Guide for Foreign Investors Seeking to Invest in the Myanmar Power Sector


A Guide for Foreign Investors Seeking to Invest in the Myanmar Power Sector

POLITICAL STABILITY

A new Government of the Republic of the Union of Myanmar (“Union Government”) started on 1 April 2016, ending more than 25 years of control by the military under the Union Solidarity and Development Party (“USDP”), recently led by President U Thein Sein.


The new Government of Myanmar is led by the National League for Democracy (“NLD”). The NLD is led by Daw Aung San Suu Kyi, but she is constitutionally barred from holding the Office of the President since her children are British citizens. The presidency is now held by U Htin Kyaw, a close confident of Daw Aung San Suu Kyi, and she herself is holding the newly created position of State Counsellor.

Prior to the end of the USDP reign over Myanmar (from December 2015 to January 2016), more than 35 new laws were passed by the USDP. These new laws included the new Arbitration Law (Union Law No. 5/2016) (the “2016 Arbitration Act”) enacted on 5 January 2016, which provides a domestic legal framework to fully implement and comply with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the “New York Convention”) that Myanmar signed and ratified in 2013.

In stark contrast, the NLD Government has passed very little new legislation since taking office in April 2016.

However, the President’s Office has made positive steps to combat bribery and corruption in Myanmar, through issuance of new guidelines for the acceptance of gifts by public servants.

There are presently no sanctions in force against Myanmar (save for arms embargoes) from the European Union, United Kingdom or Australia. On 7 October 2016, U.S. President Obama issued an Executive Order (“EO”) on the “Termination of Emergency with Respect to the Actions and Policies of the Government of Burma” (“October EO”), thereby terminating the national emergency declared in EO 13047 of 20 May 1997 with respect to Myanmar, and revoking the EOs previously issued to sanction Myanmar.

Notably, the October EO does the following:

- Lifts the import ban on rubies and jadeites of Myanmar origin into the U.S.;

- Lifts immigration restrictions on specified Myanmar nationals and removes all individuals from the SDN List. However, this will not affect Myanmar nationals who are subject to separate sanction regimes, e.g., counter-narcotics sanctions;

- Terminates all OFAC restrictions on banking with Myanmar. This includes a suspension of a prohibition by the Financial Crimes Enforcement Network (“FinCEN”) against US financial institutions maintaining correspondent accounts for Myanmar banks. However, it should be noted that the suspension is contingent on Myanmar’s progress in addressing money laundering, corruption and narcotics-related activities. FinCEN will remove the prohibition entirely when Myanmar has made sufficient progress on this front; and

- Removes the requirement to comply with the State Department’s Responsible Investment Reporting Requirements. This is now voluntary. It is our view, based on relevant Myanmar experience, that the process is more transparent and efficient than in some regional ASEAN countries; however, significant regulatory reform is still required to bring Myanmar’s power sector to the standard of more developed jurisdictions, such as Japan and Australia.


GOVERNMENT REGULATION

Under the state-owned Economic Enterprises Law of 1989 (“SOE Law”), the Union Government has the sole right to carry out power generating services and is also empowered to grant exemptions. With the consolidation of the new MOEE, Myanmar’s power sector remains regulated by a state-owned buyer model, with one offtaking government entity being the Electric Power Generation Enterprise (“EPGE”) (formerly the Hydropower Generation Enterprise and the legal successor of Myanmar Electric Power Enterprise (“MEPE”)) alongside the Department of Electric Power (“DEP”). EPGE operates and plans the Myanmar National Grid System, buys electricity from both public and private producers and then sells the electricity to distributors. The Yangon Electricity Supply Board (“YESB”) and other regional and state electricity supply boards assist the MEPE in the purchase and distribution of power. LEGAL HISTORY OF MOEP FROM 1951–2012

- In 1951, the Electricity Supply Board (“ESB”) was formed under the-then Electricity Act of 1948. ESB was under the-then Ministry of Industry and Handicraft.

- In 1972, ESB was changed into the Electric Power Corporation (“EPC”).

- In 1975, the-then Ministry of Industry and Handicraft was reorganized into the Ministry of Industry No. (1) and Ministry of Industry No. (2). EPC was under the control of the-then Ministry of Industry No. (2).

- In 1985, the-then Ministry of Industry No. (2) was extended and reorganized into the Ministry of Industry No. (2) and the Ministry of Energy. EPC was under the umbrella of the Ministry of Energy.

- On 1 April 1989, EPC was changed in name to MEPE.

- In 1997, the Ministry of Energy was extended and reorganized into the Ministry of Energy and the Ministry of Electric Power. MEPE was under the control of the Ministry of Electric Power.

- In 2006, the Ministry of Electric Power was reorganized into the Ministry of Electric Power No. (1) and the Ministry of Electric Power No. (2). MEPE was under the direct control of the Ministry of Electric Power No.(2).

- In 2012, the Ministry of Electric Power No. (1) and the Ministry of Electric Power No. (2) were merged to form the MOEP pursuant to Notification No.63/2012.

- In March 2016, the MOE and MOEP were consolidated into the new MOEE.

OUR EXPERIENCE

Duane Morris & Selvam is the lead counsel on the Myingyan Power Project and also local counsel for a technical services initiative sponsored by the United States Trade and Development Agency. This will provide MOEE personnel with information regarding U.S. standards, practices and management systems, and that of other countries, to successfully implement large-scale power projects. The MOEE supervises and facilitates the Myanmar power sector and is vested with all operating and management responsibility in relation to power generation, transmission and distribution.

Duane Morris & Selvam has (or its attorneys when at other firms) acted on the following energy and resources transactions in Myanmar:

1. Advising on the Myingyan IPP, a 225MW Combined Cycle Gas Turbine Power Plant located in Myingyan District, Mandalay Region;

2. Advised on structuring for the first corporatization of a Yangon-based state owned distribution utility as well as a legal structure to obtain foreign investment into the newly corporatized entity;

3. Advised on the project financing of a 210MW Solar Power Plant in Minbu, Magway Region of Myanmar; and

4. Advised a foreign oil and gas company on acquisition of a non-operating participating interest in an offshore block with the Myanmar Oil and Gas Enterprise.

MYANMAR IN THE DARK‒FACTS1

- 84% of households in rural Myanmar have no electricity.

- Only 30% of the entire Myanmar population is connected to the electricity grid.

- Average annual per capita electricity consumption is 160 kilowatt-hours, 1/20th of the world

average.

- Strengthening Myanmar’s energy sector is crucial to reducing poverty and enhancing development prospects for the country.

- Social and economic progress in Myanmar depends on electrification, without which health, education and other key services will continue to suffer.2

WHAT INVESTORS NEED TO KNOW

1. What Is the Legal System in Myanmar?

The legal system in Myanmar is based on English Common Law. Myanmar legislation includes 13 volumes of codified laws enacted from 1841 to 1954 and published in the Burma Code, as well as various other laws, notifications, rules and regulations passed from time to time. However, the current legal framework poses significant challenges for foreign investors as many laws are presently outdated and remain untested in the courts, providing little jurisprudence and guidance to both investors and lawyers on the ground.

The relevant laws governing the power sector include:

- State-owned Economic Enterprises Law of 1989 (“SOE Law”);

- The Foreign Investment Law of 2012 (“FIL”);

- The Environmental Conservation Law of 2012;

- The Environmental Conservation Rules published in June 2014;

- The Electricity Law of 2014; and

- The Myanmar Companies Act of 1914.

2. Focus on Transparency

The government understands the need for facilitating transparent procurement processes in order to instill confidence both domestically and internationally to the business community and equally important to attract local and foreign investment in support of the government’s rapid reform initiatives for Myanmar. Since 2013, via a Presidential Directive no. 1/2013 titled: “Regulations to be abided by when issuing tenders for investment and economic activities” (“Tender Directive”), government departments and ministries are required to hold public tenders for goods, epic works and services that they may require. The Tender Directive is the only guiding authority in Myanmar on procurement and is often criticized because it is not actual law but only a directive. Generally speaking, at present, the Tender Directive in Myanmar is local and does not follow

international standards.

The Tender Directive, while lacking substance, sets out the premise to be followed by the government departments, ministries and state-owned enterprises, including the establishment of procurement or tendering committees, open invitation to tender and public announcement of tenders.

Notably, Myanmar currently has no specific PPP laws or regulatory framework dealing with procurement for large-scale power projects or PPP projects. The Tender Directive is to be followed when procuring PPPs or other large-scale power projects. However, there is a strong need for legal reform and the provision of a fresh piece of legislation dealing with PPP and general procurement and tendering. The FIL provides a basic framework for private foreign investors to obtain an investment permit and project approval. However, the FIL does not deal with tendering and procurement-related issues in any detail.

There is no specific PPP laws or policies that capture PPP or other large-scale power projects and the approval requirements before launching the procurement process. The Tender Directive does not touch on this matter save for mention that: “all Tender activities should be carried out in accordance with the basic political, economic and social principles, in a manner acceptable by the Government.”

Unfortunately, Myanmar law is largely silent on the matter of PPP and large-scale power projects approval requirements.

The Tender Regulations are not available online in English. The FIL can be found at: http://www.moj.go.jp/content/000123996.pdf.

Any investor seeking to develop a self-proposed project will face difficulty, as this is fairly uncommon in Myanmar.

3. MIC Permit (Investment Permit) Incentives

Given the infancy of the Myanmar power sector, there is presently no development roadmap. However, companies that obtain an investment permit (“MIC Permit”) from the Myanmar Investment Commission (“MIC”) for their project company are entitled to particular incentives.

A foreign investor in the power sector may want to consider obtaining an MIC Permit, which would allow a foreign investor to benefit from certain investment incentives available under the FIL. Companies with MIC Permits are entitled to incentives provided for in the FIL. Key incentives include:

- Investment Protection. The FIL guarantees that a project company operating with an MIC Permit under the FIL will not be nationalized during the permitted period. There is also a further guarantee that investments with an MIC Permit will not be terminated before the expiry of the term of the MIC Permit without sufficient cause.

- Tax Incentives. Income tax holiday is for a period of five years, inclusive of the year the enterprise begins operations. If it is in the Myanmar public interest, this five-year period may be extended depending on the success of the investment. The MIC may also grant one or more of the following exemptions and reliefs:

- Exemption from customs duty and/or other internal taxes on imported raw materials within the first three years of commercial production.

- Exemption or relief from income tax on profits of the business kept in a reserve fund and reinvested in the business within one year after the reserve is made.

- Right to deduct depreciation from the profit after calculation of depreciation with regards to machinery, equipment, building or other capital assets used in the business at rates set by Myanmar.

- Relief from tax on up to 50 percent of the profits accrued from the export of goods produced in Myanmar.

- Right to pay foreign employees’ income tax at the rates applicable to citizens residing within the

country.

- Right to deduct from assessable income the expenses incurred with respect to necessary research and development carried out within Myanmar.

- Right to carry and set off losses.

- Right to carry forward and set off any losses incurred within two consecutive years following the expiry of the five-year tax holiday, for three consecutive years.

- Exemption or relief from customs duty and/or other domestic taxes on imported machines and other equipment used during the period of construction of the business.

- Exemption or relief from commercial tax on the goods produced for export.

- Right to transfer foreign currencies. A foreign investor has the right to transfer abroad the types of foreign currencies set out below:

- Foreign currency entitlement of the person who brought in the foreign capital.

- Net profit after deducting all taxes and reserve funds from the person who brought in the foreign capital.

- Foreign currency permitted for withdrawal by MIC, which may include the value of assets on the winding-up of business. Furthermore, a foreign employee can transfer his salary and lawful income after deducting taxes and other living expenses incurred domestically.

- Right to enter into a long-term lease. A foreign-owned company without an MIC Permit is allowed only to enter into a lease agreement not exceeding one year. With an MIC Permit, subject to MIC approval, a foreign investor may be permitted to lease or use land for an initial period of up to 50 years, which may be extended for two further periods of 10 years each.

- Regime for share transfer. The FIL and its implementing regulations set out provisions on transfer of shares, and with the approval of MIC, a foreign investor is allowed to transfer shares to another foreign investor as well as to a Myanmar citizen.

4. How Long Does It Take to Obtain an MIC Permit?

This needs to be treated on a case-by-case basis depending on the size of the power project. At a minimum, an investor should expect to wait six months to obtain an MIC Permit. For a comprehensive list of the required stages in the application process for a MIC Permit, please see “6. MIC Permit,” below.

There are success stories, and with regards to the power sector, the most notable project that went through the tendering process was the Myingyan 225MW gas-fired power project that was awarded to Sembcorp Industries (US$300 million project to be operational by 2017).

Tenders are issued through the Ministry of Electric Power (http://www.moep.gov.mm/), and we encourage investors to visit the MOEP website for up-to-date information on IPP tenders.

5. Standard Form Project Documents

Given the success of the Myingyan IPP tender, the standard form project documents (e.g., Memorandum of Agreement, Power Purchase Agreement, Build-Operate-Transfer Agreement, Land Lease Agreement) used for that tender (developed by Mott MacDonald and financed by the International Finance Corporation) should be well suited for use for other IPP projects going forward.

The contractual sequence for IPP projects is as follows (based on the assumption future power concessions will be tendered as required under the Presidential Directive):

ACTIONS

STEP 1 MEMORANDUM OF AGREEMENT

- A binding agreement, which establishes the concession and key terms of the PPA, land lease agreement.

- Review by: Office of the Attorney General (OAG); MOE; Ministry of Planning and Finance (MOPF)

- Final submission to Union Cabinet for approval is required before signing.

- Informal Meetings with Ministries or Government Departments about the project

STEP 2 NEGOTIATING AND FINALIZATION OF PROJECT DOCUMENTS

- Project Documents are in English and no translation is required

- Project Documents include: PPA, Build-Operate-Transfer Agreement (“BOT”), Fuel Supply Agreement and Land Lease Agreement

- OAG Opinions should be requested for comfort for project financing purposes

STEP 3 REVIEW

- Lengthy process to finalize the Project Documents

- Review by: OAG; MOEE; MOF

- Final submission to Union Cabinet for approval is required before signing.

STEP 4 MIC PERMIT APPLICATION AND DIRECTORATE OF INVESTMENT AND COMPANY ADMINISTRATION (“DICA”) APPLICATION

- The MIC Permit Application can be filed only once the MOA is signed.

- Typically, MIC and DICA (applications are filed simultaneously; however, DICA issues incorporation documents for the project company only upon MIC approval of the MIC Permit Application.

There have been some new developments in this area:

- The project company can be formed through DICA provided the MOEP provides a support letter.

STEP 5 SIGNING

- The MOA will be signed by the Department of Energy (DEP) (a department within MOEP) with the offshore legal entity of the foreign investor.

6. MIC Permit

The process is best illustrated as one involving many stages and the process can be time-consuming. There rarely are any shortcuts or fast-track procedures afforded to any tendered project. It can best be described as a process that must run its course (check-the-box type of process).

STAGE 1 PREPARATION OF APPLICATION DOSSIER

PROCEDURE

Applications to the MIC for an MIC Permit and to DICA for (i) a socalled “Permit to Trade” (PTT), which all foreign investors must obtain and is a business license, and (ii) certificate of incorporation (CoI) are made concurrently.

PRACTICAL CONSIDERATIONS

Under the FIL, the MIC and DICA applications are required to be submitted simultaneously. In practice, DICA starts to process the DICA application once the MIC has approved the proposal and issued its “conditional” permit (see below).

Certain documents must be notarized, legalized and consularized at the Myanmar Embassy in the investor’s country of origin. The consularization usually takes about two weeks. Additionally, the application must include a summary of details of any foreseen foreign exchange outflows associated with the project (for example, loan repayments, trademark payments, etc.). The MIC has to approve all forex payments out of the country and the Central Bank of Myanmar (CBM) will also scrutinize capital remittances (dividends and other distributions) to ensure that the payments are to be made in respect of funds originally sourced as capital3. Generally, draft copies of the security documents will also be required to accompany the application.

PROCEDURE

Informal Meetings with Ministries or Government Departments about the project.

PRACTICAL CONSIDERATIONS

It is recommended that the client arranges meetings prior to submission with the Ministries or Government Departments that have responsibility for the sector in which the project is proposed to be executed. For projects in Yangon, it would also be beneficial to approach relevant departments at the Yangon City Development Council (YCDC).

These meetings are for the investor to present its proposal in outline and obtain feedback and advance notice of any objections, which might be raised during the application process.

STAGE 2

PROCEDURE

APPLICATION PROCESSING BY MIC Responding to any requests from the MIC for additional information, documentation or clarification of any aspect of the application or project proposal.

PRACTICAL CONSIDERATIONS

The MIC also must be notified of each and every remittance of capital (equity or loan) into Myanmar.

STAGE 3

PROCEDURE

FIRST TECHNICAL MEETING

PRACTICAL CONSIDERATIONS

The first “technical” meeting with the MIC is held within 2 weeks of the submission date—it is recommended that at least one representative of the investor attends in person, although well-briefed local agents or advisers could handle the issues raised if the investor cannot be present for any reason.4 If the investor cannot attend in person, it is recommend that a power of attorney be prepared allowing the legal representatives or another authorized person to be present on the investor’s behalf. Otherwise, the MIC may refuse access to such a proxy at the meeting.

The first technical meeting is attended by representatives of the relevant government bodies, at which they will ask “technical” questions about the investor’s proposal or, in some cases, just state the regulations that the investor is required to comply with for its project.

STAGE 4

PROCEDURE

MIC REVIEW OF APPLICATION

PRACTICAL CONSIDERATIONS

Ministries involved have 7 days under the FIL in which to provide their comments and recommendations (or objections). These are gathered together with the internal recommendations of the MIC and a review process takes place in accordance with the requirements of the FI Rules.

PROCEDURE

SUPPLEMENTARY MATERIALS

PRACTICAL CONSIDERATIONS

The MIC may require changes and/or additions to the application in response to issues raised during the scrutiny process.

STAGE 5

PROCEDURE

APPROVAL MEETING

PRACTICAL CONSIDERATIONS

If the application is approved without objections, the investor will be notified within 6 to 8 weeks of the initial meeting of the proposed date of an ‘approval’ meeting of the MIC, at which the Commission members (13 in all) will usually attend with case officers and other MIC staff. Once the final meeting is called, the investor can be confident that, barring any last-minute objections or issues that cannot be resolved, its application will be formally

approved5.

The investor must attend this meeting in person as there will likely be questions from the Commission members of a business and financial nature in relation to the project. The investor has an opportunity to present the project briefly at the start of the meeting.

STAGE 6

PROCEDURE

DRAFT PERMIT

PRACTICAL CONSIDERATIONS

This draft permit contains all of the conditions that the MIC will impose on the investment—some of which must be fulfilled on penalty of possible revocation of the permit. The draft permit issued by MIC can be interpreted that there is no objection to the investment and that the final MIC Permit will be issued in due course (however this is not automatic per se, as the MIC can decide against issuance of the final investment permit, although such is not highly likely based on our experience).

STAGE 7

PROCEDURE

CONDITION SHEET

PRACTICAL CONSIDERATIONS

Following the issue of the draft permit and also the receipted filing with DICA of a complete application package for PTT and CoI, DICA will issue a letter attaching a “conditions sheet” (the “Conditions Sheet Letter”) which must be signed and returned by the investor and which includes a number of pre-approval conditions, such as payment of the filing fee (currently set at about US$1,100) and that the investor bring in 50% of the minimum capital (which in practice is the predicted operating costs for the first year).

STAGE 8

PROCEDURE

PTT AND COI ISSUED

PRACTICAL CONSIDERATIONS

DICA will issue a temporary PTT and CoI within a day or two of payment of the filing fee and this will allow the investor to begin preliminary operations, including opening a foreign exchange bank account with a local bank, while the rest of the conditions are being fulfilled/completed.

7. Sovereign and Other Guarantees

The government has been reluctant to provide sovereign guarantees in power projects to date. Perhaps a signal of change, or given external pressures from the international business community, the government is providing contractual sovereign guarantees for the Myingyan Power Project (however, the credit worthiness of the MEPE will still remain an issue when dealing on project financing, as the sovereign guarantees on payment are merely contractual in nature without additional security in the form of bank guarantees provided by the government). Note for investors: The sovereign guarantee is regarding payment obligations only.

Myanmar has become a member of the Multilateral Investment Guarantee Agency (“MIGA”) in 2013. MIGA provides political risk insurance (guarantees) for projects in a broad range of sectors in developing member countries, covering all regions of the world. In principle, this means political risk guarantees can be provided for investments in Myanmar, which can include MIGA coverage for breach of contract by MEPE. As a guide, MIGA may insure up to $220 million per project, and if necessary, more can often be arranged through a syndication of different insurers. Whenever a project exceeds MIGA’s own capacity, MIGA reinsures itself, through a syndication process, with private- and public-sector (re)insurance companies in order to meet the insuree’s needs.

Under the standard MIGA Contract of Guarantee for Shareholder Loan, the Guarantee Holder shall prior to or simultaneously with payment of compensation for a loss assign and transfer to MIGA the right to a percentage of cover of the Guarantee Holder’s pro rata share of the Project Enterprise’s rights, as applicable, in the Project Agreement.

As a side note, there is also no specific protection in Myanmar against material adverse government action.

However, under the FIL, the Government guarantees that a business who acquires an MIC Permit (investment permit) shall not be nationalised within the term of the contract or during the extended term of the contract. Basically, the Government guarantees not to suspend any investment business carried out under the MIC Permit before the expiry of the permitted term without sufficient cause. However, the guarantee provided under the FIL is yet to be properly tested in any Myanmar Courts or arbitral tribunal, and as such, there is no guiding jurisprudence or commentary.

8. Project Financing

The difficulties involved on project financing power projects to date mainly revolve around CBM and MIC approval (for companies with a MIC Permit) of the loan facilities, and challenges in perfecting security interests, including the following:

- Charge over shares (normally referred to as a pledge of shares, but since share certificates are not commonly used in Myanmar, there is nothing for the onshore security agent (“OSA”) to take physical possession of);

- Fixed and floating charges [this usually includes the land mortgage, project accounts onshore in Myanmar (which is typically an operational account and basic petty cash account, because generally all revenue is eventually paid offshore), moveable plant and equipment, buildings and fixtures]. As part of the fixed and floating charges, commonly a separate land mortgage will be executed and annexed to the fixed and floating charge documentation and this will be required to be registered at the relevant Myanmar Office of Registration of Deeds.

- Assignment of contracts (generally this will include the assignment of the lessor’s rights under the land lease agreement, over the location of where the power plant is situated. To comply with Myanmar property laws, foreign lenders often engage a local bank to act as an OSA to enable registration of the security interest).

All of the above securities are permitted under law; however, the registration of these security interests still remains enormously challenging due largely to complicated Myanmar property laws and foreign ownership restrictions over land as well as a void of a modern legal mechanism allowing for the Government to facilitate registration of security. There is no official land titles register or electronic database, making it difficult for investors to accurately determine the ownership of privately-held land plots. When locals sell land, they often do not change the name of the title deed holder. Therefore, locals rely primarily on legal contracts which state the transfer of land ownership after a sale. This could be confusing for investors. Hence, investors need to be prudent in conducting a careful due diligence process on landowners.

Use of an OSA is highly recommended to streamline the perfection of security process, as there are few restrictions in place regarding a Myanmar person (individual or corporate entity) in taking the security interests listed herein. In terms of OSA responsibilities, it would be highly advantageous to request an annual declaration that the security interests remain perfected and the OSA is not aware of anything that would affect the security remaining perfected.

The approval of the MIC is required for companies with an MIC Permit. Usually, the MIC will obtain a CBM ‘no objection’ as part of the scrutiny process. If the project company holds an MIC Permit, the loan can be approved under an initial MIC Permit application or at a later date. This usually applies when the terms of the loan are not agreed at the time of the MIC application. Once MIC and/or CBM approval is obtained with the loan payment and the repayment schedule is attached, no further approvals are required for each payment made under the loan either from the MIC or from the CBM.

CBM approval is required for all foreign exchange remittances. All foreign exchange remittances made by the project company must be made through a local bank with an “authorized dealers license.” CBM Directives of 2012 and 2014 set out the documentary requirements that authorized local banks need to see before making any foreign exchange remittances out of the country. If in doubt, refer the matter to the CBM for approval.

Myanmar law does not provide much guidance in relation to refinancing during the life of the loan facility documents. Most foreign investors channel funds to their Myanmar companies via shareholder loans. Offshore loans into Myanmar are becoming more frequent. The first large bank loans deals are being done now, but usually on a full recourse basis.

9. Accounting for Other “Material” Costs

Investors need to account for local tax duties when costing out an IPP project in Myanmar. Stamp duty must be levied on all project documents and any security documents if third-party project financing is involved. Stamp duties can be excessive from 1.5% to 3% on the total loan facility. Exemptions may be applied for and are permitted under law; however, there is no certainty that such exemptions will be granted.

10. Environmental Impact Assessment

Under § 42(b) of the Environmental Conservation Law 2012, the Ministry of Environmental Conservation and Forestry has issued an Environmental Impact Assessment Procedure (“EIA Procedure”). The EIA Procedure states that: “all Projects undertaken by any…enterprise … which may cause impact on environmental quality … are required to undertake EIA to develop a project document to avoid, protect, mitigate and monitor adverse impacts caused by … operation … of a project.” In the power sector, issues concerning air quality and greenhouse gas (“GHG”) emissions are prevalent. An emphasis on reducing GHG emissions is vested in local regulations addressing control measures. International guidelines providing commentary on reducing GHG emissions highly recommend the use of less carbonintensive fuels, combined heat, power plants and higher conversion efficient technology as well as high monitoring levels.

Myanmar’s EIA Procedure is gradually developing in the face of increasing public expectations. Health and climate change-related issues, impacts on biodiversity and sensitive habitats are amongst other matters of growing significance.

11. Meetings

Meetings with any Ministry, department, division or sub-department of the Government will generally take place in Nay Pyi Taw. Aside from MIC and DICA, which have offices in Yangon, the Government’s principal ministerial offices are located in Nay Pyi Taw.

Meeting requests typically are requested in letter-form; hard-copy originals must be sent to the relevant authority to arrange the meeting. Email communication remains uncommon in practice. From our experience, meetings should be arranged at least seven business days in advance, and the meeting request letters should state a preferred day and time and be accompanied with an agenda to allow the relevant authority to coordinate representatives from the MOEP, DEP, etc. We typically suggest having a short meeting agenda, as very frequently, meetings are cut short, postponed or delayed. It is suggested depending on the importance of the meeting to perhaps stay overnight to afford the relevant authority more flexibility should unexpected changes occur on the initial day of the meeting. Given these limitations, it is highly recommended to have more frequent meetings in short duration as opposed to attempting a one-day marathon session with the Union Government, as rarely is that possible, and if so, tends to be unproductive.

Bringing a translator is suggested; however, most meetings will occur in English. Having a translator available can ensure the meeting is more efficient.

12. Recommendations

a. Experienced “on-the-ground” Myanmar and Expatriate Counsel “a must”

We recommend that the investor engages experienced and skilled on-the-ground legal counsel (comprising a combination of Myanmar and Expatriate Counsel) to drive the entire project with the MOEP. The process is long and requires the experience of both skilled Myanmar and expatriate counsel to persist with the constant followup meetings and drafting of endless bilingual letters to the MOEP. This is an enormous task for even the most experienced emerging market lawyers.

b. Patience

Myanmar’s recent political and economic reforms have been rapid and significant, paving the way for foreign investments into the country; however, this does not mean that developing a large-scale power project and doing business in Myanmar is not without its challenges. Foreign investors should also be aware of the following:

- US$1,500: Average productivity of a worker in Myanmar today, about 70% below that of benchmark Asian countries;

- 4 years of average schooling in Myanmar;

- 10 million additional people to absorb in Myanmar large cities by 2030;

- US$650 billion: Total investment needed by 2030 to support growth potential, US$320 billion in infrastructure alone;

- Election in November 2015: Everybody was “on hold” until the outcome of election. Now that there is a new NLD civilian-led Government, foreign investors are waiting to see how the new Government will handle the transition and if they will be able to deliver on their pre-election promises.

Investors must be prepared to deal with the current challenges of poor infrastructure, in terms of transport, telecommunications and utilities supply. Improvements to the country’s infrastructure will take time.

It is not uncommon when visiting the offices of the Government in Nay Pyi Taw for meetings to be cancelled, delayed or postponed entirely. In addition, investors may experience long wait times from the original scheduled meeting time. We suggest patience to all investors when visiting the Government, as things rarely go as planned, and this is understandably so, given the limitations and challenges Government constantly faces as it gradually moves forward with Myanmar’s transformation from the dark to the light.

As Myanmar gains speed in its reform process, many draft laws are pending consideration by Myanmar’s Parliament. Lawyers are still eagerly awaiting the passing of the new Companies Act, and the Investment Law. Myanmar is in the process of developing its legal system and one would need to prepare for changes as legislation is being adapted. In addition, investors in the power sector should note that implementation is not a proven process and it will take time for the regulations to come into effect.

1 Electricity to Transform Rural Myanmar. World Bank (2015, September 16).

2 Myanmar: Energy Sector Initial Assessment from Asian Development Bank.

3 Under the Foreign Exchange Management Law, 2012.

4 At all MIC meetings, the language spoken is Myanmar; therefore, it is recommended that a simultaneous translator and note-taker are present for the client.

5 Meetings of the MIC take place every two weeks on a Friday, currently rotating alternatively between Nay Pyi Taw and

Yangon.

Rory J. Lang, Duane Morris & Selvam LLP

rjlang@duanemorrisselvam.com

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