This year’s suspension/relaxation of Burma
sanctions by the West is a prime example of the real impact of economic
sanctions. For example, although the
United States suspended most sanctions on July 11 and is now allowing U.S.
investment in Myanmar, the operating environment did not change overnight.
Instead, investors are faced with a country in
transition, as both Myanmar and the international community attempt to
re-engage after years of economic isolation.
Compliance measures imposed by multinational companies will take months
to revise, while enterprises in Myanmar attempt to learn international best
practices. Partial suspension means that
investors must scrutinize possible dealings with companies and persons on the
U.S. “Specially Designated Nationals”
(SDN) list, as well as the possibility that the U.S. and other Western
countries could reimpose the sanctions in full.
Overhanging everything are both the 2015 Myanmar elections and very real
possibility that President Thein Sein and opposition leader Aung San Suu Kyi
will not be able to see through the entire transition to normalcy.
Myanmar’s transformation is underway
As a participant in the first official American
trade delegation to Naypyidaw (others have been to Yangon) this month, I had
first-hand experience with this country in transition. For years I have had personal ties to the
country, but until July 11 I could advise clients to consider business with
Myanmar. This article offers some
personal observations on how to deal with the country and the Burma sanctions.
1. What’s in a Name? -- The government refers
to the country as Myanmar. In dealing
with the government and other official entities in the country, it is best to
call the country “Myanmar” and not “Burma”.
Ed at the Myanmar Ministry of Commerce
2. Financial Considerations -- pre-July 11, U.S. Burma sanctions forbade any
financial transactions with Myanmar, and post-July 11, they still apply to
SDNs. Compliance measures imposed by
banks, in particular the U.S.-based SWIFT system, mean that credit cards and
ATM cards do not work in Myanmar. Even attempting to use such cards in Myanmar
can result in their deactivation by the bank.
Until the banks modify their compliance measures, cash is king, and
should be in crisp and clean US$ 100 notes without a “CB” in their serial
number.
3. SDNs – For U.S. companies at least, determining whether their
potential business partner is on the SDN list or linked to an SDN is a crucial
and daunting task. The lack of
information and the limited business support resources from the U.S. Embassy in
Yangon mean that U.S. companies will need additional support from experienced
hands in Myanmar to help in due diligence efforts. The universe of such persons is quite
limited, but growing. More importantly,
the U.S. government will eventually tailor the Myanmar designees on the SDN
list over time, as a result of better understanding of the business situation
and the amendment of U.S. legislation.
Until then, the issue of “dealing” with SDNs will remain the primary
regulatory issue for U.S. companies. The
situations presented thusly can be prosaic (e.g., flying between Yangon and
Naypyidaw involves flying on airlines owned by SDNs, so don’t do this) or
unique (does appearing a photograph with an SDN constitute “dealing”? Without a quid pro quo transaction, probably
not).
US Ambassador to Myanmar Derek Mitchell and Speaker of the Lower
House of the Myanmar Parliament Thura U Shwe Mann
4. Legal System -- Myanmar’s legal system appears both familiar
and foreign. The legal system is based
on the old British India colonial system of common law. Laws
and legal education are in English.
However, during the Ne Win era, the common law principles of stare
decisis and hierarchy of courts were largely discarded. The use of English as the language of law and
legal education also serves to insulate lawyers from the rest of Myanmar
society. Hence like other developing
countries, domestic litigation should be avoided and arbitration clauses are a
necessity. In any event, foreign
investors should also wait for the passage of the much-discussed foreign investment
law before investing in the country.
5. Trading – U.S. Burma sanctions never
prevented the sale of goods to Myanmar, only that U.S. companies could not engage
in financial transactions with the country (e.g., they couldn’t get paid). As a result, U.S. companies sold to Myanmar
through ASEAN-based trading companies.
The July 11 relaxation now allows U.S. companies to be paid
directly. However, the U.S. ban on
imports from Myanmar remains in place through July 2013 at least, and perhaps
until 2015 if renewed by Congress.
6. Civil Society – The July 11 relaxation
mandates that U.S. companies investing in Myanmar must submit an annual
corporate and social responsibility (CSR) report. Unique to Myanmar, this requirement actually
may serve to differentiate the U.S. “brand” in Myanmar and help U.S. companies
deal with corruption and governance issues.
However, civil society in Myanmar is wildly diverse, with various ethnic
and religious groups and a newly assertive media, complicating CSR efforts.
In sum, it is still early days for Myanmar’s
transition, but the process appears to be lively and ongoing. Many regulatory pitfalls involved in foreign
investment remain, but with careful scrutiny and patience, Myanmar offers both
economic potential and the opportunity to help its long-suffering people.
