Lex Mundi Global Merger Notification Guide |
|
Myanmar |
|
|
(Asia Pacific)
Firm
Tilleke & Gibbins
Contributors
Kobkit Thienpreecha |
|
| Is there a regulatory regime applicable to mergers and similar transactions? | Yes, Myanmar enacted its Competition Law in 2015 (Pyidaungsu Hluttaw Law No. 9, 2015), which contains provisions on the (i) prevention of monopolization, (ii) control of unfair market competition, and (iii) establishment of a regulatory regime for mergers and similar transactions. Pursuant to this law, the Ministry of Commerce published the adoption of the Competition Rules on October 9, 2017, in Notification No. 50/2017. |
| Identify the applicable national regulatory agency/agencies. | The Myanmar Competition Commission ("MmCC") was established on October 31, 2018, through Notification No. 106/2018 of the Ministry of Commerce. The MmCC serves as the main regulator for mergers and similar transactions, overseeing administrative tasks such as processing merger applications under the Competition Law and its regulations. |
| Is there a supranational regulatory agency (e.g., the European Commission) that has, or may have exclusive competence? If so, indicate. | No. No supranational regulatory agency has jurisdiction in Myanmar. |
| Are there merger filing requirements? If so, where are they set out? | Merger filing requirements under merger control regulations have yet to be prescribed by the MmCC. |
| What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions.) | The transactions between businesses that can lead to monopolization and/or unfair market competition are caught by national rules including mergers, consolidations, collaborations and joint ventures. Unfair competition means any conduct or transaction that can be harmful to the legitimate interests or rights of the State, other businesses or customers. |
| Is notification required for minority investments? | The relevant legislation remains unclear on this. As of July 2023, the MmCC has not yet prescribed a threshold for the acquisition of shares. |
| Are foreign-to-foreign transactions captured by the merger control regime, and is there a local effects test? | The relevant legislation is unclear on the foreign-to-foreign merger. It is likely that the foreign-to-foreign merger will fall within the supervision under the MmCC if the merging parties related to the transaction have subsidiaries, or the merger transaction is effected by a corporate entity registered in Myanmar. Further interpretation and/or guidelines on this subject matter are required. As of July 2023, the MmCC has not yet prescribed such interpretations and guidelines. |
| What are the relevant thresholds for notification? | The law does not clearly define the relevant jurisdictional threshold. The Commission has yet to adopt further thresholds, criteria, and procedures, as of July 2023. |
| Is the filing voluntary or mandatory? | Generally, a pre-merger filing is mandatory unless an exemption under the regulatory regime applies. The law provides exemptions for transactions: (i) involving collaboration between small and medium enterprises; (ii) where one of the businesses involved in the collaboration is at risk of becoming bankrupt; or (iii) where the purpose of the collaboration is to promote exports, support the development of techniques and technology, or establish an entrepreneurial business. An approval from MmCC must be granted before the merger if mergers and/or acquisitions of all or some of the shares or assets of business operators may cause monopolization in the market. MmCC will further prescribe the merger filing requirements, thresholds, criteria, and procedures. |
| Provide the time in which a filing must be made. | The Competition Law and Competition Rules do not explicitly specify the timing of filing. However, the MmCC may prescribe further guidelines regarding filing timelines. |
| Is there an automatic waiting period? If so, please specify. | No, there is no predetermined automatic waiting period for pre-merger approval in Myanmar. The waiting period is determined on a case-by-case basis and is subject to consideration by the MmCC. It is important to note that the MmCC typically holds its meetings on a quarterly basis, which may impact the timeline for decision-making. |
| What are the form and content of the initial filing? | There is no prescribed form for the initial filing of a merger and/or acquisition yet. However, according to usual and current practice, it is necessary for the merging parties to submit a free-form application together with a cover letter describing the details of the companies concerned in the transaction and the proposed plan and structure of the deal. |
| Are filing fees required? | The law does not prescribe filing fees and the MmCC has yet to make an announcement in this regard. |
| Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency? | The review process for obtaining pre-merger approval involves submitting an application to the MmCC along with the necessary supporting documents. Following this, the applicant must await the meeting of the MmCC. In practice, the estimated timeline for receiving a decision from the MmCC could be up to 120 days, as the commission holds its meetings on a quarterly basis. The timeline cannot be shortened by the parties involved, but it may be subject to extension by the MmCC. |
| What is the substantive test for clearance? | The relevant legislation remains unclear on this. Please note that the MmCC will consider various factors when evaluating mergers, including market share, market concentration, barriers to entry, potential impact on consumers, and the ability of the merged entity to exercise market power, and examines these factors to determine whether the merger could potentially harm competition or lead to anti-competitive effects. Further guidelines from MmCC are required. |
| What decisions can the agency make in relation to a notified merger (e.g. approval, approval with conditions or prohibition)? | For pre-merger approval, the MmCC can approve the merger, reject the merger, or approve it with conditions. |
| Can parties proactively offer commitments to the agency to remedy identified competition concerns? | The relevant legislation does not provide for parties proactively offering commitments to the agency to remedy identified competition concerns. |
| Describe the sanctions for not filing or filing an incorrect/incomplete notification. | The penalties for failure to file or filing an incorrect/incomplete pre-merger approval include:
|
| Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger. | Please see above. |
| Can the agency review and/or challenge mergers that are not notifiable? | The law does not authorize the MmCC to review and/or challenge mergers or similar transactions for which it does not require notification. |
| Describe the procedures if the agency wants to challenge an unnotified transaction. | The relevant legislation does not provide procedures to be followed in the event that the MmCC wishes to object to an unnotified transaction. |
| Describe, briefly, your assessment of the regulatory agency's current attitudes/activities, including enforcement trends and recent developments. | The MmCC continues to review applications for mergers and acquisitions during its quarterly meetings and publicly announces enforcement actions. The MmCC is committed to developing its antitrust and merger control measures and held a meeting on July 14, 2023, at Nay Pyi Taw to consider amending the Competition Law and Rules. The MmCC is also actively cooperating with other competition authorities, especially in ASEAN countries, regarding the development of provisions on antitrust and merger control. |
| Other important/ notable information: | Confidentiality |
Lex Mundi Global Merger Notification Guide
Yes, Myanmar enacted its Competition Law in 2015 (Pyidaungsu Hluttaw Law No. 9, 2015), which contains provisions on the (i) prevention of monopolization, (ii) control of unfair market competition, and (iii) establishment of a regulatory regime for mergers and similar transactions. Pursuant to this law, the Ministry of Commerce published the adoption of the Competition Rules on October 9, 2017, in Notification No. 50/2017.
A parallel FDI regime regulated by the Myanmar Investment Law (Pyidaungsu Hluttaw Law No. 40/2016) and the Myanmar Investment Rules (Notification No. 35/2017) exists, along with other published regulations and guidance issued under this law.
The Myanmar Competition Commission ("MmCC") was established on October 31, 2018, through Notification No. 106/2018 of the Ministry of Commerce. The MmCC serves as the main regulator for mergers and similar transactions, overseeing administrative tasks such as processing merger applications under the Competition Law and its regulations.
No. No supranational regulatory agency has jurisdiction in Myanmar.
Merger filing requirements under merger control regulations have yet to be prescribed by the MmCC.
The transactions between businesses that can lead to monopolization and/or unfair market competition are caught by national rules including mergers, consolidations, collaborations and joint ventures.
Unfair competition means any conduct or transaction that can be harmful to the legitimate interests or rights of the State, other businesses or customers.
The relevant legislation remains unclear on this. As of July 2023, the MmCC has not yet prescribed a threshold for the acquisition of shares.
The relevant legislation is unclear on the foreign-to-foreign merger. It is likely that the foreign-to-foreign merger will fall within the supervision under the MmCC if the merging parties related to the transaction have subsidiaries, or the merger transaction is effected by a corporate entity registered in Myanmar.
Further interpretation and/or guidelines on this subject matter are required. As of July 2023, the MmCC has not yet prescribed such interpretations and guidelines.
The law does not clearly define the relevant jurisdictional threshold. The Commission has yet to adopt further thresholds, criteria, and procedures, as of July 2023.
Generally, a pre-merger filing is mandatory unless an exemption under the regulatory regime applies. The law provides exemptions for transactions: (i) involving collaboration between small and medium enterprises; (ii) where one of the businesses involved in the collaboration is at risk of becoming bankrupt; or (iii) where the purpose of the collaboration is to promote exports, support the development of techniques and technology, or establish an entrepreneurial business.
An approval from MmCC must be granted before the merger if mergers and/or acquisitions of all or some of the shares or assets of business operators may cause monopolization in the market.
MmCC will further prescribe the merger filing requirements, thresholds, criteria, and procedures.
The Competition Law and Competition Rules do not explicitly specify the timing of filing. However, the MmCC may prescribe further guidelines regarding filing timelines.
No, there is no predetermined automatic waiting period for pre-merger approval in Myanmar. The waiting period is determined on a case-by-case basis and is subject to consideration by the MmCC. It is important to note that the MmCC typically holds its meetings on a quarterly basis, which may impact the timeline for decision-making.
There is no prescribed form for the initial filing of a merger and/or acquisition yet. However, according to usual and current practice, it is necessary for the merging parties to submit a free-form application together with a cover letter describing the details of the companies concerned in the transaction and the proposed plan and structure of the deal.
The law does not prescribe filing fees and the MmCC has yet to make an announcement in this regard.
The review process for obtaining pre-merger approval involves submitting an application to the MmCC along with the necessary supporting documents. Following this, the applicant must await the meeting of the MmCC. In practice, the estimated timeline for receiving a decision from the MmCC could be up to 120 days, as the commission holds its meetings on a quarterly basis. The timeline cannot be shortened by the parties involved, but it may be subject to extension by the MmCC.
The relevant legislation remains unclear on this.
Please note that the MmCC will consider various factors when evaluating mergers, including market share, market concentration, barriers to entry, potential impact on consumers, and the ability of the merged entity to exercise market power, and examines these factors to determine whether the merger could potentially harm competition or lead to anti-competitive effects.
Further guidelines from MmCC are required.
For pre-merger approval, the MmCC can approve the merger, reject the merger, or approve it with conditions.
The relevant legislation does not provide for parties proactively offering commitments to the agency to remedy identified competition concerns.
The penalties for failure to file or filing an incorrect/incomplete pre-merger approval include:
- Issuance of a warning
- Imposition of a specified fine (the range of the fine is not specified at this time)
- Coordination with relevant Ministries to temporarily or permanently suspend business operations.
- To take action under Section 41 of the law which provides sanctions in the form of imprisonment for a term not exceeding two years, or a fine not exceeding 10,000,000 Myanmar Kyat (approx. USD $4,761), or both.
Please see above.
The law does not authorize the MmCC to review and/or challenge mergers or similar transactions for which it does not require notification.
The relevant legislation does not provide procedures to be followed in the event that the MmCC wishes to object to an unnotified transaction.
The MmCC continues to review applications for mergers and acquisitions during its quarterly meetings and publicly announces enforcement actions.
The MmCC is committed to developing its antitrust and merger control measures and held a meeting on July 14, 2023, at Nay Pyi Taw to consider amending the Competition Law and Rules. The MmCC is also actively cooperating with other competition authorities, especially in ASEAN countries, regarding the development of provisions on antitrust and merger control.
Confidentiality
Expert suggestions for the Commission's investigation must remain confidential and can only be used for decision-making purposes. Only approved individuals involved in the case may access documents, notes, or information related to a competition case. The facts and findings from the investigation should solely be used for competition matters.
Recommendation
Pre-notification discussions with the MmCC are highly recommended. The MmCC suggests that these discussions take place approximately 2 to 4 weeks before submitting the pre-merger approval. During these discussions, the Commission can provide clarification and guidance on how the relevant legislation will be applied to the proposed transaction. They may also offer advice or instructions on how to proceed.