Latest Court Choices: Are Myanmar Courts Professional-Arbitration? – Civil Law

Introduction

Although greater than 5 years have handed because the enactment of
the Myanmar Arbitration Law 2016
(“MAL“), there have solely been a handful
of arbitration-related circumstances determined within the Myanmar Courts to
date.

In this text, we offer a short abstract of three key
judgments issued by the Myanmar Courts between 2020 and 2022
regarding provisions of the MAL. We additionally take into account whether or not they
show a pattern in direction of an elevated help for arbitration as
an alternate dispute decision mechanism.

(1) Foreign Arbitral Award Recognised and Enforced

In the primary reported choice of its sort, a district court docket in
Myanmar granted an order recognising and implementing a overseas
arbitral award in opposition to Myanmar events on 17 May 2021 in ARV
Offshore Co Ltd vs. Myanmar Offshore Co Ltd and MOL Offshore Pte
Ltd
.

Here, a Thai firm offering undertaking administration providers in
the oil and gasoline business efficiently obtained an arbitral award in
its favour in opposition to a Myanmar defendant and its Singapore guardian
firm in an arbitration administered by the Singapore
International Arbitration Centre
(“SIAC“). Upon the defendants’
refusal to pay the quantity awarded, the plaintiff efficiently
enforced the award in opposition to the Singapore guardian firm within the
Singapore High Court.

The plaintiff additionally initiated proceedings beneath part 46 of the
MAL for recognition and enforcement of the overseas arbitral award
in Myanmar. In 2021, the Western Yangon District Court handed an
order recognising the SIAC award and directed that the execution of
the award be carried out in accordance with Order 21, Rule 23(1) of
the Myanmar Civil Procedure Code.

This is the primary reported profitable case of recognition and
enforcement of a overseas award in Myanmar because the MAL got here into
impact on 15 January 2016.

(2) Court Proceedings Stayed in Favour of Arbitration

In December 2020, in Energy Capital Pte Ltd v Toyo Thai
Power Myanmar Co Ltd
, the Yangon Region High Court upheld an
order of the Western Yangon District Court to remain a civil swimsuit and
refer the dispute to arbitration pursuant to part 10 of the MAL.
The related a part of part 10 states that “a court docket
earlier than which an motion is introduced in a matter which is the topic
of an arbitration settlement shall, if a celebration so requests not later
than when submitting his written assertion on the substance of the
dispute, refer the events to arbitration until it finds that the
settlement is null and void, inoperative or incapable of being
carried out
“.

In this case, the plaintiff (a Singapore compressor firm) and
the defendant (a Thai energy firm) had entered into an settlement
for the acquisition of kit. The defendant made sure funds
to the plaintiff for the gear. However, the funds have been
fraudulently routed by a 3rd get together right into a separate account that
didn’t belong to the plaintiff. The plaintiff subsequently filed a
declare within the Myanmar Courts in opposition to the defendant for the
excellent funds.

The related buy order contained an arbitration settlement
referring disputes arising out of the acquisition order to arbitration
administered by the International Chamber of Commerce (ICC) in
Singapore. Accordingly, the defendant opposed the civil swimsuit,
arguing that the plaintiff’s declare needs to be stayed and the
dispute referred to arbitration pursuant to the arbitration
settlement and part 10 of the MAL.

At first occasion, the Western Yangon District Court took a
pro-arbitration stance, permitting the defendant’s utility
and referring the dispute to arbitration. The plaintiff then filed
a revision utility within the Yangon Region High Court.

The Yangon Region High Court upheld the choice of the Western
Yangon District Court on the idea that there have been no grounds to
intervene with the choice of the decrease court docket.

(3) Court Proceedings Allowed Despite Arbitration Clause

In a case at the moment remitted again to the Eastern Yangon District
Court, the plaintiff was a Myanmar firm that had entered right into a
collection of automotive buy agreements because the purchaser. The defendant
was a Japanese firm that was the successor of the unique
vendor. A dispute arose between the events, with the plaintiff
alleging that the vehicles provided by the defendant didn’t meet the
required standards beneath the related contract.

The buy settlement contained an arbitration clause referring
disputes arising out of the acquisition settlement to arbitration in
Japan administered by the Japan Commercial Arbitration Association
(“JCAA“). Based on the acquisition
settlement, the plaintiff commenced arbitration proceedings in Japan
for unpaid monies and obtained an arbitral award in its favour.

Notwithstanding the continuing arbitration proceedings, the
plaintiff filed a civil swimsuit within the Eastern Yangon District Court.
The defendant opposed the swimsuit on the bottom that the dispute
between the events had already been determined by the JCAA in its
arbitral award. The Eastern Yangon District Court dismissed the
swimsuit beneath part 11 of the Myanmar Civil Procedure Code (doctrine
of res judicata) on the bottom that the disputes between the
events had already been determined by the JCAA.

The plaintiff appealed to the Yangon Region High Court. In 2022,
the Yangon Region High Court overruled the choice of the Eastern
Yangon District Court and allowed the enchantment on the bottom that the
doctrine of res judicata was not relevant. For the doctrine of
res judicata to use beneath part 11 of the Myanmar Civil
Procedure Code, the subject material of the dispute have to be the identical
earlier than two completely different competent courts. The Yangon Region High Court
dominated that the JCAA couldn’t be thought-about a court docket of competent
jurisdiction. The case was subsequently remanded again to the Eastern
Yangon District Court to proceed with the trial.

Concluding Remarks

As evidenced above, arbitration in Myanmar seems to be a case
of two steps ahead and one step again. Both the Western and
Eastern Yangon District Courts have been in favour of arbitration,
having upheld an arbitration settlement and two overseas arbitral
awards. However, the Yangon Region High Court took an ambivalent
method, upholding a keep of proceedings in favour of arbitration
in a single case however declining to take action in one other.

Despite some seen progress, some Myanmar courts look like
much less conversant in or receptive to arbitration getting used as an
various to court docket litigation, leading to a sure stage of
unpredictability in outcomes for actions to recognise and implement
overseas arbitral awards in Myanmar.

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