Investment in Myanmar and Vietnam

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Investment in Myanmar and Vietnam
Hong Kong, 22nd September 2015
OLIVER MASSMANN
Partner - General Director of Duane Morris Vietnam LLC
This outline should not be construed as legal advice or as pertaining to specific factual situations.

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INVESTING AND DOING BUSINESS IN MYANMAR

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Agenda:
• An Introduction to Myanmar
• Investment in Myanmar
• Why choose Myanmar?

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First impressions from Myanmar
Confucius never arrived!

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Myanmar at Glance:
• Official Name: Republic of the Union
of Myanmar
• Location: South East Asia
• Neighbors: Bangladesh, China, Laos,
India and Thailand
• Area: 676,578 Km2
• Capital: Naypyidaw
• Largest city: Yangon (Rangoon)
• Currency: Kyat (MMK) (01 USD =
1029.50 MMK)
• Language: Burmese
• Population: 61 million
MYANMAR IN 2014
GDP US$ 60 billion
GDP per capita US$ 910
GDP Growth 7.8 %
Inflation 6.6 %
Cumulative FDI
as of Dec 2014
859 approved projects with a
value at US$52.84 billion
Import turnover
(2012)
US$ 17,670 million
Export turnover
(2012)
US$ 9,203 million
Labor force 31.4 million
Minimum wage No general minimum wage
Public sector: US$48.6/month
Laborer: About US$1.94/day

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MYANMAR: Opportunities and Challenges
 Recent democratic reform with new Union Government
headed by President Thein Sein in March 2011
 International sanctions are lifted and foreign firms eye on
Myanmar
 GDP growth rate is projected to average around 6 per cent
per year until 2020, with GDP doubling to $124 billion by 2020
 Myanmar has all the elements required to create another
Asian economic miracle

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MYANMAR: Challenges
• The challenges of Myanmar:
 US$1,500 : Average productivity of a worker in Myanmar
today, about 70% below that of benchmark Asian countries
 4 years of average schooling in Myanmar
 10 million additional people to absorb in Myanmar large
cities by 2030
 US$650 billion: Total investment needed by 2030 to support
growth potential, US$320 billion in infrastructure alone
 Election in November: Everybody is “on hold” until the
outcome of election
Source: McKinsey&Company

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MYANMAR: Opportunities
 Potential to achieve US$ 200 billion+ GDP in 2020, over four times
as high as today
 With spending potentially tripling from US$ 35 billion to US$ 100
billion, an estimated 10 million member of the consuming in 2030
from 2.5 million in 2010
 Potential to create more than 10 million additional non-agricultural
jobs by 2030
 500 million people living in countries bordering Myanmar and the
closest parts of China and India, a huge potential market
Source: McKinsey&Company

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INVESTMENT IN MYANMAR

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INVESTMENT IN MYANMAR - Introduction
• With its natural and human resources and cultural and national heritage Myanmar
represents excellent potential for business investment.
• Myanmar welcomes foreign investments in all forms. The Government is intending to
maintain good and strong economic relationship with all countries, all foreign organizations
and individuals.
• An untapped market- rich in natural resources with a young population and a high number
of English speakers.
• A fertile and resource-rich country strategically located in the heart of Asia, one of the
world’s largest growing economic regions.
• Firms involved in precious stone, agricultural products or other industries may find
Myanmar a fascinating place to begin developing longer term interests.
• Significant legal reforms aiming to improve investment climate:

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STRATEGIC INVESTMENTS: Most promising sectors
• Construction and infrastructure: knowing that poor infrastructure may hold the country back,
Myanmar’s Government has accorded high priority to infrastructure development projects - such as
roads, railways, bridges, ports facilities, airports, electric power, irrigation networks, communication
systems, private schools construction, private hospitals, etc.
• ELECTRICITY/ENERGY: only about 15% to 20% of the total population are accessible to the
electric power supply, and the rest have to rely on conventional natural resources…
ELECTRICITY IS CRITICAL TO THE COUNTRY‘S DEVELOPMENT!
• Oil and gas: rich of oil and gas reserves, mostly unexploited, offering great opportunity for
international bidders. World’s largest hydrocarbons companies such as Chevron, BP, Woodside,
Shell, ConocoPhillips, ExxonMobil all expressed interest in entering Myanmar .
• Telecommunication: with population of over 60 million peoples, telecommunication is one of the
most promising and lucrative industry.
• Mining: Myanmar is rich in mineral resources and minerals of potential importance are copper,
gold, lead, zinc, silver, tin and tungsten, antimony, chromium and nickel. In terms of mineral
potential, Myanmar ranks high among Asian countries, but mineral resources are very much under-
utilized
• Other: forestry, agricultural, tourism.

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Form of Foreign Investment
• Under the recent Foreign Investment Law 2012, foreigners are now
allowed to set up companies fully owned by them (whether this company
was incorporated in Myanmar or abroad), or go into joint venture with
any Myanmar citizen or the government of Myanmar!
• Any company with one or more foreign shareholders is classified as a
Foreign Company, thus subject to Foreign Investment Law rather than
Myanmar Companies Act (1914)
• Possibility of establishing a Special Company created under the Special
Company Act of 1950 (where part of the equity belongs to the State)

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Form of Foreign Investment (cont.)
• A foreign investor may incorporate in Myanmar a 100% foreign owned
company permitted by the Myanmar Investment Commission!
• A foreign company may establish a place of business or carry on business
in Myanmar as a branch of a foreign incorporated company: by first
apply for a Permit to Trade from the Ministry of National Planning and
Economic Development.
• A foreign investor can join with any individual, firm, company, co-
operative or state-owned enterprise from Myanmar to establish a joint
venture either as a partnership firm or a limited company on the basis of a
joint venture contract (ratio of foreign capital is now decided by the JV
parties)

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Form of Foreign Investment (cont.)
• Foreign companies with business relations or investment projects in
Myanmar may apply to set up representative offices in Myanmar (this
being a common practice for banks).
• In contrast with a branch, a Representative Office
of a company incorporated outside Myanmar is not allowed to
perform direct commercial or revenue generating activities in Myanmar.
• However, it is permitted to liaise with its head office and collect data
useful for the head office.

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General Types of Companies
• Private Limited Liability Company
• Public Limited Liability Company
• Sole Proprietorship
• Company Limited by Guarantee with Share Capital
• Company Limited by Guarantee without Share Capital
• General Partnership
• Branch of a Foreign Company

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Capital requirement
• Minimum capital required to register for a Permit to Trade:
 Kyats 133,333,333 for an industrial company
(~US$120,312)
 Kyats 66,666,666 for a trading company
(~US$60,156)
 Kyats 40,000,000 for a service company
(~US$36,094)
Note: Fifty percent (50%) of the prescribed capital must be brought in as foreign currency before the
Permit to Trade is issued and the balance 50% must be remitted within 30 days prior to
the date of renewal of Permit to Trade

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Restriction
• Activities prohibited by the Myanmar Foreign Investment Law:
 Business which can affect the traditional culture and customs of the national races within
Myanmar
 Business which can affect public health
 Business which can affect the environment and eco-system
 Importation of hazardous or poisonous wastes into the country
 Business which produce or use hazardous chemicals under international agreements
 Production or manufacturing work or services which are activities reserved for citizens
 The importation of technologies, medicines or utensils/paraphernalia without relevant
permits, or not designated for use
 Agricultural investment and plantation and cultivation for long and short terms which can be
performed by citizens
 Livestock breeding which can be performed by citizens
 Marine fishing which can be performed by citizens
 Foreign investment activities within 10 miles from boundary/borders between neighboring
nations of Myanmar, except in State economic zones approved by the Myanmar
Government

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Restriction (Cont.)
• There are 21 economic activities which are prohibited.
• Notable ones include:
 Manufacturing and related services of arms and ammunition for the national defense.
 Economic activities which is deemed to deteriorate the watershed or catchment protection forests,
religious places, traditional belief, pasture land, shifting cultivation farms and water resources
 Installation of factory in Myanmar utilizing of the imported wastes
 Management of natural forests
 Prospecting, exploration and production of jade/gem stones
 Production of minerals by medium scale and small scale
 Administration of Electric Power System
 Trading of Electric Power
 Inspection of Electrical Works
 Exploitation of minerals including gold in the revering and water way
 Air Navigation Services
 Pilotage Services
 Joint Printing and Broadcasting Service

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Restriction (Cont.)
• 42 economic activities allowed only in the form of joint venture with Myanmar
citizens.
• Notable ones include:
 Production and Distribution of hybrid seeds, high-yield seeds and local seeds
 Manufacturing and marketing of grain products such as biscuits, wafers, noodles, macaroni,
vermicelli, spaghetti and other cereals related food products; of all kinds of confectionery including
those of sweets, cocoa, and chocolate
 Distilling, blending, rectifying, bottling and marketing of all kinds of spirits beverages and non-
beverages
 Prospecting, exploration and production of Industrial minerals and metallic mineral
 Large scale production of minerals
 Construction related to develop rail/road links such as bridges, highways, bypass, subways etc
 Establishment of international standard golf courses and resorts;
 Establishment , sales and lease of residential apartments /condominiums; office/commercial
buildings
 Domestic/International Air Transport Service
 Tourism business

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Investment Guarantee
• Enterprises operating under the Foreign Investment Law have the State
guarantee against nationalization and expropriation.
• Guarantee is subject to an exception if the nationalization or
expropriation is in the natural interest, in which case the investor is to be
compensated for the market value of the investment.
• Government also guarantees that investment will not be terminated
during the permitted term, and foreign capital will be transferred to
investors upon the expiration of the term of the investment contract.
• Myanmar has investment protection agreements with China, India,
Kuwait, Laos, the Philippines, Thailand and Vietnam.

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New Competition Law
• Adopted on 24 February 2015 as a result of more
than 2-year negotiations and integration into ASEAN
• Implementing rules and regulations are not in place
yet
• Prohibited acts:
– Anti-competitive acts
– Monopolization of markets
– Collaboration among businesses
– Unfair trade practice

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WHY CHOOSE MYANMAR?

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WTO ANALYSIS OF LIBERALIZATION
OF MARKET ACCESS: MYANMAR IS AT SAME
LEVEL WITH INDIA – NOT TOO BAD?
• *Typical restrictions: number of opened sectors, JV requirement, limits on
foreign-owned shares, permission requirement
Country Limitation of
market access*
Country Limitation of
market access*
Malaysia medium Myanmar high
Indonesia medium Cambodia medium
Philippines medium Laos medium
Singapore low India high
Thailand medium China medium
Brunei high Vietnam low

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WHY CHOOSE MYANMAR?
• Myanmar: Last untapped market in Asia with
full of potential to become new FDI hub
• BUT it depends on commitments on
institutional reforms!!!!
• OPEN OR ISOLATED?
• MODERN OR CONSERVATIVE?

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WHY CHOOSE MYANMAR?
• Myanmar is the founding member of WTO that means WTO
service sector commitment : Unbound
• HOWEVER: Myanmar is a member of the ASEAN Economic
Community (AEC), which will become reality on 01st January 2016.
• Myanmar has made substantial commitments on additional
sectors in accordance with the AEC. Major sectors include:
 Professional Services
 Computer and Related Services
 Research and Development
Services
 Rental/Leasing Services without
Operator
 Distribution services
 Education services
 Communication services
 Telecommunication services
 Audiovisual services
 Construction and engineering-
related services
 Environmental services
 Healthcare services

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INVESTING AND DOING BUSINESS IN VIETNAM

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AGENDA:
• VIETNAM 2014 ECONOMY AT A GLANCE
• INTEGRATION INTO THE WORLD ECONOMY
• INVESTING IN VIETNAM
• CONCLUSION – VIETNAM WILL BE THE NEXT
ASEAN TIGER
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Vietnam 2014 Economy at a glance
• GDP: US$187.5 billion
• GDP per capita: US$2,028
• GDP Growth: 5.98 %
• Inflation: 4.09%
• Population: About 90.73
million
• Labor force aged 15 and above:
54.48 million
• Total export and import
turnover: : US$ $298 billion
• Minimum wage: VND 2.7
million (US$ 147) per month
(Jan 2015)
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Vietnam has the fastest-growing middle and affluent
class in the region (Boston Consulting Group)
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Vietnam’s international integration
• WTO’s 150th member since 2007
• Members of all important world’s economic
organizations: World Bank, International Monetary Fund,
ASEAN (Association of South East Asian Nations),
AFTA (Asia Free Trade Area), APEC (Asia Pacific
Economic Conference) and WCO (World Customs
Organization)
• Signing around 20 FTAs with other countries, including
strategic partners such as Japan, the US, India, and EU.
Most notable FTAs currently in negotiation are the TPP
and the EU- Vietnam FTA.30

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Trans- Pacific Partnership Agreement (TPP)
• Parties: Australia, Brunei, Chile, Canada, Japan, Malaysia, Mexico, New
Zealand, Peru, Singapore, United States, Vietnam
• Vietnam will enjoy strong economic and trade expansion. Vietnam’s
GDP would add an additional increase of 13.6% to the baseline
scenario.
• Vietnam is expected to gain significantly from the TPP’s considerable
plans for tariff and duty reduction
• Vietnam’s export will enjoy the agreement’s great benefits when the US
and Japan are one of the biggest partners of Vietnam, especially the
garment and textiles sector
• Export to the US would increase by 13-20% a year until 2017, fetching
total export of US$25-30 billions
• The foreign businesses are planning to enter Vietnam in preparation
for a post-TPP business climate.31

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EU – Vietnam Free Trade Agreement
• Vietnam’s annual economic expansions rate may grow an additional 15%
every year (said Tomaso Andreatta, representative of the European Business
Association in Vietnam (EuroCham), at the Vietnam Business Forum 2014)
• Tariffs for most of Vietnamese export product to the EU will gradually
reduce to 0% and Vietnam’s export to EU is expected to grow about 35%
for next few years
• The real wages of skilled laborers may increase by up to 12% while real
salary of common workers may rise by 13%
• The EVFTA is the legal framework for a more stable relationship in bilateral
trade for Vietnam when competing in the international market
• The EVFTA will generate greater effects, e.g. increased quality of
investment flows from EU, acceleration of the process of sharing expertise
and transfer of green technology and the creation of more employment
activities
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ASEAN Economic Community (AEC)
• AEC members: Brunei Darussalam, Cambodia, Indonesia, Lao
PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and
Viet Nam
• GDP: US$2311.3 billion (2012)
• GDP per capita: US$3748.4 (2012)
• Population: 620 million, 60% under the age of 35
• AEC % of world GDP: ~3.3%
• AEC % of world population: 9%
• AEC’s merchandise exports: US$1.2 trillion - ~54% of total
ASEAN GDP and 7% of global exports
• If ASEAN were one economy, it would be the 7th largest in the
world – 4th largest by 2050 if growth trends continue
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Investing in Vietnam
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WTO ANALYSIS OF LIBERALIZATION
OF MARKET ACCESS
Vietnam ties in first place with Singapore
• *Typical restrictions: number of opened sectors, JV
requirement, limits on foreign-owned shares, permission
requirement
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Country Limitation of
market access*
Country Limitation of
market access*
Malaysia medium Myanmar high
Indonesia medium Cambodia medium
Philippines medium Laos medium
Singapore low India high
Thailand medium China medium
Brunei high Vietnam low

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Investment environment in Vietnam
• Main governing laws: Investment Law, Enterprise Law and their
implementing documents
• Forms of doing investment in Vietnam:
– Economic entity establishment;
– Business cooperation contract: a contractual arrangement
between two or more investors without creating a legal entity
– Public-Private Partnership; a contractual agreement
between competent state authorities and investors, an
enterprise project in order to implement an investment
project;
– purchase of shares or capital contribution.
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Investment environment in Vietnam
• Forms of enterprises in Vietnam
– Limited liability company: members are liable to the extent of their
capital contributed
– Shareholding Company: charter capital (authorized share capital) is
divided into shares and members are liable to the extent of their capital
contributed
– Partnership: established between two or more partners;
– Business Cooperation Contract: an agreement without constituting a
legal entity and each party is individually responsible for paying taxes.
– Branch: a branch of a foreign company permitted to conduct
commercial activities
– Representative Office: represents the parent company, no actual
business operations. A suitable tool for market research
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DEFINITION OF FOREIGN INVESTOR
• New Investment Law: Very simple definition!
Foreign investor is any foreign individual or
organization incorporated under foreign law doing
business investment activities in Vietnam
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FOREIGN INVESTORS – WHO ARE THEY?
• Foreign nationals and foreign corporate entities
• Defined by the 51% capital ratio:
– Company with 51% or more charter capital owned by
foreign investors (F1 company); or
– Company with 51% or more charter capital owned by F1
company (F2 company); or
– Company with 51% or more charter capital owned by F1
company and F2 company
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• Prohibited business activities:
– Trade in the narcotic substances as specified;
– Trade in the chemicals and minerals as specified;
– Trade in specimens of wild flora and fauna as specified in Appendix
1 of Convention on International Trade in Endangered Species of
Wild Fauna and Flora; specimens of rare and/or endangered species
of wild fauna and flora as specified;
– Prostitution;
– Human trafficking; trade in human tissues and body parts;
– Business pertaining to human cloning.
• Freedom to conduct business activities not prohibited by law
 less risk in doing business
PROHIBITED BUSINESS ACTIVITIES
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INVESTMENT PROCEDURE
• 2 separate steps: Application for Investment Registration Certificate
(“IRC”) and Application for Enterprise Registration Certificate (“ERC”)
Step 1: IRC
– IRCs for projects required to obtain preliminary approval of the National
Assembly/ People’s Committee are issued within 05 working days upon
issuance of such approval
– For other projects, IRCs are issued within 15 days (instead of 35 days as in
the old law) upon receipt of the application dossier
• Step 2: ERC
– Submit an application dossier to the licensing authority upon issuance of
the IRC
– ERCs are issued within 03 working days upon receipt of the application
dossier
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M&A PROCEDURES FOR FOREIGN INVESTORS
• Appears to be simple!!! Only registration required, no more IRC
 Satisfying the requirements for investment
 Submitting application dossier
 Assessment by the licensing authority and decision making after 15 days
• Subjects:
 foreign investors making investment in conditional business activities
applicable for foreign investors;
 F1 Company, F2 Company or F3 Company holding 51% or more of the
targeted economic enterprise as a result of the M&A
 Exclusion: Company other than F1 Company, F2 Company and F3 Company:
 Registration to amend the ERC (for LLCs)
 Notification of the change in foreign shareholders (for JSCs)
 The change will be effected within 03 working days
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Outlook for Vietnam’s economy in 2015
 In 2015, Vietnam is expected with a brighter economic
situation:
 Macro economy and monetary policy will remain
stable
 The inflation will be under control, estimated rate of
4%
 2015’s GDP is estimated to rise from 6.2%
 Exports, especially FDI manufacturing companies, will
push the growth of Vietnam’s economy in 2015
 Continued stronger reform of institutional and
administrative procedures to improve investment
environment
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VIETNAM – THE NEXT ASEAN TIGER
• Manufacturing companies like Samsung Electronics
Company and Intel Corporation coming to ASEAN
• Foreign investment in manufacturing sector diverting from
China to Vietnam
• Vietnam being the biggest exporter to the U.S. from ASEAN
• Disbursed foreign investment in Vietnam reached $12.35
billion in 2014, an increase of 7.4% from 2013 and compared
with $2.4 billion in 2000
• Vietnam is in negotiation for TPP and has reached in-
principle conclusion of negotiation for the EU-Vietnam FTA
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Questions & Answers

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Thank you very much!
OLIVER MASSMANN
Managing Partner – Duane Morris Vietnam LLC
Member of the Supervisory Board of PetroVietnam Corporation
Duane Morris Vietnam Duane Morris Myanmar
Pacific Place, Unit V1307/08, 13th Floor, No. 10 Phoyazar Street, 15 Ward,
83B Ly Thuong Kiet, Hoan Kiem Dist Baukhtaw Yankin Township
Hanoi, Vietnam Yangon Suite, Myanmar
Contact email:
omassmann@duanemorris.com