Rajah & Tann Regional Round-Up
your snapshot of key legal developments in Asia
Issue 4 - Oct/Nov/Dec 2019
 

Anti-Money Laundering Order and Supreme Court Announcement for Lawyers

On 18 December 2019, following the issuance of Anti-Money Laundering Order No. 45/2019 by the President’s Office on 14 November 2019 (“Order”), the Supreme Court issued an announcement ("Announcement") which along with the Order, require all lawyers, notaries, legal professionals and accountants engaging in a transaction for or on behalf of their customers/clients, to notify the Financial Intelligence Unit (“FIU”) of any suspicious transaction that they may come to know of in the course of their work.

These professionals and individuals are required to promptly notify the FIU if the amount of the subject transaction or the property involved equals or exceeds the designated threshold, or they have reasonable grounds to believe that the subject money or property is obtained by illegal means or is related to money laundering or financing of terrorism or an attempt to do so. Failure to lodge such a report with the FIU may amount to an offence under section 46 of the Anti-Money Laundering Law 2014, which is punishable with imprisonment for three to seven years and a fine of MMK300 million.


Online Trademark Registration, Online IP Agent System

Although the Trademark Law was published on 30 January 2019, it is not yet in force as the President has not issued a notification to this effect. Pending the coming into operation of the law, on 17 December 2019, the Department of Intellectual Property ("DIP") under the Ministry of Commerce ("MOC") hosted a seminar on E-Filing Website for Trademark Registration in Nay Pyi Taw to introduce the new online trademark filing system as well as explain the necessary procedures relating to it.


To use the online trademark filing system, applicants are required to submit user application proposals to the DIP. The DIP will then provide them with usernames and passwords. The procedure for the registration of a trademark includes the following:


  1. filing an application for trademark registration via the Online IP Agent System; and

  2. submitting supporting documents such as the Power of Attorney (POA), the Declaration of Ownership filed with the Deeds Registration Office (ORD) with the date of first use and evidence of use of the mark in Myanmar, details of the proprietor (name, address, country/jurisdiction of incorporation), specification of goods and services, and the mark itself (including the type of mark and colour description).

We understand that the DIP will establish two intellectual property ("IP") offices in Myanmar (in Yangon and Nay Pyi Taw). The DIP will announce the official filing fees for trademark registration applications one month before the soft opening of the IP offices, which is expected to take place in early February 2020. During the soft opening period, only the re-registration applications by existing trademark owners will be accepted. There will be a six-month grace period from the end of the soft opening period to allow individuals who fail to re-register their mark during the soft opening phase to do the necessary re-registration. They will, however, be charged late filing fees. The grand opening of the IP offices is tentatively scheduled in the third or fourth quarter of 2020, after which applications to register new marks will be allowed. 


New entrants who wish to register marks must prepare a request-letter for registration which will include submission of information such as the name and address of the applicant, the name and address of its representatives, clear and complete descriptions of the marks that the applicant intends to register, and the name and class of the subject goods or services in accordance with the international classifications under the new Trademark Law.


Offshore Remittance Business License Regulations

On 15 November 2019, the Central Bank of Myanmar ("CBM") issued Notification No. 21/2019 ("Notification") setting out the offshore remittance business license regulations with the view of reducing unofficial offshore remittances and to provide a legal framework for such activities.  The Notification sets out the application process for an offshore remittance business license ("ORBL"), the rules on security deposits and revolving funds, anti-money laundering provisions, and penalties for non-compliance of the regulations.


The following documents must be submitted when applying for an ORBL:


  1. Certificate of incorporation (COI) under the Myanmar Companies Law 2017 (MCL);   
  2. tax clearance certificates and invoices attesting the official sources of income for the company's security deposit;
  3. business operation plan;
  4. cash distribution program;
  5. an undertaking by the company to comply with the Foreign Exchange Management Law, the Financial Institutions Law, the Anti-money Laundering Law and the Anti-terrorism Law; and
  6. customer complaint program and accounting scheme.

The supporting documents relating to the entity's responsible persons which must also be submitted include the following:


  1. documents with the names, working experience and fields of expertise of the responsible persons who will manage the offshore remittance business ("ORB"), as well as the ORB's beneficial owners, management personnel, shareholders and compliance officers;
  2. police clearance certificates of compliance officers, agents, sub-agents or officers-in-charge of the ORB branch offices, and shareholders holding 10% or more in the ORB; and
  3. a training course completion certificate of compliance with the Anti-money Laundering Law and Anti-terrorism Law conducted by the Financial Intelligence Unit in collaboration with the Myanmar Police Force, Special Investigation Department the CBM and Rule of Law Center. 

The review and approval of an ORBL application by the CBM will take 90 days. The validity of an ORBL is three years.


The maximum level of funds receivable or transferable by an ORB licensee on behalf of an individual customer at any given time is US$1,000. The maximum receivable or transferable amount for one person per month is US$5,000 or its equivalent.


As a prerequisite to conducting their activities, ORBs must place a minimum amount of MMK100 million security deposit at a bank holding an authorised dealer license issued by the CBM. This security deposit must be placed in an escrow account that can only be opened by the ORB upon meeting certain conditions. 


From a compliance perspective, ORBL holders must comply with some requirements, including the following:


  1. monthly submission of bank statements of agents or offshore branch offices that receive or transfer funds to the Foreign Exchange Management Department ("FEMD");
  2. submission of Consolidated Remittance Transaction Statements (CRTS) signed by an authorised representative of the company to the FEMD within seven days after the end of each month;
  3. submission of Financial Statements (FS) signed by an authorised representative of the company to the FEMD within one month after the end of the financial year;
  4. submission of foreign currency transaction daily accounts to the FEMD using the Electronic Reporting System (ERS) before noon of the next working day;
  5. submission of the final status or information regarding an ORBL holder's business operations (such as ongoing litigation, officers being convicted of a crime, death etc.) to the CBM once every six months;
  6. in the event that the MMK-denominated amount transferred is equivalent to US$500 or less, the documents indicating the names and national registration card numbers or passport numbers of the transferor and transferee must be maintained for one year from the date of the transfer;
  7. if the MMK-denominated amount transferred exceeds US$500, the information relating to the transfer, such as transferor and transferee names, must be maintained for five years from the date of the transfer; and
  8. notification to the CBM of the ORBL holder's place of business before commencing operations, and 30 days' prior approval from the CBM for a change of business location.

Non-compliance with the Notification attracts penalties, which include a MMK10 million-fine (minimum). 


The FEMD is the designated department that supervises and regulates ORBs.




Please note that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is only intended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice.

 

Rajah & Tann
Myanmar Company Limited
Myanmar Centre Tower 1, Floor 07, Unit 08,
192 Kaba Aye Pagoda Road, Bahan Township,
Yangon, Myanmar
http://mm.rajahtannasia.com


Contacts:

Dr Min Thein
Managing Partner
D +951 9345343
F +951 9345348
min.thein@rajahtann.com

Chester Toh
Director
D (65) 62320220
chester.toh@rajahtann.com

Jainil Bhandari
Director
D (65) 62320601
jainil.bhandari@rajahtann.com

Rajah & Tann Asia is a network of legal practices based in South-East Asia. Member firms are independently constituted and regulated in accordance with relevant local legal requirements. Services provided by a member firm are governed by the terms of engagement between the member firm and the client.

This Update is solely intended to provide general information and does not provide any advice or create any relationship, whether legally binding or otherwise. Rajah & Tann Asia and its member firms do not accept, and fully disclaim, responsibility for any loss or damage which may result from accessing or relying on this Update.