Chulalongkorn University Theses and Dissertations (Chula ETD)

Other Title (Parallel Title in Other Language of ETD)

การวิเคราะห์เรื่องการคุ้มครองนักลงทุนในเมียนมา ภายใต้กฎหมายการลงทุนเมียนมา พ.ศ. 2559

Year (A.D.)

2024

Document Type

Thesis

First Advisor

Tidarat Sinlapapiromsuk

Faculty/College

Faculty of Law (คณะนิติศาสตร์)

Degree Name

Master of Laws

Degree Level

Master's Degree

Degree Discipline

Business Law

DOI

10.58837/CHULA.IS.2024.393

Abstract

This paper explores the legal protections offered to foreign investors under the Myanmar Investment Law 2016 (MIL 2016), focusing on how these protections are structured, how they are applied in practice, and how they compare with international and regional standards. The law contains key provisions aimed at creating a stable and transparent investment environment. In particular, Section 47 ensures national treatment for foreign investors, meaning they should be treated no less favorably than local investors in similar situations. Section 48 commits to fair and equitable treatment (FET) and transparency, which are essential for ensuring that government decisions affecting investors are made in a predictable, consistent, and lawful manner. Section 52 provides safeguards against expropriation, requiring that any government seizure of private property must serve a public purpose, follow legal procedures, and include fair compensation. Despite these commitments, the practical implementation of the law faces several challenges. These include a lack of detailed procedures for investor protection, limited access to reliable dispute resolution mechanisms, and inconsistent enforcement. For instance, Section 47 does not clearly outline whether pre-establishment rights such as the right to enter and invest before full registration are guaranteed. Section 48 lacks precise definitions of “fair treatment” and offers no guidelines on how transparency should be implemented in practice. Similarly, while Section 52 prohibits unlawful expropriation, it does not define key terms like “public purpose” or establish independent valuation procedures for compensation. These legal uncertainties reduce investor confidence, especially in high-risk or capital-intensive sectors where predictability is crucial. To better understand these issues, the paper provides a comparative legal analysis between Myanmar’s investment law framework and the legal systems of other ASEAN member states, namely Vietnam, Thailand, and Indonesia. These countries have taken steps to clarify investor rights, establish public investment procedures, and improve dispute resolution. For example, Vietnam’s Investment Law 2020 explicitly outlines the rights of investors and includes a list of conditional sectors that is regularly updated and publicly accessible. Thailand offers foreign investors clear guidance and tax incentives under the Board of Investment (BOI), while Indonesia provides judicial review for decisions affecting investment rights under its Investment Law No. 25/2007. These examples show how other ASEAN countries strengthen legal certainty and build investor trust by adopting transparent and predictable legal procedures. Based on the findings, this paper offers legal and policy recommendations to help Myanmar improve its investment climate. These include clarifying the scope of protections in Sections 47, 48, and 52, publishing transparent investment guidelines through the Myanmar Investment Commission (MIC), and developing more accessible dispute resolution processes. The study suggests that aligning Myanmar’s legal framework with ASEAN standards and international best practices, such as the OECD Guidelines for Multinational Enterprises and the UNCITRAL Arbitration Rules, would increase foreign investor confidence. Ultimately, the goal is to support Myanmar’s sustainable development by encouraging responsible investment through clearer laws, stronger institutions, and a more transparent legal environment.

Other Abstract (Other language abstract of ETD)

This paper explores the legal protections offered to foreign investors under the Myanmar Investment Law 2016 (MIL 2016), focusing on how these protections are structured, how they are applied in practice, and how they compare with international and regional standards. The law contains key provisions aimed at creating a stable and transparent investment environment. In particular, Section 47 ensures national treatment for foreign investors, meaning they should be treated no less favorably than local investors in similar situations. Section 48 commits to fair and equitable treatment (FET) and transparency, which are essential for ensuring that government decisions affecting investors are made in a predictable, consistent, and lawful manner. Section 52 provides safeguards against expropriation, requiring that any government seizure of private property must serve a public purpose, follow legal procedures, and include fair compensation. Despite these commitments, the practical implementation of the law faces several challenges. These include a lack of detailed procedures for investor protection, limited access to reliable dispute resolution mechanisms, and inconsistent enforcement. For instance, Section 47 does not clearly outline whether pre-establishment rights such as the right to enter and invest before full registration are guaranteed. Section 48 lacks precise definitions of “fair treatment” and offers no guidelines on how transparency should be implemented in practice. Similarly, while Section 52 prohibits unlawful expropriation, it does not define key terms like “public purpose” or establish independent valuation procedures for compensation. These legal uncertainties reduce investor confidence, especially in high-risk or capital-intensive sectors where predictability is crucial. To better understand these issues, the paper provides a comparative legal analysis between Myanmar’s investment law framework and the legal systems of other ASEAN member states, namely Vietnam, Thailand, and Indonesia. These countries have taken steps to clarify investor rights, establish public investment procedures, and improve dispute resolution. For example, Vietnam’s Investment Law 2020 explicitly outlines the rights of investors and includes a list of conditional sectors that is regularly updated and publicly accessible. Thailand offers foreign investors clear guidance and tax incentives under the Board of Investment (BOI), while Indonesia provides judicial review for decisions affecting investment rights under its Investment Law No. 25/2007. These examples show how other ASEAN countries strengthen legal certainty and build investor trust by adopting transparent and predictable legal procedures. Based on the findings, this paper offers legal and policy recommendations to help Myanmar improve its investment climate. These include clarifying the scope of protections in Sections 47, 48, and 52, publishing transparent investment guidelines through the Myanmar Investment Commission (MIC), and developing more accessible dispute resolution processes. The study suggests that aligning Myanmar’s legal framework with ASEAN standards and international best practices, such as the OECD Guidelines for Multinational Enterprises and the UNCITRAL Arbitration Rules, would increase foreign investor confidence. Ultimately, the goal is to support Myanmar’s sustainable development by encouraging responsible investment through clearer laws, stronger institutions, and a more transparent legal environment.

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