8. Myanmar
This chapter presents the country profile for Myanmar. It provides an overview of the current de jure requirements for the institutions, tools and processes of regulatory governance and, where possible, how these have been implemented in practice. The profile focus on three aspects of regulatory governance pertinent to the past, present and near future of regulatory reforms in the ASEAN region. The first is whole-of-government approaches to regulatory policy making, including national and international commitments to better regulation that are driving domestic reform processes. The second is the use of good regulatory practices, including regulatory impact assessments (RIAs), stakeholder engagement and ex post review. The third is approaches to digitalisation, or how countries are using digital tools to respond to regulatory challenges, and is the newest frontier for better regulation reforms in both ASEAN and OECD communities. The information contained in this and the other profiles serves as the basis for the analysis of trends in regulatory reform presented in Chapter 1.
Regional focus
Myanmar1 is a signatory to Regional Comprehensive Economic Partnership (RCEP), which includes provisions related to better regulation and standards. The agreement was ratified in May 2021. The RCEP formulates a free trade agreement among various Asia-Pacific nations, and includes provisions that relate to better regulation and standards. Myanmar is also a signatory to 11 bilateral trade agreements containing binding investor protections like the India-ASEAN Investment Agreement (2014), the ASEAN Hong Kong, China Investment Agreement (2017) and has also recently signed a bilateral investment treaty with Singapore (2019) (OECD, 2020[1]).
Since 2018, Myanmar also developed its National Single Window and has taken measures to integrate it within the ASEAN Single Window (ASW). Myanmar joined the ASW Live Operation in 2019, which allowed the granting of preferential tariff treatment based on the ASEAN Trade in Goods Agreement (and the use the integrated ATIGA Form D) and has also started to exchange ASEAN Custom Declaration Documents (ACDD) through the ASW in December 2020 (ASEAN Single Window, n.d.[2]).
National focus
Since 2011, Myanmar has made changes to its regulatory environment to promote investment and to create a more favourable business environment for its country. The OECD (OECD, 2020[1]) Investment Policy Review of Myanmar describes these in detail, which includes passing new laws concerning intellectual property (IP) rights and arbitration to bring Myanmar’s legal framework broadly in line with international standards in these two areas. As outlined in OECD (OECD, 2020[1]), the foundations of an enabling investment environment have been outlined within the new Myanmar Investment Law (MIL) (2016) and the new Companies Law (2017) which came into force 2018 along with introducing the Myanmar Companies Online (MyCO) regulations and online directory in 2018 to register and find information about all companies registered in Myanmar.
The MyCo system in particular has been one to lead a step forward in terms of promoting digital transformation within the country, as its development has helped with harmonising information on companies registered within the country (MyCO, n.d.[3]). Other laws, such as the MIL, which acts to safeguard both local and foreign investors, also inspired the development of the more detailed 2017 Myanmar Investment Rules (i.e. Investment Rules). The Investment Rules provided significant additional detail in relation to the operation of the MIL and the business activities in which foreigners are permitted to engage, the restrictions that apply, application procedures, the use of land, the transfer of shares, foreign currency remittance, and the taking of security on land, and buildings and labour relations (Charltons, n.d.[4])
In 2018, Myanmar also institutionalised the Ministry of Investment and Foreign Economic Relations (MIFER), which would serve as the mandate to monitor the flow of foreign direct investment more effectively and facilitate business. Myanmar has also established a long-term investment promotion plan – the Myanmar Investment Promotion Plan (MIPP) for 2016-2036 – which sets out an ambitious agenda and strategies for promoting further domestic and foreign investments (OECD, 2020[1]). Many of these developments towards increasing Myanmar’s capacity to support incoming investors have been facilitated under the country’s 2016-36 Myanmar Investment Promotion Plan (Box 8.1).
The Myanmar Investment Promotion Plan (MIPP) for 2016-2036 sets out an ambitious agenda and strategies for promoting further responsible and quality domestic and foreign investments (OECD, 2020[1]). The MIPP 2016-2036 provides a long-term set of objectives in a comprehensive manner, covering five categories: investment-related policies and regulations, institutional development for investment promotion, infrastructure development, business-related systems, and local industries and human resources. The MIPP designates underdeveloped regulatory systems as a weakness in Myanmar’s business environment. The role of regulation in promoting investment is mentioned substantially throughout the document. The strategy aims to build investors’ confidence in Myanmar’s investment regime by:
Establishing and disseminating the principles of the investment policy
Promoting the co-ordination of investment-related policies by relevant ministries using the principles of the investment policy
Promoting investment liberalisation in multilateral frameworks
Preparing a legal framework for business environment improvement and promote deregulation
Regularly reviewing the relevance of the investment policy
Regulating fairly and rigorously against acts violating investment and environmental protection on investment projects (Myanmar Investment Commission, 2018[5]).
Source: (Myanmar Investment Commission, 2018[5]).
In terms of business development, Myanmar has also established the Small and Medium Enterprise Development Policy (2015). The introduction of this law was to improve the legal framework for SMEs as well as to obtain the economic information, technical assistance, and funding assistance for these entities (OECD, 2020[1]). Additionally, in early 2019, Myanmar’s Trademark Law was signed into law and this law would offer a comprehensive trademark registration system for both foreign and domestic trademark owners to patent their intellectual property (Tilleke&Gibbins, 2019[6]).
Regulatory impact assessments
As noted in OECD (2018[7]), the government has started to explore regulatory impact assessments (RIA) on a pilot basis and has provided some training on its applications with the support of international partners. That being said, no ex ante or ex post regulatory impact assessments are in place currently in Myanmar’s regulatory process. Myanmar also does not currently have a regulatory oversight body.
The government has occasionally conducted a review of existing legislation with the goal of identifying those that are obsolete (OECD, 2018[7]). A Legislative Review Committee meets every week to review legislations under the Union Legislative List. It may suggest a report on resolving or simplifying legislation, which is then presented to the Attorney General’s Office.
Stakeholder engagement
Since 2012, there has been a legal requirement to conduct Public-Private consultations. Examples of experiences with public consultation include the Myanmar Investment Law and the Land Use Policy, but as a rule such consultations are neither mandatory nor systematic, nor do they follow standard procedures (OECD, 2020[1]). Ministries are free to conduct these consultations as they see fit, as currently there is guidance on how these should be carried out. As a result, public consultations tend to be carried out on an ad hoc basis (OECD, 2018[7]).
In general, stakeholders who are invited to participate within these public consultations are concerned associations, companies, chambers, and other representatives from the private sector (OECD, 2018[7]). Stakeholders are always notified prior to their participation and these sessions are often recorded by the respective ministry. These recordings are not made public and are used for internal purposes only (OECD, 2018[7]). According to the Myanmar Investment Law (MIL), the MIC takes into consideration all the comments provided by public consultation. Citing the MIL itself, the Government of Myanmar reports that the Law was substantially standardised in line with regional and international legal contexts as a result of the consultation process.
For draft regulations related to specific SME proposals, any comments provided by the private sector aim to finalise the draft before it is submitted for final deliberation (OECD, 2018[7]).
Burden reduction/ex post review
Currently, there are no post-implementation reviews or sunset clauses used as ex post review in Myanmar’s regulatory process (OECD, 2018[7]). The government has made efforts to reduce administrative burdens through regulations and online platforms. The investment approval process has been streamlined under the MIL. It now applies similarly to both domestic and foreign investors, and its scope and procedures have been narrowed down and simplified (OECD, 2020[1]). The scope of projects requiring an approval by the MIC has been expressly defined in the law and its implementing regulation as follows (OECD, 2020[1]):
1. projects considered strategic to the Union such as for projects spanning across the national border by the foreign investor or by the Myanmar citizen investors if the investment value is exceeded USD 1 million or across States or Regions, as well as projects using land above 100 acres for other business except agriculture (above 100 acres for non-agricultural related purposes) and above 1 000 acres in the case of agricultural projects;
2. large capital-intensive projects where investment is expected to exceed USD 100 million;
3. projects having a large potential impact on the environment and the local community;
5. and businesses which are designated by the government to require the submission of a proposal to the Commission.
OECD (2020[1]) also mentions that some investments may only be carried out with the approval of the relevant ministry as stipulated in the List of Restricted Investment Activities (Notification No. 15/2017). The criteria for approval have also been streamlined and publicised, including in relation to requirements by line ministries (OECD, 2020[1]). All other projects are exempt from investment approvals, needing only to comply with the relevant regulations for conducting the business (OECD, 2020[1]). The Notification on the implementation of the Deed Registration Law was issued in October 2018, putting the Law into effect to replace the Registration Act 1908 (Dick and Quek, 2019[8]). As a result, streamlined deed registration and approval was facilitated. Digital tools have also played a role in Myanmar’s efforts to reduce administrative burdens. Myanmar Companies Online (MyCO) can be used to register companies and find information on all companies that are registered in Myanmar. Services such as 1) Search and access details of companies all over Myanmar 2) Register your company and 3) Purchase official company documents and extracts are offered on the website (MyCO, n.d.[3]). Since September 2020, it possible to purchase a certified copy of a company certificate on MyCO, and can also certify the constitution of a company using electronic records of the company filing.
Myanmar has continued to simplify and reduce administrative procedures while expediting approval processes for essential goods and services during the COVID-19 pandemic. Myanmar responded to the crisis by launching a new working committee titled “COVID-19 Economic Relief Plan” (CERP). CERP has taken on a number of COVID-19 related regulatory policy roles, such as expediting regulatory and investment approval processes, simplifying regulations for medical products and infrastructure projects, waiving Food and Drug Administration (FDA) import requirements for products already FDA approved in other countries, and extending online applications (OECD, 2021[9]). Ministries have also used digital technology to support simplification of the regulatory environment for business and citizens. The Ministry of Commerce announced that since as of April 2020, applications for import and export licenses for more than 100 commodities, such as consumer products, fertilisers, and petroleum products, must be issued using online procedures (UNESCAP, 2021[10]).
In addition to the steps that the Government of Myanmar have already taken to streamline administrative processes using digital platforms, the government has also devised an e-Governance Master Plan, which was developed in co-operation with the Asian Development Bank (ADB) and approved by the Office of the President in September 2016 (World Bank, 2018[11]). The e-Governance Master Plan calls for reforms in rules and regulations in order to prepare Myanmar for the upcoming technological developments that have been foreseen for many governments around the world. The e-Governance Master Plan has also led to more streamlined government services, such as the development of the Myanmar National Portal in 20182. The e-Governance Master Plan is organised by the e-Government Steering Committee, who is led by the State Counsellor as the patron and Vice President II as the chair and is completed with 46 other members across the government.3 The eGSC functions as a co-ordination, co-operation, and decision body to facilitate an enabling environment for digital transformation, particularly focusing on a public-sector modernisation agenda and public service delivery and digital service enablement (World Bank, 2018[11]).
Further, in February 2019, Myanmar also published their Digital Economy Roadmap 2018-25. This roadmap would lead the design of how to use digital technology in government, improve trade and investment; and work with stakeholders to improve digital literacy and encourage innovation among the public service (Oxford Business Group, n.d.[12]). The roadmap runs in tandem with the Myanmar e-Governance Master Plan 2016-20.
The government of Myanmar has also developed its National Single Window to facilitate international trade and drive economic growth. The Project has resulted in shortening of customs clearance time as well as more efficient and transparent customs clearance procedures by implementing the Myanmar Automated Cargo Clearance System (MACCS) and the Myanmar Customs Intelligence Database System (MCIS) to improve the efficiency of the customs clearance procedures (JICA, 2019[13]).
Finally, the two most notable one-stop shops for investment currently being implemented in Myanmar are the DICA One-Stop-Shop (OSS) and the Thilawa One-Stop-Shop-Centre (OSSC). The DICA OSS brings together the main departments from relevant ministries, providing guidance and necessary information for businesses, as well as licences, with the aim to eventually offer a single window for all business-related licences (OECD, 2020[1]). Unlike in the Thilawa OSSC, DICA still operates more as a centralised information centre than an actual single window agency with authority to issue permits and licences on behalf of the various ministries represented there (OECD, 2020[1]). In Thilawa, OSSC officials have autonomy to take decisions on behalf of their ministries, which renders processes much less burdensome for investors (OECD, 2020[1]) Building on the example of the Thilawa SEZ One-Stop-Services-Centre (OSSC), the Myanmar Investment Commission (MIC) has instructed all relevant ministers to develop standard operating procedures (SOPs) for delivering licences and permits under their responsibility (OECD, 2020[1]). MIC’s OSS SOPs have been elaborated since 2021 and planned to be launched in March 2022. The compilation of SOPs involved the officials from the relevant departments who are responsible for issuing business licenses, permits and recommendations offering the detailed descriptions of time, costs and procedures for investors.
References
[2] ASEAN Single Window (n.d.), What is the ASEAN Single Window?, https://asw.asean.org/.
[4] Charltons (n.d.), Myanmar Investment Law, https://www.charltonsmyanmar.com/investment-law/.
[8] Dick, J. and L. Quek (2019), Myanmar Law update: Deed Registration, https://www.jdsupra.com/legalnews/myanmar-law-update-deed-registration-94098/.
[13] JICA (2019), FY 2019 External Ex-Post Evaluation of Japanese Grant Aid Project “The Project for National Single Window and Customs Modernization by Introducing Automated Cargo Clearance System”.
[5] Myanmar Investment Commission (2018), Myanmar Investment Promotion Plan 2016-2035.
[3] MyCO (n.d.), , https://www.myco.dica.gov.mm/.
[9] OECD (2021), “Regulatory responses to the COVID-19 pandemic in Southeast Asia”, OECD Policy Responses to Coronavirus (COVID-19), OECD Publishing, Paris, https://doi.org/10.1787/b9587458-en.
[1] OECD (2020), OECD Investment Policy Reviews: Myanmar 2020, OECD Investment Policy Reviews, OECD Publishing, Paris, https://doi.org/10.1787/d7984f44-en.
[7] OECD (2018), Good Regulatory Practices to Support Small and Medium Enterprises in Southeast Asia, OECD Publishing, Paris, https://doi.org/10.1787/9789264305434-en.
[12] Oxford Business Group (n.d.), Myanmar’s new digital strategy improves ICT development and network readiness, https://oxfordbusinessgroup.com/overview/connection-roadmap-new-digital-strategy-government-trade-and-investment-improve-sector-development.
[6] Tilleke&Gibbins (2019), Myanmar Passes Long-Awaited Trademark Law, https://www.tilleke.com/insights/myanmar-passes-long-awaited-trademark-law/.
[14] Tun, S. (2020), Myanmar Times, https://www.mmtimes.com/news/second-myanmar-e-governance-master-plan-include-systems-cyber-crime-e-payments.html.
[10] UNESCAP (2021), Myanmar Covid Country Profile.
[11] World Bank (2018), Project Information Document/Integrated Safeguards Data Sheet (PID/ISDS).
Notes
← 1. The information contained within this profile was drafted by the OECD Secretariat based on data from before the change of government on 1 February 2021.
← 2. An online app developed to centralise the connection of government website and their respective ministries (Tun, 2020[14]).
← 3. Other members include: Union Ministers, Union Attorney General, Union Auditor General, Chairman of the Union Civil Service Board, Nay Pyi Taw Council Chairperson, Chief Ministers of all Regions and States, Deputy Ministers, Deputy Governor of the Central Bank of Myanmar, and Patron of the Myanmar Computer Federation.