Myanmar - The Foreign Investment Licence And Permit To Trade - Registration

After obtaining a permit to trade registration, effectively company registration, can be made depending on the requirement of the type of organisation.

- a sole proprietorship is not required to register with the Companies Registration Office. The business can therefore be started after obtaining a permit from the Commission.

- a registration of a Partnership firm (Joint-Venture) is not obligatory under the Partnership Act.

- a Limited Company (one hundred percent foreign capital or joint-venture) must register under the Myanmar Companies Act with the Registrar of the Companies Registration Office who will issue a certificate of incorporation. In the case of a joint-venture with a State-owned Economic Enterprise, the registration will be under Special Company Act, 1950 and the Myanmar Companies Act.

The registration fee ranges from a minimum of K.600 to a maximum of K. 15,000 depending on the authorised capital.

The following documents need to be filed for registration of a company:-

(i) Permit to Trade (photocopy).

(ii) Memorandum of Association and Articles of Association, both of which must be in Myanmar and English languages and printed (in practice these are submitted in draft for the Registrar's approval before being printed). In the case of a Joint Venture with a State enterprise, these documents must be approved by the Attorney General and the Minister of Trade, who will notify the acceptance of these documents and classify the Joint Venture Company as a Special Company under the Special Company Act, 1950.

(iii) Translation Certificate by a lawyer etc.

(iv) Statement as to which of the documents, in Myanmar or English, is to be the legal document.

(v) Full address of the Registered Office of the Company in Myanmar.

(vi) Consent of the directors to act.

(vii) List of directors and managers, with names, nationality, descriptions and addresses.

(viii) Statement of nominal capital and the receipt for filing fees paid.

Very similar documents as set out in the text of my speech need to be filed for registration of a branch of a company incorporated outside Myanmar:-

(i) Permit to Trade (Photocopy).

(ii) Memorandum and Articles of Association of the Head Office Company certified by a Director, notarised and consularised at the Myanmar Embassy.

(iii) If there is no Memorandum or Articles of Association, a copy of the Charter, Statutes, or other instruments constituting or defining the constitution of the Company, certified by a director, notarised and consularised.

(iv) The above documents translated into Myanmar, and certified by a director.

(v) Translation Certificate.

(vi) Statement as to which document, in Myanmar or English, is to be the legal document.

(vii) Full address of the Principal Office in Myanmar.

(viii) Names, addresses, nationalities and description of one or more persons resident in Myanmar, authorised to accept service of notice on behalf of the Company.

A company incorporated outside Myanmar but having an established place of business in Myanmar must file with the Registrar in every year:

A copy of the Balance Sheet of the Head Office company incorporated outside Myanmar, together with a statement showing the holding of its shares classified according to the nationality of the holders of such shares. If that balance sheet does not contain all the information required by the Act, supplementary statements are required which furnish such information; or

Where no provision to file a balance sheet is made by the law of the country in which the company is incorporated, a statement in the form of a balance sheet, together with a statement showing the holding of its shares classified according to the nationality of the holders of such shares, must be filed in accordance with the provisions of the Act. Regulation 9 also requires that in addition to any other document required to be filed under the Act a copy each of the balance sheet and profit and loss of and appropriation account in Form B be set out in the Schedule thereto or as near thereto as possible.

For a foreign company incorporated in Myanmar filing of an annual list of members and summary (in the prescribed Form E) is obligatory. A private company is required to send with the annual return mentioned above, a certificate to the effect that the company has not issued any invitation to the public to subscribe for any shares or debentures of the company.

For a public company, the following additional documents need to be submitted.

- List of persons who act as directors.

- List of persons who have consented to act as directors.

- Agreements to take qualification shares.

Other Requirements

(i) Statement in Prospectus, etc.

If any prospectus for shares or debentures is to be issued, a copy thereof, certified by the Chairman and two other Directors of the company must be delivered for registration to the Registrar.

Every foreign company which uses the work "Limited" as part of its name shall:

- in every prospectus for shares or debentures, state the country of incorporation;
- conspicuously exhibit on every place where it carries on business in Myanmar, the name of the company and the country of incorporation in Myanmar and English characters;

- have the name of the company and the country of incorporation mentioned in Myanmar and English on all billheads, letter paper, notices, advertisements and other official publications of the company.

If the liability of the members of the company is limited, this fact must be stated in every prospectus, billhead, letter paper, notice and advertisement and other official publication of the company, and affixed on every place where it carries on business.

Proper books of account and records must be maintained on acceptable commercial principles in accordance with section 130 of the Myanmar Companies Act.

(ii) Certification and authentication of documents

A copy document filed with the Registrar needs to be duly certified as a true copy by:

An official of the government to whose custody the original is committed, the signature or seal of such official being authenticated in accordance with the law of the country of incorporation and duly legalised by the Embassy or Consulate concerned; or

A Notary Public of such country, his certificate being duly legalised by the Embassy or Consulate concerned.

(iii) Translation of documents

A translation of a document filed with the Registrar needs to be certified to be a correct translation:

Where such translation is made outside Myanmar in accordance with the law of the country of incorporation; and

Where such translation is made in Myanmar by an Advocate, Attorney or Pleader, or by an affidavit of some person having in the opinion of the Registrar a competent knowledge of the language of the original and of English or Myanmar.

Penalty for Default

If a company makes default in complying with the requirements of section 27A of the Myanmar Companies Act, i.e. to obtain a Permit to Trade, the company and every officer or agent of the company shall, on conviction, be liable to a fine not exceeding five hundred Kyats, or in the case of a continuing offence, fifty Kyats for everyday during which the default continues. Such default would include carrying on business before a Permit to Trade is granted or without a Permit to Trade.

If a foreign company fails to surrender the Permit to the authorities concerned and/or fails to notify such surrender to the Registrar within one month after the commencement of winding up, a company and every officer or agent of the company shall, on conviction, be liable to a fine not exceeding fifty Kyats for every day of default.

If default is made in filing with the Registrar the Memorandum and Articles of Association or similar instrument of the constitution of the company, and the annual Balance Sheet together with the prescribed statement of shareholders, the company and every officer or agent of the company shall be liable to a fine not exceeding fifty Kyats for every day of default.

Classes of Foreign Company

A foreign company incorporated in Myanmar, other than a "Myanmar" company; or a Special Company formed under the Special Company Act 1950 (where part of the equity belongs to the State).

A foreign company incorporated outside Myanmar and having an established place of business in Myanmar (a foreign branch).

Note: A "Myanmar Company" is defined as a company having a share capital fully owned and controlled by citizens of Myanmar. It therefore follows that a company with one or more foreign shareholders would be classified as a "Foreign Company".

Categories of foreign companies. This has been explained above, and further amplified as follows:

A foreign company incorporated in Myanmar. This would include:

- a foreign company in existence in Myanmar but prohibited from carrying on business since no Permit to Trade was issued after 1964;

- a foreign company which is wound up but carrying on business for the beneficial winding up thereof;

- a foreign company to be newly incorporated in Myanmar with a share capital.

A branch of a foreign company incorporated outside Myanmar. This would include:

- a foreign branch already in existence but prohibited from carrying on business since no Permit to Trade was issued after 1964;

- a foreign branch which is wound up but carrying on business for the beneficial winding up thereof, and whose control and management is vested in an Attorney and Liquidator;

- a foreign branch to be newly set up in Myanmar.

NOTE: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

If you would like further advice please contact: David Ellis, Johnson Stokes & Master, 16th Floor, Princes Building, 10 Chater Road, Hong Kong; Tel 2843 4226; Fax no. : 2845 9121. Alternatively do a text search "Johnson Stokes and Master" and "Business Monitor".