The Elimination of Corruption and Bribery Law ("ECBL") was passed in Myanmar on 7 August 2013 and entered into force on 17 September 2013. The Suppression of Corruption Act 1948 ("SOCA") was repealed as a result. Together with the provisions in the Penal Code 1861 as well as the Control of Money Laundering Law 2002, the ECBL forms the legislative framework addressing the prevention of corruption in Myanmar.
The ECBL seeks to address the bribery of persons within a political post or with public authority in Myanmar, as well as penalise persons who engage in the bribery of such persons. Such persons conceivably include members of Myanmar’s Parliament, Ministers, Deputy Ministers, as well as officials from government departments and foreign government departments.
Under the ECBL, a bribe is considered to be any monies, materials, gifts, services or other illegal benefit provided or accepted without consideration or fair value. There is no exemption for facilitation payments so potentially "tea monies", which may in practice be paid to junior bureaucrats or government officials in Myanmar, are potentially illegal. Stiffer penalties have also been introduced in the ECBL, with persons guilty of bribery offences liable to imprisonment of up to 15 years and / or a fine. On that note, it is interesting to see how this concept of "bribe" will be interpreted and applied in the local context, given that gifts are not uncommon in the Myanmar culture.
The ECBL would be enforced by the Anti-Corruption Commission ("ACC"), with the composition of the Anti-Corruption Commission having only recently been nominated. The members of the ACC mostly comprise former high-ranking government officials, with the proposed Chairman of the ACC being U Mya Win, a former military officer. Other members of the ACC comprise former ambassadors, former military officers, former Director Generals from the Ministry of Foreign Affairs and Ministry of National Planning and Economic Development, and former Directors from the Audit Office.
The passing of the ECBL appears to send a clear message that the Myanmar Government is directing efforts towards eradicating bribery and corruption, with the ECBL drafted with a view to align Myanmar’s anti-corruption legislation with current international standards. It remains to be seen how successful enforcement of the ECBL would be, given the continued existence of corruption risks in Myanmar.
Separately, in recognition of Myanmar's ongoing democratic reforms and efforts to eliminate corruption, the US Office of Foreign Assets Control ("OFAC") has gradually eased its sanctions against Myanmar through the issuance of several General Licences and Executive Orders. Further information relating to existing US Sanctions can be found in the OFAC publication on FAQs regarding US sanctions in Myanmar, which has been updated as of 1st April 2014.
In particular, US companies investing in Myanmar may wish to take note of Burma General Licence 19 which authorises US persons to deal with four specified banks listed on the OFAC's Specially Designated Nationals and Blocked Persons List ("SDN list") within certain terms and conditions. US investors may need to deal with these four SDN listed banks when applying for operational licences and permits in Myanmar and when making payments to designated accounts of local regulators. Nonetheless, US persons are still generally prohibited from dealing with SDN listed persons and entities unless authorised by the OFAC.
