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Myanmar, a key partner in the Belt and Road Initiative, is an important trade partner for China. In recent years, the number of mainland China arbitral awards involving Myanmar parties has been increasing, leading to growing demand for the recognition and enforcement of such awards in Myanmar.

Legal basis

Both China and Myanmar are signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). The legal basis for recognising and enforcing Chinese arbitral awards in Myanmar is the New York Convention and the Myanmar Arbitration Law.

Article 3 of the 1958 New York Convention imposes a fundamental obligation on signatory states to recognise awards made in other countries. The procedures for such recognition should not be more cumbersome than those for domestic awards.

Myanmar acceded to the New York Convention in 2013, and implemented it through its Arbitration Law in 2016, incorporating the relevant provisions into its domestic law.

Review standards

Article 46 of the Myanmar Arbitration Law outlines the review standards for recognising and enforcing foreign arbitral awards. These standards align closely with article 5 of the New York Convention and article 36 of the UNCITRAL Model Law on International Commercial Arbitration.

The primary principle is procedural review, with a substantive review being an exception. Specifically, the Myanmar Arbitration Law follows the New York Convention¡¯s presumption of ¡°recognition of arbitral awards¡± and stipulates the grounds for refusing recognition and enforcement of foreign arbitral awards.

Therefore, Myanmar courts cannot refuse recognition of foreign arbitral awards for reasons not explicitly stated in the law. Most grounds for refusal under the Myanmar Arbitration Law are procedural and must be raised and proven by the opposing party.

These grounds include: incapacity of the parties to the arbitration agreement; invalidity of the arbitration agreement; improper conduct of the arbitration procedure or deviation from the arbitration agreement; award exceeding scope of the arbitration agreement; and award annulled or suspended by a competent authority in the country where it was made.

Substantive review by the Myanmar courts is limited to specific cases, such as when the subject matter of the dispute is not arbitrable under Myanmar law, or when the award contravenes national interests.

The Myanmar Arbitration Law significantly deviates from the New York Convention and model law by replacing the convention¡¯s ¡°contrary to public policy¡± clause with a ¡°contravenes the national interests¡± standard for refusing recognition of foreign arbitral awards.

But there are virtually no case precedents in Myanmar that apply this ¡°contravenes the national interests¡± clause, complicating efforts to delineate specific differences between what is deemed detrimental to national interest and what violates public policy.

However, it is clear that the ¡°contravenes the national interests¡± standard represents a stricter standard of review in its literal interpretation.

Proof requirements

Article 45 of the Myanmar Arbitration Law stipulates that, to apply for recognition and enforcement of a foreign arbitral award, the applicant must submit the original or a certified copy of the arbitral award and the arbitration agreement.

Unlike the New York Convention and the model law, the Myanmar Arbitration Law also requires submission of additional evidence necessary to prove the arbitral award resulted from arbitration.

Furthermore, article 45 mandates that the applicant must provide an English translation of the relevant documents. This translation must be officially certified as accurate by a diplomatic or consular officer, an official translator, or a sworn translator from the respective country, or otherwise certified as accurate, according to Myanmar¡¯s current laws.

It is important to note that, in practice, Myanmar courts also still require a Burmese translation of the relevant documents.

Myanmar is not a signatory to the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. Therefore, documents submitted to Myanmar courts must undergo consular double certification rather than a single apostille authentication.

According to article 19 of Measures for Consular Authentication issued by China¡¯s Ministry of Foreign Affairs: ¡°Documents issued domestically for use abroad, which require consular authentication by the destination country, must first be notarised by a domestic notary office or certified by an appropriate institution. After this, they should be sent to the Ministry of Foreign Affairs or local foreign affairs offices for consular authentication. Only then can they be submitted to the embassy or consulate of the destination country in China for final authentication.¡±

Consequently, obtaining consular double certification from domestic notary organisations is a necessary prerequisite for seeking consular double authentication. Detailed regulations for consular double certification can be found on the Chinese Consular Service Network.

Enforcement procedures

Articles 46 and 47 of the Myanmar Arbitration Law stipulate that a foreign arbitral award, once recognised by a Myanmar court, should be treated as a decree of a domestic court and enforced accordingly.

Additionally, any party has the right to appeal against the court¡¯s order to set aside or refuse to set aside a foreign arbitral award. Therefore, applying for the recognition and enforcement of a foreign arbitral award in Myanmar requires entering the local litigation process, which may involve three stages: first instance, appeal and final instance.

Huang Qiang is a senior partner at Zhong Ce Law Firm. He can be contacted by phone at +86 138 1185 0563 and by email at huangqianglawyer@zhongcelaw.com

Yang Shixuan is an associate at Zhong Ce Law Firm. She can be contacted by phone at +86 133 7011 1427 and by email at yangshixuanlawyer@zhongcelaw.com