On October 31, 2022, the Department of Trade in Myanmar’s Ministry of Commerce announced that payments for importation at the border are to be made via bank transaction. This announcement comes into force with Import/Export Newsletter No. 10/2022, dated October 31, 2022, issued by the Department of Trade, with the purpose of implementing a systematic payment system for import and export at the border, in accordance with a suggestion made by the Financial Action Task Force (FATF), an international financial watchdog. (This follows the recent news that the FATF has blacklisted Myanmar.) This requirement means that only bank transactions will be accepted for import payments in the border trade. Initially, this system will be applied to trade at the Myanmar-Thailand border only. The new requirement to pay for imports only via bank transaction states that export earnings and other types of foreign currency earnings (including salary and income remitted by Myanmar workers overseas) will be allowed to be used for imports. Importers are required to make the payments for import goods—using these earnings—via their banks. That is, Importers operating in the border trade must have foreign currency earnings received through official banking channels and must make import payments abroad through official banking channels using those earnings. In contrast to previous practices, they are unable to use other sources of income and are not able to make other payment arrangements that do not involve bank transactions. The procedures for importation at the Myanmar-Thailand border are as follows: Companies applying to the Department of Trade for an import license must produce credit advice and original bank statements that prove the receipt of export earnings or other earnings into their bank account. The Department of Trade will scrutinize the reported export earnings or other earnings, and approve the import license for an amount not exceeding the bank balance. For

Background Thailand’s Personal Data Protection Act 2019 (‘PDPA’) is the country’s first unified data privacy legislation for personal data protection. Coming at a time when people around the world are increasingly aware of the risks and negative consequences of their personal data being compromised, the PDPA seeks to align with international standards, such as the General Data Protection Regulation (Regulation (EU) 2016/679) (‘GDPR’). Prior to the enactment of the PDPA, privacy rights were recognised in the Constitution of the Kingdom of Thailand. Beyond this, the handling of personal data was governed by specific regulations for a handful of sectors, such as telecommunications, financial institutions, securities, and life sciences. The PDPA was announced in the Royal Gazette of the Kingdom of Thailand on 27 May 2019, with an exemption for the enforcement of its requirements in relation to the collection, use, disclosure, and transfer (‘process’ or ‘processing’) of personal data, as well as its provisions on data subjects rights. After some delays caused by the impact of the COVID-19 pandemic over the past two years, the PDPA finally came fully into force on 1 June 2022. Unlike most legislation in Thailand, the PDPA has an extraterritorial aspect whereby data controllers and data processors outside Thailand may be subject to the PDPA if the processing activities they undertake fall under the criteria prescribed in the PDPA. The basics The PDPA defines personal data as any data pertaining to a living natural person that enables the identification of that person, whether directly or indirectly, such as phone number, address, email address, or anything else that might enable the data subject’s identification. The PDPA applies to personal data in any form, whether digital or otherwise. The PDPA introduces two main roles relating to the handling of others’ personal data: the data controller and the data processor. A data controller is a

On October 21, 2022, the Financial Action Task Force (FATF) added Myanmar to the list of high-risk jurisdictions having significant deficiencies to counter money laundering, terrorist financing, and financing of proliferation. The FATF is an international financial watchdog that aims to impede global money laundering and terrorist financing. It is a policymaking body that monitors implementation of FATF Recommendations and FATF Standards and is not binding as a supervisory authority for financial institutions. Myanmar will remain on the list of countries subject to a call for action until the country has implemented an action plan that: demonstrates an improved understanding of money laundering risks in key areas; demonstrates that onsite and offsite inspections are risk-based, and hundi (a type of informal remittance instrument for transferring money) operators are registered and supervised; demonstrates enhanced use of financial intelligence in law enforcement authorities’ investigations, and increasing operational analysis and dissemination by Myanmar’s Financial Intelligence Unit; ensures that money laundering is investigated and prosecuted in line with risks; demonstrates investigation of transnational money laundering cases with international cooperation; demonstrates an increase in the freezing, seizure, and confiscation of criminal proceeds, instrumentalities, and property of equivalent value; manages seized assets to preserve the value of seized goods until confiscation; and demonstrates implementation of targeted financial sanctions related to proliferation financing. Enhanced Customer Due Diligence Unlike other blacklisted countries, Myanmar is not applicable to countermeasures. Instead, the financial institutions of members and nonmember states of the FATF are urged to conduct “enhanced customer due diligence (CDD) measures” to mitigate the risk of money laundering, terrorist financing, and proliferation financing from Myanmar. Examples of these enhanced CDD measures to be applied to certain higher-risk activities include: Obtaining additional identifying information about the customer (available through public databases or internet sources) and regularly updating the identifying information or data of the customer and beneficial owner; Verifying the customer’s source of funds

After a long wait, Thailand’s Parliament approved the draft Act Amending the Civil and Commercial Code (the “Amended CCC”) on September 14, 2022. The Amended CCC (which had previously been approved by the cabinet in 2020) introduces changes to corporate governance and transactional rules, as well as processes for the merger of private limited companies. Corporate Governance and Transactional Rules The changes introduced by the Amended CCC in relation to corporate governance and transactional rules include the following: Currently, incorporation requires at least three promoters. Under the Amended CCC, only two promoters are necessary. Under the Amended CCC, a notice calling a general meeting of the shareholders is no longer required to be published in a local newspaper—the updated law only requires the notice to be sent to existing shareholders via post. However, if a company issues bearer certificates, a notice calling a general meeting of shareholders must still be published either in a local newspaper or via electronic media. To pass any resolution during a general meeting of shareholders, at least two shareholders, whether in person or via proxy, representing at least one-fourth of the capital of the company, must be present. Distribution of dividends must be completed within one month of a shareholders’ meeting or the directors passing a resolution on dividend payment. A company may be dissolved by the court if, among other circumstances, the number of shareholders decreases to one, or there are other reasons that the company can no longer exist. Merger The current Civil and Commercial Code only recognizes the concept of “amalgamation” of companies (i.e., the formation of a new company by amalgamation of at least two companies, resulting in the dissolution of the amalgamating companies). It is not possible for one of the amalgamating companies to be a surviving entity. In other words, the amalgamation of company A and company

タイの下院議会は2022年9月14日、タイ民商法の改正法案（以下、「改正法案」とする）を承認した。この改正法案は、非公開会社の発起人・株主の人数、株主総会の通知方法、取締役会の開催、合併の形態など、様々な点において変更を加えており、重要な改正といえる。   コーポレートガバナンスの観点からの改正 コーポレート・ガバナンスの観点からの改正点は多々あるが、例えば以下の事項がある。 改正法案では、非公開会社の発起人、株主は最低２人としている（現時点においては、非公開会社の発起人、株主は最低3人必要である）。株主総会で決議を行うには、会社の資本金の4分の1以上を代表する2人以上の株主が出席することで足りる。株主の数が1名になった場合は、裁判所により解散させられることがありえる。 改正法案では、原則としては、株主総会の招集通知を新聞に掲載する必要がなくなり、株主に郵送することで足りるとしている。但し、無記名式株券を発行している会社においては、株主総会の招集通知を新聞又は電子媒体において告知する必要がある（詳細は、今後発布される省令において規定される）。 配当金の分配は、株主総会又は取締役会の決議から1ヶ月以内に完了しなければならない。   合併に関する改正 現行の民商法では、会社の「合併」においては、2つの会社が合併して新しい会社を設立し、合併の対象となった旧会社は解散するという「新設合併」しか認められていない。例えば、A社とB社が合併する場合は新会社Cが設立される。A社とB社は消滅し、C社はA社とB社の権利・義務を継承する。 改正法案では、企業結合のもう一つの形態として「吸収合併」が追加された。吸収合併においては、吸収された会社は解散し、吸収した会社は存続する。例えば、A社を存続会社、B社を被吸収会社とした場合、合併手続き終了時にB社は解散し、A社は法人格を維持したままB社の資産、負債、権利、義務を自動的に継承することになる。   今後の展開 改正法は国王による承認を経て、官報に公示されてから90日後に発効する。   備考：本和文は英文記事から作成しました。原文については、以下のリンクをご参照ください。 Thailand Prepares to Enact Amended Civil and Commercial Code

The draft regulations referred to below were withdrawn from the legislative process on November 8, 2022.   On October 25, 2022, the Thai cabinet approved in principle a draft version of new ministerial regulations that permit certain types of foreign nationals to acquire land for residential use. These draft ministerial regulations represent an additional scheme that complements the existing ministerial regulations from 2002 prescribing rules, methods, and conditions for foreign nationals’ acquisition of land for residential purposes. These draft ministerial regulations aim to attract to Thailand foreign nationals who invest at least THB 40 million. The targeted foreign nationals consist of four groups: Wealthy individuals; Retirees; Foreign nationals who wish to work from Thailand; and Highly skilled expatriates. These four groups are eligible to acquire up to 1 rai (1,600 square meters) of land for use as their own residence in Bangkok, Pattaya City, a municipal area (khet thetsaban), or a designated residential area under the law governing city planning. The area must be situated outside any designated military safety zone. The THB 40 million minimum investment mentioned above may be any type of investment permitted under the ministerial regulations. Some examples include Thai government bonds, real estate or infrastructure mutual funds, real estate investment trusts (REITs), and share capital of Board of Investment (BOI) promoted entities (or a business eligible for BOI promotion). The investment must have been made before submission of the application for land ownership, and it must be maintained for at least three years. If the qualifications are met, the application for land ownership and the related supporting documents (including a certificate of investment issued by the relevant authorities) must be submitted to the director general of the Land Department for consideration and further submission to the Minister of Interior for approval. If approved, the applicant must notify the competent official within 60 days of

Tilleke & Gibbins employment specialists in Myanmar have contributed an updated Myanmar chapter to Employment and Employee Benefits Global Guide, a Thomson Reuters Practical Law online publication that provides an overview of employment and employee benefits in jurisdictions worldwide. The Myanmar chapter was written by members of Tilleke & Gibbins’ Yangon office, including Yuwadee Thean-ngarm, director; Nwe Oo, senior associate; Sher Hann Chua, consultant; and Kyaw Min Tun, consultant. The chapter covers a wide range of key employment topics, including employment status, background checks, regulation of the employment relationship, minimum wage, working hours and holidays, illness and injury of employees, discrimination and harassment, termination of employment, resolution of employer-employee disputes, redundancy/layoffs, employee representation and consultation, business transfer and insolvency, employee relocation, health and safety obligations, taxation of employment income, intellectual property issues, and more. Practical Law, produced by Thomson Reuters, is the world’s leading legal resource for business lawyers, publishing a huge range of guides for hundreds of jurisdictions and practice areas. The Employment and Employee Benefits Global Guide covers 46 jurisdiction around the world, with Tilleke & Gibbins also providing the Vietnam chapter of the guide. To view the latest version of the Myanmar chapter, please visit the Practical Law website.

Under Thai bankruptcy law, a creditor can file a request for a debtor to be placed under an absolute receivership order and bankruptcy judgment. However, the debtor must be insolvent, and the debt owed to the creditor or creditors must be at least THB 1 million (for a debtor who is a natural person) or THB 2 million (for the debtor who is a juristic person). In order to know whether the latter requirement is met, the debt must be “determinable”—that is, known and monetarily quantifiable. More specifically, determinable debt is debt (up to the filing date) in an amount that can be calculated, whether the debt is payable immediately or in the future. The debt can be under a loan agreement or under a sale-and-purchase agreement. One question that sometimes comes up is whether damages arising out of termination of such an agreement are considered determinable debt. According to a number of Supreme Court precedents, if the debt (e.g., rent, fine or penalty) can be calculated as referred to in the agreement, the debt is determinable. Three of these cases are described below. Supreme Court Case No. 2653/2526 In this case, the defendant made a partial delivery of oil (i.e., not the amount fully expected) to the plaintiff, who claimed that the defendant owed them a fine of almost THB 14.9 million, calculated in accordance with the sale-and-purchase agreement for the oil. The defendant argued that the debt was not determinable because the plaintiff did not prove whether they suffered damage or not. The Supreme Court noted that the agreement for sale and purchase of oil stated clearly that if the defendant could not deliver oil to the plaintiff in full, the plaintiff had the right to terminate the agreement and fine the defendant 25 percent of the price of the oil