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外国投資法

新外国投資法　（2012年11月2日）

President of the Union of Myanmar

Foreign Investnlent Law
2012, Pyi Htaung Su Hluttaw Law No21
3rd waning of Thadingyut 1374 ME
2 November, 2012
Pyi Htaung Su Hluttaw hereby enacted this law.

CHAPTER I　　　Title and Definition

1. This Law shall be called the Republic of the Union of Myanmar Foreign Investment Law.
2. The following expressions contained in this Law shall have the meanings given hereunder: -
(a) "The state" means the Republic of the Union of Myanmar.
(b) "Commission" means the Myanmar Foreign Investment Commission constituted under this Law.
(c) "Union Government" means the Government of the Republic of the Union of Myanmar
(d) "Citizen" includes an associate citizen or a naturalized citizen; Economic organization constituted with citizens under this law also includes in that expression.
(e) "Foreigner" means a person who is not a citizen; Economic organization constituted with foreigners under this law also includes in that expression
(f) "Promoter" means any citizen or any foreigner submitting an investment proposal to the Commission;
(g) "Proposal" means the prescribed application submitted by a promoter to the Commission for, its approval of the intended investment, enclosing the draft contract, financial affairs- and company-related documents;
(h) "Permit" means the order in which the Commission's approval of the proposal is expressed;
(i) "Foreign Capital" includes the following which are invested in an economic enterprise-by any foreigner under a permit: -
(1) Foreign currency;
(2) Property actually required for the enterprise to be used but not available within the State such as machinery, equipment, machinery components, spare parts and instruments;
(3) Rights which can be evaluated including intellectual properties such as license, trademarks, patent rights, copy rights and industrial designs;
(4) Technical know-how;
(5) Reinvestment out of benefits accrued to the enterprise from the above or out of the share of profits;
j) "Investor" means a person or an economic organization making on investment under a permit;
(k) "Bank" means any bank permitted to operate by the Government within the Republic of the Union of Myanmar. '
(1) "Investment" means various kinds of ownership of properties controlled by the investor in the State under this Law. That expression includes the following relevant matters;'-
(1) right to accept mortgages or take out mortgage on the rights relating to the movable property, immovable property and other properties;
(2) shares, stocks, debentures and securities of a company;
(3) financial rights or transactions carrying a monetary value in accordance with the contract;
(4) intellectual property rights in accordance with the existing laws;
(5) concession rights best owed under the law or contract including rights of
exploration and production of natural resources,

(m) The person entitled to lease land or the person entitled to use land means the person who is entitled to lease from the State, which is the owner of all land, and all natural resources existing above the ground, underground, above the water, underwater and in the atmosphere in the State, any land for a stipulated period of time after paying the stipulated rent to the State in order to carry on any business, or the person permitted to carry on any agricultural or animal husbandry business.


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CHAPTER II　　　Applicable Economic Activities

3. This Law applies to economic activities prescribed by the Commission from time to time with the prior approval of the Government.
4. The Commission may, with the prior approval of the Government, prescribe the following investment activities as restricted or prohibited activities:-
(a) activities relating to the cultural traditions and customS of national races in the State;
(b) activities that may affect the health of the people;
(c) activities that may affect environment and ecosystem
(d) activities by whi.ch toxic waste materials may be brought into the State;
(e) factories where toxic chemicals are produced or activities that use toxic chemicals in accordance with the international conventions.
(0 services and producing activities running by the citizens according to rule of Law
(g) activities of utilizations to be carried, drugs, unrecognized technologies to be applied or making assessment in abroad
(h) activities of long and short run and agriculture to be run by the citizen prescribed under Law
(i) Livestock that can be run by the citizen under rule of law
(j) fishery in Myanmar waters that can be run by the citizen according to the prescribed rule of law
(k) activities of foreign investment to be run within ten miles of boundary line adjacent to other nations and the state territory apart from designated economic zone with the permission of Union Government.

5. In accordance with section (4), the commission can permit, under the approval of union government, limited and prohibited investment activities for the interests of the state and citizens, especially of the national races.
6. The Commission shall submit foreign investment activities which are of great effectiveness on the situation of the safety standard economy, environment and social interests to Pyi Htaung Su Hluttaw via the union government.


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CHAPTER III　　　Aim

7. This law aims to expose rich natural resources and to use them sufficiently by the public, to export the surplus abroad, to create more job opportunities as extensive and progressive as activities, to develop human resources, to progress infrastructures such as bank and financial activities, advanced high-ways, high-roads linked between and among countries, activities of national electricity and energy generation, advanced technology inclusive of contemporary information technology, communication networks including transportation activities such as rail, ship, aircraft, etc. of international standard, enhance different fields across the country, performances of citizens' cooperation with international community, emerge investment and economic activities in accordance with international standard.


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CHAPTER IV　　　Basic Principles

8. Foreign investments shall be made in accordance with the following basic principles: -
(a) sustaining to the chief aims of the national economic development plan, activities uncompleted and financial strength incapable of performing by the state and citizens;
(b) opening up more employment opportunities;
(c) promotion and expansion of exports;
(d) production of import-substitution goods;
(e) production of goods that require heavy investments;
(f) acquisition of high technology and development of production activities by using high technology;
(g) supporting and assisting production and services involving large investments;
(h) develop1nent of works that save energy consumption;
(i) regional development;
U) exploration and development of new energy sources and of renewable energy sources, such as bio-based new energy sources.
(k) development of modern industries;
(1) natural environmental protection and maintenance;
(m) making sustenance of exchange information and technology ;
(n) lacking effect of the sovereignty and safety standard of the people;
(0) uplift of the intellect and wisdom of the citizens;
(P) progress of bank and banking according to international standard;
(q) development of services for the state and citizens to be emerged;
(r) domestic sufficiency of short and long run of the state natural resources and energy


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CHAPTER V　　　Types of Investment

9. Foreign investment may be made in any of the following types;-
(a) investment made by a foreigner to the extent of one hundred per cent foreign capital in the activities permitted by the commission;
(b) joint-venture made between a foreigner and a citizen or government departments/
organizations concerned;
(c) carrying out the business under any system contained in the mutually agreed contract.

10. (a) In forming under section 9: -
(i) shall form company according to the existing law;
(ii) if a joint-venture is formed under section 9 (b), the foreign capital of home and abroad may prescribe according to the mutual approval of the foreigners who run joint-venture and investment of citizen;
(iii) In investing of foreigners, the commission shall prescribe the list among of investment according to the respective activities with the approval of union government;
(iv) in case of wishing foreigners to run prohibited and limited activities with citizens, the ratio of foreign capital shall propose according to the provision of rule of law.
(b) In forming as mentioned above under sub-section (a), other existing laws of the State shall be complied with in carrying out the business, liquidating prior to the expiry of the term of the contract, and liquidating on the termination of the business.


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CHAPTER VI　　Formation of the Commission

11.
(a) The Union Government shall:
(1) form the Myanmar Investment Commission, consisting of a suitable person as Chairman and suitable persons from the Union Ministry, Government Department and organizations, technicians from NGOs concerned as members.
(2) appoint the Vice Chairman, Secretary and Joint Secretary from among the members in forming the Commission.
(b) The commission members of non-governmental employees can enjoy salary allowance and bonus permitted by the ministry of national planning and economic development.

CHAPTEH. VII　　　Duties and Powers of the Commission
12. The duties of the Commission are as follows:-
(a) It shall, in scrutinizing the proposal with the use of this Law chapter IV, make a review of such factors as financial creditability, economic justification of the business enterprise and appropriateness of technology;
(b) The Commission shall take necessary and prompt action on complaints made by investors about their failure to fully receive the benefits entitled to under this Law;
(c) Scrutiny of proposal in order to check whether they oppose the provision of the existing law or not;
(d) It shall report to the Hluttaw on its performance via the Union Government;
(e) It shall from time to time recommend to the Government measures in order to facilitate, and promote domestic and foreign investments;
(f) It shall prescribe and amend the types of investment, as well as the amount and term of investment prior to the approval of Union Government;
(g) Coordination shall be made with relevant region or state government with the approval of the Union Government as regards foreign investment to upgrade economy of region and state;
(h) Commission shall know for taking action on finding cultural heritage or natural resources exclusive of the contract unrelated with the activities permitted inland and water.
(i) Scrutiny of abiding in accordance with the contract and this law, rule of law, regulation, terms, procedures, order, notification and instructions, if defied, action will be taken;
(j) Prescription of investment activities without tax exemption and relief;
(k) undertaking of the duties assigned by the union goverl1Illent occasionally.

13. The powers of the Commission are as follows:-
(a) accepting any proposal that, in its opinion, will promote the interests of the State without prejudice to any existing law;
(b) issuing a permit with the approval of the Government, if the proposal is accepted; (c) allowing an extension or amendment to the term of the permit or the agreement
if applied for by those concerned, in case it may be deemed appropriate:
(d) requiring a promoter or investor to submit such evidence or information as is deemed necessary;
(e) passing any order to suspend business operations, if sufficient evidence is found that terms and conditions contained in the proposal submitted by the investor to the Commission for its permit, contracts and documents enclosed therewith or the permit are not complied with;
(f) approving or refusing to approve the bank proposed by the promoter or investor to carry out financial transactions, and prescribing the bank for the purpose of dealing with financial matters.
14. The Commission may form such committees and sub-committees as may be necessary.
15. The Commission shall occasionally present reports on its performance to the meetings of the Cabinet.
16. The Commission shall submit its report once every three month on progress and accomplishment of the activities permitted by the commission.


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CHAPTER VIII　　The duties and rights of the investor

17. The duties of the investor are as follows:-
(a) complying with the provisions of the existing Law~ and
(b) Performances of business by the investor according to Myanmar existing law
with the formation of company;
(c) complying with rule of law, procedures, as well as regulations contained in the procedures, directions, notifications, orders, instructions and permits issued under this Law;
(d) using the land that he is entitled to lease or to use in accordance with the rules and regulations prescribed by the Commission and the terms of the agreement;
(e) sub-leasing or mortgaging the land and buildings or transferring shares or business for doing business under the permit within the term of the business enterprise, to any other persons for that il1Vestment only with the approval of the Commission;
(f) undertaking no alteration to the natural surface or undulating condition of the land that the investor is entitled to lease or to use without the approval of the Commission;
(g) reporting immediately to the Commission if natural resources or antiques not relating to the permitted enterprise and which are not included in the original agreement are found above or under the land which he is entitled to lease or use, if Commission permits can continue to operate on such land, and if not, shifting to the substituted area;
(h) carrying on the business in such a way as not to cause natural, environmental and water/air pollution in accordance with the existing laws in regard to the investment.
(i) In the event of selling all the share of the foreign company to any foreigners or handover completely to any citizens, registration of handing it over shall be made according to the existing law by taking permit that give them back only;
(j) In the event of selling som of the shares of the foreign company to any foreigners or handover completely to any citizens, registration of handing it over shall be made according to the existing law by taking permit that give them back only;
(k) Investors transferring systematically of high technology, to the related activity, department or organization according to the contract.

18. The rights of the investor are as follows: -
(a) if transfer of shares or business to a citizen or a Myanmar company needs to be made by a foreigner or a foreign company in accordance with the existing laws; to carrying on the business activities by citizens only with the prior approval of the Commission and in accordance with the existing laws;
(b) in case of a foreign company, whose all shares are transferred once and for all to a foreigner or a foreign company, to register the transfer of shares in accordance with the existing laws only with the prior approval of the Commission and after the surrender of the permit:
(c) to obtaining the approval of the Commission, to extend the investment business or increase foreign capital;
(d) submitting to the Commission for reviewing and modifying the rights in order to receive full benefits which are entitled under exiting laws;
(e) applying to the Commission for obtaining the benefits entitled to under the existing laws and for taking action in respect of grievances;
(t) applying to the Commission for obtaining more benefits in respect of invention of new technology, upgrading in the quality of exports, enhancing capacity of product and reduction in natural environmental pollution;
(g) Having the right to obtain periods of tax exemptions and reliefs longer than those permitted under Chapter 12 prescribed by the Commission with the approval of the Government in respect of those who make foreign investments in the regions that are less developed with poor communication and infrastructure.


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CHAPTER IX　　　Application of Permit

19. The investor or promoter wishing to invest shall submit proposal to the commission according to the terms to achieve permit
.
20. The Commission may,
(a) According to section (19), the submitted proposal may be denied or accepted after scrutiny within 15 days.
(b) If accepted, permit to the promoter or permission shall be given in 19 days.
21. If Investor or promoter achieve permit issued by the commission, investment establishment shall be made after making necessary agreement with respective government department, governmental organization or person, organization.
22. The Commission may permit those who are applying for extension or approval of the contract according to the law as may be necessary.


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CHAPTER X　　　　Insurance

23. The investor shall take out the prescribed type of insurance from anyone of the insurance enterprises permitted to operate in Myanmar.

CHAPTER XI　　　Appointment of personnel and workers

18. The investor shall:
(a) appoint at least 25% citizens at the end of the first 5 years from the Commencement of business, at least 50% at the end of the second 5 years and at least 75% at the end of the third 5 years in the case of the business enterprises requiring technical expertise, when making appointments of skilled citizen workers, technicians and personnel;
(b) arrange to provide training and training courses for citizen personnel in order to enhance their technical skills for the purpose of appointing them under section (a);
(c) appoint only citizens in the case of the business enterprises that require no technical skills;
(d) recruit personnel by his own arrangement with the Department of Labor or labor exchange agencies;
(e) appoint skilled citizen workers, technicians and personnel by concluding employer-employee agreements to be signed by both parties in accordance with the existing labor laws and regulations.
(f) As the differentiation of technician classes, opportunities on salary shall be paid without discrimination to the Myanmar employees as in foreigners' staffs.
25. The foreigners, who are working at the business enterprises under the permit shall apply to the Commission for the work permits and stay permits issued by Myanmar.
26. The investor shall:
(a) conclude, in appointing personnel and workers, employment agreements in accordance with the prescriptions;
(b) arrange to obtain the benefits contained in the existing labor laws and regulations, including the minimum wage/salary, leave, holiday, rights and duties of the employer and employee per the employment agreement, overtime, grievance, compensation, social welfare, and other workers-related insurance;
(c) resolve any dispute arising between the employer and worker, technician or personnel in accordance with the existing laws.


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CHAPTER XII　　　Exemptions and Reliefs

27. The Commission shall, for the purpose of promoting foreign investments within the State, grant the investor exemption or relief from taxes mentioned in sub-section (a) out of the following exemptions or reliefs from taxes. In addition, the Commission may grant any or more than one or all of the remaining exemptions or reliefs from taxes: -
(a) in respect of any enterprise for the production of goods or services, exemption from income-tax for a period extending to 5 consecutive years, inclusive of the year of commencement of production of goods or services; in case where it is beneficial for the State, exemption or relief from income-tax for a further reasonable period depending upon the success of the enterprise in which investment is made ;
(b) exemption or relief from income-tax on profits on the business if they are maintained in a reserve fund and re-invested therein within 1 year after the reserve is made ;
(c) right to accelerate depreciation in respect or machinery, equipment, building or other capital assets used in the business, at the rate fixed by the Commission to the extent of the original value for the purpose of income-tax assessment;
(d) if the goods produced by any enterprise are exported, relief from income-tax up to 50-percent on the profit accrued from the said export;
(e) right to pay income-tax on the income of the foreigners at the rates applicable to the citizens residing within the country;
(f) right to deduct from the assessable income, such expenses incurred in respect of research and development relating to the enterprise which are actually required and are carried out within the State;
(g) right to carry forward and set-off up to 3-consecutive years from the year the loss is sustained in respect of such loss sustained within 2 years immediately following the enjoyment of exemption or relief from income-tax as contained in sub-section (a), for each individual enterprise;
(h) exemption or relief from customs duty or other internal taxes or both on machinery, equipment, instruments, machinery components, spare parts and materials used in the business, which are imported as they are actually required for use during the period of construction;
(i) exemption or relief from such custom duty or other internal taxes or both on such raw materials imported for the first 3 years’ commercial production following the completion of construction.
(j) exemption or relief from customs duty or other internal taxes or both on machinery, equipment, instruments, machinery components, spare parts, and materials used in the business, which are imported as they are required for the expansion of the business made within the term of the original investment, after the amount of investment has been increased with the permission of the Commission;
(k) exemption or relief from commercial tax on the goods that are produced for export.


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CHAPTER XIII　　　Guarantees

28. The Government guarantees that an economic enterprise formed under a permit shall not be nationalized during the term of the contract or during an extended term, if so extended, except when action will be taken in the interests of the public by payment of compensation in terms of value calculated at the prevailing market rates.
29. The government guarantees not to terminate any investment activities performed with the permit of the Commission prior to the expiry of the permit without any sufficient grounds.
30. On the expiry of the term of the contract, the Government guarantees an investor of foreign capital, the rights he is entitled to, in the foreign currency in which such investment was made.

CHAPTER XIV　　　The right to use land

31. The Commission may permit the investor to lease the land or to use land for the term actually required based on the category of business, industrial business or agricultural, livestock breeding business and investment volume up to initial 50 years.
32. The Commission may permit to the investor who is desirous to continue to carry out after the expiry of the term permitted to the investor under section 31, to extend one consecutive term of 10 years based on investment volume and category of business and another 10 years after the expiry of such first term.
33. The Commission may, for the purpose of promoting foreign investments within the State, allow investment to be made for any type of business on the land legally registered in the name of the person, who is entitled to lease land, or the person who is entitled to use or lease land, in accordance with the existing laws with the prior approval of the Government.
34. The Commission may from time to time prescribe the land lease rates in respect of lands owned by the Government Departments and Government organizations with the prior approval of the Government.
35 . The investor has the right to carryon agriculture business to produce crops on the agricultural lands that the citizens are entitled to work only by concluding a joint venture agreement with the citizen investor under the agricultural contract farming system, according to crop seasons by way of cooperation for mutual benefit.

36. With a view to promoting economic development throughout the country, the Commission may, with the prior approval of the Government, allow those, who invest in the regions that are less developed with difficult means of communication and poor infrastructure, a period of land lease or of land use longer than that permitted under this Law.


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CHAPTER XV 　　Foreign Capital

37. The Commission shall register the foreign capital in the name of the investor according to the types of the foreign currency that is acceptable by the bank. In so registering, the type of foreign capital shall be mentioned.

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


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CHAPTER XVI　　Right to Remit Foreign Currency

39. The investor may transfer the following moneys abroad at the rate of exchange prescribed in the relevant foreign currency through the bank named by the Commission:-
(a) foreign currency entitled to by the person who has brought in foreign capital;
(b) foreign currency permitted for withdrawal by the Commission to the person who has brought in foreign capital;
(c) net profits after deducting from the annual profits received by the person who has brought in foreign capital, all taxes and the prescribed funds;
(d) legitimate balance, after causing payment to be made in respect of taxes and after deducting in the manner prescribed, living expenses incurred for himself and his family, out of the salary and lawful income obtained by the foreign personnel during performance of service in the State.


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CHAPTER XVII　Matters Relating to Foreign Currency

40. The investor may
(a) make remittances abroad at the rate of exchange prescribed in the relevant foreign currency through the bank named by the Commission.
(b) may carry out matters relating to currency as for the activities by opening foreign currency and kyat account in the bank which are running banking in relation to foreign bank.
41. Foreigners serving in any such economic organization shall open foreign currency and kyat accounts in any bank prescribed by the Commission.

CHAPTER XVIII　Administrative Punishments

42. The Commission may mete out an administrative punishment or punishments to the investor for violating the procedures, notifications, orders, instructions, or any conditions of the permit issued under this Law as follows:-
(a) warning;
(b) withdrawal of the permit;
(c) temporary suspension of tax exemptions and reliefs;
(d) listing of blacklisted companies to which no permit whatever will be issued in the future.


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CHAPTER XIX　　Settlement of Disputes (Arbitration)

43. In case any dispute arises in regard to investment business,
(a) the dispute arising between the disputing persons shall be settled in an amicable
way;
(b) if it can't be settled in accordance with section(a),
(i) compliance shall be taken in accordance with the existing laws in the absence of any method prescribed for resolving disputes in the relevant contract;
(ii) if any method is prescribed for settling disputes in the relevant contract, action shall be taken in compliance with such method.


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CHAPTER XX　　Miscellaneous

44. If a proposal is submitted for investment under the system of profits sharing on the production between the Government Departments and Government organizations bestowed with powers by the Government by law, and the investor, by fully using up the investor's capital in the production of oil and natural gas, minerals, etc. involving large capital; in the study of the feasibility of production in the allotted plot within the prescribed period of time; in making test exploration, measurement, mining; and in taking measures to reach the stage of potential commercial production, then it may be permitted after scrutiny. If that investment business is capable of commercial production, then an appropriate ratio of profits shall be shared between the Government Departments/Government organizations that are bestowed with the powers by the Government or by the Government by law, and the investor, in order that investment cost may be recovered.
45. Before this Law is enacted, under the Union of Myanmar foreign Investment Law (SPDC Law No.1 0/1988); the existing foreign investors who have been permitted by the Commission shall be deemed as investors specified by this Law.
46. The investor shall be liable to criminal action, if sufficient documentary evidence is found that he has intentionally falsified or concealed the accounts, contracts and papers, documents relating to financial matters and appointment of workers, etc. that are enclosed with the proposal that is submitted to the Commission, the Government Department/Government organization concerned.
47. Whatsoever mentioning in the existing law, the matters relating to this provision of the law shall be dealt with according to this law.
48. The Commission shall hold meetings in the manner prescribed.
49. The decisions of the Commission made under the powers conferred by this Law shall be final and conclusive,
50. No suit, prosecution or other proceeding shall lie against any member of the Commission or Sub-commission member or any public servant for any act done in good faith in pursuance of the powers conferred by this Law.
51, The Union Ministry of National Planning and Economic Development or any organization concerned that is assigned to carry out the provisions of this Law shall:-
(a) be responsible for handling the office work of the Commission
(b) incur the expenses of the Commission.
52. The investor, who has been carrying on business under the Commission's permit in accordance with the Republic of the Union of Myanmar Foreign Investment Law, which is to be repealed by this Law, shall have the right to continue to do business and to enjoy the benefits with the terms and conditions in the permit and relevant agreement up to the expiry of term.
53, The commission shall submit to the nearest Pyi Htaung Su Hluttaw in permitting investment business according to sections 3 and 5 as the important matter buyer the union government if affected to the interests of the state and citizen.
54. In case any provision of this law is against the international contract and approval, it needs to abide by the international contract and clauses of the approval.
55, Prior to the provision of this law, unless contrary of it, rule of law, procedures issued Union of the Myanmar foreign investment law (SPDC Law No.1 0/1988) can be used continuously,
56. In carrying out the provisions of this Law,
(a) the Ministry of National Planning and Economic Development may issue necessary laws, rules and regulations with the approval of the Government;
(b) the Commission may issue necessary notifications, orders, instructions, and procedures.
57. The Republic of the Union of Myanmar Foreign Investment Law (The State Law and Order Restoration Council Law No.10/1988) is repealed by this Law

By Order,
Thein Sein
President of the Union of Myanmar


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施行令 （英文）

________________________________________ [#c4720667]
PROCEDURES RELATING TO THE UNION OF MYANMAR FOREIGN INVESTMENT LAW
________________________________________
THE GOVERNMENT OF THE UNION OF
MYANMAR NOTIFICATION NO.11/88
The I4th waning day of Tazaungmon, I350 B.E.　(7th December, I988)
In exercise of the powers conferred under section 3, of the Union of Myanmar Foreign Investment Law, the Government of the Union of Myanmar prescribes the following procedures:--
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CHAPTER I

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

2. The expressions contained in these procedures shall have the same meaning as are assigned to them in the Union of Myanmar Foreign Investment Law. In addition, the following expressions shall have the meanings given hereunder:--
(a) " Law " means the Union of Myanmar Foreign Investment Law;
(b) " Form " means the form attached to these procedures;
(c) " Member " means the Chairman or member of the Union of Myanmar Foreign Investment Commission.
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CHAPTER II
Formation of the Commission
3. The Commission shall consist of the following persons:--
(a) Minister, Ministry of Planning and Finance (Chairman)
(b) Minister, Ministry of Trade (Member)
(c) Minister, Ministry of Industry No.(1) ( Member)
(d) Minister, Ministry of Industry No.(2) (Member)
(e) Minister, Ministry of Energy (Member)
(f) Minister, Ministry of Agriculture and Forests (Member)
(g) Minister, Ministry of Transport and Communications ( Member)
(h) Minister, Ministry of Mines (Member)
(i) Minister, Ministry of Construction (Member)
(j) Minister, Ministry of Livestock Breeding and Fisheries ( Member)
(k) Minister, Ministry of Co-operative (Member)

4. The Secretary of the Commission shall be appointed and assigned duties by the Chairman of the Commission.
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CHAPTER III
Economic Activities which may be carried out
5. The Commission shall with the prior approval of the Government publish a list showing types of economic activities in which foreign investment may be made. In connection with this matter replies shall also be given when enquiries are made.
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CHAPTER IV
Submission of Proposal
6. A promoter shall state the following particulars in submitting a proposal:--
(a) name of promoter, citizenship, address, place of business, place of incorporation, type of business;
(b) if investment is to be made by joint-venture, particulars mentioned in sub-clause (a) relating to the persons wishing to participate in the joint-venture;
(c) evidence in support of sub-clause (a) or sub-clause (b);
(d) commercial and financial references of the promoter or persons wishing to participate in the joint-venture;
(e) particulars relating to production or services enterprise in which investment is to be made;
(f) intended form of organization in which investment is to be made in the State;
(g) if a partnership is to be formed, draft partnership agreement, the ratio and amount of capital to be contributed by the partners, the profit sharing ratio and the rights and liabilities of the partners;
(h) if a limited company is to be formed, draft contract, drafts of the Memorandum of Association and Articles of Association, authorised capital of the company, types of shares, the number of shares to be subscribed by the shareholders;
(i) name, citizenship, address and designation of the executives of the organization in which investment is to be made;
(j) the total capital of the organization in which investment is to be made, the ratio of local and foreign capital, total amount of foreign capital to be brought into the State, the value of the various types of foreign capital and the period within which such foreign capital is to be brought in; brought in;
(k) the intended term of investment, the period of construction:
(1) place or places in the State where investment ,is to be made;
(m) techniques and systems to be used in the production and sale;
(n) the type and quantum of energy to be used;
(o) the quantity and value of the main machineries, equipment, raw materials and similar materials required to be used during the period of construction;
(p) the type and area of land required;
(q) volume and value of annual production of the enterprise and volume and value of services;
(r) annual requirement of foreign exchange to carry on the business and the estimated amount of foreign exchange earnings;
(s) volume and value of goods to be sold locally and abroad annually;
(t) the number, category and tenure of personnel required locally and from abroad;
(u) economic justification.
7. An application containing the above particulars shall be made in the attached Form (1) and shall be signed in person by the promoter and submitted. In addition, draft contract shall also be submitted together with the said application.
8. If it is an economic enterprise in which foreign capital to the extent of one hundred per cent is brought to the State and invested, the promoter shall submit together with the application, draft contract to be executed with an organization determined by the Ministry concerned.
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CHAPTER V
Scrutiny of Proposal
9. The Commission shall scrutinize financial credibility in the following manner:--
(a) in cases where necessary, to examine the audited annual final accounts of the person who will bring in foreign capital;
(b) to require Myanma Foreign Trade Bank to make enquiries through its foreign correspondent banks regarding the business standing of the person who will bring in foreign capital;
(c) to call for supporting evidence and to scrutinize the same as to whether any citizen subscribing capital actually has sufficient capital or not.

10. The Commission shall scrutinize the following particulars with regard to the economic justification of enterprise in which investment is to be made:--
(a) estimated annual net profit;
(b) estimated annual foreign exchange earnings and requirements;
(c) recoupment period;
(d) prospects of new employment;
(e) prospects of increased national income;
(f) local and foreign market conditions;
(g) requirement for local consumption;
(h) prospects of foreign exchange savings.

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

12. The Commission shall scrutinize application containing the proposal and the draft contract after obtaining the opinion of departments or organizations concerned.
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CHAPTER VI
Issue of Permit
I3. On approval of the proposal by the Commission, a permit in the attached Form (2) shall be issued.
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CHAPTER VII
Termination of Business before the Expiry of its Terms
I4. On submission of a desire to terminate the business by mutual agreement before the expiry of the term of the contract, the Commission may, based upon the following particulars scrutinize as to whether or not it is correct and justified, and allow the termination:--
(a) substantial and continuous losses in the enterprise;
(b) breach of the terms of contract by one of the parties to the same;
(c) occurrence of force majeure;
(d) incapability of implementing the original aims and objects of the enterprise.
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CHAPTER VIII
Insurance
15. An economic organization formed under a permit:--
(a) shall effect the following types of insurance with the Myanma Insurance Corporation:--
(1) Machinery Insurance;
(2) Fire Insurance;
(3) Marine Insurance;
(4) Personal Accident Insurance.
(b) may effect the following types of insurance, if so desired, with the Myanma Insurance Corporation:--
(1) Contractors' All Risks Insurance;
(2) Erection All Risks Insurance;
(3) Electronic Equipment Insurance;
(4) other insurance accepted by the Myanma Insurance Corporation.

16. In effecting insurance the details shall be worked out in consultation with the Myanma Insurance Corporation.
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CHAPTER IX
Appointment of Personnel
17. An economic organization formed under a permit shall allow its personnel to enjoy, at least, the workmen's rights contained in the existing laws of the State.

I8. The Commission shall, in permitting the appointment of foreign experts and technicians, carry out the following:-
(a) prescribing the type, number and term of the required foreign experts and technicians according to the individual business organization;
(b) in cases where necessary, obtaining the opinion of the Ministry of Labour.

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

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

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

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

23. In allowing a deduction of expenses for research and development relating to the enterprise from the assessable income, the said allowance shall pertain only to those works of research and development which cannot be conducted by any department or organization of the State.
________________________________________
CHAPTER XI
Evaluation and Registration of Foreign Capital
24. In evaluating foreign capital in terms of kyat for the purpose of registration by the Commission the following shall be carried out:--
(a) to cause to be brought in foreign currency in any type of foreign currency acceptable to the Myanma Foreign Trade Bank, and to evaluate the same at the prevailing official rate of exchange;
(b) to cause the value of the types of foreign capital other than the foreign currency to be stated in any type of foreign currency acceptable to the Myanma Foreign Trade Bank and to scrutinize whether the value of the respective foreign currency so stated is appropriate or not, and -to, evaluate such values so scrutinized at the prevailing official rate of exchange.

25. The Commission shall register the type of re-invested foreign capital in terms of kyat and in any type of foreign currency acceptable to the Myanma Foreign Trade Bank.
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CHAPTER XII
Right to transfer Foreign Currency
26. Foreign currency entitled to be transferred abroad under section 26 of the Law shall be transferred through the Myanma Foreign Trade Bank.

27. In determining the net profits transferable abroad the following funds shall be deducted:--
(a) employees' bonus fund;
(b) contribution made by the employer to the employees' provident fund;
(c) employees' social and welfare fund;
(d) enterprise development fund;
(e) such other funds as are required to be reserved according to commercial practice.

28. In deducting the living expenses of the foreign personnel and of his family, the Myanma Foreign Trade Bank shall scrutinize on the basis of the following:--
(a) cost of accommodation;
(b) cost of messing;
(c) salary and wages paid to menials such as domestic help, cook and driver;
(d) household, medical and other expenses.
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CHAPTER XIII
Matters relating to Foreign Currency
29. An economic organization formed under a permit shall, for the purpose of carrying out financial transactions such as depositing, withdrawing and transferring foreign currency and kyat relating to the business, open a foreign currency account and a kyat account in the Myanma Foreign Trade Bank.

30. Foreigners serving in any such economic organization shall open a foreign currency account and a kyat account in the Myanma Foreign Trade Bank.
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CHAPTER XIV
Meetings
31. The Commission shall hold meetings at least twice a month.

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

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

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

35. The Commission may invite to the meeting such persons as are required.
________________________________________
By Order,
(Sd) MAUNG KO
Secretary
The Government of the Union of Myanmar


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外国人向けの解説（英文）

myanmar state media details new foreign investment law
Sat, Nov 3 2012
YANGON | Sat Nov 3, 2012 6:20am EDT
(Reuters) - Myanmar's new foreign investment law allows overseas firms to fully own ventures and offers tax breaks and lengthy land leases, state media said on Saturday, releasing details of legislation passed by parliament this week after a long delay.

The law, approved by President Thein Sein on Friday, had gone back and forth between the legislative and executive branches since March in a tussle involving a government eager to attract foreign investment, tycoons determined to protect their monopolies, and small businesses keen not to be shut out.
Thein Sein took office in March 2011 at the head of a quasi-civilian government that brought almost 50 years of military rule to an end.

He has undertaken economic and political reforms that have persuaded Western countries to suspend sanctions and prompted an upsurge of interest in the country from multinational firms, which see potential in Myanmar's abundant resources and a primitive, low-cost economy bordering India and China.
Most major firms have been waiting to see the new law before committing significant funds.

The details in Myanmar-language state newspapers said joint ventures between foreigners and Myanmar citizens or the government would be permitted with any stake ratio agreed between the partners.

Foreigners can still own 100 percent of businesses without the need for a local partner, as in the previous law dating from 1988. But there could be restrictions in some areas.

A previous draft had said foreigners would only be able to hold a maximum 50 percent of a firm in certain sectors deemed sensitive, including agriculture, and that foreigners would have to hold at least 35 percent of any start-up joint venture.

A parliamentary source told Reuters this week that additional regulations covering the restricted sectors could follow later.
One article of the new law says the Myanmar Investment Commission can allow foreign investors into the restricted sectors with the approval of the government, in the interests of the people and the country.

LONG LEASE
Under the new law, foreign investors can lease land from the government or from authorized private owners for up to 50 years, depending on the type and size of the investment, and the deal can be extended twice, for 10 years each time.

The old law did not define land lease periods but in practice contracts tended to cover 30-year terms, extendable for two periods of five years.

Foreign firms may be entitled to a tax holiday for the first five years of operation and other forms of tax relief may be available depending on the investment, if deemed in the national interest. The old law allowed for a three-year holiday.

Foreign manufacturing companies may be entitled to tax relief of up to 50 percent on profits made from exports. Tax exemption or relief can be granted providing it is reinvested in the business within one year.

The new law states that output can be used for "both export promotion and import substitution". The old law stressed export promotion.

Like the old law, the new legislation guarantees that an enterprise formed under this law will not be nationalized during the contract term or its extension.

A previous version had raised concern by also saying that, if a company were nationalized in the public interest, compensation would be offered. This clause has now been dropped.

However, one clause says an enterprise allowed under the law will not be stopped "without sufficient reason" before the contract expires.

As under the old law, foreign investors will be entitled to withdraw capital on expiry of the contract in the foreign currency the original investment was made in.

The new law says it supersedes the old one enacted in November 1988 and that foreign firms who set up business under the old law would now be governed by the new legislation.
(Writing by Alan Raybould; Editing by Sanjeev Miglani)

Parliament passes Foreign Investment Law
Monday, 05 November 2012 13:29 Khin Myo Thwe

On Friday, Burma’s Pyidaungsu Hluttaw (joint sitting of both houses of Parliament) passed the much anticipated Foreign Investment Law.

The new law comes into effect a day after the bill was authorized following amendments by President Thein Sein.

The new Foreign Investment Law replaces a 1988 version, and is designed to attract foreign businesses in the wake of a lifting of economic sanctions by the US and the EU.

The 20-chapter law states that foreigners can make full investment in undertakings permitted by the Myanmar Investment Commission (MIC), which will designate the minimum amount of the investment capital with the consent of the government.

The law essentially allows joint venture operations between foreigners and local citizens, governments or organizations.

As per Section 31 of the new law, land use rights may be granted to foreign investors depending on: the duration of the business; whether it is a manufacturing industry; or the amount of their investment.

The new law seeks to provide guarantees to foreign investors in Chapter 13, stating that the Union Government will not nationalize foreign businesses nor terminate them before the expiry of the contracted period without giving adequate reasons.

Restrictions on foreign investment are effected in several sectors, most notably those where local citizens should be able to carry out all levels of production, such as some service sectors, agriculture, livestock breeding, and fishing.

Chapter 14 states that foreign investors can conduct agricultural and livestock businesses on a contract basis, but only in joint ventures with national investors.

The law requires that only Burmese citizens can be employed in businesses where no skill is demanded, while in those areas which require a special skill, at least 25 percent of the employees must be Burmese for the initial two years of operations, 50 percent for the subsequent two years, and 75 percent for the third period of two years.

In addition, foreign employers have a responsibility to train local skilled employees and to upgrade their skills, the new law states.

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外国投資法1988（英文訳）

Foreign Investment Law of Myanmar
________________________________________
STATEMENT ON FOREIGN INVESTMENT LAW OF MYANMAR

The Government of the Union of Myanmar has been striving hard to promote all round development of national economy to improve provisions of food, clothing and shelter for the people so as to ameliorate their living standards. In this connection steps have been taken to ensure mass participation with maximum utilization of the faculties of people and induce foreign investment on the basis of equality and mutual benefit.

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

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

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

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

The State Law and Order Restoration Council
The Union of Myanmar Foreign Investment Law
[The State Law and Order Restoration Council Law　No. 10/88]
The 7th waning day of Tazaungmon, I350 B.E. (30th November, I988)
The State Law and Order Restoration Council hereby enacts the following Law:-
CHAPTER I
Title and Definition
I. This Law shall be called the Union of Myanmar Foreign Investment Law.
2. The following expressions contained in this Law shall have the meanings given hereunder:--
(a) " Commission " means the Union of Myanmar Foreign Investment Commission;
(b) " Government " means the Government of the Union of Myanmar;
(c) " Citizen " includes an associate citizen or a naturalized citizen. The said expression also includes an economic organization formed with local investment only;
(d) " Foreigner " means a person who is not a citizen. The said expression also includes an economic organization formed with foreign investment only;
(e) " Promoter " means any citizen or any foreigner submitting an investment proposal to the Commission;
(f) " Proposal " means the prescribed application submitted by a promoter to the Commission for approval of an intended investment and the accompanying draft contract;
(g) " Permit " means the order in which the approval of the Commission of a proposal is expressed;
(h) " Foreign Capital " includes the following which are invested in an economic enterprise by any foreigner under a permit:
　-foreign currency;--property actually required for the enterprise and which is not available within the State such as machinery equipment, machinery components, spare parts and instruments;
　-rights which can be evaluated such as licences, trade marks and patent rights;
　-technical know-how;
　-re-investment out of benefits accrued to the enterprise from the above or out of share of profits;
(i) " Investor " means a person or an economic organization making an investment under a permit;
(j) " Bank " means any bank of the State.

________________________________________
CHAPTER II
Applicable Economic Activities
3. This Law applies to economic activities prescribed by the Commission from time to time with the prior approval of the Government.
________________________________________

CHAPTER III
Basic Principles
4. Foreign investments shall be made in accordance with the following basic principles:--
(a) promotion and expansion of exports;
(b) exploitation of natural resources which require heavy investment;
(c) acquisition of high technology;
(d) supporting and assisting production and services involving large capital;
(e) opening up of more employment opportunities;
(f) development of works which would save energy consumption;
(g) regional development.
________________________________________

CHAPTER IV
Form of Organization
5. Foreign investment may be made in any of the following forms:--
(a) investment made by a foreigner to the extent of one hundred per cent foreign capital;
(b) joint-venture made between a foreigner and a citizen.
6. (a) In forming under section 5:--
(i) a sole proprietorship, a partnership and a limited company may be formed;
(ii) if a joint-venture is formed the foreign capital shall be at least 35 per cent of the total capital.
(b) In forming as mentioned above, in carrying out the business and in liquidation on the termination of business, other existing laws of the State shall be complied with.
________________________________________

CHAPTER V
Formation of the Commission
7. The Government shall form the Commission.
________________________________________

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

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

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

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

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

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

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

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

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

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

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

CHAPTER VIII
Insurance
I9. All economic organization formed under a permit shall effect insurance with the Myanmar Insurance Corporation in respect of the prescribed types of insurance.
________________________________________

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER XI
Guarantees
22. The Government guarantees that an economic enterprise formed under a permit shall not be nationalized during the term of the contract or during an extended term, if so extended.
23. On the expiry of the term of the contract, the Government guarantees an investor of foreign capital, the rights he is entitled to, in the foreign currency in which such investment was made.
________________________________________

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

25. In the event of termination of business, the person who has brought in foreign capital may withdraw foreign capital which he is entitled to withdraw as prescribed by the Commission within the time stipulated.
________________________________________
CHAPTER XIII
Right to Transfer Foreign Currency
26. The following shall be transferable abroad in the relevant foreign currency through the bank prescribed by the Commission at the prevailing official rate of exchange:--
(a) foreign currency entitled to by the person who has brought in foreign capital;
(b) foreign currency permitted for withdrawal by the Commission to the person who has brought in foreign capital;
(c) net profits after deducting from the annual profits received by the person who has brought in foreign capital, all taxes and the prescribed funds:
(d) legitimate balance, after causing payment to be made in respect of taxes and after deducting in the manner prescribed, living expenses incurred for himself and his family, out of the salary and lawful income obtained by the foreign personnel during performance of service in the State.
________________________________________

CHAPTER XIV
Matters Relating to Foreign Currency
27. An economic organization formed under a permit shall open in the bank prescribed by the Commission, a foreign currency account in the type of foreign currency accepted by the bank, and a kyat account and carry out all financial transactions relating to the business enterprise.
28. Foreigners serving in any such economic organization shall open a foreign currency account and a kyat account in any bank prescribed by the Commission.
________________________________________

CHAPTER XV
General Provisions
29. The Commission shall hold meetings in the manner prescribed.

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

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

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

(Sd) SAW MAUNG
GENERAL
Chairman
The State Law and Order Restoration Council


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