We have written about Myanmar signing up to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 as well as the Investment Regime and Arbitration in Myanmar. A key issue we had noted was the lack of a legal framework for the enforcement of international arbitration awards,
“…Myanmar’s Arbitration Act 1944 only provides for domestic arbitration and does not provide a framework for the recognition and enforcement of foreign arbitral awards. We anticipate that the Arbitration Act 1944 will either have to be revised or a new international arbitration act enacted in order to make the New York Convention operative. It is still unclear when such an act will be enacted in Myanmar.”
In recent developments, we have become aware that there is now a draft Arbitration Bill that is being considered by the Myanmar parliament. In the latest issue of their newsletter, Polastri Wint & Partners’ Sebastian Pawlita and Thitsar Khine discuss the draft Arbitration Bill and its implications for foreign investors.
The passing of the Arbitration Bill will be a positive step in bringing Myanmar into the international arbitration community. An arbitration act would also provide reassurance to foreign investors that there is the option of enforceable arbitration proceedings – a neutral, independent and impartial tribunal to settle their disputes with Myanmar commercial parties, with the resulting arbitration awards being enforceable in Myanmar.
Some points for commercial parties to note:
- The Arbitration Bill is based on the UNCITRAL Model Law on International Commercial Arbitration (1985) with an expanded definition of what constitutes an arbitration agreement.
- The definition of an arbitration award includes interim awards for purposes of enforcement by the Myanmar courts. However, unlike the Singapore International Arbitration Act (Cap. 143A) (“IAA”), theArbitration Bill is silent on whether orders and directions issued by the arbitral tribunal are also encompassed in the definition of an arbitration award.
- The appointing authority for arbitrator(s) is the “chief justice of the Union”. It remains to be seen if the Chief Justice will delegate his powers to any other person or institution.
- There is an entire section that deals with how the Myanmar courts should deal with claims involving insolvency situations or insolvency related claims in arbitration. The section provides that the Myanmar courts have a discretion to refer such cases to arbitration on application by a party.
- Finally, the draft Arbitration Bill explicitly provides that the Myanmar courts have the power to extend a time bar to commence arbitration, but only for arbitrations seated in Myanmar. There is no similar provision in the IAA or in the Model Law.
By way of explanation, in a previous post, we had discussed the English case of Wholecrop Marketing Ltd v Wolds Produce Ltd,  EWHC 2079 (Ch) and how contractual time limit to commence arbitration operates as a time bar to claim itself.
There remains work to be done. Even after the draft Arbitration Bill is passed into law, the Myanmar courts will have to introduce its own rules and court procedures for parties who seek the assistance of the Myanmar courts in obtaining interim relief in aid of arbitration, or for the recognition and enforcement of international arbitration awards. We look forward to these further developments and will update our readers accordingly.
We are very grateful to Polastri Wint & Partners and Sebastian Pawlita for providing us with an English translation of the draft Arbitration Bill. Readers who wish to obtain an English translation of the Arbitration Bill should contact Sebestian Pawlita directly at email@example.com.