Arbitration Law in Myanmar
Arbitration in Myanmar is primarily governed by the Arbitration Law of 2016, which marked a significant reform in the country's approach to dispute resolution. The law aligns closely with international standards, including the UNCITRAL Model Law on International Commercial Arbitration, and is designed to promote Myanmar as an arbitration-friendly jurisdiction for both domestic and international disputes.
Key Aspects of Myanmar’s Arbitration Law
1. Legal Framework
- Arbitration Law of 2016: This law applies to both domestic and international arbitration.
- Myanmar is a signatory to the New York Convention (1958), which facilitates the recognition and enforcement of foreign arbitral awards.
- The law was enacted to modernize Myanmar's legal system and align with global best practices in dispute resolution.
2. Types of Arbitration
- Domestic Arbitration: When both parties are Myanmar-based and the arbitration is conducted within the country.
- International Arbitration: When the dispute involves foreign parties or elements outside Myanmar.
- Institutional vs. Ad Hoc Arbitration:
- Myanmar allows both institutional arbitration, where an arbitration body administers the process (e.g., the Myanmar Arbitration Centre (MAC)), and ad hoc arbitration, where parties have more freedom to define the process.
3. Arbitration Agreement
- Must be in writing and specify that any disputes arising from the agreement will be resolved through arbitration.
- It can be a clause within a contract or a separate agreement.
- The courts will generally enforce valid arbitration agreements, except in cases where there is evidence of fraud or coercion.
4. Arbitral Tribunal
- Parties are free to choose arbitrators and determine the number of arbitrators. If not agreed upon, the default is typically three arbitrators.
- Arbitrators must be independent and impartial.
- Foreign arbitrators are allowed and can be appointed by the parties involved.
5. Arbitration Procedure
- Parties have the freedom to agree on procedural rules, such as the language of arbitration, the seat of arbitration, and the governing law.
- If no specific rules are agreed upon, the Arbitration Law of 2016 or institutional rules (if applicable) govern the process.
- Arbitration is generally confidential.
- Arbitrators have the power to issue interim measures (e.g., freezing assets, preventing the transfer of property).
6. Arbitral Awards
- Arbitral awards are final and binding on the parties.
- The award must be in writing and signed by the arbitrators, and it must include a reasoned decision unless the parties agree otherwise.
- The grounds for challenging an award in court are limited and typically include:
- Lack of jurisdiction
- Violation of procedural fairness or due process
- Conflict with Myanmar's public policy
7. Recognition and Enforcement of Arbitral Awards
- Domestic arbitral awards are enforceable in Myanmar courts, similar to a court judgment.
- Foreign arbitral awards are recognized and enforceable under the New York Convention. However, enforcement can be refused if:
- The award violates Myanmar's public policy.
- The award exceeds the scope of the arbitration agreement.
- The party seeking enforcement did not have an opportunity to present their case.
- Myanmar’s adherence to the New York Convention means that awards from jurisdictions that are also signatories to the Convention can be enforced in Myanmar, and vice versa.
Key Arbitration Institutions in Myanmar
- Myanmar Arbitration Centre (MAC): The primary arbitration institution in Myanmar, established under the Myanmar Arbitration Law of 2016. It offers both institutional arbitration services and acts as a platform for resolving disputes.
- International institutions, such as the ICC (International Chamber of Commerce), LCIA (London Court of International Arbitration), and others, are also frequently used for cross-border disputes.
Conclusion
Myanmar's Arbitration Law of 2016 provides a modern and flexible framework for resolving both domestic and international disputes. It aligns with international standards, particularly the UNCITRAL Model Law, and promotes Myanmar as a growing arbitration destination in Southeast Asia. The New York Convention ensures that foreign arbitral awards are enforceable in Myanmar, making it a favorable jurisdiction for international businesses involved in arbitration.
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