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©2011 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP.
Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Baltimore | Boston | Washington, D.C.
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Investing in Myanmar, Cambodia, Laos and
Thailand
OLIVER MASSMANN
Partner - Duane Morris Vietnam LLC
www.duanemorris.com
MASAN CONSUMER
1. Adopts an umbrella brand strategy to reach a broad range of
consumer groups.
2. Each of principal product lines has a premium brand.
1. The variant of product enable Masan to sell to consumers in different
regions and with varying tastes.
2. Business development plan is to expand consumer market to
Myanmar, as well as Cambodia, Laos, and Thailand if possible.
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©2011 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP.
Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Baltimore | Boston | Washington, D.C.
Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership
OVERVIEW OF
ASEAN ECONOMIC COMMUNITY
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AEC establishment
AEC members: Brunei Darussalam, Cambodia,
Indonesia, Lao PDR, Malaysia, Myanmar, Philippines,
Singapore, Thailand, and Vietnam.
4
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AEC Market Snapshot – Asia’s main investment
hub
1. GDP: US$2311.3 billion (2012)
2. GDP per capita: US$3748.4 (2012)
3. Population: 620 million, 60% under the age of 35
4. AEC % of world GDP: ~3.3%
5. AEC % of world population: 9%
6. AEC’s merchandise exports: US$1.2 trillion - ~54% of
total ASEAN GDP and 7% of global exports
7. If ASEAN were one economy, it would be the 7th largest
in the world – 4th largest by 2050 if growth trends
continue5
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Key characteristics of AEC
6
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MAXIMUM FOREIGN INVESTMENT
Note: for Myanmar, the foreign investment may be up to 100% if investing in
Thilawa Special Economic Zone.
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SPECIAL REQUIREMENTS
Myanmar: (for wholesale and retail)
To trade products produced overseas:
1. Minimum investment of USD 2 million (excluding leasing costs
for the land);
2. Establishent of a warehouse at the company’s lot in the Special
Economic Zone (Thilawa Special Economic Zone);
3. The provision of value adding services or activities
To act as distributors of third-party manufacturers
1. The investor must have established places of business in at least 5 countries, a
minimum of ten 10 years' experience in international trading, minimum 3
years' average annual consolidated sales of at least US$ 500 million and a paid
up capital of at least US$ 25 million;
2. The Myanmar company must be appointed as official agent or distributor by
the overseas manufacturer;
3. Minimum investment of US$ 3 Million (excluding leasing costs for the land);
4. Establishment of a warehouse at the company's lot in the Special Economic
Zone; and
5. The provision of value adding services or activities.
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SPECIAL REQUIREMENTS (Cont.)
Cambodia: N/a
Laos: (for wholesale and retail)
1. A 100% foreign owned company: requires registered capital of at least LAK 20
billion (around USD 2,453,200) or higher;
2. A joint venture company (with foreign investment no more than 70%): requires
registered capital of less than LAK 20 billion (around USD2,650,640), but at least
LAK 10 billion (around USD 1,325,320);
3. A joint venture company (with foreign investment no more than 50%): requires
registered capital of less than LAK 10 billion (around USD 1,325,320) but at least
LAK 4 billion; and
4. A joint venture company where the foreign shareholder holds a minority of shares
must have a registered capital of at least LAK 4 billion (around USD500,000).
Thailand:(for wholesale and retail)
Minimum capital of each store is 100 million baht or more.
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Agenda:
1. INVESTMENT IN MYANMAR
2. INVESTMENT IN CAMBODIA
3. INVESTMENT IN LAOS
4. INVESTMENT IN THAILAND
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INVESTMENT IN MYANMAR
1. Introduction
2. Challenges
3. Opportunities
4. General types of companies
5. Permits to operate a business
6. Additional requirements in import, export and trade
7. Restriction
8. Investment guarantee
9. Tax incentives
10. New development in Myanmar
11. Why choose Myanmar?
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Introduction
1. With its natural and human resources and cultural and national heritage
Myanmar represents excellent potential for business investment.
2. Myanmar welcomes foreign investments in all forms. The Government of
Myanmar is intending to maintain good and strong economic relationship with all
countries, all foreign organizations and individuals.
3. An untapped market- rich in natural resources with a young population and a
high number of English speakers.
4. A fertile and resource-rich country strategically located in the heart of Asia, one
of the world’s largest growing economic regions.
5. Firms involved in precious stone, agricultural products or other industries may
find Myanmar a fascinating place to begin developing longer term interests.
6. Significant legal reforms aiming to improve investment climate.
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Challenges
• Limited Infrastructure - 15% to 20% of the total population are
accessible to the electric power supply.
• 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$320 billion in infrastructure alone.
Source: McKinsey&Company
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Opportunities
• Potential to achieve US$ 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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Form of Foreign Investment
1. Under the Foreign Investment Law 2012, foreigners are now allowed to
set up companies fully owned by them, or go into joint venture with any
Myanmar citizen or the government of Myanmar.
2. For certain prohibited and restricted businesses, foreigners are required
to form the joint venture with Myanmar citizen, in which the maximum
foreign investment capital ratio shall not exceed 80% of the total
investment amount.
3. Any company with one share held by a foreign shareholder is classified as
a Foreign Company.
4. General types of companies:
 Private Limited Liability Company (minimum 2 shareholders are
required).
 Public Limited Liability Company (to date very few public companies
are established).
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Permits to operate a business
In general, to operate a business in Myanmar, a Foreign Company is required to
obtain:
1. Permit to Trade (Company Registration Office, which is under the Directorate
of Investment and Company Administration (DICA)):
 Renewable every 5 years
 Minimum capital required to register for a Permit to Trade:
Kyats 133,333,333 (US$150,000) for an industrial company
Kyats 40,000,000 (US$50,000) for a service company
1. Certificate of Incorporation: renewable every 5 years
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Restriction
1. 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 re
levant 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.)
1. There are 21 economic activities which are prohibited.
2. 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.)
1. 42 economic activities allowed only in the form of joint venture with Myanmar citizens.
2. 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
1. Enterprises operating under the Foreign Investment Law have the State
guarantee against nationalization and expropriation.
2. 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.
3. 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.
4. Myanmar has investment protection agreements with China, India,
Kuwait, Laos, the Philippines, Thailand and Vietnam.
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Tax incentives
1. Income tax: exemption within 5 years from the date of the
project commercial operation
2. Income tax exemption for profits reinvested within one year
3. Exemptions from import duties on goods and materials
imported for production purposes
4. Reduction of up to 50% on the profits accrued from exported
goods
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New development in Myanmar
1. Accession to the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (New York
Convention) (15 July 2013)
2. Foreign investors may choose a neutral offshore forum for
the resolution of disputes if the parties agree to arbitration in
contractual agreement
3. Local courts are required to recognize and enforce foreign
arbitral awards
4. However: no domestic document enacted to effect its
obligations under the New York Convention, Arbitration Law
of 1944 remains applicable, Draft Arbitration Act expected to
be released soon
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New development in Myanmar
1. Myanmar’s membership of Multilateral Investment
Guarantee Agency – a political risk insurance and credit
enhancement arm of World Bank (17 December 2013)
2. International Finance Corporation cooperated with Myanmar
Government to improve the country’s investment policy and
regulation framework (20 December 2013)
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New development in Myanmar
1. Myanmar is one of the 10 members of the ASEAN
Economic Community (AEC) to be established by 2016
2. AEC – Asia’s main investment hub:
a. GDP: US$2311.3 billion (2012)
b. GDP per capita: US$3748.4 (2012)
c. Population: 620 million, 60% under the age of 35
d. AEC % of world GDP: ~3.3%
e. AEC % of world population: 9%
f. 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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WHY CHOOSE MYANMAR?
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WTO ANALYSIS OF LIBERALIZATION
OF MARKET ACCESS: MYANMAR IS AT SAME
LEVEL WITH INDIA – NOT TOO BAD?
1. *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
1. BUT it depends on commitments on
institutional reforms!!!!
2. OPEN OR ISOLATED?
3. 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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INVESTMENT IN CAMBODIA
1. Introduction
2. Challenges
3. Opportunities
4. General types of companies
5. Prohibited investment activities
6. Investment guarantee
7. Investment incentives
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Introduction
1. The Agricultural sector is almost totally undeveloped, with almost value
added agricultural production constituting only 1/3 of the GDP over the
past year, making the agricultural sector the next big target for foreign
investment.
2. The first oil producing project is set to go online this year and the first
refinery is still in the construction phase.
3. Exports of garments and footwear, based on customs data, reached
$6.0 billion in 2014, but this sector has not yet expanded to other kinds
of light manufacture, creating huge opportunities for investment.
4. With only 22.5% percent of Cambodian households having access to
electricity, there a massive opportunities for those able to power
Cambodia’s growth.
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1. Ease of doing business is ranked among the lowest in the world,
with the World Bank placing Cambodia at 135th while ease of
starting a business in Cambodia is ranked at 184th.
2. A literacy rate of just 70% lags behind regional competitors for
investment, like Myanmar and Vietnam.
3. 40% of children under five-years-old are malnourished, limiting
economic potential, especially in rural areas.
4. The legal and regulatory frameworks are changing rapidly, which
is a good sign for future investment but can pose an immediate
challenge to investors.
5. The General Department of Taxation collected only US$881.4
million in 2013, far below possible tax revenue, leaving the
government less able to invest in key infrastructure.
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1. Unrestricted foreign investment in a dollarized economy,
with numerous incentives for investors.
2. With more than 50% of the population under 24 years of
age and a GNI per capita of US$950, the Cambodian
market is set for rapid growth .
3. Cambodia welcomes foreign investment in law and in
practice, with an equal treatment guarantee under the
Law on Commercial Enterprise.
4. Special economic zones provide tax and custom
incentives, world class services and infrastructure,
ensuring low cost access to other ASEAN countries.
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General Types of Companies
1. Private Limited Company
2. Public Limited Company
1. Sole Proprietorship
1. General / Limited Partnership
2. Limited Liability Company
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Prohibited investment activities
• Production and processing of psychotropic substances or
narcotic substances;
• Production of poisonous chemicals, agriculture pesticides and
insecticides, and chemicals prohibited by international
agreements and the World Health Organization (WHO);
• Processing and production of electrical power from imported
waste;
• Exploitation of forests prohibited by the Forestry Law; and
• Any other investment activities prohibited by other laws.
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Investment Incentives
1. Investment incentives include are provided under Qualified
Investment Project (QIP) status, and include a customs
exemption and tax holiday or accelerated asset depreciation;
2. Most kinds of agricultural and manufacturing production are
entitled to QIP status, although the service sector and real
estate sector are excluded;
3. No discrimination against foreign nationals, except for land
ownership;
4. No price fixing on products and services;
5. Incentives currently being revised to increase regional
competitiveness, indicating the dedication of the Cambodian
government to retain its edge with regional competitors
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Investment Guarantee
Cambodia offers robust protections to foreign investors, through
the Law on Investment:
1. Article 8
A foreign investor shall not be treated in any discriminatory
way by reason only of the investor being a foreign investor,
except in respect of ownership of land as set forth in the Land
Law.
1. Article 9
The Royal Government shall not undertake nationalization
policy, which shall adversely affect private properties of
investors in the Kingdom of Cambodia.
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INVESTMENT IN LAOS
1. Challenges
2. Opportunities
3. General types of companies
4. Permits to operate a business
5. Tax incentives
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1. Commercial law and the commercial court system in Laos are
developing slowly and are not transparent. Business disputes are
rarely adjudicated in favor of the foreign investors.
2. Customs procedures are improving but remain opaque.
3. Despite government efforts to establish “one stop service” for
business registration and licensing, procedures for investment are
cumbersome and approvals often do not occur within stated times or
rules.
4. Human resources are not well developed in Laos, and employers
frequently have a difficult time finding and retaining qualified
employees.
5. Corruption is a major problem and seriously hampers the efficient
operation of the Lao economy and society.
Source: US Commercial Service
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Opportunities
1. Until 2015, foreigners were prohibited from investing in wholesale, retail
or import businesses in Lao PDR.
2. As a result major international brands were forced to rely on local
distributors and the wholesale and retail markets were curtailed.
3. One major issue was access to quality construction supplies.
4. The Decision of Business on Retail and Wholesale Trade No. 1005/MOIC,
dated 22 May 2015 (the “Decision 1005”), liberalizes the wholesale and
retail sectors in Lao PDR to foreign investment, with certain limitations.
5. Foreigner owned companies can now IMPORT and DISTRIBUTE goods in
Lao PDR, subject to investment size and scope restrictions.
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 Key trading partners are China, Thailand and Vietnam
The Wholesale and Retail Decision has opened
the market as follows….
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General Types of Companies
1. A Partnership Company
2. A Limited Liability Company
3. A Public Company.
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Permits to operate a business
1. No separate regimes for foreign and domestic investment.
2. The Decision 1005 (Article 30) permits Lao registered companies with 100% foreign
ownership to conduct wholesale and retail business, provided that the minimum
registered capital exceeds LAK 20 billion (approx. USD 24,600,000).
3. In addition, such companies are also required to register their specific wholesale and
retail activities with the Ministry of Industry and Commerce (the “MOIC”) i.e.,
including such activities in their constitutional licenses and approvals
4. Pursuant to Clause 13.2 of Decision 1005, the location of a physical wholesale or
retail outlet, which would include a mini-mart, is subject to specific approval by the
State.
5. Some specific sectors will be subject to sub-licenses, such as:
 Factory licenses from the MOIC
 Import/export authorizations from the MOIC
 Concession agreement, license agreement, or project development agreement
from the Government
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Tax incentives
1. Exemption from profit tax in the next accounting year, if the net profit derived
from business activities is used for business expansion.
2. Exemption from import duties for the importation of raw material, equipment,
spare parts and vehicles which are directly used for production.
3. Exemption from export duties for exportation of general goods and products
(except fuel).
4. If an investor suffers losses after completion of tax finalization with the tax office,
the investor shall be permitted to carry the losses forward to three consecutive
accounting years. After ending of the period, any remaining losses shall not be
allow to be deducted from profit. For special economic zones and specific
economic zones, the provision of incentive treatment shall be in compliance with
the Decree on the Establishment and Activities of respective zone.
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INVESTMENT IN THAILAND
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INVESTMENT IN THAILAND
1. Introduction
2. General types of companies
3. Permits to operate a business
4. Investment incentives
5. Investment guarantee
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Introduction
1. A foreigner may wholly own a business in Thailand, unless
the specific activity of that business is restricted under the
Foreign Business Act or is otherwise prohibited by another
law.
2. Foreign companies are those whose 50% or more share
capital belongs to foreign individuals or juristic entities; thus
mainly subject to Foreign Business Act.
3. Limitation on foreign ownership in certain sectors: banking,
insurance, hotels, pharmaceuticals, etc.
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General Types of Companies
1. Partnership
2. Limited Company
1. Sole Limited Company
1. Public Limited Company
2. State Company
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Permits to operate a business
1. Generally, the foreign investors are required to
apply for Foreign Business License from the
Ministry of Commerce
2. Depending on the types of business, sub-licenses
may be applicable, such as:
 Business Operating License (e.g. Finance,
education, labour recuirement, restaurant)
 Factory license
 Import/export authorization
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Investment incentives
1. Tax incentives:
a. Exemption/reduction of import duties on machinery.
b. Reduction of import duties for raw or essential materials.
c. Reduction of juristic person’s income tax and dividends.
d. Double deductions from the costs of transportation, electricity and
water supply.
e. Additional 25 percent deduction of the cost of installation or
construction of facilities.
f. Exemption of import duty on raw or essential materials for use in
production for export.
2. Non-tax incentives:
a. Permit to bring into the Kingdom foreign nationals, skilled workers
and experts for investment studies and investment promoted
activities
b. Permit to remit money overseas in foreign currency
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Investment Guarantee
Guarantees against:
1. nationalization,
2. competition from state enterprises and
monopolies on the sale of similar products,
3. price controls,
4. export restrictions, and
5. duty-free imports by government agencies or
state enterprises.
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CONCLUSION
Reasons to invest in ASEAN
 Robust market
 Diverse ASEAN
 AEC 5 fundamental freedoms
 More comprehensive investment protection and
dispute settlement mechanism
51
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ABOUT DUANE MORRIS
Duane Morris LLP, a law firm with more than 700 attorneys in offices across the
United States and internationally, is asked by a broad array of clients to provide
innovative solutions to today's legal and business challenges.
Growth and Culture
Evolving from a partnership of prominent lawyers in Philadelphia a century ago,
Duane Morris' modern organization stretches from the U.S. to Europe and the
Middle East, and now across Asia. Throughout this global expansion, Duane Morris
has remained committed to preserving its collegial, collaborative culture that has
attracted many talented attorneys. The firm's leadership, and outside observers like
the Harvard Business School, believe this culture is truly unique among large law
firms, and helps account for the firm continuing to prosper throughout changing
economic and industry conditions.
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Selected Myanmar Accolades
We are ranked in Chambers Asia Pacific, IFLR1000 and The Legal 500 as a leading firm
in Myanmar.
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Our Practice Expertise
We are able to advise on all aspects of Myanmar law and have many years of
expertise in advising on general business law, including corporate and
commercial, real estate and employment law issues.
We possess a high degree of industry knowledge and expertise across a variety
of sectors. We are ranked by the Legal 500 Asia Pacific 2016 as a Top Tier firm
in Myanmar for Corporate and M&A and also Projects (including Energy).
Our lawyers have been actively involved over the last decade in advising the
Government of Myanmar and various multinational entities on investment,
licensing and regulatory matters.
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Our Pan-Asia Reach
With dedicated country “desks” or
offices in Myanmar, India, China,
Vietnam, Cambodia, Laos,
Indonesia, Bangladesh, Sri Lanka,
Korea, Japan, Thailand, Philippines,
and Malaysia, we are well placed to
assist clients with their regional
needs.
Our key high level connections and
long-standing relationships in
Myanmar enable us to act as a first
point of call in relation to a wide
range of matters.
Clients benefit from our global
transactional experience. Our
lawyers distil many years of
international law firm experience in
their delivery of local law services.
55
We possess a breadth of expertise in Asia, both in terms of practice area and jurisdictional coverage.
Hanoi:
Pacific Place, Unit
V1307/1308, 13th Floor
83B Ly Thuong Kiet Street
Hoan Kiem District, Hanoi
Vietnam
Phone: +84 4 3946 2200
Ho Chi Minh City:
Suite 1503/04, Saigon Tower
29 Le Duan Street
District 1, Ho Chi Minh City
Vietnam
Phone: +84 8 3824 0240
Singapore:
16 Collyer Quay #17-00
Singapore 049318
Phone: +65 6311 0030
Myanmar:
No 10 Bo Yar Zar Street,
Kyaukkone
Yankin Township
Yangon, Myanmar
Tel: +951 569 522
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KEY PRACTITIONERS
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Oliver Massmann
Partner
Omassmann@duanemorris.com
Oliver Massmann practices in the area of corporate international taxation and on power/water projects,
matters related to oil and gas companies and telecoms, privatization and equitization, mergers and
acquisitions, and general commercial matters for multinational clients in relation to investment and doing
business in Vietnam.
Mr. Massmann is the only foreign lawyer as Member to the Supervisory Board of PetroVietnam Insurance
Corporation, Vietnam's largest industrial insurer.
Mr. Massmann is currently working on several investment projects as well as taxation matters and advising
the Ministry of Electrical Power on building the power generation infrastructure in Myanmar.
Mr. Massmann is registered Arbitrator of the Vietnam International Arbitration Centre (The VIAC). He is
the only foreign lawyer in Vietnam who is presenting to the National Assembly of Vietnam in Vietnamese
language and teaching International law in Vietnamese language at the Ministry of Justice in Hanoi.
Mr. Massmann is a 1994 graduate of Bochum Law University, first state exam and Ministry of Justice,
Duesseldorf Germany, second state exam 1997. He holds an LL.M. degree in international taxation from St.
Thomas University in Florida, United States of America. He is admitted to the Bar Association in Berlin and
a licensed foreign lawyer in Vietnam.
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Giles T. Cooper
Partner
gtcooper@duanemorris.com
Giles Cooper is branch director for Duane Morris' Ho Chi Minh City office. Giles practices in the area of
corporate, commercial law with a focus on international law in South East Asia. Giles has over a
decade’s experience helping foreign investors in Vietnam particularly with major projects and
construction, mergers and acquisitions, securities, contract negotiation, banking and finance, and
employment law matters.
Giles is a graduate of Victoria University in Wellington, New Zealand, and the University of Canterbury in
Christchurch, New Zealand. He is a barrister and solicitor of the High Court of New Zealand and a
registered foreign lawyer in Vietnam.
Representative Matters
1. Supported and advised German government agency in connection with a project to work with the
Ministry of Industry and Trade in Vietnam (MOIT) to introduce a legal framework for renewable energy
projects in Vietnam.
2. Advised GE Energy on initial structuring of power purchase projects and proposed renewable policy
framework for wind energy investment in Vietnam.
3. Advised Wind Capital Group on its plans to partner with EVN Renewables JSC to develop a US$50
million pilot wind energy BOT project.
www.duanemorris.com
Mark D’Alelio
Director
mdalelio@duanemorrisselvam.com
Mark practices in the areas of corporate and general commercial law, primarily involving
foreign investment into ASEAN. With more than ten years of experience in the Asian legal
services market, Mark has experience with all forms of foreign direct investments and
mergers and acquisitions and provides counselling related to corporate structuring for
investment; commercial contracts with local and international corporations and individuals;
labour law and local regional compliance requirements; and real estate guidance for
developers and hospitality providers. He is experienced in facilitating transactions geared
and adjusted to the Asian market as well as bridging cultural divides for foreign investors.
Mark is a member of the Bar in New York and Massachusetts, U.S.A. He is also a 2004 cum
laude graduate of Suffolk University Law School, where he was a member of the Law
Review, and a graduate of Arizona State University.
59
www.duanemorris.com
Krishna is Managing Partner of Duane Morris & Selvam (Myanmar) in Yangon. He is also head of Singapore-based Duane
Morris & Selvam LLP’s Corporate Finance and Investment and Private Client Practice Groups. His practice expertise
includes M&A and capital markets, investments funds/private equity and technology, media and telecommunications
law.
He has 16 years of experience in advising issuers, funds, investment banks, listed and private companies and high net
worth individuals in Asia, Europe and the US on equity and debt securities issuances, compliance and regulatory
matters. He also possesses extensive experience providing counsel to local Myanmar business leaders on issues
involving a cross-border element in Myanmar’s key industry sectors. His valued legal advice has earned him numerous
accolades by respected industry authorities including Asialaw Leading Lawyers, Chambers, Asia Pacific Legal 500 and
IFLR1000.
Krishna graduated from Christ’s College, Cambridge University, with an LL.M. in Corporate Finance on a Freshfields
Bruckhaus Deringer (“Freshfields”) scholarship in 1996. He articled and qualified with Freshfields in London prior to
relocating to Singapore with Clifford Chance in 2003 and subsequently joined Selvam LLC in 2006.
Krishna is an Advocate & Solicitor of the Supreme Court of Singapore and a Solicitor of England and Wales. He
previously sat on The Singapore Law Society's Corporate Practice Committee for Mergers & Acquisitions and Insolvency,
Corporate Commercial Matters, and Listing Matters. He is invited to speak regularly on M&A, Corporate Governance,
Listings, and Fund Raising matters at conferences globally.
www.duanemorris.com
Huong Mai Thi Duong
Associate
hmduong@duanemorris.com
Huong Mai Thi Duong practices in the area of corporate law, with experience in mergers and
acquisitions, securities and capital markets, finance and banking, real estate and construction, and
international trade law.
Huong earned an LL.M. in International Business Law from Newcastle University in 2014. She earned
a Bachelor of Laws in Business Law from the University of Economics and Law in Ho Chi Minh City.
She is fluent in Vietnamese and English.
Huong is a member of Ho Chi Minh City Bar.
www.duanemorris.com
Questions & Answers
www.duanemorris.com
Thank you very much!
OLIVER MASSMANN
Managing Partner – Duane Morris Vietnam LLC
Duane Morris Vietnam Duane Morris Myanmar
Pacific Place, Unit V1307/08, 13th Floor, No. 10 Phoyazar Street, Kyaukkone,
83B Ly Thuong Kiet, Hoan Kiem Dist Yankin Township
Hanoi, Vietnam Yangon Suite, Myanmar
Contact email:
omassmann@duanemorris.com
63

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Investing in ASEAN: Opportunities in Myanmar, Cambodia, Laos and Thailand

  • 1. www.duanemorris.com ©2011 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Baltimore | Boston | Washington, D.C. Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership Investing in Myanmar, Cambodia, Laos and Thailand OLIVER MASSMANN Partner - Duane Morris Vietnam LLC
  • 2. www.duanemorris.com MASAN CONSUMER 1. Adopts an umbrella brand strategy to reach a broad range of consumer groups. 2. Each of principal product lines has a premium brand. 1. The variant of product enable Masan to sell to consumers in different regions and with varying tastes. 2. Business development plan is to expand consumer market to Myanmar, as well as Cambodia, Laos, and Thailand if possible.
  • 3. www.duanemorris.com ©2011 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Baltimore | Boston | Washington, D.C. Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership OVERVIEW OF ASEAN ECONOMIC COMMUNITY
  • 4. www.duanemorris.com AEC establishment AEC members: Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. 4
  • 5. www.duanemorris.com AEC Market Snapshot – Asia’s main investment hub 1. GDP: US$2311.3 billion (2012) 2. GDP per capita: US$3748.4 (2012) 3. Population: 620 million, 60% under the age of 35 4. AEC % of world GDP: ~3.3% 5. AEC % of world population: 9% 6. AEC’s merchandise exports: US$1.2 trillion - ~54% of total ASEAN GDP and 7% of global exports 7. If ASEAN were one economy, it would be the 7th largest in the world – 4th largest by 2050 if growth trends continue5
  • 7. www.duanemorris.com MAXIMUM FOREIGN INVESTMENT Note: for Myanmar, the foreign investment may be up to 100% if investing in Thilawa Special Economic Zone.
  • 8. www.duanemorris.com SPECIAL REQUIREMENTS Myanmar: (for wholesale and retail) To trade products produced overseas: 1. Minimum investment of USD 2 million (excluding leasing costs for the land); 2. Establishent of a warehouse at the company’s lot in the Special Economic Zone (Thilawa Special Economic Zone); 3. The provision of value adding services or activities To act as distributors of third-party manufacturers 1. The investor must have established places of business in at least 5 countries, a minimum of ten 10 years' experience in international trading, minimum 3 years' average annual consolidated sales of at least US$ 500 million and a paid up capital of at least US$ 25 million; 2. The Myanmar company must be appointed as official agent or distributor by the overseas manufacturer; 3. Minimum investment of US$ 3 Million (excluding leasing costs for the land); 4. Establishment of a warehouse at the company's lot in the Special Economic Zone; and 5. The provision of value adding services or activities.
  • 9. www.duanemorris.com SPECIAL REQUIREMENTS (Cont.) Cambodia: N/a Laos: (for wholesale and retail) 1. A 100% foreign owned company: requires registered capital of at least LAK 20 billion (around USD 2,453,200) or higher; 2. A joint venture company (with foreign investment no more than 70%): requires registered capital of less than LAK 20 billion (around USD2,650,640), but at least LAK 10 billion (around USD 1,325,320); 3. A joint venture company (with foreign investment no more than 50%): requires registered capital of less than LAK 10 billion (around USD 1,325,320) but at least LAK 4 billion; and 4. A joint venture company where the foreign shareholder holds a minority of shares must have a registered capital of at least LAK 4 billion (around USD500,000). Thailand:(for wholesale and retail) Minimum capital of each store is 100 million baht or more.
  • 10. www.duanemorris.com Agenda: 1. INVESTMENT IN MYANMAR 2. INVESTMENT IN CAMBODIA 3. INVESTMENT IN LAOS 4. INVESTMENT IN THAILAND
  • 11. www.duanemorris.com INVESTMENT IN MYANMAR 1. Introduction 2. Challenges 3. Opportunities 4. General types of companies 5. Permits to operate a business 6. Additional requirements in import, export and trade 7. Restriction 8. Investment guarantee 9. Tax incentives 10. New development in Myanmar 11. Why choose Myanmar?
  • 12. www.duanemorris.com Introduction 1. With its natural and human resources and cultural and national heritage Myanmar represents excellent potential for business investment. 2. Myanmar welcomes foreign investments in all forms. The Government of Myanmar is intending to maintain good and strong economic relationship with all countries, all foreign organizations and individuals. 3. An untapped market- rich in natural resources with a young population and a high number of English speakers. 4. A fertile and resource-rich country strategically located in the heart of Asia, one of the world’s largest growing economic regions. 5. Firms involved in precious stone, agricultural products or other industries may find Myanmar a fascinating place to begin developing longer term interests. 6. Significant legal reforms aiming to improve investment climate.
  • 13. www.duanemorris.com Challenges • Limited Infrastructure - 15% to 20% of the total population are accessible to the electric power supply. • 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$320 billion in infrastructure alone. Source: McKinsey&Company
  • 14. www.duanemorris.com Opportunities • Potential to achieve US$ 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
  • 15. www.duanemorris.com Form of Foreign Investment 1. Under the Foreign Investment Law 2012, foreigners are now allowed to set up companies fully owned by them, or go into joint venture with any Myanmar citizen or the government of Myanmar. 2. For certain prohibited and restricted businesses, foreigners are required to form the joint venture with Myanmar citizen, in which the maximum foreign investment capital ratio shall not exceed 80% of the total investment amount. 3. Any company with one share held by a foreign shareholder is classified as a Foreign Company. 4. General types of companies:  Private Limited Liability Company (minimum 2 shareholders are required).  Public Limited Liability Company (to date very few public companies are established).
  • 16. www.duanemorris.com Permits to operate a business In general, to operate a business in Myanmar, a Foreign Company is required to obtain: 1. Permit to Trade (Company Registration Office, which is under the Directorate of Investment and Company Administration (DICA)):  Renewable every 5 years  Minimum capital required to register for a Permit to Trade: Kyats 133,333,333 (US$150,000) for an industrial company Kyats 40,000,000 (US$50,000) for a service company 1. Certificate of Incorporation: renewable every 5 years
  • 17. www.duanemorris.com Restriction 1. 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 re levant 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.
  • 18. www.duanemorris.com Restriction (Cont.) 1. There are 21 economic activities which are prohibited. 2. 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.
  • 19. www.duanemorris.com Restriction (Cont.) 1. 42 economic activities allowed only in the form of joint venture with Myanmar citizens. 2. 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.
  • 20. www.duanemorris.com Investment 1. Enterprises operating under the Foreign Investment Law have the State guarantee against nationalization and expropriation. 2. 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. 3. 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. 4. Myanmar has investment protection agreements with China, India, Kuwait, Laos, the Philippines, Thailand and Vietnam.
  • 21. www.duanemorris.com Tax incentives 1. Income tax: exemption within 5 years from the date of the project commercial operation 2. Income tax exemption for profits reinvested within one year 3. Exemptions from import duties on goods and materials imported for production purposes 4. Reduction of up to 50% on the profits accrued from exported goods
  • 22. www.duanemorris.com New development in Myanmar 1. Accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) (15 July 2013) 2. Foreign investors may choose a neutral offshore forum for the resolution of disputes if the parties agree to arbitration in contractual agreement 3. Local courts are required to recognize and enforce foreign arbitral awards 4. However: no domestic document enacted to effect its obligations under the New York Convention, Arbitration Law of 1944 remains applicable, Draft Arbitration Act expected to be released soon
  • 23. www.duanemorris.com New development in Myanmar 1. Myanmar’s membership of Multilateral Investment Guarantee Agency – a political risk insurance and credit enhancement arm of World Bank (17 December 2013) 2. International Finance Corporation cooperated with Myanmar Government to improve the country’s investment policy and regulation framework (20 December 2013)
  • 24. www.duanemorris.com New development in Myanmar 1. Myanmar is one of the 10 members of the ASEAN Economic Community (AEC) to be established by 2016 2. AEC – Asia’s main investment hub: a. GDP: US$2311.3 billion (2012) b. GDP per capita: US$3748.4 (2012) c. Population: 620 million, 60% under the age of 35 d. AEC % of world GDP: ~3.3% e. AEC % of world population: 9% f. If ASEAN were one economy, it would be the 7th largest in the world – 4th largest by 2050 if growth trends continue
  • 26. www.duanemorris.com WTO ANALYSIS OF LIBERALIZATION OF MARKET ACCESS: MYANMAR IS AT SAME LEVEL WITH INDIA – NOT TOO BAD? 1. *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
  • 27. www.duanemorris.com WHY CHOOSE MYANMAR? • Myanmar: Last untapped market in Asia with full of potential to become new FDI hub 1. BUT it depends on commitments on institutional reforms!!!! 2. OPEN OR ISOLATED? 3. MODERN OR CONSERVATIVE?
  • 28. www.duanemorris.com 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
  • 29. www.duanemorris.com INVESTMENT IN CAMBODIA 1. Introduction 2. Challenges 3. Opportunities 4. General types of companies 5. Prohibited investment activities 6. Investment guarantee 7. Investment incentives
  • 30. www.duanemorris.com Introduction 1. The Agricultural sector is almost totally undeveloped, with almost value added agricultural production constituting only 1/3 of the GDP over the past year, making the agricultural sector the next big target for foreign investment. 2. The first oil producing project is set to go online this year and the first refinery is still in the construction phase. 3. Exports of garments and footwear, based on customs data, reached $6.0 billion in 2014, but this sector has not yet expanded to other kinds of light manufacture, creating huge opportunities for investment. 4. With only 22.5% percent of Cambodian households having access to electricity, there a massive opportunities for those able to power Cambodia’s growth.
  • 31. www.duanemorris.com 1. Ease of doing business is ranked among the lowest in the world, with the World Bank placing Cambodia at 135th while ease of starting a business in Cambodia is ranked at 184th. 2. A literacy rate of just 70% lags behind regional competitors for investment, like Myanmar and Vietnam. 3. 40% of children under five-years-old are malnourished, limiting economic potential, especially in rural areas. 4. The legal and regulatory frameworks are changing rapidly, which is a good sign for future investment but can pose an immediate challenge to investors. 5. The General Department of Taxation collected only US$881.4 million in 2013, far below possible tax revenue, leaving the government less able to invest in key infrastructure.
  • 32. www.duanemorris.com 1. Unrestricted foreign investment in a dollarized economy, with numerous incentives for investors. 2. With more than 50% of the population under 24 years of age and a GNI per capita of US$950, the Cambodian market is set for rapid growth . 3. Cambodia welcomes foreign investment in law and in practice, with an equal treatment guarantee under the Law on Commercial Enterprise. 4. Special economic zones provide tax and custom incentives, world class services and infrastructure, ensuring low cost access to other ASEAN countries.
  • 33. www.duanemorris.com General Types of Companies 1. Private Limited Company 2. Public Limited Company 1. Sole Proprietorship 1. General / Limited Partnership 2. Limited Liability Company
  • 34. www.duanemorris.com Prohibited investment activities • Production and processing of psychotropic substances or narcotic substances; • Production of poisonous chemicals, agriculture pesticides and insecticides, and chemicals prohibited by international agreements and the World Health Organization (WHO); • Processing and production of electrical power from imported waste; • Exploitation of forests prohibited by the Forestry Law; and • Any other investment activities prohibited by other laws.
  • 35. www.duanemorris.com Investment Incentives 1. Investment incentives include are provided under Qualified Investment Project (QIP) status, and include a customs exemption and tax holiday or accelerated asset depreciation; 2. Most kinds of agricultural and manufacturing production are entitled to QIP status, although the service sector and real estate sector are excluded; 3. No discrimination against foreign nationals, except for land ownership; 4. No price fixing on products and services; 5. Incentives currently being revised to increase regional competitiveness, indicating the dedication of the Cambodian government to retain its edge with regional competitors
  • 36. www.duanemorris.com Investment Guarantee Cambodia offers robust protections to foreign investors, through the Law on Investment: 1. Article 8 A foreign investor shall not be treated in any discriminatory way by reason only of the investor being a foreign investor, except in respect of ownership of land as set forth in the Land Law. 1. Article 9 The Royal Government shall not undertake nationalization policy, which shall adversely affect private properties of investors in the Kingdom of Cambodia.
  • 37. www.duanemorris.com INVESTMENT IN LAOS 1. Challenges 2. Opportunities 3. General types of companies 4. Permits to operate a business 5. Tax incentives
  • 38. www.duanemorris.com 1. Commercial law and the commercial court system in Laos are developing slowly and are not transparent. Business disputes are rarely adjudicated in favor of the foreign investors. 2. Customs procedures are improving but remain opaque. 3. Despite government efforts to establish “one stop service” for business registration and licensing, procedures for investment are cumbersome and approvals often do not occur within stated times or rules. 4. Human resources are not well developed in Laos, and employers frequently have a difficult time finding and retaining qualified employees. 5. Corruption is a major problem and seriously hampers the efficient operation of the Lao economy and society. Source: US Commercial Service
  • 39. www.duanemorris.com Opportunities 1. Until 2015, foreigners were prohibited from investing in wholesale, retail or import businesses in Lao PDR. 2. As a result major international brands were forced to rely on local distributors and the wholesale and retail markets were curtailed. 3. One major issue was access to quality construction supplies. 4. The Decision of Business on Retail and Wholesale Trade No. 1005/MOIC, dated 22 May 2015 (the “Decision 1005”), liberalizes the wholesale and retail sectors in Lao PDR to foreign investment, with certain limitations. 5. Foreigner owned companies can now IMPORT and DISTRIBUTE goods in Lao PDR, subject to investment size and scope restrictions.
  • 40. www.duanemorris.com  Key trading partners are China, Thailand and Vietnam The Wholesale and Retail Decision has opened the market as follows….
  • 41. www.duanemorris.com General Types of Companies 1. A Partnership Company 2. A Limited Liability Company 3. A Public Company.
  • 42. www.duanemorris.com Permits to operate a business 1. No separate regimes for foreign and domestic investment. 2. The Decision 1005 (Article 30) permits Lao registered companies with 100% foreign ownership to conduct wholesale and retail business, provided that the minimum registered capital exceeds LAK 20 billion (approx. USD 24,600,000). 3. In addition, such companies are also required to register their specific wholesale and retail activities with the Ministry of Industry and Commerce (the “MOIC”) i.e., including such activities in their constitutional licenses and approvals 4. Pursuant to Clause 13.2 of Decision 1005, the location of a physical wholesale or retail outlet, which would include a mini-mart, is subject to specific approval by the State. 5. Some specific sectors will be subject to sub-licenses, such as:  Factory licenses from the MOIC  Import/export authorizations from the MOIC  Concession agreement, license agreement, or project development agreement from the Government
  • 43. www.duanemorris.com Tax incentives 1. Exemption from profit tax in the next accounting year, if the net profit derived from business activities is used for business expansion. 2. Exemption from import duties for the importation of raw material, equipment, spare parts and vehicles which are directly used for production. 3. Exemption from export duties for exportation of general goods and products (except fuel). 4. If an investor suffers losses after completion of tax finalization with the tax office, the investor shall be permitted to carry the losses forward to three consecutive accounting years. After ending of the period, any remaining losses shall not be allow to be deducted from profit. For special economic zones and specific economic zones, the provision of incentive treatment shall be in compliance with the Decree on the Establishment and Activities of respective zone.
  • 45. www.duanemorris.com INVESTMENT IN THAILAND 1. Introduction 2. General types of companies 3. Permits to operate a business 4. Investment incentives 5. Investment guarantee
  • 46. www.duanemorris.com Introduction 1. A foreigner may wholly own a business in Thailand, unless the specific activity of that business is restricted under the Foreign Business Act or is otherwise prohibited by another law. 2. Foreign companies are those whose 50% or more share capital belongs to foreign individuals or juristic entities; thus mainly subject to Foreign Business Act. 3. Limitation on foreign ownership in certain sectors: banking, insurance, hotels, pharmaceuticals, etc. 46
  • 47. www.duanemorris.com General Types of Companies 1. Partnership 2. Limited Company 1. Sole Limited Company 1. Public Limited Company 2. State Company
  • 48. www.duanemorris.com Permits to operate a business 1. Generally, the foreign investors are required to apply for Foreign Business License from the Ministry of Commerce 2. Depending on the types of business, sub-licenses may be applicable, such as:  Business Operating License (e.g. Finance, education, labour recuirement, restaurant)  Factory license  Import/export authorization
  • 49. www.duanemorris.com Investment incentives 1. Tax incentives: a. Exemption/reduction of import duties on machinery. b. Reduction of import duties for raw or essential materials. c. Reduction of juristic person’s income tax and dividends. d. Double deductions from the costs of transportation, electricity and water supply. e. Additional 25 percent deduction of the cost of installation or construction of facilities. f. Exemption of import duty on raw or essential materials for use in production for export. 2. Non-tax incentives: a. Permit to bring into the Kingdom foreign nationals, skilled workers and experts for investment studies and investment promoted activities b. Permit to remit money overseas in foreign currency 49
  • 50. www.duanemorris.com Investment Guarantee Guarantees against: 1. nationalization, 2. competition from state enterprises and monopolies on the sale of similar products, 3. price controls, 4. export restrictions, and 5. duty-free imports by government agencies or state enterprises. 50
  • 51. www.duanemorris.com CONCLUSION Reasons to invest in ASEAN  Robust market  Diverse ASEAN  AEC 5 fundamental freedoms  More comprehensive investment protection and dispute settlement mechanism 51
  • 52. www.duanemorris.com ABOUT DUANE MORRIS Duane Morris LLP, a law firm with more than 700 attorneys in offices across the United States and internationally, is asked by a broad array of clients to provide innovative solutions to today's legal and business challenges. Growth and Culture Evolving from a partnership of prominent lawyers in Philadelphia a century ago, Duane Morris' modern organization stretches from the U.S. to Europe and the Middle East, and now across Asia. Throughout this global expansion, Duane Morris has remained committed to preserving its collegial, collaborative culture that has attracted many talented attorneys. The firm's leadership, and outside observers like the Harvard Business School, believe this culture is truly unique among large law firms, and helps account for the firm continuing to prosper throughout changing economic and industry conditions.
  • 53. www.duanemorris.com Selected Myanmar Accolades We are ranked in Chambers Asia Pacific, IFLR1000 and The Legal 500 as a leading firm in Myanmar.
  • 54. www.duanemorris.com Our Practice Expertise We are able to advise on all aspects of Myanmar law and have many years of expertise in advising on general business law, including corporate and commercial, real estate and employment law issues. We possess a high degree of industry knowledge and expertise across a variety of sectors. We are ranked by the Legal 500 Asia Pacific 2016 as a Top Tier firm in Myanmar for Corporate and M&A and also Projects (including Energy). Our lawyers have been actively involved over the last decade in advising the Government of Myanmar and various multinational entities on investment, licensing and regulatory matters.
  • 55. www.duanemorris.com Our Pan-Asia Reach With dedicated country “desks” or offices in Myanmar, India, China, Vietnam, Cambodia, Laos, Indonesia, Bangladesh, Sri Lanka, Korea, Japan, Thailand, Philippines, and Malaysia, we are well placed to assist clients with their regional needs. Our key high level connections and long-standing relationships in Myanmar enable us to act as a first point of call in relation to a wide range of matters. Clients benefit from our global transactional experience. Our lawyers distil many years of international law firm experience in their delivery of local law services. 55 We possess a breadth of expertise in Asia, both in terms of practice area and jurisdictional coverage. Hanoi: Pacific Place, Unit V1307/1308, 13th Floor 83B Ly Thuong Kiet Street Hoan Kiem District, Hanoi Vietnam Phone: +84 4 3946 2200 Ho Chi Minh City: Suite 1503/04, Saigon Tower 29 Le Duan Street District 1, Ho Chi Minh City Vietnam Phone: +84 8 3824 0240 Singapore: 16 Collyer Quay #17-00 Singapore 049318 Phone: +65 6311 0030 Myanmar: No 10 Bo Yar Zar Street, Kyaukkone Yankin Township Yangon, Myanmar Tel: +951 569 522
  • 57. www.duanemorris.com Oliver Massmann Partner Omassmann@duanemorris.com Oliver Massmann practices in the area of corporate international taxation and on power/water projects, matters related to oil and gas companies and telecoms, privatization and equitization, mergers and acquisitions, and general commercial matters for multinational clients in relation to investment and doing business in Vietnam. Mr. Massmann is the only foreign lawyer as Member to the Supervisory Board of PetroVietnam Insurance Corporation, Vietnam's largest industrial insurer. Mr. Massmann is currently working on several investment projects as well as taxation matters and advising the Ministry of Electrical Power on building the power generation infrastructure in Myanmar. Mr. Massmann is registered Arbitrator of the Vietnam International Arbitration Centre (The VIAC). He is the only foreign lawyer in Vietnam who is presenting to the National Assembly of Vietnam in Vietnamese language and teaching International law in Vietnamese language at the Ministry of Justice in Hanoi. Mr. Massmann is a 1994 graduate of Bochum Law University, first state exam and Ministry of Justice, Duesseldorf Germany, second state exam 1997. He holds an LL.M. degree in international taxation from St. Thomas University in Florida, United States of America. He is admitted to the Bar Association in Berlin and a licensed foreign lawyer in Vietnam.
  • 58. www.duanemorris.com Giles T. Cooper Partner gtcooper@duanemorris.com Giles Cooper is branch director for Duane Morris' Ho Chi Minh City office. Giles practices in the area of corporate, commercial law with a focus on international law in South East Asia. Giles has over a decade’s experience helping foreign investors in Vietnam particularly with major projects and construction, mergers and acquisitions, securities, contract negotiation, banking and finance, and employment law matters. Giles is a graduate of Victoria University in Wellington, New Zealand, and the University of Canterbury in Christchurch, New Zealand. He is a barrister and solicitor of the High Court of New Zealand and a registered foreign lawyer in Vietnam. Representative Matters 1. Supported and advised German government agency in connection with a project to work with the Ministry of Industry and Trade in Vietnam (MOIT) to introduce a legal framework for renewable energy projects in Vietnam. 2. Advised GE Energy on initial structuring of power purchase projects and proposed renewable policy framework for wind energy investment in Vietnam. 3. Advised Wind Capital Group on its plans to partner with EVN Renewables JSC to develop a US$50 million pilot wind energy BOT project.
  • 59. www.duanemorris.com Mark D’Alelio Director mdalelio@duanemorrisselvam.com Mark practices in the areas of corporate and general commercial law, primarily involving foreign investment into ASEAN. With more than ten years of experience in the Asian legal services market, Mark has experience with all forms of foreign direct investments and mergers and acquisitions and provides counselling related to corporate structuring for investment; commercial contracts with local and international corporations and individuals; labour law and local regional compliance requirements; and real estate guidance for developers and hospitality providers. He is experienced in facilitating transactions geared and adjusted to the Asian market as well as bridging cultural divides for foreign investors. Mark is a member of the Bar in New York and Massachusetts, U.S.A. He is also a 2004 cum laude graduate of Suffolk University Law School, where he was a member of the Law Review, and a graduate of Arizona State University. 59
  • 60. www.duanemorris.com Krishna is Managing Partner of Duane Morris & Selvam (Myanmar) in Yangon. He is also head of Singapore-based Duane Morris & Selvam LLP’s Corporate Finance and Investment and Private Client Practice Groups. His practice expertise includes M&A and capital markets, investments funds/private equity and technology, media and telecommunications law. He has 16 years of experience in advising issuers, funds, investment banks, listed and private companies and high net worth individuals in Asia, Europe and the US on equity and debt securities issuances, compliance and regulatory matters. He also possesses extensive experience providing counsel to local Myanmar business leaders on issues involving a cross-border element in Myanmar’s key industry sectors. His valued legal advice has earned him numerous accolades by respected industry authorities including Asialaw Leading Lawyers, Chambers, Asia Pacific Legal 500 and IFLR1000. Krishna graduated from Christ’s College, Cambridge University, with an LL.M. in Corporate Finance on a Freshfields Bruckhaus Deringer (“Freshfields”) scholarship in 1996. He articled and qualified with Freshfields in London prior to relocating to Singapore with Clifford Chance in 2003 and subsequently joined Selvam LLC in 2006. Krishna is an Advocate & Solicitor of the Supreme Court of Singapore and a Solicitor of England and Wales. He previously sat on The Singapore Law Society's Corporate Practice Committee for Mergers & Acquisitions and Insolvency, Corporate Commercial Matters, and Listing Matters. He is invited to speak regularly on M&A, Corporate Governance, Listings, and Fund Raising matters at conferences globally.
  • 61. www.duanemorris.com Huong Mai Thi Duong Associate hmduong@duanemorris.com Huong Mai Thi Duong practices in the area of corporate law, with experience in mergers and acquisitions, securities and capital markets, finance and banking, real estate and construction, and international trade law. Huong earned an LL.M. in International Business Law from Newcastle University in 2014. She earned a Bachelor of Laws in Business Law from the University of Economics and Law in Ho Chi Minh City. She is fluent in Vietnamese and English. Huong is a member of Ho Chi Minh City Bar.
  • 63. www.duanemorris.com Thank you very much! OLIVER MASSMANN Managing Partner – Duane Morris Vietnam LLC Duane Morris Vietnam Duane Morris Myanmar Pacific Place, Unit V1307/08, 13th Floor, No. 10 Phoyazar Street, Kyaukkone, 83B Ly Thuong Kiet, Hoan Kiem Dist Yankin Township Hanoi, Vietnam Yangon Suite, Myanmar Contact email: omassmann@duanemorris.com 63