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Myanmar: MIC now mandated to exclude irresponsible investors
Under the new Investment Law and corresponding investment rules implemented in April 2017, the Myanmar Investment Commission (MIC) is now empowered to exclude investors who have abused human rights in any jurisdiction, according to the International Commission of Jurists (ICJ).
Dr Daniel Aguirre, a legal adviser with the ICJ in Myanmar, told The Myanmar Times that both the government and civil society should use the opportunities to push for responsible investment and use public consultation, the legal framework and other means to ensure that the MIC uses its mandate to tackle irresponsible investment.
“The Investment Rules of 2017 instruct the MIC to consider whether investors have demonstrated a commitment to responsible investment. In considering the good character and reputation of the investor, the MIC may study whether the investor or any associate with an interest in the investment broke the law in Myanmar or any other jurisdiction,” Dr Aguiree said, adding that the rules explicitly mention environmental, labour, tax, anti-bribery and corruption and human rights law.
“What this means is that if an investor is shown to have committed a crime, has violated environmental protection standards or was involved with human rights abuses, the MIC should not grant it a permit to invest here.
“If such a company applies for an investment permit, civil society should bring its record to the attention of the MIC and advocate for the rejection of a permit. The MIC should also conduct its own research into applicants,” he explained.
Chapter two of the Investment Law states that the objective of the new law is to “develop responsible investment businesses which do not cause harm to the natural environment and the social environment for the interest of the Union and its citizens.”
While the law does not clearly define what the term “responsible investment” entails, 64(d) of the investment rules have outlined the criteria as follows: “the Investor has demonstrated a commitment to carry out the investment in a responsible and sustainable manner, including by, as relevant, limiting any potentially adverse environmental and social impacts.”
64(d) also explicitly states that MIC has the authority to reject investment proposals if the investor has not demonstrated a commitment to “environmental conservation actions, compliance with environmental conservation policies, human rights and application of effective technology for natural resources and practices of waste management.”
The Investment Law and its rules govern both domestic and foreign investments except those within special economic zones.
According to Dr Aguirre, civil society should pro-actively submit information about applicant investors to the MIC for consideration. Doing so, he argued, would help ensure only responsible investors benefit from the protections afforded by the Investment Law.
The MIC is the gatekeeper that issues permits and endorsements for many would-be national and international investments which will likely cause a large impact on the environment and local community, he argues.
“[While] much depends on how to consultation works in practice, the MIC must encourage public participation and consultation. Otherwise, there is a risk that the Commission would not solicit the advice of stakeholders and affected parties.
“Civil society stakeholders are well placed to submit briefs regarding the business reputation of proposed investors. The MIC should consider unsolicited comments about the proposed investment from stakeholders and persons affected by the determination as it would broaden the MIC’s knowledge base when scrutinising investments.
“It would be naive to assume that the investor would provide all relevant and impartial information to the Commission on its reputation and character. In order to facilitate meaningful participation by stakeholders and persons affected by an MIC determination, they must receive timely notification about the proposed investment in both English and Myanmar language,” the legal adviser said.
He added that judicial review is another important means to make sure that the MIC uses its mandate to prevent irresponsible investment.
“In order to ensure that the protective aspects of the law are effective, civil society will have to engage the courts and use their power of review administrative bodies such as the MIC are acting reasonably and in accordance with the law. If the MIC grants permit for companies that do not meet the requirements outlined in the Investment Rules, their decisions must be subject to review by the judiciary.
“Myanmar’s courts have the authority to review administrative decisions, particularly through the application of constitutional writs. Lawyers can use the writs of mandamus and certiorari to secure the performance of public duties and quash an illegal order already passed by public bodies such as the MIC,” the adviser told The Myanmar Times.
“Mandamus” refers to an order that compels a government agency to do something, while “Certiorari” is an order to quash, that is, an order that cancels the decision of the government agency in question, according to the report Access to Justice and Administrative Law in Myanmar authored by Melissa Crouch.
Dr Aguirre also said that civil society should conduct public advocacy campaigns directed at drawing attention to the illegal actions of potential investors at home or abroad.
Source: http://www.mmtimes.com/index.php/business/26177-mic-now-mandated-to-exclude-irresponsible-investors.html