Description:
Executive Summary:
"This paper reviews Myanmar?s existing investment treaties and examines the legal implications of key terms contained
in them. The purpose of this paper is to provide an overview of Myanmar?s current investment treaty context, which
can inform a way forward for possible reform and contribute to a deeper understanding of the implications of potential
future treaties. This paper focuses on key provisions that have proven important in other countries? experience with
investment treaties over the past decade.
1
The main findings of this paper are as follows:
1.
Myanmar has seven investment treaties in force, plus an eighth treaty—the Myanmar–Japan bilateral
investment treaty (BIT)—that may soon enter into force.
2.
Myanmar?s investment treaties cover the investment relationship between Myanmar and 15 other countries.
These 15 countries are all located in East, South-East and South Asia and in Oceania (Australia and New
Zealand).
3.
Four of Myanmar?s investment treaties, which cover Myanmar?s investment relationship with 13 different
countries, were negotiated either with or through ASEAN.
4.
Myanmar?s investment treaties that were negotiated with or through ASEAN show some degree of
consistency, although important differences between these four treaties remain. In contrast, there is a very
high degree of variation between Myanmar?s ASEAN investment treaties and Myanmar?s BITs, both in the
types of provisions included in different treaties and in the drafting of provisions common to several treaties.
5.
These variations have significant legal implications for the nature and extent of Myanmar?s obligations under
different treaties. They also make the government?s task of complying with Myanmar?s existing investment
treaties more complex.
6.
Many of Myanmar?s investment treaties contain most-favoured nation (MFN) clauses. The effect of these
provisions is that any benefit extended to foreign investors from one country under one investment treaty
may need to be extended to foreign investors covered by Myanmar?s other investment treaties. As a result,
Myanmar may be required to grant a combination of benefits to foreign investors that is more generous than
that provided by any one of Myanmar?s investment treaties, considered individually.
7.
Aside from the Myanmar–Philippines BIT, all of Myanmar?s investment treaties allow foreign investors to
bring claims under the treaty directly to investor–state arbitration. In such disputes, an arbitral tribunal
will decide if the state in which the investment is located has breached the treaty. If the investor?s claim is
successful, the tribunal will make a binding, monetary award against the state.
Because Myanmar?s investment treaties are enforceable through investor–state arbitration, questions relating to the
extent of Myanmar?s obligations under different treaties have important practical implications"
Source/publisher:
International Institute for Sustainable Development.
Date of Publication:
2014-06-00
Date of entry:
2014-09-23
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