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Foreign Investment Law (Law No. 21/2012 of November 2, 2012)

 Foreign Investment Law (Law No. 21/2012 of November 2, 2012)

THE FOREIGN INVESTMENT LAW

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THE FOREIGN INVESTMENT LAW

(The Pyidaungsu Hluttaw Law No. 21, 2012)

(THE 3rd WANING OF THADINGYUT, 1374 ME)

(2nd NOVEMBER, 2012)

The Pyidaungsu Hluttaw hereby enacts this Law.

CHAPTER I

Title and Definition

1. This law shall be called the Foreign Investment Law.

2. The following expressions contained in this Law shall have the meaning given hereunder:

(a) Union means the Republic of the Union of Myanmar;

(b) Commission means the Myanmar Investment Commission formed under this Law;

(c) Union Government means the Union Government of the Republic of the Union of Myanmar;

(d) Citizen includes an associate citizen or a naturalized citizen. In this expression, an economic

organization formed with only citizens shall also be included by this Law;

(e) Foreigner means a person who is not a citizen. In this expression, an economic organization formed

with foreigners shall also be included by this Law;

(f) Promoter means any citizen or any foreigner submitting a proposal relating to an investment to the

Commission;

(g) Proposal means the stipulated application submitted by a promoter to the Commission for approval of

an intended investment accompanied by draft contract, financial documents and company documents;

(h) Permit means the order in which the approval of the Commission relating to the proposal is expressed;

(i) Foreign Capital includes the followings which are invested in the business by any foreigner under the

permit:

(i) foreign Currency;

(ii) property actually required for the business and which is not available within the Union such as

machinery, equipment, machinery components, spare parts and instruments;

(iii) rights which can be evaluated the intellectual property such as license, patent, industrial design,

trademark, copyright;

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(iv) technical know-how;

(v) re-investment out of benefits accrued to the business from the above or out of share of profits;

(j) Investor means a person or an economic organization invested under the permit;

(k) Bank means any bank permitted by the Union Government within the Union;

(l) Investment means various kinds of property supervised by the investor within the territory of Union

under this Law. In this expression, the following shall be included:

(i) right to be mortgaged and right to mortgage in accord with law on the righs relating to the movable

property, immovable property and other property;

(ii) shares, stocks and debentures of the company;

(iii) financial rights or activities under a contract as a value relating to the finance;

(iv) intellectual property rights according to the existing Laws;

(v) functional rights granted by the relevant law or contract including the rights for exploration and

extraction of natural resources;

(m) person entitled as land leaser or land user means the person who is entitled to lease land or the

person who is entitled to use land until the stipulated period by paying stipulated leasing rate for such

land to the Union;

CHAPTER II

Applicable Business

3. This Law shall apply to business stipulated by the Commission, by notification, with the prior approval of

the Union Government.

4. The following investments shall be stipulated as the restricted or prohibited business:

(a) business which can affect the traditional culture and customs of the national races within the Union;

(b) business which can affect the public health;

(c) business which can cause damage to the natural enviroment and ecosystem;

(d) business which can bring the hazardous or poisonous wastes into the Union;

(e) the factory which produces on the business which use hazardous chemicals under international

agreements;

(f) manufacturing business and services which can be carried out by the citizens by issuing rules;

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(g) business which can bring the technologies, medicines, instruments which is testing in abroad or not

obtaining the approval to use;

(h) business for farming agriculture, and short term and long term agriculture which can be carried out by

citizens by issuing rules;

(i) business of breeding which can be carried out by citizens by issuing rules;

(j)business of Myanmar Marine Fisheries which can be carried out by citizens by issuing rules;

(k) business of foreign investment to be carried out within 10 miles from borderline connecting Union

territory and other countries except the areas stipulated as economic zone with the permission of the

Union Government;

5. The Commission may allow by the approval of the Union Government, the restricted or prohibited

investments under section 4 for the interest of the Union and citizens especially people of National races.

6. The Commission shall, the foreign investment business which can cause great effect on the conditions of

security, economic, environmental and social interest of the Union and citizens, submit to the Pyidaungsu

Hluttaw through the Union Government.

CHAPTER III

Aim

7. Aimed at the people to enjoy sufficiently to enable the surplus to export after exploiting abundant

resources of the country; causing to open up of more employments for the people as the business develop

and expand; causing to develop human resources; causing to develop infrastructures such as banking and

financial business, high grade main roads, highways roads connected one country to another, national

electric and energy production business, high technology including modern information technology;

causing to develop respective area of studies in the entire country including communication networks,

transport business such as rail, ship, aircraft which meet the international standard; causing the citizens

to carry out together with other countries; causing to rise economic enterprises and investment business

in accord with the international norms.

CHAPTER IV

Basic Principles

8. The investment shall be permitted based on the following principles:

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(a) supporting the main objectives of the economic development plan, business which cannot be

affordable and which are financially and technologically insufficiency by the Union and its citizen;

(b) development of employment opportunities ;

(c) promotion and expansion of exports;

(d) production of Import substituted goods;

(e) production of products which require mass investment;

(f) acquisition of high technology and development of manufacturing business by high technology;

(g) supporting the business of production and services involving large capital;

(h) bringing out of business which would save energy consumption;

(i) regional development;

(j) exploration and extraction of new energy and the emergence of renewable energy sources such as bio-

basic new energy;

(k) development of modern industry;

(l) protection and conservation of environment;

(m) causing to support for enabling to exchange the information and technology;

(n) not affecting the sovereign power and the public security;

(o) intellectual enhancement of citizens;

(p) development of bank and banking in accordance with the international standards;

(q) emergence of the modern series required for the Union and citizens;

(r) causing to be sufficient the local consumption of the energy and resources of the Union in terms of

short term and long term period;

CHAPTER V

Form of Investment

9. The investment may be carried out in any of the following forms:

(a) carrying out an investment by a foreigner with one hundred per cent foreign capital on the business

permitted by the Commission;

(b) carrying out a joint venture between a foreigner and a citizen or the relevant Government department

and organization;

(c) carrying out by any system contained in the contract which approved by both parties;

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10. (a) In forming the form of investment under section 9:

(i) shall be formed as company in accord with the existing law;

(ii) if it is formed as a joint venture under sub-section (b) of section 9, the ratio of foreign capital and

citizen capital may be prescribed in accord with the approval of both foreigner and citizen who has

made joint venture.

(iii) in investing by the foreigner, the Commission shall, the minimum amount of investment according

to the sector, prescribe with the approval of the Union Government depending on the nature of

business;

(iv) the foreigner may, if a joint venture is carried out with citizen in prohibited and restricted business,

propose the ratio of the foreign capital as prescribed by the rule;

(b) In carrying out the form of investment business under sub-section (a), liquidating before the expiry of

the term of the contract as it has obtained the right to terminate or liquidating on the conclusion of

the business shall be complied with and exercised in accord with existing laws of the Union.

CHAPTER VI

Formation of the Commission

11. (a) The Union Government shall-

(i) in respect of investment business, form the Myanmar Investment Commission with a suitable person

from the Union level as Chairman, the experts and suitable persons from the relevant Union

Ministries, Government departments, Government organizations and non-Governmental

Organizations as members for enabling to carry out the functions and duties contained in this Law;

(ii) in forming the Commission, stipulate and assign duty to the Vice-Chairman, the Secretary and the

Joint Secretary out of the members;

(b) members of Commission who are not civil service personnel shall have the right to enjoy salary,

allowances and recompense allowed by the Ministry of National Planning and Economic Development.

CHAPTER VII

Duties and Powers of the Commission

12. The duties of the Commission are as follows:-

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(a) taking into consideration on the facts such as financial credibility, economic justification of the

business, appropriateness of technology and protection and conservation of environment in

scrutinizing the proposals of investment whether or not the proposal is in conformity with the

principles of Chapter IV of this Law;

(b) taking prompt action as necessary if the investors complain that they do not enjoy the rights fully

which are entitled under the Law;

(c) scrutinizing whether or not the proposals are contrary to the provisions of the existing laws;

(d) submitting performances to the sixth-monthly meeting of the Pyidaungsu Hluttaw through the Union

Government;

(e) submitting advice to the Union Government, from time to time, to facilitate and promote local and

foreign investments;

(f) prescribing the category of investment, value amount of investment and term of business with the

prior permission of the Union Government and altering thereof;

(g) coordinating with the relevant Region or State Government in respect of foreign investments which are

entitled to carry out for economic development of the Regions or State with the approval of the Union

Government;

(h) administering to know immediately and to take action by the Commission if it is found that the

natural resources or antique object which is not contained in the original contract and it is not applied

with the allowed business above and under the land which has the right to use;

(i) scrutinizing whether or not the investment business is abided by in accord with this Law, rules,

regulations, by-laws, procedures, orders, notifications and directives made under this Law, the matters

contained in the contract by the investor; if it is not abided by, causing to abide by it and taking action

against the business in accord with the law;

(j) prescribing the investment business which is not required to grant exemption and relief from tax;

(k) performing duties as are assigned by the Union Government from time to time;

13. The powers of the Commission are as follows:

(a) accepting the proposal which is considered beneficial to the interests of the Union and which is not

contrary to any existing law after necessary scrutinizing;

(b) issuing permit to the promoter or the investor if the proposal is accepted;

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(c) allowing or refusing the extension or amendment of the terms of the permit or the agreement if it is

applied by those concerned after scrutinizing in accord with the stipulations;

(d) requesting to submit necessary evidence or facts from the promoter or the investor;

(e) passing any necessary order to the extent of the suspension of business if the sufficient evidence has

appeared that the investor does not abide by and carry out in accord with the proposal submitted to

the Commission to obtain the permit, the instruments and evidence attached to it or the terms and

conditions contained in the permit;

(f) allowing or refusing the bank which is proposed by the promoter or the investor to carry out financial

matters;

14. The Commission may, in performing and implementation of their duties, form committees and bodies as

may be necessary.

15. The reports on the performance of the Commission shall be submitted at the meeting of the Union

Government from time to time.

16. Conditions on the completion and improvement of the business permitted by the Commission shall be

reported to the third-monthly meeting of the Union Government.

CHAPTER VIII

Duties and Rights of the Investor

17. The duties of an investor are as follows:

(a) abiding by the existing Laws of the Republic of the Union of Myanmar;

(b) performing the business activities by incorporating a company under the existing Laws of the Republic

of the Union of Myanmar by investor ;

(c) abiding by the provisions of this Law, terms and conditions contained in the rules, procedures,

notifications, orders, directives and permits issued under this Law;

(d) using the land which he is entitled to lease or use in accord with the terms and conditions stipulated

by the Commission and those contained in the agreement;

(e) carrying out to sub-lease and mortgage the land and building which are allowed to carry out business

under the permit, transfer the shares and the business to any other person for such investment

business within the term of the business only with the approval of the Commission:

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(f) making no alteration of topography or election of the land obviously on which he is entitled to lease or

use without the approval of the Commission;

(g) informing immediately to the Commission if natural mineral resources or antique objects and treasure

trove which are not related to the permitted business and not included in the original contract are

found above and under the land on which he is entitled to lease or use continuing to carry out

business on such land if the Commission allows, and transferring and carrying out to the substituted

place which is selected and submitted by the investor if the permission of continuing to carry out is

not obtained;

(h) carrying out not to cause environmental pollution or damage in accord with existing laws in respect of

investment business;

(i) in case of a foreign company, if all of the shares are absolutely sold and transferred to any foreigner or

any citizen, registering the transfer of share in accord with the existing law only after returning the

permit with the prior permission of the Commission;

(j) in case of a foreign company, if some of its shares are absolutely sold and transferred to any foreigner

or any citizen, registering the transfer of share in accord with the existing law only after obtaining the

prior approval of the Commission;

(k) carrying out the systematic transfer of high technology relating to the business which are carried out

by the investor to the relevant enterprises, departments or organizations in accord with the contract;

18. The rights for the investor are as follows:

(a) entitle to sell, exchange or transfer by any other means of assets with the approval of the Commission

according to the existing laws;

(b) in case of a foreign company, selling all or some of its shares absolutely to any foreigner/ any citizen

or any foreign company/ any citizen company;

(c) carrying out the expansion of investment business or increasing of foreign capital contained in the

original proposal by obtaining the approval of the Commission;

(d) submitting to the Commission to re-scrutinize and amend in order to obtain the rights which he is

entitled to enjoy fully in accord with the existing law;

(e) applying to the Commission for obtaining benefits and for taking action in respect of the grievance in

accord with the existing laws;

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(f) applying to the Commission to obtain more benefits for the invention of new technologies, the

enhancement of product quality, the increase in production of goods and the reduction of

environmental pollution in investment business carried out under the permit;

(g) being entitled to enjoy the period stipulated by the Commission with the approval of the Union

Government, more than the period of tax exemption and tax relief contained in Chapter (XII), for the

investors who invest in foreign investment in the regions which are less developed and difficult to

access for the development purpose in the entire Nation.

CHAPTER IX

Application for Permit

19. An investor or a promoter shall, if it is desirous to make foreign investment submit a proposal to obtain a

permit to the Commission in accord with the stipulations.

20. The Commission:

(a) may accept or refuse the proposal within 15 days after making necessary scrutiny if the proposal

submitted under section 19 is received;

(b) shall allow or refuse the proposal within 90 days to the person who submit the proposal if the

proposal is accepted;

21. If the investor or the promoter obtains the permit issued by the Commission an investment shall be

established after concluding necessary contract with the relevant Government department and

organization or person and organization.

22. The Commission may, if it is applied by those concerned, allow the extending reducing or amending of

the term or agreement contained in the contract as appropriate in accord with this Law.

CHAPTER X

Insurance

23. The investor shall insure the stipulated types of insurance with any insurance business allowed to carry

out within the Union.

CHAPTER XI

Appointment of Staff and Workers

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24. The investor shall:

(a) in appointing skilled citizen workers, technicians and staff for skilled jobs, citizens shall have been

appointed at least 25 percent within the first two-year, at least 50 percent within the second two-year

and at least 75 percent within the third two-year from the year of commencement of the business.

Provided that the Commission may increase the suitable time limit for the business based on

knowledge;

(b) to be able to appoint under sub-section (a), arrange to provide practicing and training to citizen staff

for improvement of the working skills;

(c) appoint only citizens for the works which do not require skills;

(d) carry out the recruitment of workers from the Labour Exchange Office or local labour exchange

agencies or by the arrangement of the investor ;

(e) appoint skilled citizen workers, technicians and staff by signing an employment agreement between

employer and workers in accord with the existing labour laws and rules;

(f) administer the rights of causing not to differ the level of wages in appointing the Myanmar citizen staff

like the foreign staff as the allocation of expert level.

25. The foreigners who work at the investment business under the permit shall submit and apply for the work

permit and the local residence permit issued by the Union.

26. The investor shall:

(a) conclude an employment agreement in accord with the stipulations in appointing staff and workers;

(b) carry out to enjoy the rights contained in the existing labour laws and rules including minimum wages

and salary, leaves, holiday, overtime fee, damages, workman’s compensation, social welfare and other

insurance relating to workers in stipulating the rights and duties of employers and workers or the

occupational terms and conditions contained in the employment agreement;

(c) settle the disputes arisen among employers among workers, between employers and workers and

technicians or staff in accord with the relevant existing laws;

CHAPTER XII

Exemptions and Reliefs

27. The Commission shall, for the purpose of promoting foreign investments within the State, grant the

investor the tax exemption or the relief contained in Sub-section (a) out of the following tax exemptions

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or tax reliefs. In addition, one or more than one or all of the remaining tax exemptions or tax reliefs may

be granted if it is applied:

(a) income tax exemption for a period of five consecutive years including the year of commencement on

commercial scale to any business for the production of goods or services, moreover, in case where it is

beneficial to the Union, income tax exemption or relief for suitable period depending upon the success

of the business in which investment is made;

(b) exemptions or reliefs from income tax on profits of the business if they are maintained for re-

investment in a reserve fund and re-invested therein within 1 year after the reserve is made;

(c) right to deduct depreciation from the profit, after computing as the rate of deducting depreciation

stipulated by the Union, in respect of machinery, equipment, building or other capital assets used in

the business for the purpose of income tax assessment;

(d) if the goods produced by any manufacturing business are exported, relief from income tax up to 50

percent on the profits accrued from the said export;

(e) right to pay income tax on the income of foreigners at the rates applicable to the citizens residing

within the Union;

(f) right to deduct expenses from the assessable income, such expenses incurred in respect of research

and development relating to the business which are actually required and are carried out within the

Union;

(g) right to carry forward and set-off the loss up to 3 consecutive years from the year the loss is actually

sustained within 2 years following the enjoyment of exemption or relief from income tax as contained,

in sub-section (a), for each business;

(h) exemption or relief from custom duty or other internal taxes or both on machinery, equipment,

instruments, machinery components, spare parts and materials used in the business, which are

imported as they are actually required for use during the period of construction of business;

(i) exemption or relief from customs duty or other internal taxes or both on raw materials imported for

production for the first three-year after the completion of construction of business;

(j) if the volume of investment is increased with the approval of the Commission and the original

investment business is expanded during the permitted period, exemption or relief from custom duty or

other internal taxes or both on machinery, equipment, instruments, machinery components, spare

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parts and materials used in the business which are imported as they are actually required for use in

the business expanded as such;

(k) exemption or relief from commercial tax on the goods produced for export;

CHAPTER XIII

Guarantees

28. The Union Government guarantees that a business formed under the permit shall not be nationalized

within the term of the contract or the extended term if such term is extended.

29. The Union Government guarantees not to suspend any investment business carried out under the permit

of the Commission before the expiry of the permitted term without any sufficient cause.

30. On the expiry of the term of the contract, the Union Government guarantees the investor invested in

foreign capital to disburse his rights in the category of foreign currency in which such investment was

made.

CHAPTER XIV

Right to Use Land

31. The Commission may allow the investor actually required of the right to lease or use land up to initial 50

years depending upon the category of the business, industry and the volume of investment.

32. The Commission may extend the period of consecutive 10 years and for further 10 years after the expiry

of such period to the investor desirous of continuation of the business after the expiry of the term

permitted under section 31, depending upon the volume of investment and category of business.

33. The Commission may, for the purpose of economic development of the Union, allow to make investment

on such land by obtaining the initial agreement from the person who is entitled to lease or use land with

the prior approval of the Union Government.

34. The Commission may, from time to time, stipulate in respect of rates of rent for the land owned by the

Government departments and organization with the prior approval of the Union Government.

35. The investor has the right to carry out, in performing the contract system of agricultural and breeding

business in farms, only by joint venture system with citizen investors which are allowed to carry out by

the citizens.

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36. The Commission may, for the purpose of the development of the entire Nation, stipulate longer than the

period for the right to lease or use land contained in this Law, for enjoyment of the investors who has

invested in the region where the economy is less developed and difficult to access with the approval of

the Union Government.

CHAPTER XV

Foreign Capital

37. The foreign capital shall be registered with the name of the investor in the category of foreign currency

accepted by the bank by the Commission. The category of foreign capital shall be mentioned in such

registration.

38. In the event of termination of business, the person who has brought in foreign capital may withdraw

foreign capital which he may withdraw as prescribed by the Commission within the stipulated time.

CHAPTER XVI

Right to Transfer Foreign Currency

39. The investor has the right to transfer abroad the following foreign currency through the bank which has

the right to carry out foreign banking within the Union in the relevant foreign currency at the stipulated

exchange rate:

(a) foreign currency entitle to the person who has brought in foreign capital;

(b) foreign currency permitted for withdrawal by the Commission to the person who has brought in

foreign capital;

(c) net profit after deducting all taxes and the relevant funds from the annual profit received by the

person who has brought in foreign capital;

(d) legitimate balance, after causing payment to be made in respect of taxes and after deducting in the

manner prescribed, living expenses incurred for himself and his family, out of the salary and lawful

income obtained by the foreign staff during performance of service in the Union;

CHAPTER XVII

Matters Relating to Foreign Currency

40. The investor shall:

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(a) be transferable abroad through any bank within the Union which has the right to carry out foreign

banking in the relevant foreign currency at the stipulated exchange rate;

(b) carry out financial matters relating to the business by opening a foreign account in the category of

foreign currency accepted by the bank within the Union which has the right to carry out foreign

banking or a kyat account.

41. The foreigners serving in any economic organization formed with the permit shall open a foreign account

in the category of foreign currency accepted by the bank within the Union which has the right to carry out

foreign banking or a kyat account.

CHAPTER XVIII

Administrative Penalties

42. The commission may pass the following one or more administrative penalties against the investor who

violates any of the provisions of this Law, rules, regulations, by-laws, procedures, notifications, orders,

directives issued this Law or terms and conditions mentioned in the permit:

(a) censure;

(b) temporary suspension of tax exemption and relief;

(c) revocation of the permit;

(d) black listed with no further issuance of any permit in the future;

CHAPTER XIX

Settlement of Disputes

43. If any dispute arises in respect of the investment business:

(a) dispute arisen between the disputed persons shall be settled amicably:

(b) if such dispute cannot be settled under sub-section (a):

(i) it shall be complied and carried out in accord with the existing laws of the Union if the dispute

settlement mechanism is not stipulated in the relevant agreement;

(ii) it shall be complied and carried out in accord with the dispute settlement mechanism if it is

stipulated in the relevant agreement.

CHAPTER XX

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Miscellaneous

44. The Commission may, after producing to fulfill the required energy for the Union and citizen by aiming to

export the exceeding energy to abroad, scrutinize and allow if the investor submits the proposal to make

investment under the production sharing system or enjoying the allocation on obtaining the profits

between the Union Government or Government department and organization conferred power by the

Union Government in accord with the law and the investor for feasibility study, exploration, survey and

excavation and carrying out to reach the production level on commercial scale at the stipulated site

within the stipulated period by using the investor’s capital fully in the production such as petroleum and

natural gas, mineral which require mass capital employing a joint venture with the Union or citizen in

accord with this Law. If such investment business is commercially feasible, the profit shall be entitled to

enjoy proportionately between the Union Government or Government department and organization

conferred power by the Union Government in accord with law or citizen and the investor who works in

joint-venture to cover the profit.

45. The investor under the Union of Myanmar Foreign Investment Law (The State Law and Order Restoration

Council Law No. 10/1989) before the promulgation of this Law shall be deemed as investors stipulated

under this Law.

46. If the credible evidence is appeared that the investor intentionally make false statement or conceal the

accounts, instruments documents, financial documents, employment documents attached to the proposal

prepared and submitted to the Commission, relevant Government department and organization, he shall

be taken action under criminal proceeding.

47. Notwithstanding anything contained in any existing law, matters relating to any provision of this Law

shall be carried out in accord with this Law.

48. The commission shall hold meetings in accord with the stipulations.

49. The decision of the Commission made under the powers conferred by this Law shall be final and

conclusive.

50. No suit, criminal proceeding or other proceeding shall lie against any member of the Commission,

committee or body or any civil service for any act done in good faith which has credible evidence in

accord with the power conferred under this Law.

51. To enable to carry out the provisions of this Law, the Ministry of National Planning and Economic

Development or any organization shall:

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(a) take responsibility and carry out the office-works of the Commission;

(b) incur the expenditures of the Commission;

52. The investor who is carrying out by the permit of the Commission under the Union of Myanmar Foreign

Investment Law (State Law and Order Restoration Council, Law No. 10/1988) which is to be replaced by

this Law shall be entitled to proceed and enjoy continuously until the expiry of the term in accord with

terms and conditions contained in the permit and the relevant agreement.

53. The Commission shall, in permitting the foreign investment business under section 3 and section 5 if it

affects the interest of the Union and citizen, submit to the nearest Pyidaungsu Hluttaw session through

the Union Government as the important matters.

54. If any provision of this law is contrary with any matter of the international treaty and agreement adopted

by the Republic of the Union of Myanmar, the matters contained in the international treaty and

agreement shall be abided by.

55. After prescribing this Law, within the period before prescribing the necessary rules and regulations, the

rules and regulations issued under the Union of Myanmar Foreign Investment Law (The State Law and

Order Restoration Council, Law No. 10/1988) may be continued to exercise if it is not contrary with this

Law.

56. In implementing the provisions of this Law:

(a) the Ministry of National Planning and Economic Development shall, with the approval of the Union

Government, issue rules, regulations and by-law, procedures, orders, notifications and directives as

may be necessary within (90) days from the adoption of this Law;

(b) the Commission may issue orders, notifications and directives as may be necessary.

57. The Union of Myanmar Foreign Investment Law (The State Law and Order Restoration Council, Law No.

10/1988) is hereby repealed by this Law.

sd/ Thein Sein

President

Republic of the Union of Myanmar

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