December 22, 2015
– On 21 December 2015, the Office of the President of Myanmar announced that Myanmar’s competition law will come into force on 24 February 2017. The law (Competition Law No. 9/2015) was passed on 24 February 2015, but was subject to the President determining the date of commencement.
The Competition Law sets out the general framework but is not comprehensive. Further guidance – for example, on the approach to antitrust investigations, penalties, merger thresholds etc. – is expected to be published in the lead-up to 24 February 2017.
Key features of Myanmar’s Competition Law Regime
Myanmar’s Competition Law is broadly consisted with international best practice in jurisdictions such as the European Union and United Kingdom. It prohibits anti-competitive agreements and abuse of market power. It also introduces a predominantly market share based merger control regime.
The Competition Law also establishes the Myanmar Competition Commission. The Commission will have investigative and adjudicative powers, which include ‘dawn raid’ and mandatory evidence gathering powers. It will also be responsible for setting penalty levels and providing for a right of appeal and a leniency policy. Maximum fines are reported to be up to Kyat 15 million (approximately $12,000) and individuals can face up to 3 years in prison.
Driving home the ASEAN pro-competition law agenda
Myanmar’s introduction of the Competition Law follows it’s accession to chair of the Association of Southeast Asian Nations (ASEAN) in 2014 for the first time since it became an ASEAN member state in 1997.
ASEAN is prioritising antitrust enforcement as part of the ASEAN Economic Community (AEC) and 2015 has been a key year. All ASEAN member states pledged to introduce competition policy by the end of 2015 and cross-border cooperation has been stepped up. Now approaching the close of 2015, Cambodia remains the only one among the ten ASEAN states without a comprehensive antitrust regime in place.
Outside ASEAN, the competition agenda continues to accelerate, led notably by Hong Kong – its Competition Ordinance came into force on 14 December 2015.
Implications for businesses – compliance culture is key
While there is no legal requirement that businesses have robust antitrust compliance policies in place, a good compliance programme – and clear commitment to compliance – may reduce any penalties imposed in the event of enforcement action. Consequently, all businesses active in Myanmar should use the period leading up to 24 February 2017 to review their commercial practices to ensure compliance with competition law from the date of implementation. We have extensive experience of helping clients across sectors design and implement effective compliance policies.
Given the regional growth in antitrust enforcement, an integrated cross-border approach to compliance is essential. Robust internal compliance can also give confidence to deploy competition law arguments in commercial negotiations.
(Berwin Leighton Paisner LLP – James Marshall, Chris Hughes, Nomita Nair and Manoj Purush)