What jurisdictional thresholds trigger a review or application of the law? Is filing mandatory?
The Myanmar Investment Commission (MIC) has delegated local investment committees and local governments to oversee and issue investment permits or endorsements for investments up to the threshold of US$5 million and for non-strategic investment activities.
However, the following are considered strategic investments and are required to be reviewed by the MIC and the union government:
- investment exceeding US$20 million in any business in the area of communication and information technology, pharmaceutical technology, biotechnology, similar technologies, energy, infrastructure and urban development, extraction of natural resources and media;
- investment exceeding US$20 million under a grant of land use (or other property) rights, concession agreement, or similar authorisation by government department or government organisation;
- investment in agriculture on more than 1,000 acres of land;
- investment to carry out a business other than agriculture on more than 100 acres of land;
- large capital intensive investment if the expected investment value exceeds US$100 million;
- investments with a large impact on the environment and the local community requiring an environmental impact assessment; and
- investment business located in a designated or proposed protected area, forest reserve area, key biodiversity area or area selected to support the ecosystem, and cultural and natural heritage including cultural monuments and unspoiled natural areas.
What is the procedure for obtaining national interest clearance of transactions and other investments? Are there any filing fees? Is filing mandatory?
Usually, an investor or promotor can make an investment screening application to the MIC to determine whether the desired investment activity is eligible for immediate investment; would fall under restricted investment activity; or would require special clearance from union government or union parliament. The MIC will issue non-binding guidance in response to a screening application, explaining whether a potential investment would require national interest clearance.
Which party is responsible for securing approval?
The applicant for approval would be the investment vehicle (eg, the joint venture company in a joint venture, or the target in an aquisition).Review process
How long does the review process take? What factors determine the timelines for clearance? Are there any exemptions, or any expedited or ‘fast-track’ options?
Generally, the screening process will only take a few weeks.
Must the review be completed before the parties can close the transaction? What are the penalties or other consequences if the parties implement the transaction before clearance is obtained?
Yes, the review should be completed before parties finalise the deal.Involvement of authorities
Can formal or informal guidance from the authorities be obtained prior to a filing being made? Do the authorities expect pre-filing dialogue or meetings?
The Investment Monitoring Section of the MIC is open for all investors to consult before filing or arranging transactions to ensure compliance with the relevant laws.
When are government relations, public affairs, lobbying or other specialists made use of to support the review of a transaction by the authorities? Are there any other lawful informal procedures to facilitate or expedite clearance?
Such specialists are not used in Myanmar; however, law firms will frequently have meetings with MIC officials to discuss the case, and MIC officials are quite open to these meetings.
What post-closing or retroactive powers do the authorities have to review, challenge or unwind a transaction that was not otherwise subject to pre-merger review?
There are no pure mergers in Myanmar. If a restricted business was pursued without the relevant approvals, then there are various routes that the authorities could follow. In general, these could be warnings, fines or blacklisting.
Law stated dateCorrect on
Give the date on which the information above is accurate.
30 November 2020.