You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

August 30, 2019

Why Myanmar Should Sign the New Singapore Mediation Convention

Subscribe to Updates
The Myanmar Times

One of the problems international businesses face in doing business in Myanmar is dispute resolution. The Myanmar court system is opaque and extremely slow, and local litigators charge surprisingly high fees. Arbitration is an obvious solution to this problem, and following the Myanmar Arbitration Law (2016) (AL) almost all commercial contracts of substantial value now contain arbitration clauses, usually for arbitration abroad-most commonly at the Singapore International Arbitration Centre (SIAC). This is because the AL allows for the enforcement of foreign arbitral awards where the award was made in a state that is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), in all but a limited range of circumstances. The AL also paves the way for domestic arbitration, although I would imagine it will be several years before the arbitration centre recently established by the Union of Myanmar Federation of Chambers of Commerce and Industry (UMFCCI) finds its feet.

However arbitration, particularly foreign arbitration, can remain an extremely expensive method of dispute resolution. Now, as a result of the Convention, mediation is likely to become a more popular alternative dispute resolution method in many countries.

Mediation is much cheaper and faster than litigation or arbitration, and therefore is worth carefully considering as an option, particularly in relation to smaller disputes. Legal advice is required, as it will not always be appropriate. It works in this way. Following the process of mediation facilitated by a mediator, the parties come to an agreement to settle their dispute. The problem in the past has been that there has been no simple way to enforce such a settlement agreement at the end of the mediation process. The Convention changes this.

Note that under the Convention the settlement agreement must be international, in the sense that at least two parties to the settlement agreement have their places of business in different States, or the State in which the parties to the settlement agreement have their places of business is different from either (i) the State where a substantial part of the obligations under the settlement agreement is performed or (ii) the State with which the subject matter of the settlement agreement is most closely connected.

Forty-six countries have already signed the new Singapore Mediation Convention, including Singapore itself. The Convention provides that a party to the Convention shall enforce a settlement agreement in accordance with its rules of procedure and in accordance with the Convention.

As with foreign arbitral awards, there are limited circumstances in which a settlement agreement may not be enforced. For example, the settlement agreement is not final according to its terms, or there was a serious breach by the mediator of applicable standards without which that party would not have entered into the settlement agreement, or granting relief would be against public policy.

Myanmar has made great progress in terms of arbitration. It should not be left behind with the potential of mediation as another form of alternative dispute resolution.

 

This article was originally published in the Myanmar Times and is reproduced here with permission and thanks. The original can be viewed on the Myanmar Times website. 

Related Professionals

Practices

Dispute Resolution and Litigation

Location

RELATED INSIGHTS​ 

October 2, 2024
As Thailand is a contracting state of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, international arbitral awards can, in principle, be enforced in Thailand. However, not all awards will necessarily be enforceable. The Arbitration Act BE 2545 (2002) gives courts the discretion to deny the enforcement of an award if the court determines that enforcing it would be contrary to “public order or the good morals of the people” (often referred to as “public policy”). Similarly, the Arbitration Act allows a court to set aside a domestic award if its recognition would violate public policy. This discretionary power of the court is prescribed by the law and does not require any party to make an argument on public policy grounds to trigger such power. A recent Supreme Court judgment demonstrates that a court considering an award will review the legality of the arbitral proceedings as well as the content of the award. In this case, the Supreme Court set aside an award on the grounds that it violated public policy because it was the result of arbitration that did not proceed in accordance with the relevant law. Under Thai bankruptcy law, after the Bankruptcy Court accepts a request for rehabilitation of a debtor, all civil proceedings against that debtor, including arbitration proceedings, must be stayed until the court orders otherwise or until the rehabilitation case ceases. In this matter before the Supreme Court, however, the arbitrator continued with the arbitration and went on to render an award even after the court had accepted the request for rehabilitation. The award was later challenged to be set aside on the grounds that continuing with the arbitration was against public policy. While setting aside the award was arguably unnecessary, in this case (as the relevant bankruptcy law
Read More
October 1, 2024
Three of Tilleke & Gibbins’ labor and employment specialists in Vietnam have contributed the Vietnam chapter to the newly issued Labor and Employment Disputes 2024, a comprehensive guide from Lexology Panoramic to labor and employment dispute resolution in various jurisdictions around the world. The Vietnam chapter covers the following topics: Pre-action considerations: Key requirements, third-party funding, contingency fee arrangements Issuing a claim: Forum, territorial jurisdiction, standing, commencing claims, fees, service Defendants and legal personality: Types of claims, time limits, counterclaims Case management: Procedure, rules, amendments to claims, adding parties to proceedings, consolidating proceedings Class and collective actions: Special considerations Evidence: Witnesses, tactical considerations Interim relief: Availability, requirements Trial: Hearings conduct and typical time frames, confidentiality and public access, media reporting Elements of successful claims and burden of proof Alternative dispute resolution: Available types, requirements and expectations Enforcement: Collective employment and labor rights, enforcement of collective rights, standing Remedies and enforcement: Available remedies, assessing compensation, enforcement mechanisms Appeals: Appeal procedure and time frames, other means of challenge Update and trends: Recent cases and developments, technology developments, other issues The Vietnam chapter was authored by Truc Thi Thanh, Linh Ngoc Nguyen, and Kien Trung Trinh. Tilleke & Gibbins also contributed the Cambodia and Thailand chapters to Labor and Employment Disputes 2024.
Read More
October 1, 2024
Four of Tilleke & Gibbins’ labor and employment specialists in Bangkok have contributed the Thailand chapter to the newly issued Labor and Employment Disputes 2024, a comprehensive guide from Lexology Panoramic to labor and employment dispute resolution in various jurisdictions around the world. The Thailand chapter covers the following topics: Pre-action considerations: Key requirements, third-party funding, contingency fee arrangements Issuing a claim: Forum, territorial jurisdiction, standing, commencing claims, fees, service Defendants and legal personality: Types of claims, time limits, counterclaims Case management: Procedure, rules, amendments to claims, adding parties to proceedings, consolidating proceedings Class and collective actions: Special considerations Evidence: Witnesses, tactical considerations Interim relief: Availability, requirements Trial: Hearings conduct and typical time frames, confidentiality and public access, media reporting Elements of successful claims and burden of proof Alternative dispute resolution: Available types, requirements and expectations Enforcement: Collective employment and labor rights, enforcement of collective rights, standing Remedies and enforcement: Available remedies, assessing compensation, enforcement mechanisms Appeals: Appeal procedure and time frames, other means of challenge Update and trends: Recent cases and developments, technology developments, other issues The Thailand chapter was authored by Eric M. Meyer, Chusert Supasitthumrong, Pathanin Sornchangwat, and Chayathorn Kruatao, all in the Thailand dispute resolution and litigation team. Tilleke & Gibbins also contributed the Cambodia and Vietnam chapters to Labor and Employment Disputes 2024. The full Thailand chapter is available below as a PDF.
Read More
August 20, 2024
Following the enactment of the Tax Administration Law (TAL), Myanmar’s Ministry of Planning and Finance has issued Notification No. 44/2024, which outlines directives and procedures for addressing violations of tax law provisions. These procedures, which came into force on June 13, 2024, primarily focus on three key areas: tax evasion, impeding tax administration, and failure to preserve secrecy. The notification primarily aims to address tax evasion, impeding tax administration, and failure to preserve secrecy, classifying these offenses as either subject to arrest without warrant or not. Notably, tax evasion is classified as an offense subject to arrest without warrant, while impeding tax administration and failure to preserve secrecy are not. The notification also prescribed the forms for notifying taxpayers before taking any action. Tax Evasion Tax evasion refers to a taxpayer who willfully evades the assessment, payment, or collection of tax. Penalties for such offenses include fines of MMK 250,000 (approx. USD 120) or 100% of the evaded tax (whichever is greater), imprisonment for up to seven years, or both. The enforcement process for tax evasion requires the chief officer of the township revenue department or an officer in charge (the tax authority) to assess the relevant documents and information provided by the taxpayer. If a taxpayer is found to be evading tax, the tax authority must send a notice in the prescribed form for verification within 15 days. Taxpayers may apply for a one-time extension of 15 days to submit requested documents and make disclosures. If the taxpayer cannot fulfill the requirements as instructed, the tax authority will seek approval from the director general of the Internal Revenue Department (IRD) for criminal proceedings as cognizable offences. Impeding Tax Administration and Failure to Preserve Secrecy Impeding tax administration refers to obstruction or attempted obstruction of taxation staff or officers
Read More