner of copyright in accordance with Law; 3) to protect the related rights of performer,
producer of phonogram and broadcasting organization; 4) to implement the provisions in
respect of copyright contained in conventions, treaties and agreements relating to
intellectual property to be implemented by the Republic of the Union of Myanmar in
accordance with this Law; and 5) to contribute to the protection and promotion of
traditional cultural expressions and folklore.
The right holder who has sufficient grounds for suspecting that the importation of alleged
pirated copyright goods into the territory of Myanmar is taking place or has taken place,
may submit a written request for the suspension to the Customs authority. Customs may
issue suspension order that the importation of alleged pirated copyright goods into the
territory of Myanmar. Infringements of rights of Copyright are enforced by Civil and
Criminal Procedure. The Intellectual Property Court established by the Supreme Court of
the Union or any other Court competent to adjudicate cases arising from this Law shall
have the authority to order prompt and effective provisional measures on the enforcement
of infringement of IPRs. Offences and penalties related to copyright shall be punished with
imprisonment for a term not exceeding 3 years or with fine or with both in respect of initial
offences and longer imprisonment terms in instances of subsequent conviction.
Q1B: Please provide the information on whether copyright must be registered to be
protected, and whether registration of copyright is required for the enforcement of the
copyright against infringement.
Answer:
Regarding with the Registration of Copyright, it is voluntary registration. In case of
requiring proof, the certificate of registration can be used as a Prima Facie Evidence.
Q1C: Please provide the information on whether there is any legislation or regulations
stipulating the responsibility of internet service providers in the case of online piracy.
WT/TPR/M/293/Add.1
- 66 Answer:
Regarding with the copyright protection in the digital age, Myanmar is not a party to two
WIPO treaties (WCT & WPPT) and, hence, is under no obligation to implement these
provisions.
Chapter 6. Sectoral Developments
Page 21, para 6.6, Rice, Australia Q1:
How is the Government of Myanmar planning to achieve their national agricultural policy
targets, such as increasing rice production and area (19.9% and 52.8% respectively)?
Answer:
The Government intends to carry out to achieve agricultural policy objectives according to
following measures:
To Increase the use of high-yield variety (HYV) and high-quality seeds: 1) dedicate more
of MOAI's registered and certified seed production to high-quality varieties, such as
Pawsan and Immayebaw, as a critical source of quality seed supply to the rice farmers;
2) Invest in best-practice infrastructure at MOAI's seed farms, including irrigation,
drainage, and the segregation of nursery land from normal farm land; 3) Use publicprivate partnerships as another means of setting up companies to supply quality seed,
matching private best practices and public development goals; 4) Switch seed varieties
through campaigns to raise farmers' awareness of the yield- labour and price-related
advantages of better seed varieties; 5) Expand MOAI's seed distribution network by
engaging farmers in each village to produce certified seeds in all regions; 6) Conduct
investment promotion activities, particularly investor outreach to attract foreign seed
companies to establish sales offices and manufacturing plants in Myanmar, as a way of
increasing supply of the quality seeds, quality fertilizer, pesticide, and insecticide available
to farmers; and 7) Attract foreign manufacturers of farm machinery to establish sales
offices and manufacturing plants in Myanmar.
To Increase production and use of fertilizer and pesticide: 1) Conduct awareness-raising
campaigns among farmers for the types, benefits, procurement channels, and proper
application of fertilizers and pesticides; and 2) Invite joint ventures in the fertilizer
production.
To Increase farm mechanization: 1) Open training centres for mechanized farming across
the major rice-producing regions; 2) Set up Mechanized Farming Service Stations to
support mechanization across the major rice-producing regions; and 3) Attract foreign
manufacturers of farm machinery.
To Expand and upgrade infrastructure for irrigation, drainage, and electricity in producing
regions: 1) Conduct feasibility study to determine irrigation needs and options for major
producing areas, including irrigation types, technologies, and costs; 2) Mitigate harmful
flooding by (i) repairing drainage pipes severed by new roads and (2) implement policy of
preserving drainage systems when laying new roads; and 3) Engage with MOEP and the
World Bank-led project to devise a national electrification strategy. Prioritize electrification
of the producing areas of Ayeyarwady, Yangon, and Bago Divisions, which account for 83%
of rice production, as a way of facilitating farm mechanization, drying, and milling without
relying on costly generators.
To develop new markets and new higher value-added rice products: 1) Provide sector with
market research (price, quality standards, etc.) on regional markets for high-quality;
2) Facilitate market entry for inexperienced processors and exporters by sharing the costs
of innovation through a public-private centre for the design, research, and development of
rice products; 3) Invest in training and equipment for greater R&D capacity at MOAI and
state agricultural institutes to support processors in the production of higher value-added
and more innovative products; and 4) Invest in training and resources for greater capacity
at MOAI to provide the sector with internationally recognized organic certification.
Page 22, Sub 4.2, Mining, Australia Q8:
Can the Government of Myanmar provide further information on its plans for the mining
sector, including plans to permit foreign investment?
Answer:
The Union of Myanmar Mines Law was promulgated in September 1994 and rules relating
the law followed after in December 1996. Under current rules, all naturally occurring
WT/TPR/M/293/Add.1
- 67 minerals found either on or under the soil of any land in the continental shelf are deemed
to be owned by the State. It is the policy of the Ministry of Mines not to make new
investment on its own, but to encourage foreign and local investors to invest in the mining
sector. Myanmar also practices the production sharing contract system. In the production
sharing types of agreement the investor shall have to contribute 100% of investment in
which case the Government would expect a share of the production and a production
sharing will be signed with sharing ratio to be agreed upon between the parties.
At present, Ministry of Mines intends to amend the Myanmar Mines Law with the advice of
experts and publics with a view to: 1) facilitate the environmental conservation and Green
Mining; and 2) encourage for investments more easily and trustfully. Father information
can get from the website of Ministry of Mines www.mining.gov.mm.
Page 22, para 6.9, FDI oil & gas, Chinese Taipei Q12:
Myanmar is currently open to foreign investment in offshore oil and gas exploitation.
Although MOGE plays a minor role in these businesses, on in-land mining and other
downstream industries, the government still has the dominant position. To our knowledge,
Myanmar has allowed domestic private corporations to invest in refining, wholesaling and
retailing of petroleum products. Is it likewise permitted foreign investment in these
industries? If not permitted, is there any plan to further open to foreign investment in
these areas?
Answer:
The development of Myanmar's gas reserves effectively began following the adoption of
the 1988 SLORC market-orientation policy, which allowed foreign participation in the
economy. In 2013, there are four gas consortia in operation, all of which are
predominantly owned by foreign investors and in which the SEE Myanmar Oil and Gas
Enterprise (MOGE) hold a minority stake as elaborated in the Government Report.
As Myanmar is establishing a new economic system so as to liberalize the trade and open
up the private sector investment opportunities. To promote more private participation in
energy sector, private companies are allowed to operate petrol stations, up to now, a total
of 1,127 petrol stations have been opened. The Government allows private entrepreneurs
to import 92 Ron and Diesel Oil, apply to the Ministry of commerce. Moreover, the Ministry
of Energy has invited interested local and foreign companies to operate the refuelling
service on a joint venture basis.
The Ministry of energy intends to implement the No. 1 Thanlyin refinery on a Joint Venture
between Myanmar Petrochemical Enterprise and interested foreign investors to operate the
refinery by using imported crude oil and also to enhance production capacity.
According to the Section 4 of the SEEs Law, the Government may, by notification, permit
in the interest of the Union of Myanmar any economic enterprise which prescribed under
the Section 3, to be operated solely by the Government to be carried out by joint-venture
between the Government and any other person or any other organization or under
conditions by any person or any economic organization subject to conditions. However,
these industries will gradually be opened beyond 2015 when ASEAN free Trade Area
emerged.
Page 23, para 6.11, Architect & engineer, Singapore Q6:
We would like to enquire whether there are any specific policies restricting the practice of
foreign architects and engineers in Myanmar. If so, what would these be?
Answer:
There is a need for foreign consultants such as architects and engineers to be registered
with the respective Myanmar Professional Regulatory Authorities to ensure that they are
eligible to practice in the respective profession field and to ensure that they take the
liability.
The Professional Regulatory Authority for Engineering is the Myanmar Engineering Council.
According to the ASEAN Mutual Recognition Arrangement on Architectural Services signed
on 19th November 2007, the Ministry of Construction is the Professional Regulatory
Authority (Architecture), regulating the Architectural Professional in Myanmar.
According
to
the
Ministry
of
Construction
Notification
No.
175/2013
of
19th September 2013, Board of Architects of Myanmar is an authorized agency of the
Professional Regulatory Authority.
WT/TPR/M/293/Add.1
- 68 Myanmar Architect Council Law that will govern the Architectural Profession is in the
approval stage.
The foreign Architects who wish to practice in Myanmar need to have a valid license for
practicing architecture in his or her own country and need to have a local counterpart who
is a senior licensed architect in Myanmar. It is a common practice agreed upon by the
ASEAN Architect Council and practiced throughout ASEAN. The reason for having a local
counterpart is to ensure that local rules and regulations as well as culture is respected.
Page 23, para 6.16, Financial Institutions & Insurance, Singapore Q7:
Singapore notes that the Central Bank of Myanmar (CBM) has successfully managed the
replacement of the former overvalued foreign exchange peg rate by a "managed float"
system in April 2012 and is in the process of obtaining its full autonomy. The CBM is also
working to map out a master plan for the development of the financial sector and to
rewrite the Financial Institutions of Myanmar Law with the assistance of donors. It is
envisaged that once this new regulatory framework is adopted, financial institutions will be
able to compete more efficiently with each other in offering financial products, such as
credit cards. We would appreciate it if Myanmar could clarify the following questions.
Q7A: When the review of the Financial Institutions of Myanmar Law is expected to be
completed?
Answer:
The New Banking and Financial Institution Law has been already drafted with the TA of the
World Bank and submitted to the Union Attorney General Office and Legal Advisory Team
of the President's Office with the request for legal opinion during the early this year
(2014). After getting the drafted law back, the CBM will submit the drafted law to the
Union Government Cabinet's meeting for approval. And then the drafted law will be
submitted to the nearest parliament meeting. On the whole, the Banking and Financial
Institution Law will be promulgated before mid this year.
Q7B: What are the objectives of the new law and what will some of its features be?
Answer:
The objectives of the new Law are to maintain stability, safety and soundness of financial
system; to reduce risk of loss to depositors and to empower the Central Bank to grant
license and impose regulations and to promote consumer protections.
Some crucial features of the new Law are that business decisions of banks and financial
institutions can be made at their own discretion; the new Law will ensure the effective
implementation of Basle Core Principles and other applicable international good practices
and the new Law provides the comprehensiveness of regulator and supervisory powers for
the Central Bank.
Q7C: Will the Insurance Business Law, which covers the establishment of an insurance
company in Myanmar, be review as well? If so, what key changes can we expect?
Answer:
The Insurance Business Supervisory Board and its office will be seceded from Myanma
Insurance.
The establishment of Myanmar will be prescribed.
The establishment of insurance association will be prescribed.
Services auxiliary to insurance will be granted permission to do business.
Domestic private insurance companies will be granted to establish joint-venture insurance
companies with foreign insurance companies.
Page 24, para 6.20, Tourism policy, Canada Q9:
Could Myanmar provide more information about the types of policies, tools and programs
being implemented to support Myanmar's tourism development strategy?
Answer:
With a view to address social and environmental challenges associated with the ongoing
rapid tourism growth, the Ministry of Hotels and Tourism (MOHT) has formulated the
Myanmar Tourism Master Plan 2013-20. The Government aims to balance economic
growth objectives with the wellbeing of host communities and minimize tourism's negative
impacts on the social, cultural and environmental fabric of the country. In particular, the
WT/TPR/M/293/Add.1
- 69 Master Plan has adopted the nine aims of the Responsible Tourism Policy as guiding
principles. These principles seek to: 1) Development tourism as a national priority sector;
2) Promote broad-based local social and economic development; 3) Maintain cultural
diversity and authenticity; 4) Conserve and enhance Myanmar's protected areas and
natural environment; 5) Compete on product richness, diversity and quality; 6) Ensure the
health, safety and security of visitors; 7) Strength institutional capacity to manage
tourism; 8) Develop a well trained and rewarded workforce; and 9) Minimize unethical
practices.
The Master Plan sets out six strategic programs which are interrelated and have equal
importance: 1) Strength the institutional environment; 2) Build human resource capacity
and promote service quality; 3) Strength safeguards and procedures for destination
planning and management; 4) Develop quality products and services; 5) Improve
connectivity and tourism-related infrastructure; and 6) Build the image, position and brand
of Tourism Myanmar.
The formulation of the Master Plan has benefitted from technical assistance from the ADB
and Norway and the implementation of its strategic programs is proceeding with technical
assistance from the donors' community. The Myanmar Tourism Master Plan can be
downloaded at the following website; http://myanmartourism.org/latestnews/wpcontent/uploads/2014/02/Myanmar-Tourism-Master-Plan_English -version-3-2-2014.pdf.
WT/TPR/M/293/Add.1
- 70 Questions from China and its Answers
Questions based on Report by the Secretariat (WT/TPR/S/293)
General Answer on Investment
Myanmar has initiated a broad reform process to improve its legal and regulatory
framework since the new Government took office in 2011. In line with the wide‐ranging
reform program of the new Government, there were considerable expectations from
stakeholders concerning a rapid improvement of Myanmar's investment framework. In
order to create a more open and secure investment environment, the New Foreign
Investment Law (FIL) was enacted in November 2012, followed by its accompanying
implementing rules (Notification No 11/2013) as well as Notification No 1/2013 in respect
of the negative list of prohibited activities (see Table 1 below). The investment framework
for domestic investors was also updated and enacted in July 2013 with the New Myanmar
Citizens Investment Law (CIL). Although the 2012 FIL offers undeniable improvements
over the earlier 1988 law, there were shortcomings, notably with respect to investor
protection and procedures for business entry.
Table 1 Investment-related Laws and Regulations
Date
Investment‐related Laws & Regulations
November 2012
January 2013
January 2013
July 2013
January 2014
[Second half of
2014]
New Foreign Investment Law (FIL)
Foreign Investment Rules, Notification No: 11/2013
Notification No: 1/2013 (Negative list of prohibited activities)
New Myanmar Citizens Investment Law (CIL) (Domestic enterprise
investment)
New Myanmar Special Economic Zone Law (Unified law for SEZs)
Revised FIL Notification No: 1/2013 (Reduced list of prohibited
activities)
[Second half of
2014]
[Second half of
2014]
FIL Notification No: 2 (Clarification of conditions attached to tax
exemptions)
FIL Notification No: 3 (Clarification of Environmental and Social
Impact Assessments)
[Second half of
2014]
[End of 2014]
New Myanmar Companies Act
Myanmar Investment Law (Merging the New FIL and New CIL)
In terms of investor protection, some of the core standards, such as MFN and national
treatment, expropriation with fair market value compensation and dispute settlement,
remained absent from the new legal framework.
In view of the urgency in reforming Myanmar's investment framework, the draft New FIL
was formulated without the assistance of international technical expertise or a
broad‐based consultation process of stakeholders (other than Parliament). However, the
shortcomings of the new legal investment framework were quickly recognized and the
New Government welcomed offers of technical assistance from several international
organizations, notably the Organization for Economic Cooperation and Development
(OECD), the Asian Development Bank (ADB), the International Finance Corporation of the
World Bank Group (IFC), the Japanese and German international agencies (JICA and GIZ)
and others.
The ongoing legislative work program on investment is now focusing on: the imminent
adoption of three sets of FIL regulations; the formulation of an overall Myanmar
Investment Law that will merge the New FIL and New CIL into one coherent investment
framework, thereby removing the perception that foreign and domestic investors were
treated differently; and a New Myanmar Companies Law.
Concerning the adoption of FIL regulations, three Notifications are awaiting adoption by
Parliament:
1) Revised Notification No.1 aims at addressing a number of weaknesses in the activities
that were initially reserved for domestic investors and thus prohibited for foreign
WT/TPR/M/293/Add.1
- 71 investors. It is now proposed to reduce the number of activities on the "negative list" of
prohibited activities closed to foreign investors from 21 to 11, thereby considerably
reducing the scope for discretion. It is also proposed to reduce the scope of economic
activities in which joint ventures between foreign and domestic partners are required.
2) Notification No. 2 aims at clarifying the tax incentives and conditions attached to
them. Notification No. 3 aims at clarifying the activities subject to environmental and social
impact assessments.
As regards formulation of an overall Myanmar Investment Law, several ambiguities have
emerged as a result of the enactment of two parallel laws: one for foreign investment, i.e.
New FIL, and one for domestic investors, i.e. New CIL. Myanmar's authorities are now
actively working with the assistance of international experts with a view to merging these
two laws into a single coherent investment law that will address the shortcomings of the
existing legal framework, notably matters concerning MFN and national treatment,
expropriation with compensation at fair market value, transparency, the alleged
discretionary authority of the Myanmar Investment Commission, and dispute settlement,
all of which are under consideration. The aim is to finalize the draft law during the fall
2014, carry out consultation with stakeholders and, ultimately, submit the draft law to
Parliament at the end of 2014.
The Ministry of National Planning and Economic Development is also responsible for two
other important economic laws: the Myanmar Companies Act (1914); and the recently
enacted New Myanmar Special Economic Zone Law.
The Myanmar Companies Act of 1914 contains a number of complicated provisions that are
out of step with today's operating environment. With ADB technical and financial
assistance, modifications are underway to align its provisions with the current economic
environment and comply with international standards. The aim is to finalize the draft in
May 2014.
In respect of Special Economic Zones, two parallel laws, the Myanmar Special Economic
Zone Law and Dawei Special Economic Zone Law were enacted shortly before the new
Government took office in 2011. However, the two laws were found to be deficient in
inducing foreign and domestic investors to locate their investments in these SEZs.
Moreover, the two laws raised doubts about the harmonization of the regulatory
framework across zones. Therefore, the two laws have been merged into a new Myanmar
Special Economic Zone Law, which was enacted in January 2014.
Page 10, para.1.4: Economic Environment
The Report states that "Myanmar has large potential for growth. However, significant
impediments remain to modernizing Myanmar's economy and meeting the Government's
goal of "fostering inclusive broad‐based growth and poverty reduction"; these include the
lack of capacity and infrastructure".
Q1: In order to deal with challenges to growth posed by lack of capacity and
infrastructure, what kind of economic policies, specific measures and/or development
programs has the Government laid down?
Answer:
Economic Development
Based on our current economic policy framework, the following objectives are laid down;
•
•
•
•
•
To improve the living standard of entire population;
To increase per capita GDP;
To promote public utilities and social sector development such as transportation,
water and sanitation, electric power, education, health and social security, etc.;
To create job opportunities; and
To conserve natural resources.
Poverty reduction
Regarding the social and economic challenges, Myanmar has implemented poverty
WT/TPR/M/293/Add.1
- 72 reduction and rural development as a national priority. The eight activities are being
implemented in various states and regions. These activities are:
Development of agricultural productivity;
Development of livestock, fisheries and socioeconomic life;
Development of rural small‐scale productivity; Development
of micro saving and credit enterprises; Development of rural
cooperative tasks;
Development of rural energy;
Environmental conservation;
Collection and analysis of rural development and poverty alleviation data and information.
Infrastructure development
The Government is promoting public utilities and social sector development, such as
transportation, communication, water and sanitation, electric power, education, health and
social security activities in cooperation with private sector and relevant institutions.
To supplement Myanmar's limited resources, the Government is placing more emphasis on
education and is actively coordinating with the donors' community in implementing the
above objectives.
Page 12, para.1.14: Monetary Policy
The Report states that "[i]n order to encourage private sector activity, more flexibility was
permitted with respect to lending and deposit rates. These may now fluctuate. Restrictions
on eligible collateral have also been eased; Private‐sector credit expansion was about 38%
in 2011/12 and approximately 55% in 2012/13".
Q2: Please further explain the current policy on lending and deposit rates with respect to
their "flexibility" and possibility to fluctuate.
Answer:
The Central Bank of Myanmar has allowed all banks to set deposited and lending rates
within a band. Therefore, at this time, the minimum deposit rate is 8% and the maximum
lending rate is 13%.
Q3: Please confirm whether there are further plans to reform its policy with regard to
lending and deposit rates.
Answer:
The CBM began monitoring reserve money to guide its monetary operations and interest
rate decisions. Current operations rely on deposit and credit auctions (deposit auctions
only since September 2012) and were developed on the basis of IMF technical assistance.
Regulation concerning the auctioning of Treasury Bills was also drafted with the assistance
of the IMF. The Treasury Department of the Ministry of Finance is implementing the
issuance of Treasury Bills by auction.
It is expected that a money market will gradually develop in Myanmar following the
commencement of Treasury securities being issued via auctions. From these money
markets, the private sector will be able to evolve market driven interest rates across the
interest rate curve.
To facilitate a more complete move toward market‐based monetary operations, the CBM's
monetary tools will need to be gradually improved the interbank market reopened and the
treasury securities market developed.
Page 25, para.2.36: Trade Disputes and Consultations
The Report states that "[a]rbitration provisions are prescribed in the Myanmar Arbitration
Act 1944, which allows for international arbitration. For commercial disputes between
domestic companies, the UMFCCI is the arbitrator… For disputes relating to foreign
companies, the Arbitration Rules of the Chamber of Commerce apply".
Q4: Does the Act enable a foreign party, under agreement with a domestic party, to resort
WT/TPR/M/293/Add.1
- 73 to an international arbitration institution that locates outside Myanmar for resolution of
disputes between them?
Answer:
Concerning commercial disputes and consultations, the methods of settlement of dispute
are referred to not only Arbitration Act 1944 of Myanmar but also UNCITRAL Rules,
Singapore International Arbitration Center and other international arbitration rules which
are agreed by the parties to the Contract.
Q5: Please define the "Arbitration Rules of the Chamber of Commerce" as mentioned in
the Report and explain their difference from the arbitration rules of major international
commercial arbitration institutions, for instance, the International Court of Arbitration of
International Chamber of Commerce (ICC). If the two sets of rules are different, please
confirm whether the Act allows for application of the Arbitration Rules of the ICC when a
foreign party is involved in the dispute settlement.
Answer:
The Arbitration Committee of UMFCCI endeavours to settle the trade disputes of its
members based on social ethics and mutual agreement of disputing parties. Should the
parties disagree to the settlement of dispute at the committee level they have the liberty
to proceed to the law court at their own discretion. The arbitration committee settlement
procedure is not based in Myanmar Arbitration act 1944.
Page 18, para.2.9: Foreign Investment Regime
That Report states that "[t]he Government has signed the UN Convention against
Corruption. In order to implement this Convention, an anti‐corruption law was enacted on
17 September 2013".
Q6: How has the anti‐corruption law been implemented so far?
Answer:
In Myanmar, Anti‐Corruption Law was enacted on 17th September 2013 and the
Anti‐Bribery Commission was set up on 25th February 2014 to implement the
Anti‐Corruption Law. Actions against corruption are being taken strictly by the Anti‐Bribery
Commission. Procedures on alleged corruption actions will shortly be elaborated by the
Anti‐Bribery Commission.
Q7: Does the Government obligate foreign funded companies to set up internal compliance
system on compulsory basis to fight against corruption?
Answer:
The Anti‐Bribery Commission was set up on 25th February 2014 by Order No. 6/2014.
Concerning with the implementation of the Anti‐Corruption Law, the Anti‐Bribery
Commission will take measure in accordance with the Anti‐Corruption law.
Page 15, para.1.27
The Report states that "[s]ince 2005/06, FDI inflows have been volatile. In 2005/06, there
was a large investment from Thailand in the power sector for a hydroelectric plant (Chart
1.3). Between 2006/07 and 2009/10, FDI inflows tapered off and did not exceed US$1
billion. However, there was a significant upsurge in FDI inflows in 2010/11 as the oil and
gas, power, and mining sectors attracted considerable investment. FDI fell again to
approximately US$5 billion in 2011/12".
Q8: Please explain the possible reasons for the volatility of FDI inflows during past years,
particularly in 2011/12, after the new Government took office in 2010.
Answer:
In 2010‐11, most FDI flows went into large capital intensive resource‐based projects, such
as power, oil and gas and mining sectors. Thereafter, Myanmar's huge untapped
manufacturing and services sectors attracted considerable attention by the world
community and investment flows have duly reflected Myanmar's opportunities and
improved investment climate.
WT/TPR/M/293/Add.1
- 74 Q9: Are there any policy considerations by the Government to reduce excess volatility,
including through a more predictable and transparent policy making process on FDI?
Answer:
In 2011‐12, investment from China in power projects amounted to over US$4 billion and
other approved investment reached about $300 million. For the period 2013‐14 (up to
February), Myanmar received over $3 billion or about twice the flows recorded during the
previous year period. For policy considerations, please see general answer on investment.
Page 17, para.2.3
The Report states that the Government takes enhancing transparency in the public sector
one of their priorities. In the meanwhile, on investment liberalization, "the Government is
considering merging the 2012 Foreign Investment Law with the Myanmar Citizens
Investment Law, to provide a single investment framework".
Q10: What is the timeline for the merging of the 2012 Foreign Investment Law with the
Myanmar Citizens Investment Law?
Answer:
See general answer on investment.
Q11: Once merged, will the difference or even contradictions with regard to national
treatment, between the two laws be eliminated or not?
Answer:
See general answer on investment.
Q12: Please confirm whether the Government will make any substantive policy changes to
conditions on FDI market access and procedures for administrative approval in this regard.
Answer:
See general answer on Investment. The provisions of the unified Law will have likely
streamlined procedures.
Page 26, para.2.40
The Report states that "[t]he new Foreign Investment Law (FIL), promulgated in
November 2012, is a revision of the Myanmar Foreign Investment Law of 1988.
Implementing rules of the new FIL were promulgated on 31 January 2013 and
supplemented by Notification No. 1/2013 of the MIC. The new FIL supports investment
projects that expand exports or produce import substitution products".
Q13: Please confirm whether the new Foreign Investment Law is retrospective in effect,
which enables foreign investments contracted or fulfilled before its promulgation to benefit
from the tax incentives and other preferential treatment conferred by the Law as well.
Answer:
Foreign Investment Rule 173 stipulates that the investor who is performing investment
business according to the permit issued by the Commission and formed under the Union of
Myanmar Foreign Investment Law (State Law and Order Restoration Council Law No.
10/1988) shall apply to the Commission for the continuity to carry out and enjoying the
benefits in accord with the conditions prescribed under the Foreign Investment Law.
FIL has no retrospective in effect. FIL section 52 said investor is entitled to proceed and
enjoy continuously in accord with terms and conditions contained in the permit and the
relevant contract. Also FIL rule 170 specifies that investor has the right to continue to
enjoy the exemptions and reliefs if he is still enjoying exemptions and reliefs allowed under
the Union of Myanmar FIL.
Page 26, para.2.43
The Report elaborates on the FIL that "[t]he previous law of 1989 adopted a "positive list"
approach where foreign investors were allowed to invest only in listed sectors. The new
law lists certain activities that are restricted or prohibited to foreign investment (Article 4),
including: a. businesses that can affect the traditional culture and customs of the ethnic
WT/TPR/M/293/Add.1
- 75 nationalities of the country, and public health…"
Q14: Please explain how to define "businesses that can affect the traditional culture and
customs of the ethnic nationalities of the country, and public health". What are the legal
criteria to help make such a judgement?
Answer:
FIL sections 4 and 5 specify that the Myanmar Investment Commission (MIC) shall issue
the type of economic activities by Notification with the approval of Union Government. In
that case, for those activities prohibited or restricted is considered based on Myanmar'
traditional customary law and internationally accepted law and regulations.
Page 30, para.2.59
The Report elaborates that businesses in Myanmar may take the form of partnerships,
limited companies, or branches/representative offices of a foreign company, and "[f]oreign
investors must recruit at least 25% of their employees from the local labour force in the
first two years. The local employment ratio increases to at least 50% for the third and
fourth years, and at least 75% for the fifth and sixth years. It may take more years for
activities in academic areas to increase the local employment ratio".
Q15: Please clarify whether the Government has made or plans to make any evaluation,
including through cost and benefit analysis to assess the impact of such a local
employment policy on the efficiency and competitiveness of commercial operations in the
country. If necessary, would the Government consider relaxing this policy in near future?
Answer:
In Chapter 1, Paragraph 31 of the Constitution of the Republic of the Union of Myanmar
states that "The Union shall, to the extent possible, assist to reduce unemployment among
the people," and thus, the Government is putting its best effort to promote the local
employment opportunities for all its citizens. The said policy has been laid down to
harmonize with the Constitution. At the same time, the Employment and Skill
Development Law has been enacted and the Rules for the Law are under the drafting
stage, in order to assist the national employment and occupational skill qualification
framework for Human Resources development. On the other hand, as a member of ASEAN,
Myanmar is preparing to facilitate the movement of ASEAN nationals, business persons
and tourists in the ASEAN region to complement the trade and investment facilitation
work. Hence, the Government may not consider relaxing this policy in near future.
Q16: Please confirm whether the local employment policy with its ratio requirements shall
apply to all FDI sectors and all foreign funded companies. Are branches, subsidiaries or
representative offices set up in Myanmar by foreign companies also subject to those
employment ratio requirements?
Answer:
In principle, the local employment policy with its ratio requirements apply to all FDI
sectors and all foreign funded companies and the branches, subsidiaries or representative
offices set up in Myanmar by foreign companies are also subject to those employment ratio
requirements.
Q17: Please clarify whether the requirement on local employment ratio remains at
min.75% even after the fifth and sixth years with no further upward adjustment.
Answer:
The requirement on local employment ratio must be minimum 75% for the fifth and sixth
years and it is encouraged to increase percentage of local employment for the further
years.
Q18: Please explain in detail the local employment ratio requirements for foreign funded
businesses in academic areas.
Answer:
According to FIL Law section 24, in addition to answer of Question 16, Myanmar
WT/TPR/M/293/Add.1
- 76 Investment Commission may increase the suitable time limit for the business based on
knowledge.
Q19: Does the Government have any plan to simplify and streamline its procedural
requirements on foreign invested companies in the field of business registration,
investment permit approval, import and export license application and industrial license
issuance?
Answer:
The Government is now working with technical assistance from the Asian Development
Bank (ADB) to establish an online registration system and also in revising the Myanmar
Companies Act. Work is expected to be completed in 2014.
Q20: Does the Government have any plan to grant the same treatment to both foreign
funded companies and indigenous businesses in terms of collection of public utility fees,
and choice of legal currency in which the fares are denominated and collected?
Answer:
Yes. In the upcoming Investment Law, it is likely to have same treatment for both foreign
and local investors.
Q21: Does the Government have any trade facilitation plan to consolidate its customs
procedures and licensing requirements on importation by foreign funded companies?
Answer:
Foreign companies cannot "engage solely in trade" means that foreign companies cannot
import goods, distribute and sell them into the domestic market. Moreover, foreign
companies cannot export goods by purchasing them from domestic producers. However,
foreign companies registered as service companies under Myanmar Company Act of 1914
are allowed to import necessary equipments for carrying out their services business as of
15th October 2013. The Government is currently considering measures that would allow
foreign companies to engage in wholesales service in the domestic market.
Page 30, para.2.53
The Report states that "[l]and in Myanmar is owned by the State; thus, foreign investors
are not allowed to own land. Under the new FIL, foreign investors may lease land for
50 years (30 years previously), and the land lease may be extended for two consecutive
terms of 10 years (15 years previously). Land lease contracts must be approved by the
MIC. The MIC may designate another 10‐year extension with the consent of the
Government, for investment projects in the less developed and poor communication
regions. For investment in the agriculture and livestock sectors, foreign investment may
form joint ventures with Myanmar citizens under contract".
Q22: Please clarify that land in Myanmar is owned exclusively by the central government,
or can be owned either by central or by local governments respectively.
Answer:
Land is solely owned by the central Government. According to the type of land, the
administration is empowered to the Region/ Division Governments.
The vacant, fallow and virgin lands are managed by the central committee for the
management of vacant, fallow and virgin lands, formed by the President of the Union
[Vacant Fallow and Virgin Land management Law Section 3 (a)].
Farmlands are managed by the central Administrative Body of the farmland. [Farmland
Law section 15 (a)].
For the vacant, fallow and virgin lands, the investors who obtained the permission to carry
out the business of mutual benefit with investors of Myanmar citizen under the Foreign
Investment Law can apply to the central committee for the management of the vacant,
fallow and virgin land in accordance with the stipulation. [Vacant, Fallow and Virgin Land
Management Law section 5 (e)].
Q23: Please confirm whether foreign investors can obtain the right to utilize land pursuant
to law, with no necessity to establish joint ventures or to resort to intermediate lease
agencies.
WT/TPR/M/293/Add.1
- 77 Answer:
Regarding the vacant, fallow and virgin land, the investors who obtained the permission to
carry out the business of mutual benefit with investors of Myanmar citizen under the
Foreign Investment Law can obtain the right to utilize land.
Regarding the farmland, the person who has land use right shall have right to use common
interest the farmland in accord with the foreign investment law of Republic of the Union of
Myanmar by cooperating with the foreign or the organization in which the foreigner is
included [Farmland Law, section 9(f)].
Q24: Please confirm whether foreign investors must directly submit their application to
MIC and then sign with the MIC the land lease contracts once approved by it. Besides MIC,
are there any other governmental bodies also authorized by law to participate in this
administrative approval process?
Answer:
If it is neither resource‐based nor industry related to SEEs Law, investor can submit
proposal directly to Myanmar Investment Commission (MIC). If it is resource‐based and
industry related to SEEs Law, proposal must come through concerned Ministries.
MIC gives investment permission only and the investor should follow the land laws to get
the land use right for farmland and to get the right to utilize the vacant, fallow and virgin
lands.
Q25: During the term of lease, could the land be subleased to a third party?
Answer:
Yes, according to FIL Rules 64, investor shall carry out only obtaining the permission after
applying to the Commission Office within the permitted term for the permitted leased land
and building without any changes of the type of business with the permission from the
person who has the right to use the land or right to lease the land for sub‐lease or for
mortgage. If the type of land is vacant, fallow or virgin land the permission from the Union
Government shall be attached and submitted.
Regarding the vacant, fallow and virgin land, the person who has land use right shall not
mortgage, gift, sell, lease or transfer by other means or divide the permitted vacant, fallow
and virgin land without the permission of the Union Government [Vacant, Fallow and Virgin
land Management Law section 16 (c)].
Regarding the farmlands, the person who has land use right shall right to sell, mortgage,
Lease, exchange and gift on the whole or part of the right to use the farmland in accord
with the stipulated terms and conditions [Farmland Law section 9 (b)].
But the person who has land use right should not sell, mortgage, lease, exchange and gift
on the whole or part of the right to use the farmland without permission of the
Government to any foreigner or any organization in which the foreigner is included
[Farmland Law section 14].
Q26: Who should be financially and legally responsible for the demolition, relocation,
resettlement and compensation related to the lease of the physical land with appendages
attached to it? What are the criteria put in place in this regard?
Answer:
Concerning the relocation and resettlement of land, it is managed by regional/division
Government.
The Central Committee of the management of vacant, follow and virgin Land shall have the
right to acquire the acquired minimum land area from the permitted vacant, follow and
virgin lands if one the following conditions arises [Vacant, Fallow and Virgin land
Management Law section 19 sub ‐section(a)(b)(c)(d)]:
(a) if the ancient cultural heritages are found in the permitted vacant, fallow and virgin
lands;
(b) if infrastructure project or special project is required to be implemented for the
interest of the State;
(c) if different resources other than the permitted type of metal is found in the permitted
WT/TPR/M/293/Add.1
- 78 vacant, follow and virgin lands for the mineral production business;
(d) if the mineral resources are found in the vacant, follow and virgin lands permitted to
carry out the business contained in Section 4, Sub‐section(a),(b) and (c).
The Central Committee shall for acquiring the permitted vacant, fallow and virgin lands
under Section 19, coordinate with the respective department and organizations to enable
to obtain the expenditures actually invested by the person who has the right to cultivate or
utilize within the appropriate specified period by calculating the current value with the
approval of Union Government [Vacant, Fallow and Virgin land Management Law section
20].
The Central Committee has the right to confiscate the original Deposited security fees as
the State finance and shall also revoke the right to cultivate or utilize if it is found that one
of the conditions contained in this law is violated by the person who has the right to
cultivate or utilize vacant, fallow and virgin lands [Vacant, Fallow and Virgin land
Management Law section 21].
Notwithstanding contained in any existing law, the Central Administrative Body of the
Farmland shall coordinate as may be necessary in respect of giving compensation not to
grieve absolutely for the matters carried out by the person who has the ownership right to
use the farmland including the land confiscated for the interests of the State or the public
interests and development by building on such land and managing by other means by the
relevant [Farmland Law section 26].
The person whose right to use the farmland is revoked or the farmland is recovered by the
Central Administrative Body of the Farmland under Sub‐Section (d) of Section 17 shall not
have the right to enjoy compensation [Farmland Law section 27 ].
Q27: How the rent is decided, by market or by government? What are the commercial
criteria or governmental guidelines to help produce and calculate the rent?
Answer:
Rent is stipulated in FIL rules 116.
The Central Committee shall determine the rate of security fees to be paid by the person
who has obtained the right to cultivate or utilize the vacant, fallow and virgin lands in
accordance with the type of business [Vacant, Fallow and Virgin land Management Law
section 13].
The Central Committee shall determine the rate of land revenue to be levied for the right
to cultivate or utilize the vacant, fallow and virgin lands and the appropriate period to be
exempted from Land Revenue depending upon the type of business and kind of crops
[Vacant, Fallow and Virgin land Management Law section 14].
The Settlement and Land Records Department shall levy and collect the land revenue from
the person who has the right to cultivate or utilize the vacant, fallow and virgin lands
commencing from the day of the expiry of the exempted period of Land Revenue according
to the type of business and kind of crops [Vacant, Fallow and Virgin land Management Law
section 15].
Regarding farmland lease contract, it is necessary to negotiate the rent between foreign
investors and the Myanmar Citizen who has land use right of farmland.
Q28: Does the law allow the right to lease land be treated as one of the legal forms of
capital contribution, or collateral as well? If allowed by law, what are the legal procedures
for the concerned business parties to follow?
Answer:
Yes, according to FIL Rules 64, investor shall carry out only obtaining the permission after
applying to the Commission Office within the permitted term for the permitted leased land
and building without any changes of the type of business with the permission from the
person who has the right to use the land or right to lease the land for sub‐lease or for
mortgage. If the type of land is vacant, fallow or virgin land the permission from the Union
Government shall be attached and submitted.
The foreign investors are allowed to cooperate with the Myanmar citizen who has land use
right in accord with the foreign investment Law [Farmland Law, section 9 (F)].
WT/TPR/M/293/Add.1
- 79 The investors who obtained the permission to carry out the businesses of mutual profit
with investors of Myanmar citizen under the foreign investment Law can apply to cultivate
or utilize vacant, fallow and virgin land [Section 5 (e)].
The foreign business parties are allowed to lease land cooperating together with Myanmar
citizen who has land use right.
Page 31, para.2.60
The Report states that "[s]ection 18 (d) of the new FIL appears to allow an investor to
challenge a decision of the MIC in the event of denial of the application or the issuance of
an approval adverse to the interests of a foreign investor under Myanmar law. However,
section 49 of the FIL provides that decisions of the MIC under the new law are "final". It
was not clear to the Secretariat how investors can challenge a decision of the MIC".
Q29: Please clarify the possible contradiction between the section 18 (d) and the section
49 of the FIL with regard to the right to challenge a decision of the MIC by a foreign
investor.
Answer:
Section 18(d) of the Foreign Investment Law mentioned that submitting to the
Commission to re‐scrutinize and amend in order to obtain the rights which he is entitled to
enjoy fully in accord with the existing law. In case, if investor is denied his rights (e.g. tax
incentives) given by Foreign Investment Law, he can request MIC to re‐scrutinize. This
matter is likely to be addressed in the context of the upcoming Myanmar Investment Law.
Section 49 of the Foreign Investment Law mentioned that the decision of the Commission
made under the powers conferred by this Law shall be final and conclusive.
Q30: Please confirm the existence of any administrative or judicial remedy when the
decision of MIC is successfully challenged according to the Law.
Answer:
Section 18(d) of the Foreign Investment Law mentioned that submitting to the
Commission to re‐scrutinize and amend in order to obtain the rights which he is entitled to
enjoy fully in accord with the existing law. In case, if investor is denied his rights (e.g. tax
incentives) given by Foreign Investment Law, he can request MIC to re‐scrutinize. This
matter is likely to be addressed in the context of the upcoming Myanmar Investment Law.
Q31: Does Myanmar plan to join the Convention on the Settlement of Investment Disputes
between States and Nationals of Other States (the ICSID or the Washington Convention)
in future?
Answer:
So far, we have not yet prepared to access the International Convention for the Settlement
of Investment Disputes (ICSID).
Page 32, para.3.2
The Report states that "…only Myanmar nationals are allowed to engage in trade, except
for imports of inputs and exports of processed goods by manufacturing firms that have
been registered under the Foreign Investment Law and consequently also registered as an
importer and exporter with the Directorate of Trade".
Q32: Does the Government have a plan to fully lift its restrictions on rights to trade?
Answer:
Foreign companies cannot "engage solely in trade" means that foreign companies cannot
import goods, distribute and sell them into the domestic market. Moreover, foreign
companies cannot export goods by purchasing them from domestic producers. However,
foreign companies registered as service companies under Myanmar Company Act of 1914
are allowed to import necessary equipments for carrying out their services business as of
15th October 2013. The Government is currently considering measures that would allow
foreign companies to engage in wholesales service in the domestic market.
WT/TPR/M/293/Add.1
- 80 Q33: At present, could those foreign funded companies that failed to obtain trading rights
from the Government engage in import and export activities through domestic trade
companies or trade agents?
Answer:
Foreign funded companies wishing to do import and export business must enter into
contractual arrangements with domestic trading companies.
Page 60, para.4.46 and para.4.49
The Report states that the Ministry of Electric Power (MOEP) "aims to increase investment
in power generation through its own investment, investment by domestic entrepreneurs on
a build‐operate‐transfer (BOT) basis, and investment by foreign companies on a joint
venture (JV) or BOT basis… In accordance with the Foreign Investment Law, FDI is allowed
in power generation… FDI must be in the form of a joint venture or BOT system; majority
Myanmar ownership is not required. FDI is prohibited in the "administration of electricity
systems or trading of electricity"; thus, no FDI is allowed in electricity transmission".
Q34: As to investment in power generation, please clarify whether joint ventures formed
between two foreign companies, with no participation of a Myanmar domestic company,
will also be eligible to engage in power investment in Myanmar pursuant to the law.
Answer:
In electric power sector, foreign investor can be allowed 100% foreign-owned investment
and foreign investor is also allowed to jointly cooperate with other foreign and local
investors. However, for investment in power transmission, it cannot be allowed so far.
Q35: Does the Government have a reform plan to lift its prohibition on FDI in electricity
transmission in future?
Answer:
For the development of generation capacity, more private sector investment is invited to
participate. For distribution sector improvement, especially, Yangon City Electricity Supply
Enterprise (YESB) which takes the responsibility of power distribution in Yangon region will
be re‐structured to a corporation model and in other states and regions local private
companies are allowed to participate in township level power distribution works. At
present, MOEP prioritizes the participation of private sector investment in power
generation and distribution areas only and it does not yet consider a reform plan to lift its
prohibition on FDI in electricity transmission in future.
Page 32, para 3.4 and GR Page 17, para.5.1: Import Procedures and Customs Valuation
(Customs) The Report states that "[c]urrently, customs clearance requires about three
days; the authorities intend to implement the ASEAN single window by 2015". The
Government Statement also mentions that "[i]order to expedite customs clearance, the
GOM has been implementing a National Single Window (NSW) in accordance with the
principles of transparency, simplicity, efficiency and consistency with a view to its
integration with the ASEAN Single Window (ASW) by 2015".
Q36: Please explain how the "ASEAN Single Window" will be carried out.
Answer:
Myanmar is now introducing Myanmar Automated Cargo Clearance System (MACCS) and
Myanmar Customs Intelligence System (MCIS) which will be applied based on Nippon
Automated Cargo and Port Consolidated System (NACCS) by technical assistance from
JICA and Japan Customs and Tariff Bureau with ODA of Japan Government. The regular
bilateral working groups meetings have been organized since July 2013 in order to
implement ASW through National Single Window in terms of the Protocol on establishment
and implementation of ASEAN Single Window Article (8) by applying the Information and
Communication Technology. At the time of fully implementation on MACCS, National Single
Window will also be achieved entirely as initiatives of ASEAN Single Window by linking with
Other Government Agencies and Private Sector as well as border trade zones.
Q37: Despite of efforts to implement a National Single Window, what are the other
WT/TPR/M/293/Add.1
- 81 measures to be taken by the Government to ensure the smooth integration of the "ASEAN
Single Window" into the present import customs regime to achieve optimal operation of
the whole customs regime?
Answer:
Myanmar is preparing to fully implement National Single Window and to facilitate the
operation at the time of the achievement of ASEAN Single Window by amending, adding
and updating the current Customs Law into the International Customs best practice such
as WTO Valuation, Post Clearance Audit (PCA) and Risk Management.
In terms of ASEAN Integration Program, Myanmar Customs is compliance with the (15)
Strategic Plans of Customs Development. Moreover, Myanmar Customs regularly
participates in and cooperates with the ASEAN Single Window Steering Committee
meeting, ASEAN Single Window Technical Working Group meeting and Legal Working
Group meeting. The technical assistance of Legal Gap Analysis on ASEAN Single Window
Project provided by USAID has been implemented in Laos, Vietnam, Philippine and
Indonesia. As the same way, USAID legally offered Myanmar to accept the technical
assistance of Legal Gap Analysis like other four Countries. In accordance with that offer,
the legal expert, Professor Bill Luddy from USAID came to Myanmar Customs Department
from 25th to 30th November 2013 and organized the workshop and discussion relating to
the legal analysis to connect each other countries according with ICT technology for the
implementation of ASEAN Single Window.
Myanmar Customs is making efforts on not only amending Law but also the other
measures such as re‐organizing the Organizational Structure, conducting the trainings on
modern Customs procedures for development of personnel's capacity by technical
assistance from Japan Customs and JICA, China Customs, European Union (International
Management Group‐ IMG), USAID, ADB, IMF etc.
Page 39, para.3.28: Government Procurement
The Report states that "Myanmar is neither party to nor an observer of the WTO
Agreement on Government Procurement. Myanmar has no specific legislation governing
public procurement".
Q38: Does the Government have any plan to join the WTO Agreement on Government
Procurement?
Answer:
Government issued the Procurement Directive which was in line with the international
procurement Practice in 30 April 2013 to the line ministries and agencies. All the line
ministries and agencies have to follow these Procurement directives and use the open
tendering system. Now, we have received technical assistance from the World Bank and
introduced the modernization of Public Finance Management Project. The modernization of
Government Procurement is included in this project.
Q39: At present, whether foreign enterprises and foreign funded companies are treated
equally as domestic enterprises under the current government procurement system,
including under the current open tender system? Are there any legal instruments existing
or to be produced in order to ensure national treatment in this regard?
Answer:
Myanmar is using two methods in Government procurement:
(a) Open Tendering domestic buying; and
(b) Open Tendering foreign buying.
For foreign buying, all the foreign enterprises and foreign funded companies can compete
in the Tendering process. There is no separation or discrimination on foreign enterprises or
foreign funded companies in Tendering process and selection.
Page 44, para.3.60 : Special Economic Zones
The Report states that "[t]he Government plans to establish three SEZs: Dawei, Kyauk
Phyu, and Thilawa. Infrastructure is being developed in the Dawei SEZ. A plan for
WT/TPR/M/293/Add.1
- 82 infrastructure development in Thilawa is being prepared, and an environmental impact
assessment is being conducted in the Kyauk Phyu".
Q40: Please elaborate on the comparative advantages, strategic positioning, development
objectives and plans of the three zones respectively.
Answer:
There are three SEZs: 1) Dawei SEZ (DSEZ) located in Dawei District, Tanintharyi Region;
2) Thilawa SEZ (TSEZ) located in Thanlyin‐Kyauktan Township, Yangon Region; and
3) Kyauk‐Phyu SEZ (KSEZ) located in Rakhine State. The Dawei and Thilawa SEZs are joint
governmental organizations held respectively between Thailand and Myanmar and Japan
and Myanmar. Kyauk‐Phyu SEZ is an organization between private business groups.
Myanmar is one of the Asia Regional Hub countries; investors can take the profits of
ASEAN Connectivity. Likewise, it is also the main Corridor in Mekong Sub‐region (GMS) and
India‐Mekong Economic and so it is the good region to dig up the opportunities for the
investors.
1) Dawei SEZ (DSEZ):
Myanmar and Thailand had signed the Dawei SEZ Memorandum of Understanding on
23 July 2013 which established the Myanmar‐Thai Joint High Level Committee and Joint
Coordinating Committee (JCC) to oversee its implementation Myanmar‐Thai Joint High
Level Committee meetings were held twice in Thailand and once in Myanmar. JCC meeting
were held three times in Thailand and once in Myanmar. Myanmar‐Thailand–Japan
Tripartite Meeting was held on 27 September 2013 in Yangon to consider Japan as a
Strategic Partner. Two framework agreements have been established:
Special Purpose Vehicle (SPV‐1) in accordance with the Agreement between Myanmar and
Thailand, (SPV‐1) was formed in Bangkok to invite international investors and developers,
and
1) to obtain capital by selling shares in the financial market in Thailand. In the future,
SPV‐1 will be changed into Public Co. Ltd. and will be easier to find loans for project and
can be Dual‐Listing by selling stocks and shares when developing financial market in
Myanmar.
2) SPV‐2 will be registered in Myanmar and it will become an operational level company
closely linkages Dawei SEZ and related projects as a joint venture company. As the
structure, the authority of SPV‐1 has been implemented from SPV‐2 and the branch office
of SPV‐2 is being planned to open up in Yangon.
2) Thilawa SEZ (TSEZ):
From Japanese side, Mitsubishi, Sumitomo and Marubeni companies will make 49% of total
investment while a Myanmar public company contributes 51% of investment amount. As
developer, Myanmar Consortium and Japan Consortium signed Joint Venture Agreement on
29 October 2013 in Tokyo, Japan.
This project is classified into two parts, Class A (400 hectares) and Class B (2000
hectares). As the first phase of Thilawa SEZ, infrastructure construction is being started
within 400 hectares. It will be embarked to do the day of commence of the project, to
come out rapidly job opportunities and to support the development of Myanmar's
Economic. Myanmar Thilawa SEZ Holdings Public Ltd is now selling out its shares to the
people in Myanmar currency Kyat, pricing one share at K 10,000 on 3 March 2014. Thilawa
SEZ shall be in operation in mid‐ 2015 and only the companies that can do the specified
business can get long‐term land lease.
3)
Kyauk‐Phyu SEZ (KSEZ):
Kyauk‐Phyu SEZ is located in Rakhine State and composed of three districts: Kyauk‐Phyu;
Yanbye; and Man Aung. It is expected Kyauk‐Phyu SEZ will be developed in three phases.
Singapore‐based Creative Professional Groups (CPG) was selected as the consulting firm to
develop the open‐tender process.
Page 44, para.3.64; Page 45, para.3.65: Export Operations of State Enterprises, or
State Trading
The Report states that"[t]he State has a monopoly on exports of teak, petroleum and
WT/TPR/M/293/Add.1
- 83 petroleum products, natural gas, salt and marine chemicals, pearls and pearl products, and
mineral and metal products" and "the State‐owned economic enterprises, or private
enterprises, may be authorized to export these items if permission is obtained from the
relevant state‐trading enterprise(s); activities subject to state‐trading arrangements
remain opaque".
Q41: Please explain the policy consideration of the above state‐trading arrangements and
their implications on market competition and possible impact on foreign participation in
particular.
Answer:
To export minerals and metal products, the investment companies need to obtain the
permission from both the respective enterprise of Ministry of Mines. Export permit is
granted when the exporters demonstrates that all relevant taxes have been paid and it
has fulfilled the relevant production sharing contract with the Ministry of Mines. So there
is no impact on the foreign participation where the State‐trading enterprises have a
monopoly on exports.
Pursuant to Myanmar gemstone law and Rules, Myanmar Gems Enterprise permits
production of gemstones, such as Ruby, Sapphire, Jade, Diamond, other stones of gems
quality and substances, which may be declared by the Ministry of Mines by notification with
the approval of Government from time to time to be gemstone, and exportation thereof.
Following the enactment of 1995 Myanmar Gemstone Law, the Government itself does not
carry out extraction of raw gemstones, manufacturing of processed gemstones and
exportation thereof, but is tasked with the followings:
•
Granting permit to citizen, company incorporated as Myanmar Company under the
Myanmar Companies Act and Cooperative society registered under the cooperative
society law to enable gemstone production;
•
Coordinating and overseeing production and exportation of gemstone;
•
Collecting royalty, organizing Gems Emporiums and opening gems markets in order to
sell gemstone and jewelries freely at all times;
•
Granting license to enable sale of raw or processed gemstones and jewelries by
opening a shop;
•
Ministry of Mines may, with the approval of the Government, permit an individual or
an organization, desirous of making finished gemstone, manufacturing jewelry and
selling raw gemstone, finished gemstone and jewelry, with the foreign currency to do
so. Thailand VES Group Limited manufactures and sells finished products of
gemstones and Jewelries by cooperating with the Myanmar Gems Enterprise in form of
Joint Venture Company.
Myanmar Gems Enterprise holds Gems Emporiums bi‐annually and authorizes exportation
of gemstone through those Emporiums. In addition, gems and jewelries shops holding
licenses conduct sale of gemstone within the country in Myanmar currency, makes
exportation in foreign currency throughout the year as well as participating in the
International Gems and Jewelries Fair in accordance with rules and regulations.
The modernization of the 1995 Myanmar Gemstone Law is currently underway.
Q42: Please clarify how to address the possible conflict of interest related to entrusting the
monopolistic state‐trading enterprise(s) with the responsibility to authorize other market
competitors to export the listed items?
Answer:
No. (2) Mining Enterprise, Ministry of Mines allows the lists of minerals for Joint Venture or
100% Investment to the Foreign Investment Mining Companies in accord with the
Myanmar Investment Commission's Notification No. (1/2013).
Q43: Does the Government have any plan to relax its state‐trading policy by enhancing its
transparency and shorten its list of items under state‐trading?
WT/TPR/M/293/Add.1
- 84 Answer:
No.(2) Mining Enterprise changes the policies for relaxing of trading by following the
Ministry's Policies.
Page 47, para.3.77: Legal Framework for Business
The Report states that "[m]ain business‐related legislation is old (Table 3.11)" in Myanmar,
with its Company Act dated back to 1914, and other major legislations enacted in years
ranging from 1930s to 1990s. The Report also highlights that Government takes enhancing
transparency in the public sector one of their priorities.
Q44: Please confirm whether Myanmar has any plan to amend its major business‐related
legislations, including the Company Act (1914) in particular.
Answer:
See general answer on investment.
Q45: What institutional efforts have been made by Myanmar to enhance transparency in
the course of business‐related law making?
Answer:
See general answer on investment.
Q46: What measures will be put in place to ensure the accessibility of the public to
complete, accurate and timely information of business‐related legislations in future?
Answer:
See general answer on investment.
Page 48, para 3.78: The Report states that there is no bankruptcy law in Myanmar.
Q47: Please confirm whether there is plan to enact bankruptcy law in Myanmar. Currently,
absent such a legal instrument, how could enterprises deal with its problem of insolvency?
Answer:
The word "insolvency" is synonymous with "bankruptcy" in Myanmar. Although there is no
the bankruptcy law in Myanmar, Yangon Insolvency Act (1909) and Myanmar Insolvency
Act (1920) are existing law in Myanmar. Those laws provided for personal insolvency.
There is no provision for enterprises deal with the problems of insolvency; however,
Myanmar Companies Act (1914) is applied for two ways of winding up company only.
Therefore, the Supreme Court of the Union has been preparing the drafting process
relating to the new insolvency law with technical assistance from Japan International
Cooperation Agency (JICA).
Page 48, para 3.81: State‐owned Economic Enterprise (SEEs)
The Report states that certain activities that range from banking to breeding of fish are
reserved for the State, and "[i]n the interest of Myanmar, the Government may permit
joint ventures between the Government and other persons or economic organizations to
conduct business in these reserved activities. In this case, foreign equity must not be more
than 80% in the reserved activities. The Government may also prohibit or restrict the
purchase, sale or transfer of products derived from or produced by or used by any
enterprises conducting the reserved activities".
Q48: Does the Government have regulations or concrete measures made and published to
serve as legal underpinnings and regulatory criteria to restrict, prohibit and/or permit
when necessary foreign joint ventures to conduct those "reserved activities" listed in the
report?
Answer:
The main reason is, in the transition time, that the Government needs to nurture the local
industries and give time to compete medium and large enterprises.
WT/TPR/M/293/Add.1
- 85 Page 50, para.3.72‐3.73: Taxation and Incentives
The Report states that "[t]he Income Tax Law…covers individual income tax and corporate
income tax….Corporate bodies are taxed at flat rates: 25% for resident companies, 35%
for non‐resident companies" and "[c]apital gains tax is 10% for citizens and resident
foreigners, and 40% for non‐resident foreigners".
Q49: How to define resident company and non‐ resident company? How to define resident
taxpayer and non‐resident taxpayer?
Answer:
The Income Tax Law extends to the whole of the Republic of the Union of Myanmar and
shall also apply to all the citizens of the Republic of the Union of Myanmar residing outside
the Union of Myanmar. According to the Income Tax Law, the Resident foreigners and
Non‐Resident foreigners are defined as follow;
Resident foreigner means:
(1) In the case of an individual, a foreigner who resides in Myanmar for not less than one
hundred and eighty three days during the income year,
(2) In the case of a company, a company formed under the Myanmar Companies Act or
any other existing law wholly or party with foreigner share‐holders,
(3) In the case of an association of a person other than a company, an association formed
wholly or party with foreigners and where the control, management and decision making
of its affairs is situated and exercised wholly in the Union of Myanmar.
Non‐resident foreigner means any foreigner who is not a resident foreigner in the Republic
of the Union of Myanmar.
Although Myanmar could not has a specific plan and time frame to amend tax rate in order
to be equal for resident and non‐resident foreigners, Myanmar has been implementing the
tax system reform and trying to establishing the international best practices not only for
tax administration system but also for tax policy. In this regards, Myanmar Tax laws
including the Income Tax Law are reviewing and amending whenever it is necessary in
accord with the reform road map.
Q50: Does the Government have a plan to amend the Income Tax Law in order to tax
resident and non‐ resident companies on an equal basis?
Answer:
Although Myanmar could not has a specific plan and time frame to amend tax rate in order
to be equal for resident and non‐resident foreigners, Myanmar has been implementing the
tax system reform and trying to establishing the international best practices not only for
tax administration system but also for tax policy. In this regards, Myanmar Tax laws
including the Income Tax Law are reviewing and amending whenever it is necessary in
accord with the reform road map.
Page 62, para.4.71: Small and Medium‐sized Enterprises (SMEs) and Assistance
The Report states that "[t]he authorities state that, as SMEs contribute to employment
creation, resources utilization, income generation, and investment promotion, the
Government pays special
attention to facilitating their development, so that SMEs become larger and more
competitive and
innovative in the international market".
Q51: Are there any financial benefits or policy support granted by the Government and its
relevant agencies to facilitate the development of SMEs? If any, please elaborate those
policies or measures in detail.
Answer:
Central Committee and Working Committee were formed with the approval of the
President Office to support and accelerate the SMEs development in Myanmar. Central
WT/TPR/M/293/Add.1
- 86 Committee is chaired by the President and Working Committee is chaired by Vice President
(2) at national level.
Ministry of Industry is cooperating and coordinating with responsible persons from
concerned Ministers, private institutions and international organizations to reorganize the
Agencies which are implemented for promoting SMEs in Regional and local level.
National
Level
Regional
Level
Local Level
(a)
Central Committee for Development of Small & Medium Enterprises
(b)
Working Committee for Development of Small & Medium Enterprises
(a)
Central Department of SMEs Development
(b)
Financial Institution will start in 2014
(c)
Credit Guarantee Corporation
(a)
SME Service Branches
In order to support SMEs for good environment in policy, law and strategies, capacity
building of stakeholders, market extension, access to technology, investment and HRD;
nine leading groups were set up under the working committee for Small and Medium
Enterprises Development.
1.
2.
3.
4.
5.
6.
7.
8.
9.
Group
Group
Group
Group
Group
Group
Group
Group
Group
for
for
for
for
for
for
for
for
for
Business start‐up
Policy Development of the ease of Access to Finance
policy development for market penetration
Access to Information & Research
Human Resources Development
Regulatory of SME and related Laws
Cluster Development
Monitoring and Evaluation
Standardization and Implementation
Myanmar Industrial Development Bank was transformed to Small and Medium Industries
Development Bank (SMIDB) in October 2012 and it supports financial assistance to SMEs.
SMIDB has already provided 10 Billion Kyats in loans to 62 SMEs.
Page 63, para.4.76
The Report states "…. While FDI in banking is not prohibited, there has been no foreign
investment in the banking sector (subsidiaries, joint ventures, or direct branches of banks
established abroad) except for representative offices".
Q52: Please help explain the possible reason for the non‐existence of foreign investment in
the banking sector even though FDI is not prohibited?
Answer:
As foreign investors are not prohibited in the banking sector, the CBM, the sole regulatory
and supervisory authority in the banking sector, has already established selection process
and procedure for foreign banks to apply for banking licenses as of May 2014. In
accordance with the procedure, the selection board will choose the eligible foreign banks
which will be licensed to organize the branches and exercise the typical operations, like
wholesale business. It is envisaged that five to ten foreign bank branches are about to
commence their banking business by the end of this year.
Q53: Whether there are any regulatory restrictions that substantively eliminated the
feasibility of FDI in banking sector? If any, does the Government have a plan to abolish the
relevant restrictive policies or measures?
Answer:
Banking sector is allowed subject to the approval of Central Bank of Myanmar. According to
the banking sector development master plan and foreign banks entry plan, the
establishment of foreign banks inside the domestic banking sector will be allowed by the
CBM by the end of this year (2014).
WT/TPR/M/293/Add.1
- 87 The model and format among three categories: joint venture, subsidiary and full branch
has not been clearly decided yet by the CBM as there still needs to make sure that the
forthcoming model or models are to comply with the existing laws. The Financial
Institutions of Myanmar Law stipulates that the financial institutions can be established as
a financial institution with foreign capital or as a branch of a foreign bank. However, that
Law did not mention the joint venture model or equity participation of foreign banks in the
domestic banks. On the whole, the Banking and Financial Institutions Law (new) has
already been drafted by the CBM with technical assistance from the World Bank and to be
submitted to the Parliament in the near future. Hopefully, this new law will be promulgated
during this year and provide room for any model of foreign banks entry, and thus the entry
of foreign banks can be commenced by the end of this year (2014).
Page 64, para.4.85
The Report states "[t]he CBM intends to develop the banking sector in three phases:
(1) allowing domestic private banks to operate joint ventures with foreign banks;
(2) allowing foreign banks to establish wholly owned locally incorporated subsidiaries; and
(3) allowing foreign banks to open direct branches in Myanmar".
Q54: Does Myanmar have a plan to further open up its banking sector unilaterally?
Answer:
See answer of Q52.
Q55: Please provide the timelines, if any, for the implementation of three‐phase
development plan.
Answer:
As foreign investors are not prohibited in the banking sector, the CBM, the sole regulatory
and supervisory authority in the banking sector, has already established selection process
and procedure for foreign banks to apply for banking licenses as of May 2014. In
accordance with the procedure, the selection board will choose the eligible foreign banks
which will be licensed to organize the branches and exercise the typical operations, like
wholesale business. It is envisaged that five to ten foreign bank branches are about to
commence their banking business by the end of this year.
Q56: According to the three‐phase development plan, are there going to be business
restrictions on foreign investment in banking sector in future? If any, is the Government
willing and committed to incrementally lessen those restrictions for further liberalization of
the sector?
Answer:
As foreign investors are not prohibited in the banking sector, the CBM, the sole regulatory
and supervisory authority in the banking sector, has already established selection process
and procedure for foreign banks to apply for banking licenses as of May 2014. In
accordance with the procedure, the selection board will choose the eligible foreign banks
which will be licensed to organize the branches and exercise the typical operations, like
wholesale business. It is envisaged that five to ten foreign bank branches are about to
commence their banking business by the end of this year.
Page 65, para.4.87
The Report states "Myanmar Insurance implements a deposit insurance scheme, on behalf
of the Government. The scheme was launched on 1 October 2011; 60% of the insured
deposit amount will be reimbursed in the event of bank bankruptcy. Myanmar plans to
establish a Deposit Insurance Corporation as a separate organization in accordance with
international practice".
Q57: Please confirm whether the deposit insurance scheme is now or will be applicable to
branches or subsidiaries of foreign banks in future?
Answer:
The existing deposit insurance scheme is not now applicable to branches or subsidiaries of
foreign banks. Until now, Myanmar Insurance has no plan to have the above‐mentioned
WT/TPR/M/293/Add.1
- 88 branches or subsidiary effect the deposit insurance with it.
Questions on Government Statement (WT/TPR/G/293)
Page 10, para.4.3: Foreign Exchange and Monetary Policy
The Statement says that "…the liberalization of the exchange rate regime starting in
September 2011 and the subsequent replacement of the overvalued official exchange rate
peg, …" is a "main step in removing restrictions on the purchase and sale of foreign
exchange for the import and export of goods and services and also in connection with
Foreign Direct Investment (FDI)… Moreover, in August 2012 Parliament adopted a new
Foreign Exchange Management Law, which, once implemented, will remove all the present
restrictions on current payments and transfers abroad".
Q58: Please clarify whether the present restrictions on current payments and transfer
abroad are applicable to both foreign exchanges and Myanmar kyat.
Answer:
Restrictions on current payments and transfer abroad are only applicable to foreign
exchanges. In addition, all restrictions have been lifted since the Foreign Exchange
Management Law was promulgated.
Q59: Please confirm whether the new Foreign Exchange Management Law (2012) has
been implemented. If not yet, when will the Law be effective? Once implemented, are
there still any other restrictions or monitoring measures remain with respect to transfer,
purchase and sale of foreign exchange by foreign funded companies.
Answer:
The new Foreign Exchange Management Law was enacted on 10th August 2012. By
promulgating that law, all restrictions on current account transactions were totally
removed.
Page 10, para.4.4
The Statement says that "…Currently, although the CBM is endeavouring to establish an
interbank foreign exchange market, the market is too tiny for market intervention to be
effectively conducted. This situation signals that Myanmar's banking and financial sector
needs to develop more vigorously".
Q60: Will the Government take any steps to help expand interbank foreign exchange
market, and make any moves to promote the competitiveness of its banking industry and
financial sector?
Answer:
Yes, the Government is now endeavouring to develop the interbank foreign exchange
market. This will be done with technical assistance from the IMF & JICA.
Page 12, para.4.9: Fiscal Policy
The Statement says that "... tax reforms aimed at broadening the tax base and improving
compliance, including through the planned establishment of a large taxpayer office in
2014, so as to offset the loss in revenues from trade taxes as a consequence of the
abolition the withholding tax on imports and the export tax on key agricultural exports.
Furthermore, the MOF has also simplified the commercial tax on domestic sales,
broadened the tax base by requiring public sector employees to pay income tax, and
increased the progressivity of the income tax. Limiting tax incentives is also important to
prevent further erosion of the tax base".
Q61: Please define 'large taxpayers", and explain the function and mandate of large
taxpayer office.
Answer:
The taxpayers, who will meet the criteria developed by IRD, will be defined as large
taxpayers and will be under the jurisdiction of Large Taxpayer Office (LTO). The criteria
included a review of financial information such as authorized capitals, paid up capital,
WT/TPR/M/293/Add.1
- 89 gross turnover, the most tax payments within 3 consecutive years and specific industry
sectors such as extractive industries, telecommunications, and airlines, group of
companies, public companies and financial instruction.
Myanmar will begin implementation of a self-assessment system of taxation with the
establishment of LTO. Furthermore, the LTO will provide quality customer service to the
taxpayers. Staffed by tax administration professionals, LTO will work with large taxpayers
to enhance their ability to meet the requirements of the tax laws while, at the same time,
implementing strategies to ensure information submitted by large taxpayers is truthful,
accurate and timely.
Q62: Please list any other measures that aim to broaden tax base besides those
mentioned in the Statement.
Answer:
Myanmar has been implementing the tax reform measure in line with the market
economy. According to the fiscal policy reform road map, Myanmar laid down the
strategies. One of the strategies is to broaden the tax base. At present, Myanmar is
amending not only the Income Tax Law, but also the commercial tax law. The Income tax
rates and the commercial tax rates were reduced aiming to meet the objective of
broadening the tax base with the lower tax rates. Moreover, before 1 April 2014, only 14
kinds of services were needed to pay commercial tax. However, Myanmar has amended
the commercial tax law and all of the services except 26 services are liable to pay the
commercial tax.
Q63: Please confirm whether private sector employees are required to pay income tax as
their counterparts in public sector. If not, is there a plan to change the current policy by
adding private employees to the tax base in future?
Answer:
According to the existing Income Tax Law, there is a threshold for salary income and any
taxpayer, who earns the salary income over 2 million in local currency per year not only
from public sector but also from private sector, is liable to pay income tax under the head
of salary income.
Page 13, para.4.14: Main Structural Developments
The Statement says that "most SEEs have been privatized, with only 42 remaining, so that
their share of GDP has fallen correspondingly".
Q64: Is there any plan to further privatize the remaining 42 state‐owned economic
enterprises?
Answer:
There is no specific plan for SEEs to do the privatization.
Q65: Are there any restrictions or conditions on participation of foreign funded companies
in the privatization of Myanmar SEEs? If yes, please elaborate in detail on those
restrictions. If there are preconditions or specific procedures for application and approval
by FDI, please also explain in detail.
Answer:
Even though in the reserved list of SEEs, the large foreign investment projects are
considered to bring substantial benefit to public security, improve surrounding areas and
the living conditions of citizens, the MIC issues the permission to private sector investment
after the cabinet approval. MIC has more detail clarification for this question.
Page 19, para.5.22: Investment Policies
The Statement says that "on 10 April 2013, a one‐stop service for foreign as well as local
investors was established in Yangon. Investors who previously had to grapple with red
tape in five or more different ministries can now get everything done at the new
Directorate of Investment and Company Administration (DICA)".
Q66: Please clarify whether the one‐stop service in Yangon covers all foreign and local
investors, as well as all sectors/industries that locate in any region of the country.
WT/TPR/M/293/Add.1
- 90 Answer:
One‐stop service in Yangon covers all foreign and local investors, as well as all
sectors/industries that locate in any region of the country.
Q67: Please provide more information on streamlined foreign investment approval
procedures at the one‐stop service.
Answer:
One‐stop service (OSS) in Yangon scrutinizes and receives the proposal submitted by local
and foreign investors and send them to Nay Pyi Taw to submit Project Assessment Team
and Myanmar Investment Commission. This action is taken place before issuing
investment permit.
After permit, OSS in Yangon issues stay permit, work permit and importation of
machineries.
WT/TPR/M/293/Add.1
- 91 Follow-up questions and answers
Comment raised by the Russian Federation:
The Russian Federation has some concerns with respect to the few following issues:
1. Exclusion of a number of significant services sectors such as retail and leasing from the
coverage and protection of the Myanmar's Foreign Investment Law of 2012 provides for
the possibility to introduce discriminatory measures for foreign investors.
2. Burdensome expertise requirements applied to services suppliers within the licensing
procedures hamper seriously the foreign companies' activities in Myanmar including those
from Russia, particularly in the sectors related to mining.
3. The practice of applying scientifically unjustified requirements of environmental impact
assessments of projects in mining and some other sectors requires close attention of the
Myanmar's authorities as causing numerous complaints from foreign investors.
4. Russian business also indicates on complicated and unreasonably protracted licensing
procedures which, we believe, are inconsistent with the Myanmar's obligations under the
Article VI of the GATS.
Answer:
The comment by the Russian Federation raises a number of considerations in respect of
the foreign investment regime of Myanmar that have also been raised by other WTO
members in their advanced written questions. In our written answers in respect of
Myanmar foreign investment regime, we have provided a general answer on investment
that outlines recent legislative changes and proposed legislations in respect of the foreign
investment regime. Among the immediate actions, it is proposed that three Notifications
concerning the New Foreign Investment Law (FIL) will be released shortly. These three
notifications would: 1) reduce the activities on the "negative" list from 21 to 11, thereby
reducing the scope for discretion; 2) clarify tax incentives; and 3) clarify the circumstance
in which environmental impact assessments would be required.
As a result of the emergence of several ambiguities in the New FIL and New Myanmar
Citizens Investment Law (MCIL), the GOM is now actively working with the assistance of
international experts to merge these two laws into a single coherent investment law that
will address the shortcomings of the two existing laws. Accordingly, matters concerning
MFN and national treatment, expropriation with compensation at fair market value,
transparency, the alleged discretionary authority of the Myanmar Investment Commission,
and dispute settlement are under consideration. The aim is to submit the unified law to
Parliament at the end of 2014. Procedures under the unified law will be much simpler and
more streamlined and should further improve the business climate.
Question raised by Brazil:
Brazil would like to ask the Delegation of Myanmar if the country intends to extend its
reform of the non-automatic license regime, started in 2012, and enlarge the list of
166 products subject to automatic import license regime, as well as if Myanmar plans
future actions to facilitate the entry of goods into its territory.
Answer:
With respect to import licensing, following the replacement of former non-automatic import
license regime with a new automatic regime in June 2012, licensing requirements were
further eased in March 2013. This latest easing involved the elimination licensing for 166
commodities covering over 1,900 HS tariff lines and representing about 35% of total
import. The intent is to gradually phase out import licensing through a series of
announcements in 2014 and 2015 that would each represent about 10% and 15% of total
imports. By the end of 2015, there will be few products subject to import license
requirement. In respect of export license, the Government also intends to liberalize export
licensing so as to confine it to a few commodities on grounds of national food security and
emergency needs.
Question raised by the United States:
Page 41, para 3.42, SPS certificates, USA Q6:
The Secretariat reports states, "The Plant Protection Division of the Ministry of Agriculture
and Irrigation is the competent authority to issue SPS certificates, as provided for under
the Plant Pest Quarantine Law of 1993." Please confirm that this refers to the
WT/TPR/M/293/Add.1
- 92 recommendation from a relevant government department needed to obtain an import
license as noted in 3.41. Is a Pest Risk Analysis (PRA) for such products required? If so,
what will be the policy with regard to ongoing imports of these products that have been
established without a PRA?
Answer:
With regard to the question, Plant Protection Division (PPD), Department of Agriculture
issues the import certificate not only to obtain an import license but also to import the
seeds, plant and plant products. Commodities under no license requirement regime
necessary to have the certificate of SPS from competent authority of the exporting or
importing country need to show the certificate at the customs clearance. Pest Risk Analysis
(PRA) is required. The requirements for import regulatory system are as follows:
1) Pest list of respective country / exporting country;
2) Phytosanitary certificate
of country origin; and
3) Inspection of imported products at entry points by plant quarantine inspectors according
to the import procedures.
At current situation, PPD restricts quarantine pests entering to importing country by
following the import procedures that is attached.
Follow-up question: With regards to PPD regulations and quarantine restrictions, we
note the response to "the import procedures that is attached." However, there does not
appear to be an attachment to the responses. We would appreciate if the Government
could clarify where such import procedures can be found.
Answer:
Please see diagram below:
WT/TPR/M/293/Add.1
- 93 Question raised by the European Union:
EU initial Q46: What are the intentions of the government regarding the implementation
of the Trade Facilitation agreement of Bali?
Myanmar Answer:
In the context of WTO commitments, it is necessary to establish a National Committee on
Trade Facilitation. In preparation for the WTO Bali Conference, representatives from
relevant ministries have met but the formal establishment of this coordination structure
has not yet been finalized.
EU Follow up to question 46
The EU is aware that a new Trade Facilitation master plan is under drafting with the
technical assistance of ADB. Could the Ministry give the EU information as to the
main elements that the future reform may contain?
Answer for follow up question:
National Trade Facilitation Implementation Plan is still under elaboration with the technical
assistance of UNCTAD. At present, an assessment of trade facilitation measures related to
the Trade Facilitation Agreement of Bali is carried out in cooperation and coordination with
all stakeholders. Once this process is completed, we intent to seek technical assistance for
its implementation from the donor community including the EU.
Page 7 & 20, para 3.2/3.4/3.7 & 5.27, Upcoming laws, EU Q49-53 on transparency and
consultation of stakeholders prior to adoption of laws:
Initial EU Q50: Can the government confirm that for all draft laws there is a framework
ensuring consultations with relevant stakeholders, including foreign investors, and/or the
public at large? If so, at which stage are the draft laws subject to such consultations? If
not, for which sectors would this policy not apply and for what reasons?
Myanmar Answer:
In the stage of draft law, it is confidential stage for government office. So, Ministry which
carries out the draft law can consult their legal consultants. However, the Bill is pressed to
public, in this stage foreign investors and stakeholders can review and consult upon that
Bill.
EU initial Q51: Is there an obligation to publish implementing regulation and "procedural
rules"?
Myanmar Answer:
Most of laws provide that to issue rules and regulations for implementation of the laws.
Mostly it is mentioned in the miscellaneous of that law. The relevant Ministry is conferred
power to issue the rules and regulations by that law. Under the law, the Ministry shall
obligate to publish regulation and procedural laws for the implementation of that law with
the approval of Union Government.
EU initial Q52: If relevant, can the authorities give all the references to access the draft
laws that have been published? (in particular for the IPR area, for the new laws on land
reform, the draft law on national standards, the new SEZ law, the future competition law
and the future agency for competition, the law on public and private partnership that are
mentioned in the Secretariat and the Government reports).
Myanmar Answer:
The authorities can give all the references to access the draft laws that have been
published.
EU Follow up questions to EU initial questions 50-52
The EU notes that there are a number of replies to initial EU questions above mentioned
that are not fully consistent with the Government report information provided on the same
topics (for example in the paragraph 3.7 of the Government report it is stated that
WT/TPR/M/293/Add.1
- 94 "...publication in the government media of the texts of all draft laws and discussions
thereof since 9 July 2002...") but in the reply to EU Question 49 it is stated that "in the
stage of draft law, it is confidential stage for government office...".
The EU believes that an inclusive consultation process in the drafting of economic and
trade laws and policies, including international traders and investors, can be instrumental
in improving the quality of legislation and cementing a good track record in the
implementation phase by fostering acceptance of economic operators to which legislation
will be applied.
Is Myanmar consider involving, in a systematic manner, the foreign business
community in the decision making process in the economic field"?
Answer for follow up question:
With regard to the publication in the government media of the texts of all draft laws, when
the draft law is submitted to the Parliament, we call this draft law as Bill. At this stage, the
Bill is made available to the public. This is the process referred to in paragraph 3.7 of the
Government report. Thus, foreign investors and stakeholders can review and consult texts
of draft laws at the Bill stage.
Moreover, Myanmar is currently taking advantage from the donor community of technical
assistance programs in the elaboration process of various laws with a view to benefit from
relevant international expertise and best practices.
Questions raised by Japan
Report by the Secretariat (WT/TPR/S/293)
4 TRADE POLICIES BY SECTOR
4.4 Services
4.4.2 Banking, finance and insurance
4.4.2.1 Banking
(Question: Pages 63-64, Paragraph 4.79)
As for the explanation "the state-owned banks and the private banks are on the equal
terms," Japan would like to clarify that no more favourable treatment is accorded to stateowned banks than to private ones in terms of the conditions of competition including tax,
subsidies, and license.
Answer:
From a practical point of view, state-owned banks are conducting their banking operations
on a par with the private banks. Moreover, state-owned and private banks provide similar
services. However, the authorized capital as well as the paid up capital of state-owned
banks are relatively lower than that of private banks. Remembering that state-owned
banks were established in accordance with the Financial Institutions Law of Myanmar of
1990, then prescribed authorized and paid up capitals were lower than those of more
recently established private banks. The CBM is currently drafting a new banking and
financial institutions law with technical assistance from the World Bank with the aim to
adopt international best practices and to set a level playing field in this sector. This new
law shall be enacted by the end of 2014.
__________