Myanmar - Part L - Arbitration in Asia - 2nd Edition
Nishant Choudhary, Partner and Managing Director, at DFDL in Myanmar. His core expertise is practice dispute redressal by assisting several clients in Myanmar, and since 2021 in Cambodia. Accumulating more than 19 years of dispute resolution experience in various capacities, he has advised on some of the most challenging and groundbreaking dispute matters, both conventional and alternative in various sectors throughout the region. Given his in-depth understanding of the dispute redressal landscape in the region, he is responsible for heading regional dispute resolution practice for DFDL. Before relocating to Myanmar, he was a litigation lawyer in India and had worked on some landmark matters.
In addition to the disputes practice, Mr. Choudhary focuses on varied transactional matters in Myanmar and banking and finance matters in Cambodia. In Myanmar, his practice centers on M&A (and general Corporate and Commercial), B&F (including Fintech and Capital Market), Energy and Infrastructure, TMT, Real Estate, Aviation, and Dispute Resolution. In addition to being a frequent speaker at various national and international conferences and seminars across the globe, he has authored several articles and papers published in various journals such as the IBA, Asia-MENA, Lexis Nexis and IFLR. Ranked by most of the leading directories like Chambers and Partners, IFLR and Asia Law, he received the 40 EU-India Business Leader 2019 award at the European Parliament in Brussels. Mr. Choudhary is often quoted for his views on legal matters relating to Myanmar by several Myanmar and international newspapers. He holds a Master of Laws (LL.M.) in Business and Finance Law from the George Washington University Law School, Washington DC.
Kyaw Kyaw Han is a legal adviser in DFDL Myanmar and is based in Yangon. His practice focuses on aviation, compliance due diligence, corporate law, and land title due diligence. He holds an LL. B from Dagon University, Myanmar, a Diploma of Business Law from Yangon University, Myanmar, and a Diploma of Human Resource Management IQN (UK), along with a Diploma of Corporate & Business Law from the City of Oxford College (UK). He is currently a higher-grade pleader and is licensed to practice in subordinate courts, such as district and township courts. He is also an accredited arbitrator/mediator with the Myanmar International Arbitration Centre (MIAC) and an associate member of the Myanmar Arbitration Centre (MAC) established by the Union of Myanmar Federal Chambers of Commerce (UMFCCI). In addition, he is a certified representative for Trademark, Patent, and Industrial Design registration.
Originally from Arbitration in Asia - 2nd Edition
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[1] INTRODUCTION
The principle of arbitration existed in the ancient Myanmar judicial system prior to the British-India period, although it was of course, different in form from what we know today. At that time, arbitration cases were decided by persons chosen by the parties who acted as judges of the matter referred to them by the parties.
The history of the law of arbitration in Myanmar, which is based on English law, can be traced back to 1886, when Myanmar became part of British India. Until 1937, Myanmar was part of British India and the laws of India were applicable to Myanmar. As a result of this, the Code of Civil Procedure of 1882 (India Act No.14 of 1882), in which the provisions relating to the law of arbitration were embedded were applicable to Myanmar. These provided for: 1) reference to arbitration of disputes after they have arisen and that 2) agreement to refer future disputes to arbitration cannot be enforced. When the Code of Civil Procedure of 1882 was repealed by the Code of Civil Procedure of 1908 (India Act No. 5 of 1908), there was no substantial change in the law of arbitration. The Indian Arbitration Act of 1899 (India Act No. 9 of 1899) was enacted on the lines of the English Arbitration Act of 1889. Thereunder, disputes, present or future, could be referred to arbitration. The Indian Arbitration Act was, however, applicable only to then Rangoon (now Yangon), the capital of Myanmar. The provisions relating to the law of arbitration in the Code of Civil Procedure and the Indian Arbitration Act of 1899 were repealed by the Arbitration Act of 1944 (the “1944 Act”), which corresponds to the India Arbitration Act of 1940.
Contents
[1] INTRODUCTION
[2] LEGISLATION
[2.1] Arbitration law and application
[2.2] Arbitrability
[2.3] International and Domestic Arbitration
[3] ARBITRATION AGREEMENTS
[3.1] Requirements
[3.2] Parties to the arbitration agreement
[3.3] Effect of arbitration agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Selection
[4.3] Number of arbitrators
[4.4] Challenging an arbitrator
[4.5] Replacement of arbitrators
[4.6] Jurisdiction of the arbitral tribunal
[5] ARBITRATION PROCEDURE
[5.1] Place of the arbitration
[5.2] Commencement of the arbitration
[5.3] Language
[5.4] Submission of statements
[5.5] Hearings and written proceedings
[6] AWARDS
[6.1] Making of the award
[6.2] Effect of an award
[6.3] Types of awards
[6.4] Correction and interpretation of awards
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Interim orders
[7.2] Setting aside of domestic awards
[7.3] Enforcement of domestic awards
[7.4] Appeal against domestic arbitral awards
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
[8.1] Right to appeal
[9] PRACTICAL INFORMATION
[9.1] Visa requirements
[9.2] Foreign counsel
[9.3] Arbitrators fees and taxation
[10] APPENDICES (ONLINE)
[10.1] Part XXV-Arbitration–
The Arbitration (Protocol and Convention) Act,
v(19th January, 1939)