MYANMAR COMPANIES LAW - International Law …

1 MYANMAR COMPANIES LAW Approved by Pyidaungsu Hluttaw Unofficial Translation Draft approved by Pyidaungsu Hluttaw November 2017 iii DRAFT MYANMAR COMPANIES LAW TABLE OF CONTENTS PART I PRELIMINARY .. 1 Division 1: Citation, commencement and definitions .. 1 PART II CONSTITUTION, INCORPORATION AND POWERS OF COMPANIES .. 8 Division 2: Registration of COMPANIES .. 8 Division 3: Nature of COMPANIES .. 8 Division 4: Incorporations and registrations under this Law .. 9 Division 5: The company constitution .. 12 Division 6: Company names .. 15 Division 7: Company dealings .. 16 Division 8: Activities prior to registration.

2 18 Division 9: Other corporations authorised to register or taken to be registered under this 20 Division 10: Change of company type .. 27 PART III SHARES AND MATTERS RELATING TO A COMPANY S CAPITAL .. 30 Division 11: Shares and other securities .. 30 Division 12: Transfers of shares and other securities .. 36 Division 13: Registers and certification of interests in a company .. 37 Division 14: Dividends .. 43 Division 15: Transactions and matters affecting share 45 PART IV MANAGEMENT, ADMINISTRATION AND GOVERNANCE; OFFERS OF SECURITIES TO THE PUBLIC; GRANT OF SECURITY BY A COMPANY; MAINTENANCE OF COMPANY ACCOUNTS .. 56 Division 16: Office and name.

3 56 Division 17: Meetings and proceedings .. 57 Division 18: Directors and their powers and duties .. 67 Division 19: Members rights and remedies .. 81 Division 20: Matters relating to share offers by public COMPANIES .. 86 Division 21: Share offers by corporations incorporated outside the Republic of the Union of MYANMAR .. 96 Draft approved by Pyidaungsu Hluttaw November 2017 iv Division 22: Mortgages and charges granted by a company .. 99 Division 23: Appointment of receivers, keeping of book and registration of charges granted by corporations incorporated outside the Republic of the Union of MYANMAR .. 105 Division 24: Financial Reports and Audit .. 106 Division 25: Arbitration, compromise with creditors and members and buy-out rights.

4 115 PART V WINDING UP .. 118 Division 26: Winding up a company .. 118 Division 27: Winding up of unregistered COMPANIES .. 152 PART VI THE REGISTRAR, REGISTRATION OFFICE, REGISTRATION OF DOCUMENTS, POWERS OF INSPECTION AND FEES; REMOVAL OF COMPANIES FROM THE REGISTER .. 156 Division 28: The Registrar, registration office, registration of documents, powers of inspection and fees and removal of COMPANIES from the 156 PART VII PROCEEDINGS; OFFENCES; REGULATIONS AND TRANSITIONAL PROVISIONS 164 Division 29: Jurisdiction of the Courts and legal proceedings .. 164 Division 30: Offences and defences .. 173 PART VIII MISCELLANEOUS .. 179 Division 32: Regulations, notifications and 179 Division 31: Savings and transitional provisions.

5 180 Draft approved by Pyidaungsu Hluttaw November 2017 1 MYANMAR COMPANIES LAW (2017, PyidaungsuHluttaw Law No. ) ( ) 1379 ( ) December 2017 The Pyidaungsu Hluttaw hereby enacts this Law. PART I COMMENCEMENT AND DEFINITIONS Division 1: Name, commencement and definitions 1. Citation and commencement of this Law and definitions (a) This Law shall be called MYANMAR COMPANIES Law. (b) This Law commences on the date of notification determined by the President of the Union. (c) In this Law, unless the context otherwise implies: (i) applicable law means any law, rule, regulation, by-law, notification or order having the force of law in the Union which may have an effect on the matter concerned; (ii) associate : (A) specifically, in relation to a company, means: (I) a director or secretary of the company; (II) a related body corporate; (III) a director or secretary of a related body corporate; and (IV) a person who controls the company, or who is controlled by the company.

6 And (B) generally, in relation to a person (including a company), means: (I) a person in concert with whom the person is acting, or proposes to act in relation to the relevant matter; (II) a person with whom the person is, or proposes to become, associated, whether formally or informally, in any other way in relation to the relevant matter; and Draft approved by Pyidaungsu Hluttaw November 2017 2 (III) a prescribed person in relation to the relevant matter, but does not in any case include someone who may otherwise be considered an associate under paragraphs (A) or (B) merely because they: (IV) give advice to the person, or act on the person s behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship; or (V) have been appointed to as a proxy or representative of a person at a meeting of members, or of a class of members, of a company.

7 (iii) authorised officer means a person ordinarily resident in the Union who is appointed by an overseas corporation to act as its representative for the purpose of this Law; (iv) board or board of directors mean in relation to a company or other body corporate mean directors of the company acting together as a board of directors (which will be the single director in the case of a single director company); (v) company means a company incorporated and registered under this Law or an existing company; (vi) contributory means every person liable to contribute to the assets of a company in the event of its being wound up, and, in all proceedings for determining and in all proceedings prior to the final determination of the persons who are to be deemed contributories, includes any person alleged to be a contributory; (vii) corporation means a body corporate formed under a law other than this Law, including a law of a jurisdiction other than the Union, whether or not it is registered under this Law; (viii) Court means the Court having jurisdiction under this Law.

8 (ix) debenture means a security issued by a company to borrow money and includes debenture stock; (x) director for the purpose of this Law of a company or other body corporate, means: (A) an individual person who is appointed to the position of director or is appointed to the position of alternate director and is acting in that capacity; or (B) a person who, while not appointed to the position of director or alternate director: (I) acts as if appointed in the position of director; or (II) has wishes or provides instructions that the directors of the company or body are accustomed to acting in accordance with or who otherwise exercises or controls the exercise of powers which would fall to be exercised by the board.

9 Draft approved by Pyidaungsu Hluttaw November 2017 3 Sub-section (B)(II) does not apply merely because the directors act on the advice of a person given in the proper performance of the person s professional functions or due to a business relationship that the person has with the directors, company or body; (xi) existing company means a company formed and registered under any repealed law; (xii) expert includes, for the purposes of section 214, an engineer, valuer, accountant and any other person whose profession gives authority to a statement made by him; (xiii) financial assistance includes the giving of financial assistance by means of the making of a loan, the giving of a guarantee, the provision of security, the release of an obligation or the release of a debt or otherwise; (xiv) foreign company means a company incorporated in the Union in which an overseas corporation or other foreign person (or combination of them) owns or controls, directly or indirectly, an ownership interest of more than thirty-five per cent; (xv) holding company in relation to a body corporate, means a body corporate of which the first body corporate is a subsidiary.

10 (xvi) Ministry means a Ministry of the Union or a successor body, or such other body as may be formed under an applicable law which is responsible for the administration of this Law and the implementation or supervision of the Registrar s functions; (xvii) officer of a company or a body corporate means a person who: (A) makes, or participates in the making of decisions that affect the whole, or a substantial part, of the business of the company or body; or (B) has the capacity to significantly affect the company s or body s financial standing; (xviii) option means a right to acquire or dispose a share or security at an agreed price at a point in time; (xix) ordinarily resident means a person who is a permanent resident of the Union under an applicable law or is resident in the Union for at least 183 days in each 12 month period commencing from: (A) in the case of an existing company or a body corporate registered under a repealed law, the date of commencement of this Law; and (B) in the case of any company or body corporate registered under this Law, the date of registration of the company or body corporate.