Private International Law in Myanmar and Myanmar Law of Contract by Oxford Programme

PRIVATE INTERNATIONAL LAW
IN MYANMAR

PRIVATE INTERNATIONAL LAW
IN MYANMAR
by
Adrian Briggs
Professor of Private International Law
University of Oxford;
Barrister
with a Foreword by
Dr Than Nwe
Professor and Head of Department (retired)
Law Department, Yangon University;
Member of the Myanmar Academy of Arts and Sciences

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ပ��မ�က� ��င�� ဌ�နမ�� (အ�င�မ��စ��)
ဥပ�ဒပည�ဌ�န
ရန�က�န�တက� သ��လ�
ဥ�ယ��ဇ�� ရ�ထ��သည�။

FOREWORD
Private International Law or Conflict of Laws subject is my favourite subject. This
subject was unknown to us when I was a law student at Yangon University in 1965. But I
became a young Tutor at the Law Department in 1967. I was assigned to be the leader of
the discussion at this subject and I had to attend the lectures of my Professor U Hla
Aung, who brought this course from Harvard Law School in the United States of
America. Since then I have had much interest in this subject. Very luckily, I became the
student of Professor Graveson at Kings College, University of London, in 1976. My
study was Comparative Study of Private International Law, and it was the year in which
particular emphasis was placed on the Law of Contract. Since then I realized that
Myanmar needed to establish a specific Myanmar Private International Law. I felt that to
develop this subject was my responsibility, but I could not do that.
In this age of globalization, and in the transitional period of Myanmar, we urgently need
to have well established rules for cases which involve foreign elements, especially for
commercial transactions. This book places its emphasis on the commercial transactions,
looking at the issues which have been decided in Myanmar, and considering and
commenting on issues which may be expected to arise in Myanmar in the future. This
book will be very useful not only for the academicians but also for the Judges.
This book, written by the eminent Professor, Adrian Briggs, fills up the gap in the
Myanmar Legal System. Let me express my deep appreciation to Professor Adrian
Briggs, Professor of Private International Law, Oxford University, for his kind interest in
Myanmar and for his book on “Private International Law in Myanmar”.
Daw Than Nwe
Yangon, April 20th, 2015

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PREFACE
The aim of this book is to identify, state, and explain the rules of private international law
which form that part of the law of Myanmar today.
Law Departments in universities in Myanmar are having to adjust very quickly to a world
which is very different to the one on which the country closed its doors 50 years ago.
The Faculty of Law of the University of Oxford has for some time been working, with
the Department of Law at Yangon University and others, to provide practical help of
various kinds. The first thing, of course, was for us to listen carefully, for there are too
many whose calculation of what they can do for Myanmar is no more than a reflection of
what they think Myanmar can do for them. But it seems that among the things which
Oxford can offer, and provide with no strings attached, is help with the fundamental
skills of legal teaching and doctrinal writing, from which everything else that should go
on in a law school will spring. So far as legal teaching is concerned, academic visits by
members of the Oxford Faculty have taken, and will, no doubt, continue to take place;
but other forms of contribution may sometimes be more productive, and less disruptive,
than a brief visit from a slightly disoriented professor. Law departments need modern
materials with which to do their job, and as Oxford has been producing such texts for a
very long time, our ability to do this may provide something more durable than whatever
remains after visits which are over almost before they have even begun.
The idea for this book came from a visit made to the Department of Law at Yangon
University in September 2014. As to that, of course, my first and happy task is to thank
the Head of the Department, Dr Khin Mar Yee, and her colleagues, for their kindness
and hospitality despite the many and much more important demands on their time. I was
also able to hold classes with Dr Mon Mon Tar and her colleagues at Dagon University,
and to do the same with at East Yangon University. Colleagues in these Departments
work under really challenging conditions with insufficient resources. Those of us in well-
upholstered universities in other common law jurisdictions, where life has never been
less than comfortable, should perhaps count our blessings and be happy to share some of
them. It was in discussion at East Yangon University with Dr Marlar Aung, Dr May
Htar, and Dr Khin Chit Chit, that the possibility of writing a book for the modern
teaching of this subject was broached. It seemed that the only way to see whether it was
an idea which might work was to sit down and try to produce a book, using Myanmar
material where it was available, common law to fill the gaps, and Oxford’s experience to
weave it all together. This is the book which resulted; it will be for those to whom it is
offered to judge whether it has worked.
The manuscript was prepared in Oxford. Dr Daw Than Nwe, Professor and formerly
Head of the Law Department at Yangon University, and now member of the Executive
Committee of the Myanmar Academy of Arts and Science with special responsibility for
legal education, very kindly agreed to be my collaborator in Myanmar, to help with
materials not available in England or in English, and to write the Foreword. All this was
my good fortune. A foreigner cannot sensibly work by himself to produce a book on
Myanmar law for Myanmar lawyers; we hope that, together, our efforts have produced
something which neither would have been able to accomplish alone. We also hope that,
by making it freely available on line, as it is intended, anyone in Myanmar who wishes to
explore their country’s rules of private international law will be able to.

The 13 Volumes of the Myanmar Code are an astonishing statutory resource, providing
the framework and structure for principled development of the modern law. But even
when these written laws were made they were not complete, and as the world moves on,
new questions are always arising. As was said in 1965, in a judgment of the Chief Court:
‘The Act may not be exhaustive, and a particular point not specifically dealt with must be
governed upon general principles. It is not necessary that every order of a Court should
be supported by a specific statutory provision, and where there is neither provision nor
prohibition it has to be guided by ordinary principles of common sense, justice, equity
and good conscience. Since the laws are general rules, they cannot regulate for all time to
come so as to make express provisions against all the cases that may possibly happen.’
This may actually be the most important statement of Myanmar law to be found in the
books. It was actually said in relation to an issue which is examined in Chapter 2, but its
significance is far wider than that. The amount of private international law contained in
the Myanmar Code is small, and is mostly well hidden. We have found what we could,
and we have used it to show how a court in Myanmar may now understand its private
international law. So far as the decisions of courts are concerned, Oxford has a fair
collection of Lower Burma/Rangoon/Burma law reports from 1900 to the late 1960s,
but after that the shelf is bare; and more recent reports of cases published in Myanmar
contain very little in the way of private international law. It should be clearly understood
that responsibility for any errors is mine alone. If there are lapses in the book - and first
editions rarely get everything right - suggestions for amendment and improvement would
be received with gratitude.
Many of the issues examined in this book have yet to come before a court in Myanmar;
some of those which have been before the courts did so such a long time ago that it
cannot always be assumed that they would or should be dealt with in the same way today.
Yet unless Myanmar is content to allow the judicial resolution of its disputes to be taken
away from it by foreign courts and tribunals, and by foreign lawyers who will enrich only
themselves at Myanmar’s expense, these issues must arise soon, and when they do, the
legal profession and legal system will need to deal with them properly. This book
represents our attempt to help teachers and students, lawyers and law reformers, courts
and tribunals, in Myanmar to recognise and understand the law which they already have.
There is much more of it than people probably realise, and it is robust, sensible, and
perfectly usable common law. Rather like the magnificent heritage architecture of
downtown Yangon, all it needs is to be properly appreciated.
Adrian Briggs
Oxford, April 14th, 2015

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မ�လ��အ�င�၊ �ဒ�က�တ� �မထ��၊ �ဒ�က�တ� ခင�ခ�စ�ခ�စ� တ��င�� ဆ��ရင�� ဤဘ�သ�ရပ�က��
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အသ��ပ��ခင��၊ ထ��န�က� �အ�က�စဖ��ဒ�အ�တ� �အ�က�� င�� ပ�င��စပ�က� ထ��င��ပ�� ခ��ရ��ကည��ရန�သ� ရ��ခ��ဟန�
တ�ပ�သည�။ ယင��၏ ရလဒ�အ�န�ဖင�� ယခ�စ�အ�ပ� ထ�က�ရ��လ��ပ�� ဤစ�အ�ပ� တကယ�လက��တ� �
အလ�ပ��ဖစ�မ�ဖစ�မ�� ဤစ�အ�ပ�က�� အက��ဖတ��ပ�ရန� ကမ��လ�မ��ခ�ရသ�တ��၏ တ�ဝန�သ� �ဖစ��ပမည�။

စ�အ�ပ�၏ စ�မ��ကမ��က�� အ�က�စဖ��ဒ�တ�င� �ပင�ဆင�ခ��ပ�သည�။ ရန�က�န�တက� သ��လ�၊ ဥပ�ဒပည�ဌ�န၏ ပ��မ�က�
��င�� အ�င�မ��စ�� ဌ�နမ��ဖစ��ပ�� ယခ�အခ� �မန�မ��င�င� ဝ�ဇ��င�� သ�ပ��ပည�ရ�င�အဖ�� တ�င� ဥပ�ဒပည��ရ�အတ�က�
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အ�န�လ��င��တ�င� အခမ�� တင�ထ��ရန� ရည�ရ�ယ�ထ��သည��အတ��င�� ယင��သ�� တင�ထ��ပ��ခင��အ��ဖင��
�မန�မ��င�င�၏ ပ�ဂ�လ�က အ�ပည��ပည�ဆ��င�ရ� ဥပ�ဒ စည��မ��မ��က�� ရ��ဖ�စ��စမ��ရန� စ�တ�ဝင�စ��သည��
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တစ�ခ�တ�င� �ဖ��ပသည��အတ��င�� ဆ��လ�င� -
‘ဤဥပ�ဒသည� �ပည��စ��လ��လ�က�ခ�င�မ� လ��လ�က�ပ�မည�။ ထ��အ�ပင� သ��သန� �က��င�တ�ယ�မထ��သည��
တစ�စ��တစ�ရ��သ� အခ�က�တစ�ခ�ခ�က�� အ�ထ��ထ� အ��ခခ�မ�မ��က လွှမ��မ��အ�ပ�ခ��ပ��င�သည�
တရ��တစ�ခ�၏ အမ�န� �တ��င��က�� ပဌ�န��ဥပ�ဒပ� အခ�က�တစ�ခ�ခ�က �ထ�က�ပ��ပ�သင��သည�ဆ��သည�� အခ�က�မ��
မလ��အပ��ပ။ ထ��အ�ပင� �ပဌ�န��ခ�က� သ��မဟ�တ� တ��မစ�ခ�က�တစ�ရပ�ရပ� မရ��သည��အခ�မ��တ�င�
ပင�က��ယ�အသ�ဉ�ဏ�၊ တရ��မ�တမ�၊ ည�မ�မ��င�� က�င��မ�န�သည��အသ�စ�တ�ဆ��င�ရ� သ�မန�အ��ခခ�မ�မ��က
လမ��ွှန��ပ�ရပ�မည� ဥပ�ဒမ��သည� အ�ထ��ထ� စည��မ��မ�� ဖစ�သည��အတ�က� ယင��တ��သည�
�ဖစ��ပ��င�သည�� အမ�အ��လ��အတ�က� �ပဌ�န��ခ�က�မ��က�� ရ�င��ရ�င�� လင��လင�� ရ�သ��ဖ��ပရန�က�စ�မ��
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ဤအခ�က�သည� စ�အ�ပ�မ��ထ�တ�င� �တ� �ရသည�� မန�မ�ဥပ�ဒ၏ အ�ရ��က��ဆ��အခ�က�တစ�ခ� အမ�န�တကယ�
�ဖစ��က�င�� ဖစ��င�ပ�သည�။ ယင��က�� အခန�� ၂ တ�င� �စ��က�ဆန��စစ�ထ��သည�� က�စ�ရပ�တစ�ခ��င��
စပ�လ��ပ�� အမ�န�တကယ�ပင� ��ပ��ပထ��ပ�သည�။ သ��သ�� ယင��၏ အ�ရ�ပ�မ�မ�� ထ��က�စ�ထက� အမ��က��
က�ယ��ပန� �ပ�သည�။ �မန�မ�ဥပ�ဒတ�င� ပ�ဂ�လ�က အ�ပည��ပည�ဆ��င�ရ�ဥပ�ဒ အ��က�င�� ပ�ဝင�မ�ပမ�ဏမ��
�သ�ငယ��ပ�� အမ��အ��ဖင�� တ�မ��မ�ပ��နပ�သည�။ က��ပ�တ��အ�န�ဖင�� က��ပ�တ��တတ��င�သ၍ ရ��ဖ��တ� �ရ��ခ��ပ��
�မန�မ��င�င�ရ�� တရ��တစ�ခ�သည� ယခ�အခ� ယင��၏ ပ�ဂ�လ�က အ�ပည��ပည�ဆ��င�ရ�ဥပ�ဒက�� မည�သ��
န��လည��င�သည�က�� ပသရန� က��ပ�တ��၏ ရ��ဖ��တ� �ရ��ခ�က�က�� အသ��ပ�ထ��ပ�သည�။ တရ��မ��၏
ဆ��ဖတ�ခ�က�မ��င�� ပတ�သက�၍မ� ၁၉၀၀ �ပည��စ�မ� ၁၉၆၀ �ပည��လ�န��စ�မ�� င��ပ��င��အထ�
�အ�က��မန�မ��ပည�/ရန�က�န�/�မန�မ� ဥပ�ဒအစ�ရင�ခ�စ�မ��မ�� အ�က�စဖ��ဒ�တ�င� အ�တ��မ��မ�� ရ��နပ�သည�။
သ��သ�� ယင��န�က�ပ��င��စ�မ��အတ�က�မ� စ�အ�ပ�စင�တ�င� စ�အ�ပ�သ�ပ�မ�တ� �ရပ�။ ထ��အ�ပင� �မန�မ��င�င�တ�င�
ထ�တ��ဝသည�� န�က�ပ��င��ပ��က��သ� အမ�အစ�ရင�ခ�စ�မ��တ�င� ပ�ဂ�လ�က အ�ပည��ပည�ဆ��င�ရ�
ဥပ�ဒ��င��ပတ�သက�၍ မပ�သ�လ�က�ပင� �ဖစ�သည�။ အမ��အယ�င��တစ�စ��တစ�ရ� ရ��ခ��လ�င� က��ပ�
တစ�ဦ�တည��၏ တ�ဝန�သ��ဖစ��က�င�� ရ�င��လင��စ�� န��လည�ထ��သင��ပ�သည�။ ဤစ�အ�ပ�တ�င�
လစ�ဟင��မ�မ�� ရ��ခ��ပ�က - ထ��အ�ပင� ပထမတည��ဖတ�ထ�တ��ဝမ�မ��တ�င� အရ�အ��လ��မ�� မ�န�ကန�သည�ဟ�
��ပ��င��လ� မရ��သည��အတ�က� - �ပင�ဆင�ရန��င�� တ��တက��က�င��မ�န�ရန� အ�က��ပ�ခ�က�မ��က��
�က��ဇ��တင�စ��ဖင�� က��ဆ��လက�ခ�မည� �ဖစ�ပ�သည�။

ဤစ�အ�ပ�တ�င� ဆန��စစ�ထ��သည�� က�စ�ရပ� အမ��အ�ပ��သည� �မန�မ��င�င�ရ�� တရ��တစ�ခ��ရ� ��မ��က�တ�င�
မ�ရ�က�ရ��ဖ��သ�ပ�။ တရ��မ��ရ� �တ�င� �ရ�က�ဖ��သည�� အခ�� က�စ�ရပ�မ��သည�လည�� က�လ
အလ�န��က��မင��ခ��ပ� �ဖစ�၍ ယ�န��ခတ�တ�င� ယင��က��သ�� က��င�တ�ယ�သင��သည�၊ က��င�တ�ယ�လ�မ��မည�ဟ� အ�မ�တမ��
မယ�ဆ��င�ပ�။ သ��တ��င��အ�င�ပင� �မန�မ��င�င�သည� ယင��၏ အ�ငင��ပ��မ�မ��အတ�က� တရ��ရ��ဖရ�င��မ�မ��က��
��င�င��ခ��တရ��မ��င�� င�င��ခ��ခ��မ��တ�င� ��ဖရ�င��စရန�ထ� ဆ��မရ��လ�င�၊ ထ��အ�ပင� �မန�မ��င�င�၏
က�န�က�စရ�တ��ဖင�� ၎င��တ��သ�လ�င� ခ�မ��သ��ကယ�ဝသ��မည�� င�င��ခ��ရ� ��နမ��က ��ဖရ�င��ရန�ထ�
ခ�င��မ�ပ�လ��လ�င�၊ ယင��က�စ�ရပ�မ��သည� မ�က�ခင� �ပ��ပ�က�လ�ဖ��ရ��ပ�� ယင��သ�� ပ��ပ�က�လ�သည��အခ�
ဥပ�ဒပည�ရ�င�မ��င�� ဥပ�ဒစနစ�တစ�ခ�က ယင��တ��က�� စနစ�တက�က��င�တ�ယ��ဖရ�င��ရန� လ��အပ�လ�ပ�လ�မ��မည�။
�မန�မ��င�င�ရ�� ဆရ��င�� က��င��သ��မ��၊ �ရ� ��န��င�� ဥပ�ဒ�ပ��ပင��ပ�င��လ��ရ� သမ��မ��၊ တရ��င��
ခ��မ�� အ�န�ဖင�� ၎င��တ��တ�င� ရ��ထ��င��ပ��သ� ဤဥပ�ဒက�� န��လည� သ�ဘ��ပ�က�လ��အ�င�
ဤစ�အ�ပ�က �ထ�က�က��င��စရန� က��ပ�တ�� က��ပမ��ထ��ခင��ပင� �ဖစ�သည�။ ဤဥပ�ဒသည� လ�အမ��
န��လည� လက�ခ�ထ��က�င�� လက�ခ�ထ��သည��အတ��င��အတ�ထက� ပ��မ��င��ပ�� ယင��သည� �တ�င��တင��
ခ��င�မ��သ�၊ သင��တင��လ��က�ပတ��သ�၊ �ပည��ပည��စ��စ�� အသ��ပ��င��သ� အဂ�လ�ပ�ဥပ�ဒတစ�ခ�ပင� �ဖစ�ပ�သည�။
ရန�က�န��မ�� လယ�က ခန� �ည��ထည�ဝ�သည�� ရ��ဟ�င��ဗ�သ�က�လက�ရ�မ��က��သ��ပင� ယင��က�� စနစ�တက�
ခ�စ��သ��စ��င�ရန�သ� လ��အပ�ပ�သည�။
�အဒရ�ယန� ဘရစ�ဂ�စ�
�အ�က�စဖ��ဒ�၊ ၁၄ ဧ�ပ� ၂၀၁၅

TABLE OF LEGISLATION
(References are to point numbers, not to page numbers)
(References in bold indicate where the provision is reproduced)
Arbitration Act 1944 10, 18, 87
s 34 16
s 37 87
Arbitration (Protocol & Convention) Act 1939
s 4 29
Child Marriage Restraint Act 1930 82
Civil Procedure Code 1909
s 2(2) 8
s 2(5) 6
s 2(6) 8
s 10 15, 16, 24
s 11 21, 24
s 13 6, 15, 21, 22, 23, 24, 25, 26, 27, 30, 62
s 14 7, 24, 25
s 16 11, 13, 14, 15, 16, 17, 19, 62, 63
s 17 11, 13, 14, 15, 16, 17, 19, 62
s 18 11, 13, 14, 15, 16, 17, 19, 23, 62
s 19 11, 12, 13, 14, 15, 16, 17, 19, 23
s 20 11, 12, 13, 14, 15, 16, 17, 19, 23, 25, 62, 72
s 21 15, 23, 25
s 44A 23, 24
s 60 67
s 83 11
s 94(5) 15, 16
s 151 7, 15, 16
First Schedule (Rules of Procedure)
Order 5
r 21A 14
r 25 1
Order 6
r 2 34
Order 9 15
Order 14 23
Order 21
r 46 67
rr 63A-63G 67
Order 29
r 2 72
Appendix A
Form 11 23

Companies Act 1914 71
s 2B 71, 72
s 27A 12, 72
s 148 12, 72
s 153 76
s 153A 76
s 153B 76
s 155 76
s 230 76
s 231 76
s 271 77
s 277 12, 72
Contract Act 1872
s 10 41
s 11 47
s 21 34
s 23 16
s 27 38
s 28 16, 18
s 68 41, 50
s 69 41, 50
s 70 41, 50
s 71 41, 50
s 72 41, 50
s 73 19, 47
s 74 5
s 237 75
Evidence Act 1872
s 38 34
s 45 31
s 91 32
s 92 32
s 93 32
Fatal Accidents Act 1855 51
Foreign Investment Law 2012 62
Guardian and Wards Act 1890 83
Limitation Act 1909
s 3 33
s 11 33, 35, 43
s 27 33
Majority Act 1875 82
s 2 82
Married Women’s Property Act 1874 84

Myanmar Copyright Act 1914 67
Myanmar General Clauses Act 1898
s 2(29) 61
Myanmar Insolvency Act 1920 80
s 11 80
s 82 80
Myanmar Laws Act 1898 9
s 13(3) 7, 42, 51
Myanmar Patents and Designs Act 1945 67
Negotiable Instruments Act 1882 68
Registration Act 1909
s 2(6) 61
Specific Relief Act 1877
s 12 19
s 21 16
s 54 19
s 56 19
Succession Act 1930 82, 85
s 2 84
s 4 85
s 5 85
s 6 82
s 7 82
s 8 82
s 9 82
s 10 82
s 13 82
s 14 82
s 15 82
s 16 82
s 20 84
s 30 84
Transfer of Immovable Property (Restriction) Act 1947
s 3 62
Trusts Act 1882 60, 69
s 3 69
s 4 69
s 55 64
Union Judiciary Act 1948

s 15 11, 15
Yangon Insolvency Act 1910 80
s 22 80
s 36 80
Constitution of Union of Myanmar: 1948
Article 211 88
Article 214 88
Article 73(h) 88
Article 108 88

TABLE OF CASES
(1) Myanmar cases
Abdul Rahman v Mahomed Ali Rowther (1928) ILR 6 Ran 552 26
American Int’l Underwriters (B) Ltd v U Maung San BLR (1961) HC 41 11, 15, 16, 17
Arunachallam Chettyar v Valliappa Chettyar (1938) RLR 176 32
Ayesha Bee v Gulam Husein Suleman Aboo (1921-22) 11 LBR 188 11, 62, 63
Bank of Chettinad v SPKPVR Chettyar Firm AIR (1935) Ran 517 15, 27
Bank of Chettinad v SPKPVR Chettyar Firm (1935) ILR 14 Ran 94 15, 27
Burma Railways Co Ltd v Hira Lall (1915-16) 8 LBR 62 67
Burn v Keymer (1913-14) 7 LBR 56 26
Chan Taik, Dr T v Ariff Moosajee Dooply (1948) BLR 454 2, 88
China-Siam Line v Nay Yi Yi Stores BLR (1954) HC 270 7, 44
Chokkappa Chetty v Raman Chetty (1917-18) 9 LBR 103 62
Cooverjee Ladha v Suleman Ismail & Co (1903-4) 2 LBR 47 11, 13, 15
Gillespie v Maung Maung (1911-12) 6 LBR 1 40
Jupiter General Insurance Co Ltd v Abdul Aziz (1923) ILR 1 Ran 231 11
King, The v Maung Hmin (1946) RLR 1 2, 88
Kovtunenko v U Law Yone BLR (1960) SC 51 2, 7, 50, 51, 88
KSLPA Annamalai Chettyar v Daw Hin U AIR (1936) Ran 251 11, 23
Leong Ah Foon v The Italian Colonial Trading Co (1905-6) 3 LBR 261 73
Ma Khin Mya v Maung Sit Han (1937) RLR 103 7
Ma Myit v Shwe Tha (1905-6) 3 LBR 164 11
Ma Sein Byu v Khoo Soon Thye (1931) ILR 9 Ran 310 31
Mohamed Khan v Damayanthi Parekh BLR (1952) HC 356 11, 13, 16, 25
Mohamed Siddiq v Mohamed Ahmed (1929) ILR 6 Ran 680 15
Motilal Premsukhdas, Re (1938) RLR 166 80
MVR Veluswamy Thevar, Re (1935) ILR 13 Ran 192 11, 80
Muthiya Chetty v Arunachalam Chetty (1913-14) 7 LBR 129 15
Muthukaruppan Chettyar v Sellami Achi (1938) RLR 355 32
Nathan v Samson (1931) ILR 9 Ran 480 15, 27
NKLP Palaniappa Chettyar v STSP Subbiah Chettyar AIR (1937) Ran 443 11, 23
Official Assignee v ME Moolla & Sons Ltd (1934) ILR 12 Ran 589 61
Oomer Ahmed Bros, Re (1926) ILR 4 Ran 554 80
Raj Chandra Dhar v Ray (1924) ILR 2 Ran 108 11, 15
Ramaswamy Iyengar v Velayudhan Chettiar BLR (1952) SC 25 2, 7, 40, 49, 88
Ramnira Jan Lhila v Daw Than BLR (1966) CC 763; BLR (1968) CC 67) 11, 80
Sabir Hussein v Ramanatha Chettiar BLR (1957) HC 172 62
Saraswati v Manikram Balabux Bajaj BLR (1956) HC 316 26
Shantilal Surajmal Mehta v Mariam Bibi BLR (1960) HC 359 11, 15

Singer Sewing Machine Co v Surath Singh (1941) RLR 177 67
Soniram Jeetmull v Tata & Co Ltd (1927) ILR 5 Ran 541 11, 23
SPSN K’visvanathan Chettiar v SS K’nappa Chettiar BLR (1951) HC 399 22, 27
State Bank of India v Collector of Rangoon BLR (1961) HC 336 7, 11, 62, 70, 73, 74
State Comm’l Bank v Thibaw Comm’l Syndicate Ltd BLR (1966) CC 1131 11, 15
Steel Bros & Co Ltd v YA Ganny Sons BLR (1965) CC 449 7, 15, 16, 17, 19
U, Re, An Advocate AIR (1935) Ran 178 31
U Ko Ko Gyi v Daw Khin Thaung BLR (1958) HC 387 14
U Kyaw Din v United Kingdom (1948) BLR 524 11, 15
U Po Khan v U Ba AIR (1935) Ran 118 21
U Saung v U Khin Maung BLR (1959) HC 314 11
U Saw v Loke Mani BLR (1957) HC 221 62
U Wa v U Ba Tun BLR (1962) CC 389 14
VAS Arogya Odeyar v VRRMNS Sathappa Chettiar BLR (1951) HC 211 15, 19
VERMNCT Chettyar v ARARRM Chettyar Firm (1934) ILR 12 Ran 370 7, 11, 15, 27, 61, 62
VIE Ismolansa Kajar v Ebrahim Ram Co Ltd BLR (1962) CC 152 16
VRARM Chettyar v CRACT Nachiappa Chettyar AIR (1935) Ran 301 16
Walker v Walker AIR (1935) Ran 284 25, 26
(2) Indian cases and appeals
Badat & Co v East India Trading Co [1964] 4 SCR 19 (SC) 23
Bahrein Petroleum Co Ltd v PJ Pappu [1966] 1 SCR 461 15
Brijlal Ramjidas v Govindram Gordhandas Seksaria (1947) LR 74 IA 203 26
British India Steam Navigation Co v Shanmugha Vilas [1990] 3 SCC 481 15
Calcutta Jute Mills Ltd, Re (1880) ILR 5 Cal 888 77
Chaturbhuj Piramal v Chunilal Oomkarmal (1933) LR 60 IA 211 70
Delhi Cloth & General Mills Co Ltd v Harnam Singh [1955] 2 SCR 402 45
Gaekwar Baroda State v Sheik Habi Ullah AIR (1934) All 740 13
Govindan Nair v Achutha Menon (1915) 2 LW 290 (Mad) 7, 50
Jayantilal Keshavlal Gajjar v Kantilal J’bhai Dada AIR (1955) Bom 170 80
Kahiba bin Narsapa Nikhade v Shripat Narshiv (1894) ILR 19 Bom 697 47
Keymer v Visvanatham Reddi (1916) LR 44 IA 6 15, 26
Maistry Rajabhai Narain v Haji Karim Mamod (1935) Mad LJ 189 13
Modi Entertainment Network v WSG Cricket Pte Ltd [2003] 4 SCC 341 16, 19, 44
Mogi & Co, Re AIR (1926) Cal 898 80
MV Elisabeth v Harwan Inv’nt & Trading Pvt Ltd AIR (1993) SC 1014 15
Nachiappa Chettiar v MYAA Muthu K’ppan Chettiar AIR (1946) Mad 398 63
Naoroji Sorabji Talati, Re (1908) ILR 33 Bom 462 80
Narasimha Rao v Venkata Lakshmi [1991] 3 SCC 451 25
National Thermal Power Corp v Singer Co [1992] 3 SCC 551 43
Noor Jehan Begum v Tiscenko AIR (1942) 2 Cal 325 16
Oppenheim v Mahomed Haneef [1922] 1 AC 422 15, 26
Rohilkhand and Kamaun Bank Ltd v Row (1884) ILR 7 All 490 47
Sankaran Govindan v Lakshmi Bharathi [1975] 3 SCC 351 26
Shrinivas Abaja Desai v Damodar Appaji AIR (1946) Bom 452 47
S Neelakannada Pillai v KA Kunju Pillai (1942) 68 Mad LJ 806 13
State Aided Bank of Travancore Ltd v Dhrit Ram (1942) LR 69 IA 1 43
Strauss & Co Ltd, Re AIR (1937) Bom 15 77
Swaminathan Chettiar v Somasundaram Chettiar AIR (1938) Mad 731 13
Syndicate Bank v Prabha D Naik [2001] 4 SCC 713 33
Technip SA v SMS Holding (Pvt) Ltd [2005] 5 SCC 465 24, 47

TNS Firm v Muhammad Hussain (1933) 65 Mad LJ 458 47
Travancore & Quilon Bank Ltd, Re AIR (1939) Mad 318 77
Viswanathan v Rukm-ul-Mulk Syed Abdul Wajid [1963] 1 SCR 22 15
(3) Decisions from other jurisdictions
Emanuel v Symon [1908] 1 KB 302 25
Liebeck v McDonald’s Restaurants (18 August 1994) 57
Neilson v Overseas Projects Corporation of Victoria (2005) 233 CLR 331 37
Schibsby v Westenholz (1870) LR 6 QB 155 25
Vita Foods Inc v Unus Shipping Co Ltd [1939] AC 277 44

TABLE OF ABBREVIATIONS
(Listed by the titles in which they appear in the Table of Cases)
AC Appeal Cases (Law Reports: English and Privy Council decisions)
AIR All India Reports
AIR (Ran) All India Reports, Rangoon decisions
BLR Burma Law Reports
CLR Commonwealth Law Reports (Australian High Court decisions)
ILR Indian Law Reports
ILR (Ran) Indian Law Reports, Rangoon decisions
LBR Lower Burma Rulings
KB King’s Bench (Law Reports: English decisions)
LR IA Law Reports, Indian Appeals (Privy Council decisions)
LR QB Law Reports, Queen’s Bench (English decisions)
Mad LJ Madras Law Journal (Indian decisions)
RLR Rangoon Law Reports
SCC Supreme Court Cases (Indian decisions)
SCR Supreme Court Reports (Indian decisions)

CONTENTS
1 GENERAL PRINCIPLES OF PRIVATE INTERNATIONAL LAW
1 What is private international law and why does a legal system need it ?
2 Private law rather than public law
3 International, in the sense that there is at least one non-Myanmar element in the
situation before the court
4 The reasons for sometimes not exercising jurisdiction
5 The reasons for sometimes applying a law which is not Myanmar domestic law
6 The reasons for sometimes giving effect to foreign judgments
7 The sources of Myanmar’s private international law
8 International conventions on matters of private international law
9 Family law and the laws of family property
10 Arbitration
2 JURISDICTION: EXISTENCE, EXERCISE, AND NON-EXERCISE
11 The legal basis for jurisdiction over a defendant who is an individual
12 The legal basis for jurisdiction over a defendant which is a company
13 The legal basis of jurisdiction over a defendant who is not present in Myanmar
14 Service of process on a defendant
15 The distinction between the legal basis for jurisdiction and the exercise of
jurisdiction
16 Grounds upon which a defendant may object to the exercise of jurisdiction
17 The importance of contractual agreements about jurisdiction
18 The effect of an arbitration agreement on the jurisdiction of a Myanmar court
19 The power of a Myanmar court to interfere with proceedings before a foreign
court
20 The power of a foreign court to interfere with proceedings before a Myanmar
court
3 FOREIGN JUDGMENTS AND THEIR EFFECT IN MYANMAR
21 The recognition of foreign judgments; the enforcement of foreign judgments
22 The legal basis for giving a foreign judgment effect under the law of Myanmar
23 The method by which a foreign judgment is enforced in Myanmar
24 The foreign judgments which may and may not be given effect in Myanmar
25 The foreign court as one of ‘competent jurisdiction’ in relation to the party
against who the foreign judgment is to be recognised or enforced
26 Permissible objections to the judgment or to way in which the foreign court dealt
with case
27 Other, mostly impermissible, objections to the judgment or to the way the
foreign court dealt with the case
28 International conventions and the effect of foreign judgments
29 International conventions and the effect arbitral awards
30 The effect of a Myanmar judgment in a legal system outside Myanmar

4 PRINCIPLES GOVERNING THE APPLICATION OF FOREIGN LAW
31 The question whether a court should apply the domestic law of Myanmar or
follow the private international law of Myanmar
32 Issues which are seen as matters of procedure
33 Limitation of actions, and other forms of time bar
34 The application of foreign law by a Myanmar court
35 The way a court in Myanmar determines whether to apply foreign law
36 Characterising the issue or issues which the court has to decide
37 The meaning of ‘law’, and the principle of renvoi
38 Circumstances in which a Myanmar court must apply a rule of Myanmar law
39 Rules of foreign law which a Myanmar court will not apply
40 The impact of Myanmar public policy
5 CONTRACTS, AND RELATIONS WHICH RESEMBLE CONTRACTS
41 The meaning of ‘contract’ for the purpose of private international law
42 Some problems which may be encountered in the private international law of
contracts
43 The ‘proper law of the contract’
44 The proper law of the contract where it is chosen or agreed by the parties
45 The proper law of the contract where it is not chosen or agreed by the parties
46 The issues which are referred to (and answered by) the proper law of the contract
47 The issues which are not referred to the proper law of the contract alone, or not
referred to the proper law at all
48 Problems which arise where there is disagreement as to the validity of the
contract, or the original creation of the contract
49 Particular kinds of contract with special rules
50 Cases concerned with relationships resembling contract
6 TORTS, AND SITUATIONS WHICH RESEMBLE TORTS
51 The meaning of ‘tort’ for the purpose of Myanmar private international law
52 The place where a tort was committed
53 The law which applies when an alleged tort was committed in Myanmar: the
general rule
54 The laws which apply when an alleged tort was committed overseas: the general
rule
55 A more flexible approach for dealing with awkward cases
56 Torts committed between the parties to a contractual relationship
57 Remedies when an actionable tort has been committed
58 Claims arising under foreign statutes
59 The role of Myanmar public policy and claims made in respect of a tort
60 Non-contractual obligations which resemble torts
7 PROPERTY, AND RIGHTS WHICH RESEMBLE PROPERTY
61 The distinction between immoveable and moveable property

62 The range of property which counts as immoveable property
63 Claims concerning immoveable property situated in Myanmar
64 Claims concerning immoveable property outside Myanmar
65 The range of property which counts as moveable property
66 Questions of title to tangible moveable property (things)
67 Recovering tangible moveable property
68 Questions of title to intangible moveable property
69 Negotiable instruments
70 Questions concerning intellectual property
8 CORPORATIONS AND INSOLVENCY
71 The definition and identification of a corporation
72 Jurisdiction over companies
73 The recognition of corporations formed under foreign laws
74 The dissolution of corporations formed under foreign laws
75 Problems associated with contracts made by or on behalf of corporations
76 Dealing with a Myanmar company close to or in insolvency
77 Winding up an overseas (foreign) company
78 The effect of foreign insolvency proceedings
79 International co-operation in relation to cross-border insolvency
80 Personal insolvency
9 OTHER AREAS OF PRIVATE INTERNATIONAL LAW
81 The reason for excluding certain topics from this book
82 Family law and the law of adult status
83 Family law and the law of children
84 Family law and the law of property: dealings inter vivos
85 The law of succession to property
86 International conventions on particular subjects
87 The law of commercial arbitration
88 The relationship of private international law to public international law
89 Reform of private international law in Myanmar
90 The rules of private international law in Myanmar: a (re)statement
10 PRIVATE INTERNATIONAL LAW: A PARTIAL STATEMENT OF
MYANMAR LAW

- 1 -
CHAPTER 1
GENERAL PRINCIPLES OF PRIVATE INTERNATIONAL LAW
We start with the discussion of some general questions and general principles.
(1) What is private international law ? Why does a legal system need it ?
From earliest times legal systems have recognised that there are some cases in which it
would not be right to treat the case before the court as one which should be dealt with
simply by the application of the laws of the country which were made for and which
apply to domestic cases. Roman law, two thousand years ago, understood that some
cases should be dealt with by the application of laws which applied to disputes between
citizens, but that other cases - usually where one or more of the parties was not a Roman
citizen, a foreigner - should be dealt with by a separate set of rules which applied to all
persons, Roman and non-Roman, alike. It called this set of rules the ‘ius gentium’, or the
laws which applied to all people, and reserved the ‘ius civile’ for cases in which both
parties were Roman citizens
In those days, there were very few foreign legal systems whose rules could be applied,
which is why the Roman legal system developed a set of rules for application to
foreigners and to persons who dealt with foreigners. Today, however, there are as many
legal systems as there are countries. If a dispute comes before a Myanmar court in which
both parties are Myanmar nationals and the facts which give rise to the dispute are all
located in Myanmar, a court will obviously apply domestic Myanmar law: that is, the laws
in the Myanmar Code and in other legal sources.
But what if one of the parties is a foreigner ? Or if both parties are foreigners, such as
two employees of a Japanese company who are working in Myanmar ? Or if the dispute
arises between two Myanmar nationals but who were overseas - visiting Singapore, for
example - when one injured the other ? If the dispute is brought before a Myanmar
court, it would certainly be possible for a Myanmar court to apply ordinary Myanmar law
to resolve the issues. But if one of them argues that the court should apply the laws of
Japan or of Singapore, and (using the rules which are explained in this book) can justify
to the court why it should do this, then the court will apply (first) the rules of Myanmar
private international law, and may then apply (second) the actual rules of a foreign legal
system.
When a court in Myanmar does this - and this is a really important point - it is applying
Myanmar law. But it is applying that part of Myanmar law which contains the separate
chapter or set of rules which spring into life when the issue between the parties has a
foreign, which means a non-Myanmar, element to it. The result is that a Myanmar court
may dispose of a case by using the rules of a foreign legal system to do it.
All civilised legal systems have rules which provide for cases which have a foreign
component to them. These rules can be very elaborate: those of the common laws
systems, particularly in England and the United States of America, have developed some
very complex detail. Those of civilian systems, which are usually contained in a code,
such as those of Switzerland or China, may appear to be rather more straightforward.

- 2 -
But all civilised systems have them. The reason is obvious: there are some cases, which
come before our courts, in which it would not be in keeping with our sense of justice for
us to ignore the fact that part of the issues is foreign. As Myanmar resumes its place in
the modern world, particularly the world of international commerce, its legal system will
accept what all civilised legal systems accept: that sometimes is it necessary to make a
special allowance for the fact that some or all of the facts and matters before the court
are foreign.
Until the middle of the 20th century, the legal systems which make up common law dealt
with the ‘foreignness’ of a case by developing a set of rules which explained to the court
and to the parties whether the court should apply its own domestic law, or the law of
another country, to deal with the issue which had come before the court. These were
sometimes called rules for ‘choice of law’, that is, they were rules which directed the
court whether to choose and apply its own domestic law or the law of another country.
These rules still form a major part of private international law, in Myanmar as well as the
rest of the common law world, and in this book we look at the most important of them
in Chapters 4 to 8.
But in recent decades, the common law has come to accept that if a defendant is
unwilling to face trial in the court in which the plaintiff has instituted proceedings against
him, he ought to be entitled to explain to the court why it would be more appropriate for
the claim against him to be brought before the courts of a foreign country. After all, if
the plaintiff wishes the case to be heard in Myanmar, but the defendant wishes it to be
heard in a court outside Myanmar, why should the plaintiff always be the one who gets
what he wants ? It is now widely accepted that equality and the rule of law mean that the
defendant should be able to argue that the court of a foreign country is the proper place
for the suit, and that the court should be able, if it agrees with him, to terminate the
proceedings there and then. This solution to the problem is not directly concerned with
choice of law, but with the choice of jurisdictions, and in this book we look at these rules
in Chapter 2. Although there is little sign that Myanmar private international law has
developed rules to deal with the conflict of jurisdictions, it is obvious that it will need to
do so, and fast.
And of course, if a foreign court has already given a judgment which relates to the issues
which are before the Myanmar court, it is necessary to decide what account should be
taken of the foreign judgment, or even to ask if the foreign judgment may be enforced in
Myanmar. On this important issue the answer is found in the Civil Procedure Code. In
this book we look at these rules in Chapter 3.
Once upon a time this subject used to be called ‘The Conflict of Laws’, because the main
concern was whether the law of one country or another should be applied by the court.
But today, although we are still concerned with the conflict of laws, we are also
concerned with the conflict of jurisdictions and with the conflict of judgments. It
therefore makes more sense to call our subject ‘Private International Law’, and to call all
of these rules, as they apply in Myanmar and in Myanmar courts, as ‘The Private
International Law of Myanmar’. And that is the reason why this book has the title which
it bears.
(2) Private law rather than public law

- 3 -
Some readers may assume that ‘international’ in the expression ‘private international law’
refers to what is usually described as ‘public international law’, or the law or laws which
regulate relations between states, the laws of war and of peace, the international laws of
the sea and of the environment, the laws which deal with the sovereigns, governments,
and diplomats.1
They would be wrong. It is rarely necessary to deal with any issues of
public international law when analysing issues of private international law, and vice versa,
and the instances in which rules of public international law have an impact on a private
law dispute can be dealt with where they arise.2
To illustrate the fact that this book is
concerned with private, but not with public, law, the contents of the book may be
described as follows.
As a starting point, Chapter 4 will deal with the general techniques of private
international law. Then Chapter 5 will deal with contracts, made between individuals, or
between companies, or between individuals and companies. It will therefore also deal
with valid contracts, broken contracts, voidable contracts, void contracts, contracts
which have been breached, or frustrated; and with the cases in which the parties do not
agree on whether there was a contract in the first place. But where special laws apply to
contracts made with states and agencies of the state, they are outside the scope of this
book. As commerce, including international commerce, starts to grow in Myanmar, there
will be many cases in which a contract gives rise to a dispute between the parties to it.
The question whether a Myanmar court will or should adjudicate a contract dispute
brought before it will be examined in Chapter 2; but if it does adjudicate, the rules which
tell it whether to apply the domestic law of Myanmar, or the Myanmar rules of private
international law (which may direct the court to the rules of a foreign legal system) are
examined in Chapter 5.
Chapter 6 will deal with torts involving individuals and companies, but it will not address
torts or allegations of wrongs committed by states. It will deal with torts and with
allegations of tort, and it will need to deal with the particular problems which arise when
the elements of an alleged tort are not all concentrated in a single place. It is easy enough
to deal with a tort which takes place in a single country. But suppose a claim is made
against a pharmaceutical company which designed a drug in country A, manufactured it
is country B, tested it in country C, sold it to a company in country D which sold it over
the internet to a purchaser in country E who used it when he was in country F, where it
injured him. Such cases are always difficult, and we will have to see how a sensible
answer can be found.
Chapter 7 will deal with issues of property, which really means questions of title to
property. There are many kinds of property: immoveable (land) and moveable. Moveable
property divides into tangible (things which can be touched) and intangible (property
which cannot be touched, such as debts: in modern commercial law, debts are a
commodity which can be bought and sold, pledged and charged). Some species of
1 Ramaswamy Iyengar v Velayudhan Chettiar BLR (1952) SC 25.
2 It has been held that public international law does not form part of the domestic law of
Myanmar as applied by its courts unless and until the government promotes legislation to
incorporate a rule of public international law (or an international treaty) into the domestic law of
Myanmar: Kovtunenko v U Law Yone BLR (1960) SC 51 (a case on sovereign or diplomatic
immunity). The position may in fact be more complex than this: in The King v Maung Hmin (1946)
RLR 1, and Dr T Chan Taik v Ariff Moosajee Dooply (1948) BLR 454 it was apparently accepted that
principles of international law might be accepted as part of the law of Myanmar if they were
consistent with Myanmar law.

- 4 -
property have special rules: negotiable instruments are a good example. But the problems
associated with the private international law of intellectual property (patents, copyright,
trade marks) have led many states to enter into international conventions to secure rights
and protections in a way which ordinary laws probably cannot achieve.
Chapter 8 will deal with the law of companies and corporations formed under private
laws like the Companies Act, but it will not explain the special issues which arise in
relations with state corporations. It will have to deal with the relationship between the
private international laws of contracts and of corporations when, for example, it is
argued that a person who acted on behalf of a company in making a contract did not
have full authority, or even any authority, to do so. And it will deal with insolvency, at
least in outline. For in the modern world, the insolvency of corporations often has
effects across national borders. The common law has, in many countries, been modified
by a set of rules made by the United Nations Commission on International Trade Law,
but these have not yet been adopted in Myanmar.
Chapter 9 will briefly mention other issues of private international law which are not
covered in this book. These are really three in number. First, there will no detailed
examination of family law, the law of persons, the law of family property and the law of
succession. This would be a huge topic, too specialised for a book which is mainly
concerned with civil and commercial matters, and more heavily influenced by Myanmar
traditional laws than the topics examined here. Second, there will be no treatment of
international conventions on particular matters, such as maritime law, or the international
transport of goods. This also is rather specialised; and as Myanmar has not subscribed to
many of these conventions, they need not be addressed in detail here. Third, there will be
no detailed examination of arbitration. There are several reasons for this, but the main
one is that the whole point of arbitration is to keep the resolution of disputes as far away
from the courts as possible. In a number of cases, parties to a contract do not trust the
courts to be expert and impartial, and therefore prefer to select an arbitral tribunal. This
book, by contrast, is really concerned with the law as it is applied in courts. Moreover,
the law of international arbitration in Myanmar is changing. At the time of writing, a
draft Arbitration Law was being considered by the legislative organs of the state, but it
was not clear whether or when it was going to be enacted. The law of international
arbitration is a very important topic, but it is best examined in its own right by specialists,
rather than being squeezed into a small chapter of a book on private international law.
Criminal law is not included; the rules of private international law do not apply to
criminal matters. This is so for a number of reasons, but the rule of private international
law is that a court does not enforce the penal laws of another country.3
A state does not,
therefore, prosecute a person by applying foreign law, or enforce the penal judgments of
another state. The only time that jurisdiction is an issue in a criminal matter is when a
person is extradited to another country for a criminal trial, but this is a matter of treaty
law with the other state. For all these reasons, penal law is not a part of this subject.
(3) International, in the sense that there is at least one non-Myanmar element
in the situation before the court
If A makes an agreement to sell his bicycle to B, and both are Myanmar citizens, and the
bicycle is to be delivered in Myanmar and paid for in kyats, any dispute which comes
3 See below, Chapter 4, point (39).

- 5 -
before the Myanmar court will be determined in accordance with the domestic law of
Myanmar, which probably means by applying the Contract Act. But if C makes a
contract with D, and both are US citizens working temporarily in Myanmar, it is not so
obvious that a dispute between them ought to be determined by applying the rules of the
(Myanmar) Contract Act. There are several reasons for this, but we may mention three at
this point. First, when the Contract Act was enacted, it was intended to operate and
apply in situations which were entirely local to Myanmar. If one were to ask whether the
enacting authority intended it to apply to disputes between foreigners, the answer is not
certain, but may be negative. Second, when two US citizens make a contract with each
other, they probably expect the law of the United States to apply to their contract. The
point would be even clearer if they were to make the contract in the departure lounge at
Yangon Airport. Third, if C and D were to state in their contract that they intended it to
be governed by US law, it would be very surprising if a Myanmar court were to ignore
this and apply Myanmar law instead. On the assumption that Myanmar law is a common
law legal system, it would be contrary to Myanmar’s rules of private international law to
apply the domestic law of Myanmar to a contract where there had been an agreement
between the parties that it should be governed by the law of a foreign country.
What makes the case, or the issue, one which is governed by Myanmar rules of private
international law, is the presence of an international, meaning a non-Myanmar, element.
The non-Myanmar element may be any one of a number of things: the residence or
nationality of one of the parties, the place where the relevant acts were done or not done,
the intentions of the parties as to the law which should be applied to the relationship
between them, and so on. Any non-Myanmar element will do.
This may sound rather imprecise, and it may suggest that it is easy to prevent the
domestic law of Myanmar from applying in a particular case. But that would not be
correct. There are three points to be made. First, the rules of Myanmar private
international law will, in a significant number of cases, point the court to the domestic
law of Myanmar: just because there is an international element in the case, it does not
follow that the rules of Myanmar private international law will tell the judge to apply the
law of a foreign country. Second, the usual rule in common law systems is that a court
has to consider rules of private international law only if one of the parties before the
court asks it to. If both parties are content to have their dispute governed by and
determined in accordance with the domestic law of Myanmar, they are free to do so: the
court will simply apply the domestic law of Myanmar and everyone will be happy. And
third, the private international law of Myanmar contains rules which, in various places,
direct a Myanmar court to apply the domestic law of Myanmar even though the rules of
Myanmar private international law would have told it to do something different. In these
cases, the domestic law of Myanmar ‘overrides’ the answer which would otherwise be
given by the rules of private international law.
This is an important practical point. In common law systems around the world, there are
cases which come before the courts on a daily basis, in which either party might invite
the court to apply its rules of private international law, but in which neither party does.
In such a case, a court will apply its own domestic law. If the parties are happy that the
court should proceed in this way, there is no good reason for the court to do any
differently.
(4) The reasons for sometimes not exercising jurisdiction

- 6 -
We said at the end of the previous paragraph that there are circumstances in which the
parties to a dispute before the Myanmar courts may agree - by not doing anything to
indicate that they disagree - to have the court decide the dispute before them by the
application of domestic Myanmar law. Something very similar is true of the law of
jurisdiction.
We will see in Chapter 2 that a very large part of private international law, particularly in
the field of commercial relationships, is concerned with the question where a suit should
be tried. There are many reasons for this, but in general one may say that the outcome of
a commercial dispute is likely to be influenced by the question of where it is dealt with.
To take a simple case, if there is a dispute between a Myanmar and a Singapore company,
and the Myanmar company wishes to sue the Singapore company because, as it says, the
Singapore company has breached its contract, it may start proceedings in the Myanmar
courts. Of course, when it does so, the Singapore company may be willing to defend the
claim before the Myanmar courts. But the Singapore company may prefer to defend the
claim against it in Singapore instead. This may be because it has greater confidence in the
Singapore courts, or because it wishes to use Singapore lawyers to defend the claim who
are not permitted to practice in Myanmar, or because it is uncomfortable about
defending a claim before a court in proceedings which will be conducted in the Myanmar
language, or because it considers that the pre-trial procedure which will operate if the
case is heard in Singapore will be more beneficial than if the case remains in Myanmar.4
It may therefore invite the Myanmar court to decide that the jurisdiction which the
plaintiff has established should not be exercised, and that the case before it should not be
proceeded with.
It is accepted across the common law world - with details which vary a little, but which
do not alter the general proposition - that a defendant must be allowed to explain to the
court why, as he contends, the court should decline to exercise the jurisdiction which it
has and which the plaintiff has invoked. When the plaintiff caused proceedings to be
commenced, this will have been his decision, and the defendant will have played no part
in it. It is only fair that the defendant, the other party to the dispute, should be allowed to
make arguments to the court which support his contention that the interests of justice
would be better served by suspending the proceedings commenced before the Myanmar
court, and leaving the plaintiff to go instead to another court, to sue the defendant there
instead.
If one asks where in the private international law of Myanmar it is provided that the
defendant is entitled to do this, the answer appears to be that it has not yet been made
clear that the defendant may oppose the exercise of jurisdiction in this way. But three
things may be said. First, it is the universal view of courts in common law systems that
the defendant is permitted to do this. Second, the Supreme Court of India, which has in
its Code of Civil Procedure the same rules of jurisdiction as are found in the Myanmar
Civil Procedure Code, has confirmed that as a matter of Indian law, a defendant is
permitted to object to the exercise of jurisdiction by pointing to a foreign court in which
the ends of justice would be better served.
4 As will be seen in Chapter 4, point (32), the pre-trial procedure will almost always be governed
by the procedural rules of the court in which the trial will eventually take place. This procedure is
often very important in allowing a party to get a sense of how strong or weak his opponent’s case
actually is.

- 7 -
And third, in many modern contracts, the parties will have made a contractual agreement
that proceedings may be brought in one country but will not be brought in another: such
contract terms tend to be known as jurisdiction agreements, or exclusive jurisdiction
agreements (depending on how they are worded). It would be an astonishing thing if a
Myanmar court could not give effect to such a contractual agreement. Suppose that in
the contract referred to above, between a Myanmar company and a Singapore company,
there had been a term which provided that the parties agree that ‘all disputes between the
parties arising from or in connection with this contract shall be submitted to the
exclusive jurisdiction of the courts of Singapore’. If the Myanmar company were to bring
proceedings before the Myanmar court, this would appear to breach its contractual
promise not to do so, and in those circumstances it is difficult to see why a Myanmar
court would allow this to be done. If the Singapore company were therefore to appear
before the Myanmar court to object to the exercise of jurisdiction, one would expect the
Myanmar court to accept that the objection was a proper one.
But the fact that the parties agreed in advance that proceedings would not be brought in
Myanmar is only one of the several reasons why it may not be appropriate for the case to
proceed before the Myanmar court. Suppose that the dispute calls for the application of a
foreign law, either because that was the law which the parties chose or because the rules
of Myanmar private international law point to that conclusion. It may be that in such a
case, a trial before a foreign court, which will be applying its own law, will serve the
interests of justice more reliably than a trial in Myanmar, with a court attempting (and,
possibly, not succeeding very well) to apply the rules of a system of law with which it is
not familiar. Suppose that the case is one in which there are many parties involved in the
dispute, as may happen when a large and complex contract, such as a construction
contract, leads to disputes involving a large number of parties. If a court in one country
would be able to hold a single trial, into which all interested parties could be joined, the
interests of justice may favour allowing the proceedings to go ahead in that court, even
though a part of the overall dispute could be brought before the Myanmar court for trial.
These are only examples of circumstances in which a defendant may be able to persuade
a court in Myanmar, in which the plaintiff has commenced proceedings, to conclude that
the interests of justice would be better served by halting the Myanmar proceedings and
allowing the plaintiff – because the Myanmar court cannot force the plaintiff – to bring
proceedings instead before a foreign court. These are all examples of cases in which a
Myanmar court could, and perhaps should agree with a defendant who argues that the
interests of justice mean that the proceedings in Myanmar should not be continued.
(5) The reasons for sometimes applying a law which is not Myanmar domestic
law
We should first remind ourselves that whenever a court in Myanmar accepts that the law
of a foreign country should be applied in the case which has come before it, it does so
because, and only because, the rules of Myanmar private international law tell it to do so.
There is no justification for the argument – which is occasionally heard, but which is
completely wrong – that it damages the law or the sovereignty of a country when its
courts apply the law of a foreign country. The courts can only do this when their law – in
this case their rules of private international law – tell them to. The real question is
therefore this: why does the law of Myanmar, which means the private international rules
of Myanmar law, sometimes direct a court in Myanmar to apply the law of a foreign
country ?

- 8 -
There are several answers to this question. The first answer is that the rules of private
international law accept that parties to a contract should be allowed to choose the law
which governs their contract, and in almost every case, the interests of justice are best
served by giving effect to that choice of law. In England, if parties to a contract choose
the law of Myanmar to govern it, an English court will apply (or will try to apply) the law
of Myanmar to determine the rights and duties of the parties. After all, if the parties are
entitled to choose the terms of the contract, they should be able to choose this one as
well. In those cases in which the right to choose the law is less obviously genuine, such as
where one party is a consumer, or young, or illiterate or blind, and the so-called choice of
law has really been imposed on him, a court will be able to disregard an apparent choice
which was not really genuine. But in principle, where the parties have chosen the law to
govern their relationship, it is difficult to see why a system of private international law
would not give effect to it.
In other cases, the application of foreign law will correspond to the expectations of the
parties. For example, most people naturally assume, when overseas, that if they act in a
way which may amount to a wrong, the law which will determine whether they owe
liability (and if so, for what) to another will be the law of the place where they did the
thing complained of. Most systems of private international law look to the law of the
place of commission of the tort to determine any liability which may arise. In such a case,
the application of foreign law is justified because it reflects what reasonable people
probably expect the law to be.
When it comes to dealing with questions of property law, the natural assumption is that
issues will be answered by applying the law of the place where the property was. The
argument is at its strongest in the case of land: if a court were ever to determine the
ownership of land in India, the only sensible way to proceed would be to do so by
applying Indian law. In fact, as we shall see, the common law has generally held that the
claim of Indian law to apply in such a case is so strong that a court outside India should
not determine the question for itself, but should leave the matter to the Indian courts to
determine. But this just goes to show the strength of the principle that title to land
should be determined by the law of the place where the land it.
Most people will also assume that questions of ownership of moveable property should
be answered by the application of the law of the place where the thing was when it was
deal with. For example, if I buy a watch at a street market in Thailand, the question
whether I became owner of the watch (or did not become owner, because, for example, I
bought it from a thief) will be answered by Thai law. The rule that our courts refer the
question to the law of the place where the thing was when it was sold reflects what most
people would naturally think, and as a result it contributes to commercial certainty. An
English tourist in Myanmar will naturally assume that if he buys something in Myanmar,
or finds something which appears to have been lost by its owner, the law which will tell
him whether he became owner, by purchase or by finding, will be the domestic law of
Myanmar.
As may be seen from this brief introduction, there are many circumstances in which the
private international law rules of Myanmar, which are really the private international law
rules of the common law, can be explained and justified on grounds which are simple
and clear, and which probably reflect what ordinary people would expect the answers to
be if they were to think about it. If a court in Myanmar, applying its rules of private

- 9 -
international law, applies the law of a foreign country to answer a particular question, it is
very likely that, in doing so, it is giving effect to the natural assumptions of reasonable
people. This, generally speaking, is the justification for the rules of private international
law, not only in Myanmar but across the world.
Of course, there are some situations in which the law of Myanmar will be applied, even
though the private international law rules of Myanmar would have told the court that is
should apply the law of a foreign country. For example, suppose a contract is made with
a Chinese company to sell to it a quantity of teak, or precious stones, and that the parties
agree that the contract is to be governed by Chinese law. Suppose that Chinese law
considers that the contract is valid and binding on the parties, and must be performed by
each party, but that as a matter of Myanmar law the contract is an illegal contract,
because the seller did not obtain the necessary licence or permission to sell the goods. In
any litigation before the Myanmar court, it would be concluded that the contract was not
enforceable. Even though the private international law of Myanmar generally permits
parties to choose the law to govern their contract, it will not allow them to do so in
circumstances in which a contract would be illegal as a matter of Myanmar domestic law.
This is a situation in which the domestic law of Myanmar overrides the rule of private
international law which would otherwise have been applied.
There will be several areas in which a rule of Myanmar law – almost always a rule of
Myanmar statute law – overrides or displaces the law which would be identified by the
private international law rules of Myanmar law. There will be other cases in which the
application of a rule of foreign law, to which the court has been pointed by its rules of
private international law, would be offensive to the fundamental legal policy of Myanmar
law. This is sometimes described as ‘public policy’, but the label which is given to it is
less important than the rule which is being described. Suppose a Myanmar person is
employed by a Korean company which is doing construction work in Myanmar, and that
he has a contract of employment which states that it is governed by Korean law. Suppose
the contract also states that if the employee may be deprived of his wages for the whole
of any month in which he is absent from work for more than a single day. If an
employee is absent from work for two days, and the company refuses to pay his wage,
and he brings a claim against the company in the Myanmar courts, there would be three
steps in the analysis. The starting point would be that the employee’s claim would be
governed by Korean law, on the basis that the contract which the parties made chose
Korean law to govern all their rights and duties. The court would ask whether the
deduction provision in the contract of employment was lawful according to the law of
Korean law. If the answer is that it is valid and lawful as a matter of Korean law, the
court will apply Korean law and dismiss the claim unless it considers that the application
of this rule of Korean law is so contrary to the public policy of Myanmar that it would be
offensive to Myanmar law to apply it. If it concluded that the rule of Korean law, which
treated the contract term as valid, was really, really objectionable, it could refuse to apply
it, and could refuse to reach the conclusion which this rule would have pointed it to.5
As we shall see, the question whether a court in Myanmar will apply a rule of foreign law
is answered by a set of rules of Myanmar private international law. These sometimes
5 Of course, in the light of Section 74 of the Contract Act, it may be difficult to argue that the
rule of Korean law is so offensive that a Myanmar court should refuse to apply it as part of the
law which governs the contract. But the general point is still sound.

- 10 -
point in different directions, and one of the things which this book will do is to show
how they are kept in balance.
(6) The reasons for sometimes giving effect to foreign judgments
The only judgments which are binding, and which must be obeyed in Myanmar, are the
judgments of Myanmar courts. This is obvious. The adjudication of disputes is a matter
of sovereign power, and the orders and judgments of a foreign judge have no force in
Myanmar: Section 2(5) of the Civil Procedure Code makes it clear. The Myanmar
Constitution, and the Judiciary Law, will specify how judges are appointed, and who may
be appointed. It is these judges, and only these judges, whose judgments are effective in
Myanmar. The same rule will be found (with only slight differences of detail) in the laws
of all other states.
However, there are courts in almost all the countries of the world, and it would not be
sensible for Myanmar law to completely ignore them and their judgments. There is a
clear public interest in accepting that once a dispute has been heard and adjudicated, the
dispute between the parties should be at an end. Otherwise, if the losing party could try
again, perhaps before the courts of a different country, there would be no end to
litigation: the parties would never know where they stood, and the only people who
would be made rich would be the lawyers. That would make no sense.
As a result, all systems of private international law, including that of Myanmar, have rules
to determine the circumstances in which the judgment of a foreign court may be treated
by a court in Myanmar as having finally settled the matter which was in dispute before it.
That serves to bring disputes to an end, to allow those who are entitled to compensation
to gain it and not risk losing it again, and to allow those who are found not to be at fault
to know that they will not be troubled again. It lets everyone get back to work.
The effects of a foreign judgment in Myanmar may be two in number. First, a court in
Myanmar may ‘recognise’ a foreign judgment as settling the issues which have arisen
between the parties. Recognition involves treating the issues which were decided by the
foreign court as having been settled, with the consequence that if one of the parties to
that dispute asks a court in Myanmar to try the case again, the Myanmar court will simply
say that the issue has already been decided: in the Latin expression which is understood
the world over,6
that the issues are res judicata: something which has already been
adjudicated on. But if the foreign judgment ordered the defendant to pay money to the
plaintiff, and the defendant has not yet satisfied the judgment, it is possible to bring
proceedings before a court in Myanmar to obtain an order that this sum of money be
paid, just as any other debt should be paid. We call this ‘enforcing’ the foreign judgment.
The next question is which foreign judgments may have this effect in Myanmar. The
answer is provided by Sections 13 and 14 of the Civil Procedure Code, which is a very
fine piece of legislation. We will examine it in detail in Chapter 3, but it sets out, clearly,
the basis for the law of foreign judgments and their effect in the private international law
of Myanmar. Almost all foreign countries have rules by which they give effect to foreign
judgments, but the laws of these countries are very divergent. Very few countries, apart
from Myanmar and India, have legislation on this question which is as clear and helpful
as Sections 13 and 14 of the Civil Procedure Code are.
6 And in Part I of the Civil Procedure Code.

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(7) The sources of Myanmar’s private international law
The law on foreign judgments is almost the only part of the private international law of
Myanmar which is stated in clear form in Myanmar legislation. We will also see that on
the law of jurisdiction, examined in Chapter 2, there are some rules - but which are very
incomplete - of private international law in the Civil Procedure Code; and some parts of
the private international law of companies, which we examine in Chapter 8, are dealt with
in the Companies Act (now under reconsideration and review). But in other respects,
little of the private international law of Myanmar is to be found in the written laws of
Myanmar.
If that is so, where is the private international law of Myanmar to be found ?
(a) General approach to sources
The Myanmar Code does contain some provisions which are rules of private
international law, even though that Code does not have a statute setting out the rules of
private international law in a complete and comprehensive form. Perhaps one day in the
future the Union government will decide that there should be codification of the rules of
private international law as these apply in the courts of Myanmar, but until that happens,
the existing rules must be found by other means.
Where the rules of private international law are found in the Civil Procedure Code, the
contents of that Code are substantially the same as those in the Indian Code of Civil
Procedure. Where the meaning of those provisions has been examined by the judgments
of Indian courts, those judgments may assist in the explanation of the corresponding
provisions of Myanmar law. Some assistance may be found from the main Indian
textbook on the subject.7
Where the rules of private international law are not found in or based on the legislative
provisions of the Myanmar Code, they will be found in, or will be derived from, the
general principles of the common law, as these are understood in the principal
jurisdictions of the common law, especially England and India. We say this for the
following reasons. In a couple of cases decided after independence,8
the Myanmar courts
confirmed, in effect, that the common law rules of private international law were part of
Myanmar law. In 1952, the Supreme Court expressed the view that the rules which
identified the law to govern a contract of agency were the rules of private international
law of the English common law.9
And in 1961, the High Court approved several rules of
the common law relating to foreign laws and their effect on land in Myanmar, appearing
to accept that these applied in Myanmar just as they would in, say, England.10
So far as the previous decisions of courts are concerned, the question whether a court is
Myanmar is obliged to follow earlier decisions of courts, whether from before or after
independence is not considered in this book. Neither do we consider whether (or when)
7 Atul M Setalvad, The Conflict of Laws, (LexisNexis, Delhi, 2007).
8 In the years before independence it was more common for judges to make express reference to
English law, including English private international law: see, for example, VERMNCT Chettyar v
ARARRM Chettyar Firm (1934) ILR 12 Ran 370.
10 State Bank of India v Collector of Rangoon BLR (1961) HC 336.

- 12 -
it would be proper to refer a court in Myanmar to the decisions of a court outside
Myanmar. These are important issues, but they are part of the law regulating the legal
system and the judiciary; they are not matters of private international law. We have
referred to pre-independence and to foreign judicial decisions to help the reader
understand the way in which the legal issues might be evaluated in Myanmar today.
The Union Attorney General recently stated that Myanmar law was part of the family of
the common law, and that the legal maxims and principles of that law are part of
Myanmar law.11
Although he did not have private international law specifically in mind,
the approach of the Attorney General is entirely consistent with the view which we
advance in this book. Where there appear to be gaps in the law as already understood,
they are gaps which the common law is well designed to fill. We now explain the legal
basis on which this filling of gaps is based.
(b) Justice, equity and good conscience
One may start by referring to a judgment of the Chief Court,12
in which the Court had
been pressed with the argument that where the written laws of Myanmar did not make
express provision for the relief applied for, there was nothing the court could do: its
hands were tied. In a splendid passage which is so important that it deserves to be set out
in full and committed to memory, the Court said:
‘The Act may not be exhaustive, and a particular point not specifically dealt with must be
governed upon general principles. It is not necessary that every order of a Court should
be supported by a specific statutory provision, and where there is neither provision nor
prohibition it has to be guided by ordinary principles of common sense, justice, equity
and good conscience. Since the laws are general rules, they cannot regulate for all time to
come so as to make express provisions against all the cases that may possibly happen.
The inherent power of the Court to act ex debito justitiae13
is expressly recognised in
Section 15114
of the Code of Civil Procedure.’
This general observation may not, by itself, justify every single detail of the statement of
Myanmar’s private international law as it is set out in this book. But the reference to
‘justice, equity and good conscience is a reference to Myanmar Laws Act,15
section 13(3)
of which provides that:
13. Law to be administered in certain cases… (3) In cases not provided for
by sub-section (1),16
or by any other enactment for the time being in force, the
decision shall be in accordance with justice, equity and good conscience.
11 The speech of Dr Tun Shin was reported in The New Light of Myanmar, Vol 20, No 296, 10
February 2013.
12 Steel Bros & Co Ltd v YA Ganny Sons BLR (1965) CC 449. The passage quoted is at p 463.
13 Translated: ‘as a duty arising from the justice of the matter’.
14 Section 151 is set out in Chapter 2, under point (15), below.
15 Of course, the Act was originally made as the Burma Laws Act, appearing in Volume 1 of what
was originally the Burma Code. We have replaced references to ‘Burma’ with ‘Myanmar’
throughout, even though this creates a difference between the published version of the legislation
and the present-day designation of it. We hope that it does not cause confusion.
16 Which is concerned with certain issues of succession.

- 13 -
It was observed by a former Chief Justice that Section 13(3) has a lot of work to do in
Myanmar law, and that it served as the basis for the law of torts not otherwise provided
for by enactment.17
However, the issues which arise in private international law are,
especially in the 21st century, too complex for the very general language of Section 13(3)
to provide a wholly satisfactory answer to the many particular questions which may arise.
The view which we have taken, therefore, is that the rules which a Myanmar court would
follow, when deciding in accordance with ‘justice, equity and good conscience’ are, in
general, those of the English common law. The Indian courts, which have or had a
similar rule, have relied on the ‘justice, equity and good conscience’ provision to
incorporate into their private international law rules taken from the English common law
rules of private international law.18
Certainly, once such a rule has been taken up and
given effect in Myanmar in accordance with Section 13(3), that rule will be established as
part of the private international law of Myanmar. As we see it, a court in Myanmar would
be entitled to use the ‘justice, equity and good conscience’ clause of the Myanmar Laws
Act to declare the private international law of Myanmar in the way which we seek to
describe it. This, therefore, is the approach we have taken in this book, making reference
to material from other common law systems where we judge that will help us to explain
the private international law of Myanmar. As Myanmar inherited its laws from a common
law, or Anglo-Indian, legal tradition, and has not legislated since independence in the
field of private international law, we proceed on the basis that the common law
principles of private international law are, for good or ill, part of the inheritance of laws,
and that they form the basis for the answers which a court in Myanmar, or legal advisers
in Myanmar, may be called upon to give in the years before a more radical reform is
undertaken.
There are rather few reported cases from the courts of Myanmar which have applied
principles of private international law.19
We have identified all those of which we were
aware. Most are rather old, and even if they were correct at the time they were decided,
the law moves on as societies change and develop. As Myanmar re-connects with the
modern world of business, commerce, and law, issues of private international law are
bound to come before the Union Supreme Court and before the High Courts of
Divisions. It is important that courts are ready for this when it happens. There are
lawyers in other countries who will seek to entice companies and individuals from
Myanmar to litigate in these overseas courts, so making an enormous profit for
themselves, at the expense of Myanmar and of those who do business there. It is
understandable, if regrettable, that some will accept this invitation, perhaps because they
consider the courts of Myanmar to lack the commercial experience which is to be found
in other places. Some people may lack confidence in the abilities of the courts of
17 Kovtunenko v U Law Yone BLR (1960) SC 51. It was also used to extend or apply the Carriage of
Goods by Sea Act, which is expressed to apply to shipments out of a Myanmar port, to a case
involving shipment to a Myanmar port: China-Siam Line v Nay Yi Yi Stores BLR (1954) HC 270.
18 See Govindan Nair v Achutha Menon (1915) 2 LW 290 (Mad). For a comprehensive analysis of
‘justice, equity and good conscience’ as it has been understood in Indian law, see JMD Derrett,
Justice, Equity and Good Conscience in India (1962) 64 Bombay Law Reporter, 129. The paper was
republished by the author in Derrett, Essays in Classical and Modern Hindu Law, Vol 4, pages 8-26
(Brill, Leiden, 1978),
19 We leave aside matters of marriage and succession, for which there are also some cases, and in
which context Section 13(3) has been used as the basis for the applicable rule of private
international law applied by the court: see for example Ma Khin Mya v Maung Sit Han (1937) RLR
103.

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Myanmar; some people may worry that the law of Myanmar, including the private
international law of Myanmar, is not clear.
This is, as we see it, a serious concern. It will damage the sovereignty of Myanmar if
those who do business in Myanmar are not willing or able to settle their disputes before
the courts of Myanmar; the idea that Myanmar business should have to be dealt with by
foreign courts, tribunals, and lawyers is not satisfactory. It is therefore necessary for all
those who can to play a part in improving the clarity and completeness of the laws of
Myanmar, and for all those in legal practice, to develop the law of Myanmar to the point
where it is natural for Myanmar business to be sorted out in Myanmar courts, and not by
foreigners, in foreign courts and tribunals. This book seeks to take a modest step in that
direction.
We have therefore tried to set out the principles as we understand them, and to discuss
and analyse them to the extent that this seems helpful. At the end of the book we
summarise the existing principles, as we understand them, in the form of a Statement or
Restatement: the correct term is a matter of personal preference.
(8) International conventions on matters of private international law
Even in countries with a highly developed system of private international law, it is
understood that there are some things which cannot be achieved by national legal
systems alone. In recent years there has been an awareness that some legal developments,
which are really needed, can only be achieved by international convention. A couple of
specific examples will make the general point.
In international commercial arbitration, there has been a remarkable international
consensus that courts should respect and enforce arbitration agreements. This means in
particular. First, courts should not allow a plaintiff to bring legal proceedings in respect
of a dispute which he has agreed to settle by arbitration; and second, courts should be
willing to accept without review, and to enforce if called upon to do so, an award20
made
by an arbitral tribunal. Of course, if there is a dispute before the court on the question
whether the parties did agree to arbitration, a court will have to form some kind or
preliminary view, but it ought to allow the arbitrators to decide for themselves whether
the parties agreed to proceed to arbitration. If there is a genuine dispute about the
arbitrators’ award, a court may have to reach a conclusion whether to accept the award as
conclusive; but in each case, there is a strong interest in leaving the arbitrators to conduct
the arbitration, and for the courts to keep clear.
It was not clear that this policy could be found in every country’s law, but the terms of
an international convention to provide clear and uniform rules for these issues, settled at
New York in 1958, has now been signed by 150 countries. Myanmar signed and ratified
the New York Convention in 2013, and legislation to translate the Convention into the
20 The term ‘award’ is used to refer to the decisions of an arbitral tribunal; the terms ‘judgment’
and ‘decree’ (‘decree’ is used by Civil Procedure Code, Section 2(2) to refer to the formal part of
the judgment of a court in Myanmar) are used to refer to the decisions of a court; and ‘foreign
judgment’ is used to refer to the judgment of a foreign court (Civil Procedure Code, Section
2(6)).

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domestic and private international law of Myanmar was under consideration at the time
of writing this book.21
International conventions have been made in other important areas of commercial life.
Conventions providing for the arrest of sea-going ships have been signed by a large
number of states which take part in the carriage of goods by sea. A Convention made
under the auspices of the United Nations was made to simplify and smooth out the
problems created by a cross-border insolvency. When a large bank, or other company,
goes into insolvency, there may be assets, and creditors, all across the world. If each
separate jurisdiction were to deal with the insolvency all by itself, in isolation from other
states dealing with portions of the same larger problem, it would mean that there was a
duplication of effort, and that assets, which should be paid to the creditors, are absorbed
in professional fees. The UNCITRAL Model Law on Cross-Border Insolvency22
provides a uniform law which reduces the risk of conflicting and unnecessary legal
proceedings. Myanmar, however, has not signed up to these agreements. Perhaps there
was little need to when the state was rather closed to the outside world, but as it has
opened up it seems inevitable that this will need to be reconsidered.
There are also regional treaties. In Europe, in particular, there are conventions which
provide uniform rules to regulate and harmonise the jurisdiction of courts, the
recognition and enforcement of judgments from other European states, and even the
rules for choice of law. The issues which we examine from the perspective of Myanmar
law in Chapters 2 to 8 are, in Europe, covered by European agreements. Occasional
suggestions that ASEAN should embark on a similar harmonisation of laws have not
been taken up.
(9) Family law and the laws of family property
This book does not examine, in any detail, the laws of the family and the laws of family
property, including succession.23
The reasons are practical ones, because questions of family law and succession law do
arise in cases with international elements. But the Myanmar Laws Act of 1898 provides
for the application of Buddhist law, or Muhammadan law, or Hindu law (as the case may
be) when a court in Myanmar has to decide any question regarding succession,
inheritance, marriage or caste. The relationship between this provision and the ordinary
rules of private international law as they apply to family law and to the law of family
property, including succession, is difficult, and it is not examined in this book beyond the
short summary in Chapter 9.
(10) Arbitration
This book does not examine, in any detail, the law and procedure of arbitration.24
In many countries, and in most law schools, the law of commercial arbitration is studied
separately from the law of civil procedure; and the law of international commercial
21 The legislation is expected also to incorporate into Myanmar law the substance of the
UNCITRAL Model Law on International Commercial Arbitration (1985; amended in 2006).
22 Made on 30th May 1997.
23 See Maung Maung, Law and Custom in Burma and the Burmese Family (Springer, Dordrecht, 1963).
24 See Moser, Arbitration in Asia (2nd edn, 2008), Part L (Myanmar).

- 16 -
arbitration is studied separately from private international law. There are good reasons
for this, but the practical consequence is that arbitration is not included in this book. It
is, however, sensible to give some indication of the reasons which underlie this
conclusion.
Judicial adjudication before a court is (more or less) done in public. The rules of law
which apply are the rules of law which apply in the court in which the litigation takes
place. There is little opportunity for the parties to devise their own procedures for
dealing with a case which will be heard in the courts. They cannot expect their judge to
be familiar with the particular trade or commercial activity which has given rise to the
dispute. They cannot ask or expect the judge to deal with the case by applying a set of
rules which is not the law of a particular country, whether Myanmar or a foreign country:
they cannot ask the judgment to adjudicate by applying the principles of ‘fair dealing and
good faith’, for example. The litigants have little control over the timetable which the
case will follow.25
A litigant who wishes to be represented by a lawyer qualified and
admitted in another country, but not admitted to practice in Myanmar, will not be able to
be represented by counsel of his choice.
By contrast, the resolution of disputes before an arbitral tribunal is (more or less) done in
private. The rules of law are those which apply to the tribunal in question, but most
arbitral tribunals allow the parties to the arbitration to devise and follow their own
procedural rules and timetables: at any rate, the parties have a freedom which a court will
not extend to them. The parties may expect their arbitrators to have expertise in the area
in which the dispute has arisen: indeed, each side will appoint its arbitrator on the basis
that he or she has the expertise which that party is relying on. The parties can - subject to
the overall control of the law in force at the place which is the ‘seat’ of the arbitration -
ask the arbitrators to settle the dispute by applying something other than the rules of law
which would apply in a court: the can ask the arbitrator, for example, to resolve the case
by the application of the principles of good faith. The parties have substantial control
over the timetable which will be followed; and in principle each party may instruct and be
represented by the lawyer of his choice. Whereas a court will be bound to apply the law
to the facts in an objective way, an arbitral tribunal may, perfectly legitimately, be more
concerned to find a resolution which is fair but less technical.
All this helps to explain why dispute resolution by arbitration is very different from
dispute resolution before the courts of Myanmar. Arbitration is, certainly, a very
important component of international trade and commerce, and in countries in which
there is not (or not yet) great confidence in the quality of the courts, of which Myanmar
is probably one, arbitration may be an attractive option for the resolution of disputes.
But arbitration is very different from what goes on in courts. In universities it is often
taught by people who are expert in arbitration but who know rather less about what takes
place in a court; private international law tends to be taught by people who understand
what goes on in courts but who have no necessary first-hand knowledge of arbitration.
Myanmar will soon have a new Arbitration Act to replace the Arbitration Act 1944. This
new Act will have a focus on international arbitration, rather than on the domestic
arbitration which is the main focus of the 1944 Act. It should provide for the initial
stages of arbitration, for the duty of courts to enforce agreements to arbitrate when one
25 And this, in a judicial system which is slow and creaky, may be a real problem, particularly in
cases in which an urgent decision, even a provisional one, is required.

- 17 -
party fails to comply with it, for the supervision and assistance of arbitration by the
court, for the recognition and enforcement of awards made by tribunals in Myanmar, and
for the recognition and enforcement by tribunals outside Myanmar. It may well make
arbitration more attractive to those who agree to have their disputes resolved in this way.
But for all the cases in which this agreement is not present and disputes are resolved
before the courts, and for all disputes which proceed to an arbitration in which the
tribunal is called upon to apply the laws of Myanmar, including its rules of private
international law, the rules examined in this book will apply.

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CHAPTER 2
JURISDICTION: EXISTENCE, EXERCISE, AND NON-EXERCISE
In this Chapter we examine the rules which define the jurisdiction of a court in
Myanmar, which are a mixture of written law and unwritten law. We also examine the
circumstances in which a court may properly decline to exercise the jurisdiction which it
has. Our concern is with the international jurisdiction of the courts of Myanmar: does
Myanmar have jurisdiction or will the matter be left to the courts of another country ?
We do not address the question whether, within Myanmar, the courts of one Division or
another have jurisdiction, or whether the Supreme Court or other Court has original
jurisdiction, for this is a matter of national law rather than private international law.
(11) The legal basis for jurisdiction over a defendant who is an individual
Before considering the basis for jurisdiction over a defendant, it is necessary to note that
the only persons who, as plaintiffs, are prevented from bringing proceedings before a
Myanmar court are alien enemies. Apart from them, the nationality of the plaintiff is
irrelevant. According to Section 83 of the Civil Procedure Code:
83. When aliens may sue (1) Alien enemies residing in the Union of Myanmar
with the permission of the President of the Union, and alien friends, may sue in
the Courts of the Union of Myanmar as if they were citizens of the Union…
It is not therefore necessary to say any more about the identity or characteristics of the
plaintiff: Myanmar is not at war with any state, and all foreigners are therefore alien
friends. The remainder of this point, and of those immediately following, is concerned
with the position of a defendant. For the law of Myanmar, as with almost all other laws,
places limits on those who may be sued in its courts. In some cases these limits are
defined by reference to the personal characteristics of the defendant; in other cases these
limits are defined by reference to the nature of the claim made.
The jurisdiction of a court in Myanmar over a defendant is defined by statute. This
makes Myanmar different from many common law jurisdictions. In England, Australia,
Canada and the United States, by contrast, the rule of jurisdiction is that if a defendant is
present in the territory of the state, the court has jurisdiction over him if he is served
with the writ of summons: the physical presence of the defendant is all that is needed to
give the court jurisdiction over him.
But in Myanmar it is completely different. The jurisdiction of a Myanmar court over a
defendant is set out in Civil Procedure Code, Sections 16 to 20. Sections 16 to 18 are
concerned with claims concerning land, and do not need to be studied in detail at this
point.26
Sections 19 and 20 are the central provisions, and they state as follows:
19. Suits for compensation for wrongs to person or moveables. Where a suit
for compensation for wrong done to the person or to moveable property, if the
wrong was done within the local limits of the jurisdiction of one court, and the
26 They are examined below: Chapter 7, point (62).

- 19 -
defendant resides, or carries on business, or personally works for gain within the
local limits of the jurisdiction of another court, the suit may be instituted at the
option of the plaintiff in either of the said courts.
20. Other suits to be instituted where defendants reside or cause of action
arises. Subject to the limitations aforesaid, every suit shall be instituted in a court
within the local limits of whose jurisdiction -
(a) the defendant, or each of the defendants where there are more than one, at
the time of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually works and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the leave
of the court is given, or the defendants who do not reside, or carry on business,
or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) a cause of action, wholly or in part, arises.
The rules set out in Sections 19 and 20 were designed to answer the question of which
court, or which Division, in Myanmar is to have judicial jurisdiction.27
This can be seen
from the Illustrations to Section 19 of the Civil Procedure Code: the first of which
explains that if A resides in Mandalay and beats B in Rangoon, B may sue A either in
Rangoon or in Mandalay. In other words, these jurisdictional rules were made to deal
with cases which were wholly internal to Myanmar. They were not designed or drafted to
apply to cases which have a connection to a country outside Myanmar.
However, the Indian courts, whose jurisdictional rules are practically identical, have
shown that these rules apply to cover international as well as purely internal cases; and it
is clear that a Myanmar court would do likewise. These rules therefore tell us whether a
court in Myanmar has jurisdiction over a defendant who is not in Myanmar as well as
dealing with the case in which the defendant is in Myanmar; but the fact that the rules are
being adapted for ‘international cases’ may mean that they are slightly modified in effect
where there is an international element to the facts.
The result is that proceedings may be commenced against a defendant in a court in four
categories of case, which we examine as (a) to (d) below. A further case, (e), examines the
important question whether a Myanmar court may have jurisdiction over a defendant in
one case not set out in the legislation. If the court has jurisdiction according to these
rules, the fact that the defendant is out of Myanmar is irrelevant: the jurisdiction of the
court is unaffected.28
27 For example, Shantilal Surajmal Mehta v Mariam Bibi BLR (1960) HC 359, and State Commercial
Bank v Thibaw Commercial Syndicate Ltd BLR (1966) CC 1131, were concerned with the question
whether the High Court or Chief Court had original jurisdiction in a matter in which the cause of
action had arisen partly within the jurisdiction of the Court, and in relation to which Union
Judiciary Act 1948, Section 15, imposed a requirement that the leave of the Court be obtained
before jurisdiction could be taken. In holding that where leave had been required but had not
been sought the Court had no jurisdiction the Court was answering a question of internal, not
international jurisdiction.
28 Cooverjee Ladha v Suleman Ismail & Co (1903-4) 2 LBR 47; see also Mohamed Khan v Damayanthi
Parekh BLR (1952) HC 356 (which considered this obviously correct conclusion to be reinforced
by then Union Judiciary Act, s 15).

- 20 -
(a) Jurisdiction in cases concerning land established by reference to where the land is
In the first category of cases, the jurisdiction of the Myanmar courts over claims which
concern land is determined by focusing on the land with which the claim is concerned.
As a result of Sections 16 to 18, proceedings may be brought in Myanmar if the claim
concerns the recovery of land, or the enforcement of other rights in relation to land, if
the land is situated in Myanmar. But if the claim concerns land which is not situated in
Myanmar, but the relief sought against the defendant may be obtained by his personal
obedience to the order of the court, proceedings may be brought against him in
Myanmar if Myanmar is where the defendant actually and voluntarily resides, or carries
on business, or works for gain, or where the cause of action arose in part.29
It is almost universally agreed that claims which have at their heart a question of the right
to land should be tried, and should only be tried, where the land is situated. If the land
which is the subject of the dispute is in Myanmar, the court should find that it has
jurisdiction over the defendant in relation to the claim, even if he is not in Myanmar. On
the other hand, if the land is outside Myanmar, a court in Myanmar should consider that
it does not have jurisdiction over the defendant in relation to the claim. By way of
exception to this, if the court is not asked to determine title to land but, for example, to
order a defendant to do something, such as pay money or perform his contractual duty
to convey title to land which he contracted to sell, the relief will be something which may
be ‘obtained through his personal obedience’, as is said in the proviso to Section 16,30
a
court will not be prevented from exercising jurisdiction.31
(b) Jurisdiction established by reference to the personal circumstances of the defendant
In the second category of case, the jurisdiction of the Myanmar courts is established by
focusing on the defendant. As a result of Section 20(a), a defendant may be sued in
Myanmar if Myanmar is where he actually and voluntarily resides, or if Myanmar is where
he carries on business, or if Myanmar is where he personally works for gain.
The meanings of these terms are reasonably clear. As to ‘resides’, a possible point of
departure is that a person resides where he normally eats, drinks, and sleeps,32
but
especially today there will be cases which are not so easy to deal with as this homely
suggestion would indicate. A person may certainly reside in two places, so a person may
be found to reside in Myanmar even though he also resides in another country. His
connection to Myanmar must be more than as a transient in the country. A person who
is on holiday for a month in Myanmar probably does not count as being resident in
Myanmar, but if he is staying in Myanmar for a period while he studies or works in the
country, it is possible to say that he resides there for the period during which he is in the
29 That is, if there is personal jurisdiction under Section 20 of the Civil Procedure Code: Ayesha
Bee v Gulam Husein Suleman Aboo (1921-22) 11 LBR 188. For further analysis of this point, see
Chapter 7 in general, and State Bank of India v Collector of Rangoon BLR (1961) HC 336 in particular.
30 However, a claim to enforce a mortgage by sale of the mortgaged land, which proceedings
allow the borrower to pay up and redeem, is not within this principle, because the right enforced
is that of the mortgagee to sell the land, not that of the mortgagee to be repaid by the borrower,
even if this is in some sense ancillary to the claim: VERMNCT Chettyar v ARARRM Chettyar
(1934) ILR 12 Ran 178. It must therefore be brought where the land is.
31 Cf State Bank of India v Collector of Rangoon BLR (1961) HC 336.
32 Re Ramnira Jan Lhila v Daw Than BLR (1966) CC 763 (appeal dismissed: BLR (1968) CC 67).

- 21 -
country. The decision of a Myanmar court33
that a person is resident in the place in
which he is imprisoned, on the ground that he must be taken to be there voluntarily as
any intention to escape would be an unlawful intention, seems to stretch the law perhaps
further than it will really go. A Myanmar student, who leaves the country to study
overseas, may still be found to be resident in Myanmar, for Myanmar remains his home,
to which he will return. But a longer absence, or one which is not of fixed purpose of
duration, may mean that the person is no longer resident in Myanmar.
A person may also be sued where he carries on business or works for gain. It is not a
requirement that the claim arise out of the business carried on, or work done, at that
place: as long as the person carries on business in Myanmar, or works in Myanmar for
gain, he is liable to be sued there just as clearly as if he were resident in Myanmar.
(c) Jurisdiction established by reference to the personal circumstances of a co-defendant
In the third category of case, the jurisdiction of the Myanmar courts is established by
focusing not on the defendant, but upon the person who is to be sued with him, that is,
on a co-defendant. As a result of Section 20(b), if a co-defendant is liable to be sued in
Myanmar and the defendant agrees to be sued in Myanmar as well, the court will have
jurisdiction over him. But if the defendant does not agree to be sued alongside the co-
defendant, and is not otherwise subject to the jurisdiction of the court, the court will
have jurisdiction if it decides to give the plaintiff permission to sue the defendant there.
This rule makes a lot of sense. If there is a claim against several defendants, and one of
them is subject to the jurisdiction of the Myanmar courts, it is obviously sensible that the
claim against all defendants be heard and disposed of in a single proceeding by which all
will be bound. For it would be very unsatisfactory if a court were to hear a claim against
one defendant, while another court heard the same claim against a different defendant:
there would be a real chance of inconsistent outcomes, which would be inefficient and
undesirable. If, therefore, the defendant who is not otherwise subject to the jurisdiction
of the Myanmar court agrees to defend the claim, he accepts and submits to the
jurisdiction of the Myanmar court. But if the defendant does not agree, it will be
necessary to apply to the court for permission to proceed against him. In dealing with the
application for permission, the court will wish to be sure that there is a genuine, rather
than an artificial, connection between the defendants, and that the application to join the
defendant is based on grounds which are proper and sufficient.
(d) Jurisdiction established by reference to the elements of the cause of action
In the fourth category of case, the jurisdiction of the Myanmar courts is established by
focusing on the particulars of the cause of action. As a result of Sections 19 and 20(c), if
the case concerns wrongs to the person, the court will have jurisdiction if Myanmar is
where the wrong was committed. If the case concerns wrongs to moveable property, the
court will have jurisdiction if Myanmar is where the wrong was committed.34
And in
other cases, the court will have jurisdiction if Myanmar is where the cause of action, or
part of it, arose.35
33 Re MVR Veluswamy Thevar (1935) ILR 13 Ran 192.
34 See for illustration, Shantilal Surajmal Mehta v Mariam Bibi BLR (1960) HC 359 (claim alleging
conversion of jewellery).
35 This is the effect of Section 20(c). In Shantilal Surajmal Mehta v Mariam Bibi BLR (1960) HC 359,
and State Commercial Bank v Thibaw Commercial Syndicate Ltd BLR (1966) 1131 CC, the court

- 22 -
The ‘cause of action’ to which Section 20(c) refers, means those elements of the claim
which must be pleaded and established in order for the plaintiff to succeed.36
For this
rule to operate, it is necessary to distinguish between the elements which must be proved
to sustain the claim, and those which are part of the narrative, or which are relevant to
the computation of the loss, but which are not essential to the existence of the cause of
action.
Take a case of breach of contract as an example. The plaintiff will need to prove that the
contract was made, and was breached: he may also (depending on the claim he makes)
need to prove that he has performed his side of the contract. The Myanmar court will
have jurisdiction under this rule if the contract was made in Myanmar, or breached in
Myanmar or (if the case is one in which the plaintiff has to prove that he has performed
his part of the contract) performed in Myanmar.37
But as it is not necessary to prove loss
to establish a cause of action in contract, it will not be sufficient that loss occurred in
Myanmar if none of the other elements of the contract claim did.
In general, a claim based on a contract will give the court jurisdiction under Section 20(c)
if the contract was made in Myanmar or broken (by act done, or by act not done but
which ought to have been done, as the case may be) in Myanmar.38
In the case of a claim
based on an implied promise to pay money pursuant to a contract or in respect of an
analogous obligation, the place of the required payment is at the creditor’s place of
business, because the general rule about the place of payment of money is that the debtor
must seek out his creditor. If the creditor is in Yangon, the cause of action will be held to
have arisen in Yangon.39
By contrast, the communication of a refusal to pay, as distinct
from the failure to pay, is not a fact which needs to be established to found a cause of
action in contract, and if the refusal was sent from Myanmar to another place, the refusal
sent from Myanmar would not be sufficient to satisfy Section 20(c).40
In a claim on a contract of property insurance, the making of the contract and the
payment of money are elements of the cause of action, but it has been held that the loss
of the property is not a part of the cause of action. It is not clear that this is correct. It
was held to be justified on the basis that jurisdictional rules were to be construed
restrictively, as there was no discretion to not exercise jurisdiction conferred on the court
by the Code.41
However, if it is now accepted that a court has a discretion to exercise
observed that the Union Judiciary Act 1948 laid down a different rule for the original jurisdiction
of the High Court. This aspect of the case does not need to be considered further.
36 There are many cases which have commented on this: see U Saung v U Khin Maung BLR (1959)
HC 314; see also Shantilal Surajmal Mehta v Mariam Bibi BLR (1960) HC 359, and State Commercial
Bank v Thibaw Commercial Syndicate Ltd BLR (1966) CC 1131.
37 So if the payment is due in Myanmar, because the rule is that the debtor must seek out his
creditor and pay him at the creditor’s place of business, the cause of action will arise in part in
Myanmar: Soniran Jeetmull v Tata & Co Ltd (1927) ILR 5 Ran 541 (Privy Council).
38 State Commercial Bank v Thibaw Commercial Syndicate Ltd BLR (1966) CC 1131.
39 Soniram Jeetmull v Tata & Co Ltd (1927) ILR 5 Ran 451 (Privy Council on appeal from High
Court); NKLP Palaniappa Chettyar v STSP Subbiah Chettyar AIR (1937) Ran 443; KSLPA Annamalai
Chettyar v Daw Hin U ALR (1936) Ran 251.
40 Shantilal Surajmal Mehta v Mariam Bibi BLR (1960) HC 359.
41 Jupiter General Insurance Co Ltd v Abdul Aziz (1923) ILR 1 Ran 231. In The American International
Underwriters (Burma) Ltd v U Maung San BLR (1961) HC 41, at p 45, the High Court noted, but did
not agree with, certain Indian decisions which had disagreed with the approach in the Jupiter case.

- 23 -
jurisdiction, or not exercise jurisdiction, in an appropriate case, this strictness may not be
so important a requirement.
Let us now turn to a case framed in tort. It will be necessary for the plaintiff to prove the
commission of a tort, and damage, for a cause of action in tort generally requires damage,
or is not complete until there is damage. If the tort is a wrong to the person or to
moveable property, then if the tort was committed in Myanmar, the court will have
jurisdiction under Section 19. If the tort was not committed in Myanmar but damage
resulted in Myanmar, the court will have jurisdiction under Section 20(c), because in a
tort claim, damage is normally an essential part of the cause of action. It appears from
the Illustrations to Section 19 that defamation is considered a wrong to the person. If,
therefore, a person overseas publishes in Myanmar statements which are defamatory of
the plaintiff who resides in Myanmar, the plaintiff may sue the defendant in Myanmar.
If the tort is not one concerning a wrong to the person or to moveable property, Section
19 will not apply. If the claim is based on the wrongful infliction of economic loss,
therefore, Section 20(c) will give the court jurisdiction if the wrongful act or the damage
resulting from it arose in Myanmar. Likewise, if a defendant who is overseas publishes a
defamatory statement about a person who is not resident in Myanmar, Section 19 will
not give the court jurisdiction. But if the damage which results from the publication is (in
part) in Myanmar - for example, because persons in Myanmar will no longer engage in
trading relations with him - it may be argued that part of the cause of action has arisen in
Myanmar, and the Myanmar court will have jurisdiction under Section 20(c).
Section 20(c) is in one respect an easy jurisdictional rule to satisfy, because it is not
generally necessary to establish that the entire cause of action arose in Myanmar. In an
early case, it was held that the court would have jurisdiction if the wrong was done in
Myanmar.42
Take for example a claim arising from a pharmaceutical product which has
caused illness or injury to the person who used it. If the product was designed in country
A, manufactured in country B, tested in country C, sold to a wholesaler in country D,
purchased from a chemist in country E, and used by the ultimate customer in country F,
it may be very hard indeed to say which is the country in which the cause of action arise.
But if the question is whether it arose in part in any of countries A to F, the answer will
be that it arose in part in each of them, because it appears that all the elements identified
above form part of the cause of action. If any of these six countries is Myanmar, the
Myanmar court will have jurisdiction under Section 20(c).
(e) Jurisdiction by submission to the court ?
Apart from Section 20(b), which provides for jurisdiction ‘by acquiescence’ where the
suit is against several defendants, Sections 16 to 20 do not expressly provide that a
defendant who answers the summons and does not dispute the jurisdiction of the court,
even if he might have had good grounds to have done so, submits to the jurisdiction of
the court and thereby gives the court jurisdiction over him, but there should be no doubt
that this is the law.43
The point is not clearly settled; it is dealt with under point (15). It is
42 Ma Myit v Shwe Tha (1905-6) 3 LBR 164 (a case on the earlier Civil Procedure Code).
43 Voluntary submission (or its absence) is the basis on which a foreign state may be sued (or not)
before a Myanmar court: U Kyaw Din v United Kingdom (1948) BLR 524.

- 24 -
mentioned here because of its practical importance to the overall question of when a
Myanmar court has jurisdiction.44
(12) The legal basis for jurisdiction over a defendant which is a company
The rules of jurisdiction in Sections 19 and 20 of the Civil Procedure Code apply equally
to claims against a company. There is nothing in the Sections to suggest that the rules
only apply to claims against individuals. So if a company is alleged to have committed a
wrong against a person or against moveable property in Myanmar, Section 19 will be a
possible basis for the jurisdiction of the court.
Where jurisdiction over a company is proposed to be based on Section 20, the position is
a little more complex. This is because a company does not ‘reside’ in the same that a
natural person resides, and does not carry on business in the same way that a natural
person does: a company has to act through human beings, whereas a natural person can
carry on business without anyone else being involved. The application of Section 20 to
claims against companies always was a little more difficult than its application to natural
persons.
And as technology has advanced, it has become possible for a company to do business
with persons in Myanmar without having any personal or physical presence, or any place
of business of its own, in Myanmar. If a foreign company has a website which is
accessible from Myanmar by anyone who has a computer, and allows customers in
Myanmar to make contracts with it, the result is that a company has made a contract with
a Myanmar customer without having any presence of its own in Myanmar, and without
having any place of business in Myanmar. The jurisdictional rule in Section 20, therefore,
has to be interpreted in a special way if it is to apply in a sensible way to claims against
companies.
The law is considered in part in Explanation II to Section 20. According to this, a
corporation (which includes a company) shall be deemed to carry on business at its sole
or principal office in the Union of Myanmar, or, in respect of any cause of action arising
at any place where it has also a subordinate office, at such place. This is, as will be
shown, not very helpful as an explanation of the rules of private international law: it may
be better for it to be understood as a rule of internal or domestic law only. The true
position is as follows.
If the company is established under the Companies Act, it may be sued in Myanmar.
This is obvious, and Section 148 of the Companies Act provides for service of
documents on a company formed under the Companies Act at its registered office.45
If
the company is formed and established under Myanmar law, therefore, it may be sued in
Myanmar and no more needs to be said.
If the company is not a Myanmar company, it will have been incorporated outside
Myanmar: there are then two possibilities. If it carries on business in Myanmar, it will
require a permit granted in accordance with Section 27A Companies Act. If the company
complies with this requirement, and establishes a place of business in Myanmar, it
44 See Raj Chandra Dhar v Ray (1924) ILR 2 Ran 108; also The American International Underwriters
(Burma) Ltd v U Maung San BLR (1961) HC 41.
45 See Chapter 8, point (72) below.

- 25 -
appears that service may be made on it there.46
In any event, jurisdiction over a company
may be taken under Section 20 of the Civil Procedure Code, and by reason of Section
20(a), the jurisdiction of the Myanmar court will not be limited to claims which arise out
of the activities of the company within Myanmar.
But if the company is not a Myanmar company, and does not have a place of business in
Myanmar, it will be concluded that it does not do business in Myanmar, because ‘doing
business in’ means ‘doing business from a place of business in’ Myanmar. The plaintiff
may still rely on Section 20(c) to establish the jurisdiction of the court jurisdiction if the
cause of action against the company arose in whole or in part in Myanmar. A Myanmar
customer who makes a contract with a foreign company over the internet, and who now
wishes to sue that foreign company for breach of contract, will be able to say that the
cause of action arose in part in Myanmar, where he carried out his acts in making the
contract, and Section 20(c) therefore applies. There is no reason to suppose that Section
20(c) is available only when a company carries on business in Myanmar; and for this
reason the Explanation to Section 20 is not helpful.
(13) The legal basis of jurisdiction over a defendant who is not present in
Myanmar
It will have become clear that the jurisdictional rules set out in Sections 16 to 20, which
say nothing at all about cases in which the defendant is outside Myanmar altogether, still
apply, and in just the same way, even though the defendant is not present anywhere in
Myanmar.47
Although the rules were devised to establish, for example, whether a
defendant who was resident in Yangon could be sued in Mandalay, they also answer the
question whether a person who is resident in England (for example) may be sued in
Myanmar. This was the conclusion reached by the Indian courts in several cases,48
and it
is to be taken to be correct as a matter of Myanmar law. For otherwise there would be no
rule of written law to explain when a court in Myanmar had or did not have jurisdiction
over a person outside Myanmar. As we shall see below, Myanmar law makes provision
for service of documents on a person who is out of Myanmar, but this rule does not
explain when the court does or does not have jurisdiction over the person whom it is
proposed to serve. The basic point is that the jurisdiction of the Myanmar courts under
Sections 16 to 20 takes no account of whether the defendant is in or out of Myanmar.
In this respect, the laws of Myanmar and of India are materially different from those
which are found in other common law jurisdictions. In the case of England, Australia,
Canada, and the United States, the rules which allow a court to take jurisdiction over a
defendant who is present within the jurisdiction are very different from (and are much
46 Section 277 of the Companies Act, which required an unregistered company to inform the
Registrar of Companies of the details of those persons in Myanmar who may be served with a
writ which has been taken out against the company, was repealed in 1955. This is regrettable, as
Section 277 made it easier to see how jurisdiction could be taken over a foreign company. It is
likely that the Companies Act will be reformed in the near future, and that the requirement that a
foreign company, which does business in Myanmar, will need to be registered and will need to
notify the Registrar of the persons authorised to accept service of process upon it.
47 Cooverjee Ladha v Suleman Ismail & Co (1903-4) 2 LBR 47; Mohamed Khan v Damayanthi Parekh
BLR (1952) HC 356.
48 Maistry Rajabhai Narain v Haji Karim Mamod (1935) Mad LJ 189; Gaekwar Baroda State v Sheik
Habi Ullah AIR (1934) All 740; S Neelakannada Pillai v KA Kunju Pillai (1942) 68 Mad LJ 806;
Swaminathan Chettiar v Somasundaram Chettiar AIR (1938) Mad 731.

- 26 -
simpler than) those rules which apply when the defendant is not within the jurisdiction
of the court. The reasons for this are, no doubt, historical, but they do reflect an aspect
of the principle of comity: that states do not interfere in the legal business of other states,
and so on. But it means in the case of Myanmar (and India) that the arguments which
may be made to ask a court to not exercise the jurisdiction which it has under Sections 16
to 20 of the Civil Procedure Code assume greater importance.
The reason why a defendant who is present in Myanmar may be summoned to a court in
Myanmar is that he has chosen to put himself in a position in which he may be ordered
by the authority of the Myanmar state to appear in court: whether he is summoned to
appear in Yangon or Mandalay is not really important. But a defendant who is not
present in Myanmar is in a completely different position. Not only that: to summon a
defendant who is (for example) in China to appear in court in Myanmar may be thought
to be an interference with the sovereignty of the Chinese state and its courts. And
although it is no harder for a person present in Myanmar to defend himself in Mandalay
or in Yangon, it is harder, because it is more inconvenient and expensive, for a defendant
to have to come to Myanmar from a foreign country to defend a claim before the
Myanmar courts.
For all these reasons, it is usually said that a court should be more cautious when it
allows a plaintiff to summon a person who is not in Myanmar to answer a claim which
has been introduced before the Myanmar courts. The court may have jurisdiction under
Sections 16 to 20 even though the defendant is many thousands of miles away from
Myanmar, as the cases from India and Myanmar confirm, but this does not and should
not mean that the Myanmar court is obliged to exercise the jurisdiction which the Code
gives it.49
Any court has a right, and perhaps a duty, to control the exercise of its powers
so that it serves the interests of justice. There are circumstances in which the interests of
justice may favour not exercising a power, or a jurisdiction, which the court possesses.
We will examine under point (16) below the arguments which may be made to persuade
a court to not exercise the jurisdiction which it has under the law.
But we are getting ahead of ourselves. If the plaintiff has filed a plaint and issued a
summons, he must arrange to have it served on the defendant. It is, in practical terms,
only after that has taken place that the question of whether a court has jurisdiction, and if
it has, will exercise jurisdiction, will arise for consideration. This is because the decision
to issue a summons, and to serve it on a defendant, is one for the plaintiff alone. The
court is not involved, except in a purely formal way. No judge will have considered
whether the Myanmar court really does have jurisdiction over the defendant; no judge
will have considered whether a Myanmar court should exercise or not exercise any
jurisdiction which it may have. The plaintiff simply issues and serves his writ, and waits
to see what happens next: whether the defendant disputes the jurisdiction of the court, or
does not do so. It is therefore necessary to examine the law on the service of
summonses, so that we can then consider what takes place after the service of the writ of
summons.
49 In Cooverjee Ladha v Suleman Ismail & Co (1903-4) 2 LBR 47 it was said that if the court had it,
the exercise of jurisdiction was obligatory, and that the court did not have discretion not to
exercise it; to the same effect is Mohamed Khan v Damayanthi Parekh BLR (1952) HC 356. At that
time, an English court would have taken exactly the same view of its own jurisdictional rules: the
view that the court had a discretion to not adjudicate did not appear in common law systems
until the 1980s, and the fact that very old Myanmar cases do not mention it is irrelevant to the
question which would arise for answer today; see further under point (16) below.

- 27 -
(14) Service of process on a defendant
As a matter of general common law, and as a matter of Myanmar law as well, a defendant
who is to be sued must be served with the document which institutes the proceedings.
The law of Myanmar draws a distinction between the mechanism for service of a
summons on a defendant within Myanmar, and the service of a summons on a defendant
who is out of Myanmar. And as will also be seen, the law is contained in part in the Civil
Procedure Code, and partly in rules of court.
The fact that there has been service does not mean that the jurisdiction of the court has
been established: service is a necessary, but not a sufficient, condition for the court to
proceed to adjudicate. Whether the court has jurisdiction is determined by Sections 16 to
20 of the Civil Procedure Code. Service is necessary to put the proceedings into motion;
if there has been no service, then even if the defendant is plainly within Section 20 of the
Civil Procedure Code, for example, nothing will happen because until there has been
service of the writ of summons, the proceedings have not effectively begun.
(a) Service of a summons on a defendant who is within the territory of Myanmar
Order 5 of the Civil Procedure Rules (Schedule 1 to Civil Procedure Code) sets out the
mechanism for the service of a summons within the territory of the Union of Myanmar.
It makes provision for service of the summons on the defendant or an agent of his
(usually his lawyer), and for cases in which the defendant cannot be found but service
may be made on his family (though not on his servants),50
and for cases in which the
defendant is in another Division, and for cases in which, because it is not possible to
serve the defendant, the court makes an order for substituted service. These are
important provisions, but they are properly examined as part of the law of civil
procedure rather than private international law.
(b) Service of a summons on a defendant who is outside the territory of Myanmar
According the Order 5, rule 25 of the Civil Procedure Rules it is possible to serve a
summons outside Myanmar:
Order 5, rule 25. Where the defendant resides out of the Union of Myanmar and
has no agent in the Union of Myanmar empowered to accept service, the
summons may be addressed to the defendant at the place where he is residing
and sent to him by post, if there is postal communication between such place and
the place where the court is situate.
In addition, Order 5, rule 21A, makes provision for the language in which the documents
are to be prepared if they are to be served outside Myanmar.51
No permission is needed to serve the summons on a defendant who is not present within
Myanmar. The plaintiff may do so even if the claim he makes is not one which the
Myanmar court, according to Sections 16 to 20 of the Civil Procedure Code, has
50 For illustration (though for no broader a point), see U Ko Ko Gyi v Daw Khin Thaung BLR (1958)
HC 387; U Wa v U Ba Tun BLR (1962) CC 389.
51 Some further detail is given in the Courts Manual (4th edn, 1999) at p 525.

- 28 -
jurisdiction to hear; but if this happens the defendant will be able to apply to the court
for an order setting aside the service, and dismissing the claim, on the ground that the
claim is not one the court has jurisdiction to entertain. This is different from the
procedure in many other common law countries, in which a plaintiff would need to
obtain the permission of the court before serving the writ on a person who is outside the
territorial jurisdiction of the court: the thinking in those countries is that service of a writ
of summons, demanding that a person appear before the court, is an assertion of
sovereign power, and that it should not be done within the territory of another sovereign
state unless a court has approved it first. But in Myanmar there are no such concerns,
and a Myanmar summons may be sent to the defendant by registered52
post, wherever he
is.
It is unclear whether Myanmar law now allows the service of summonses by more
modern and speedy means, such as fax or e-mail. In many countries the rules on service
of process have been amended to allow this to be done; Myanmar has not done this yet.53
If a plaintiff sends a summons by attachment to an e-mail, it does not obviously comply
with Order 5 rule 25. On the other hand, if the purpose of the service is to notify a
defendant that a claim has been instituted against him, and if an e-mail will bring this fact
to his attention, it is hard to see why service by these means would be regarded as
ineffective. It is hard to see why a Myanmar court would insist on a method of
communication which has been overtaken by faster and more reliable methods, but one
cannot predict what a court in Myanmar would actually say if the point were to be raised
before it.
(15) The distinction between the legal basis for jurisdiction and the exercise of
jurisdiction
There is, in all common law systems, an important distinction between two issues which
are closely related to each other but which must be kept apart. For a court to adjudicate a
claim which the plaintiff wishes to bring, the court must have jurisdiction according to
the law. In Myanmar, these rules of jurisdiction are, in most cases, found in Sections 16
to 20 of the Civil Procedure Code.
But the fact that a court has jurisdiction does not necessarily mean that it is obliged to
exercise that jurisdiction in every case in which the plaintiff commences legal
proceedings.54
A court, as the common law understands it, always has a power, which is
probably inherent in the very nature of being a superior court, to not exercise its
jurisdiction. A court in Myanmar has jurisdiction to make an order of this kind by
Section 94(5) of the Civil Procedure Code, but also has an inherent power:
52 With acknowledgment paid for: see Courts Manual (4th edn, 1999), p 525.
53 On the other hand, it could not be argued that the Civil Procedure Rules prohibited service by
means which could not have been imagined when the Rules were drafted; as to the role of
common sense in such cases, see Chapter 1, point (7) above.
54 Even though Cooverjee Ladha v Suleman Ismail & Co (1903-4) 2 LBR 47 says otherwise, and that
jurisdiction is not discretionary. But as early as 1913, it appears that the court would, in certain
circumstances, accept that it had a limited power to deprive the plaintiff of his preference of
court if there was a ‘manifest preponderance of convenience’ in remitting the matter to another
court: Muthiya Chetty v Arunachalam Chetty (1913-14) 7 LBR 129. The much broader principle of
jurisdictional discretion was adopted in The American International Underwriters (Burma) Ltd v U
Maung San BLR (1961) HC 41; and this latter approach is plainly a preferable one.

- 29 -
94. Supplemental proceedings. In order to prevent the ends of justice from
being defeated, the Court may, if it is so prescribed…
(5) make such other interlocutory orders as may appear to the Court to be just
and convenient.
151. Saving of inherent powers of Court. Nothing in this Code shall be deemed
to limit or otherwise affect the inherent power of the Court to make such orders
as may be necessary for the ends of justice or to prevent abuse of the process of
the Court.
These provisions will certainly give the court power to make an order by which it
declines to exercise the jurisdiction which it has, if the court considers that the making of
such an order is in the interests of justice. The Chief Court so held in 1965, and it was
plainly right to have done so.55
To take one example, if the court considers that the proceedings have been instituted for
a wholly improper purpose, the court must have power to find the proceedings to be an
abuse of the legal process, and to refuse to allow the case to proceed. To put the point
another way, the court is not the puppet of the plaintiff. It is the plaintiff who asks the
court to adjudicate; and on some occasions it would be contrary to the interests of justice
for the court to do what the plaintiff asks it to do.
This may be particularly true in a case in which there are non-Myanmar elements in the
case before the court. Take for example the case of proceedings brought in Myanmar
against a defendant who appears to be resident in Myanmar and who, if he is resident, is
subject to the jurisdiction of the court according to Section 20(a). If he is unhappy about
the prospect of being sued in Myanmar, he may consider doing two things, by way of
objection to the jurisdiction, which we now examine. We will also consider the position if
he does neither of these two things.
It is first necessary to identify the statutory rule which explains how this is to be done.
According to Section 21 of the Civil Procedure Code:
21. Objections to jurisdiction. No objection as to the place of suing shall be
allowed by any appellate or revisional Court unless such objection was taken in
the Court of first instance at the earliest possible opportunity and in all cases
where issues are settled at or before such settlement, and unless there has been a
consequent failure of justice.
This is a slightly curious provision, for it deals with the consequences of making and of
not making an objection to the jurisdiction, but does not precisely explain how the
objection is to be made. It is, however, clear that the objection is to be made by
application on notice to the court of first instance, at the earliest possible opportunity.
(a) Defendant objecting that the court has no jurisdiction over him in relation to the claim
The defendant may wish to argue that the court does not have jurisdiction over him. If
the plaintiff was relying on Section 20(a), the defendant may argue that he was not
actually resident in Myanmar; he may argue that although he had been present in
55 Steel Bros & Co Ltd v YA Ganny Sons BLR (1965) CC 449.

- 30 -
Myanmar, that presence was not enough to make him actually resident in Myanmar. A
similar argument would be possible if the plaintiff was seeking to rely on Section 20(c),
but the defendant contended that no part of the cause of action had arisen in Myanmar.
As the objection to jurisdiction has to be raised at the earliest opportunity, if the court
decides to rule on it at that stage, it will obviously be uncertain about the facts of the
case: all it will know are the facts and matters which the parties allege. It will therefore be
sufficient for the court to conclude that there is a properly arguable case that the court
has jurisdiction according to the terms of the Civil Procedure Code. If instead the court
decides to hear the case in its entirety and to rule on the issue of jurisdiction only at the
end of the hearing, it will decide the question according to the usual civil standard of a
balance of probability. In many common law jurisdictions, procedural rules require the
court to determine any objection to its jurisdiction at the beginning, and before any steps
are taken towards the trial of the substantive hearing. The Civil Procedure Rules in
Myanmar do not appear to make it clear whether a court in Myanmar will follow this
procedure. In principle, therefore, the court has a choice. But if it decides to hear the
case on its merits, and to rule on jurisdiction only at the end of the hearing, the
defendant will need to be careful to maintain, and to carry on maintaining to the court,
that it should rule that it has no jurisdiction. If he stops making this objection, and
simply defends the case on its merits, he will be taken to have abandoned his objection
and to have submitted to the jurisdiction: this was the effect of a decision of the Supreme
Court of India,56
and subject to what is said below about jurisdiction by submission, it
seems to be correct.
If the court rules that it had no jurisdiction, it must necessarily dismiss the claim, though
it may do this by the mechanism of setting aside the summons and returning the plaint.
(b) Defendant objecting that although the court has jurisdiction, the interests of justice would be served by
the court not exercising its jurisdiction
Alternatively, or at the same time as he objects to the jurisdiction, the defendant may
object that, even if the court concludes that it has jurisdiction, it should not exercise its
jurisdiction: at least, the common law allows him to, and the Indian courts have accepted
that this is their understanding as well. If this possibility is allowed, the defendant may
say, for example, that even if the court finds that he was resident in Myanmar, the
dispute has little or nothing to do with Myanmar or its courts, and that the plaintiff
should sue him in a different country. He may say that the parties made a contractual
agreement that the dispute between them would be settled before the courts of another
country, such as the High Court in London. He may say that there is a dispute between
the parties already pending before the courts of another country, and that although this
does not mean that the Myanmar court is forbidden to try the claim, because, as the
Explanation to Section 10 of the Civil Procedure Code states, the pendency of a suit in a
foreign Court does not preclude the Courts in the Union of Myanmar from trying a suit
founded on the same cause of action, it may still be argued that the interests of justice
would be served if the Myanmar court were to decide that it will not exercise the
jurisdiction which it has over the defendant in relation to the claim.57
He may say that the
cause of action arose in part in Myanmar, but that it would be more appropriate to allow
a court outside Myanmar to hear the claim against him.
56 See Bahrein Petroleum Co Ltd v PJ Pappu [1966] 1 SCR 461.
57 The American International Underwriters (Burma) Ltd v U Maung San BLR (1961) HC 41.

- 31 -
If the court accepts the defendant’s argument, it will make an order under its inherent
jurisdiction as confirmed by Section 151, or under Section 94(5), suspending or staying,
or dismissing the proceedings: the particular form of relief will depend on the facts of the
case.58
But when a court makes an order in a case like this, it is saying, in effect, that the
interests of justice would be better served by leaving the plaintiff to sue the defendant
before the courts of a country outside Myanmar. We will look in greater detail under
point (16) at the particular arguments which may be available to a defendant who wishes
to object to the exercise of jurisdiction on the footing that he is permitted to advance the
argument in the first place.
(c) Defendant appearing to the summons and not objecting to the jurisdiction: an uncertain case
A defendant who has been served with the summons may decide not to object to the
jurisdiction of the court. He may be perfectly willing to defend the claim against him in
Myanmar. Or he may take the view that he is outside Myanmar, will not return to
Myanmar, has no property in Myanmar, does not believe that a Myanmar judgment will
be enforceable outside Myanmar, and that he will ignore the summons altogether.
In the former case, if the defendant appears in answer to the summons and does not, at
the first opportunity, object to the jurisdiction, most common law systems would accept
that he had submitted to the jurisdiction of the court, and that the court had jurisdiction
as a result.59
Although this is not explicitly stated in the Civil Procedure Code, common
sense might be taken to suggest that if a defendant appears to the summons and does not
object to the jurisdiction of the court, he submits to the jurisdiction.60
The Supreme
Court of India has interpreted its Code of Civil Procedure in this way,61
and it is
submitted that the approach is a sound one which should find (and has found62
) favour
in Myanmar. Almost every legal system accepts that if a defendant submits to the
jurisdiction, the court has jurisdiction and may proceed to exercise it: indeed, the
common law even extends the principle that submission furnishes jurisdiction into
several other areas, particularly (as we shall see in Chapter 3) the law on foreign
judgments. And Section 20(b) of the Civil Procedure Code gives some support to the
principle of jurisdiction by acquiescence; one might expect the point to be a general one.
It must be admitted that there is some Myanmar authority to contrary effect. This would
support the view that if the court does not have jurisdiction by reference to the written
59 In the case of proceedings against a foreign state (which did not submit), see U Kyaw Din v
United Kingdom [1948] BLR 524.
60 Steel Bros & Co Ltd v YA Ganny Sons BLR (1965) CC 449, 463 (quoted in Chapter 1, point (7),
above).
61 Viswanathan v Rukm-ul-Mulk Syed Abdul Wajid [1963] 1 SCR 22; British India Steam Navigation Co
Ltd v Shanmugha Vilas Cashew Industries [1990] 3 SCC 481. So also in a maritime case, where the
defendant appears to secure the release of a ship which has been arrested: MV Elisabeth v Harwan
Investment & Trading Pvt Ltd Goa AIR (1993) SC 1014.
62 Raj Chandra Dhar v Ray (1924) ILR 2 Ran 108 is certainly consistent with this view; also The
American International Underwriters (Burma) Ltd v U Maung San BLR (1961) HC 41. In VAS Arogya
Odeyar v VRRMNS Sathappa Chettiar BLR (1951) HC 211 it was held that a defendant who
contested the merits of the claim as well as the jurisdiction of the Myanmar court submitted to
the jurisdiction of the Myanmar court was was for that reason liable to have orders made against
him. But it may be different in a case in which the objection to jurisdiction is taken prior to the
raising of a defence to the merits of the claim.

- 32 -
law in Sections 16 to 20 it has no jurisdiction at all, that any proceedings would be a
complete nullity, and that despite Section 21, the objection to the existence of
jurisdiction could be taken at any time, early or late, in the proceedings.63
As to this, the
following four points are made. First, the question before the court in each case was
whether the High Court or Chief Court, exercising original civil jurisdiction, had
jurisdiction despite the fact that the cause of action had not arisen wholly within its
jurisdiction and no leave to proceed had been applied for.64
This may be seen as a matter
of internal (High Court or District Court) jurisdiction, rather than one of international
jurisdiction; it may also be seen as a case in which there was a statutory prohibition on
jurisdiction unless leave had been obtained. Second, one may recall the wise judicial
observation that, just because there is nothing in the written law to provide for
something, it does not necessarily follow that the court is prohibited from granting
relief.65
Viewing the matter in that light, there would be no compelling reason to accept
that if Sections 16 to 20 do not confer jurisdiction, then the court is bound to conclude
that the court is prohibited from dealing with the case. Common sense might be taken to
suggest that where there is no statutory prohibition, a defendant who does not object to
the jurisdiction cannot later change his mind and assert that the proceedings were, and
had always been, a nullity: it would allow him to challenge jurisdiction when he finds that
the court is against him on the merits, but to keep quiet if he is winning, which is a very
unattractive state of affairs. Third, Myanmar law has long accepted that even if there
were grounds upon which a defendant could have challenged the jurisdiction of the
Myanmar court and asked the court to rule that it had no jurisdiction, if he does not do
challenge it, the judgment of the court will bind on him, just as it would if there had been
no doubt as to the jurisdiction of the court. It could hardly be otherwise: it would lead to
anarchy if a defendant was free to ignore the judgment of a Myanmar court because he
could have, but did not, challenge its jurisdiction.66
In effect, if not in law, this supports
the idea that a court has jurisdiction if a defendant submits voluntarily to its jurisdiction.
And fourth, if most of the common law world now accepts that if a defendant submits to
the jurisdiction of a court, the court has jurisdiction, there is no obvious reason why
Myanmar should take the opposite view. To be sure, it cannot be claimed that the law of
Myanmar at this point is so clear that there is nothing to argue about. But what is clear, it
is submitted, is what the answer should be: submission to the court should establish the
jurisdiction of the court.
(d) Defendant ignoring the summons
63 Shantilal Surajmal Mehta v Mariam Bibi BLR (1960) HC 359; State Commercial Bank v Thibaw
Commercial Syndicate Ltd BLR (1966) CC 1131. In earlier support of this view, see Bank of Chettinad
v The Chettiyar Firm SPKVR (1935) ILR 14 Ran 94; for the opposite view, disapproved in Shantilal
Surajmal Mehta v Mariam Bibi , see Mohamed Siddiq v Mohamed Ahmed (1929) ILR 6 Ran 680.
64 The Union Judiciary Act 1948, Section 15, following the Letters Patent, imposed such a
limitation on the original jurisdiction of the High Court. It is not clear that this jurisdictional rule
is in force in Yangon today; we have proceeded on the basis that it is not and that the general
rules of the Civil Procedure Code apply.
65 Steel Bros & Co Ltd v YA Ganny Sons BLR (1965) CC 449, 463 (quoted in Chapter 1, point (7),
above). It is arguable that in Shantilal Surajmal Mehta v Mariam Bibi and State Commercial Bank v
Thibaw Commercial Syndicate Ltd, there was an actual prohibition on jurisdiction, and that those
were not cases in which there was ‘neither provision nor prohibition’, as it had been put in Steel
Bros & Co Ltd v YA Ganny Sons.
66 Nathan v Samson (1931) ILR 9 Ran 480; VERMNCT Chettyar v ARARRM Chettyar Firm (1934)
ILR 12 Ran 370; Bank of Chettinad v SPKPVR Chettyar Firm (1935) ILR 14 Ran 94 (reversing Bank
of Chettinad v SPKPVR Chettyar Firm AIR (1935) Ran 517).

- 33 -
A defendant may ignore the summons: he may do this if he is not in Myanmar, but may
also ignore the summons even though he is in Myanmar. This is not to say that he would
be wise to do it, but the consequences need to be understood.
If a defendant does not appear in response to the summons, the court may proceed ex
parte, without the presence of the defendant. Order 9 of the Civil Procedure Rules
contains certain conditions which are designed to ensure that the defendant has been
given a proper and timely opportunity to defend himself before the court, but if the
defendant does not appear, the plaintiff must be allowed to proceed to obtain judgment.
Otherwise, a defendant who had no defence to the claim would defeat the ends of justice
by refusing to answer the summons to attend court, and that would make no sense.
In such a case, in which the defendant does not make any objection to the jurisdiction,
the court will proceed to examine the matter without the participation of the defendant.
It is more difficult, in such a case, to argue that the defendant has submitted to the
jurisdiction, but if the defendant does not appear, and does not make an objection to the
jurisdiction, it seems correct that that the court simply proceed to deal with the merits of
the claim, and if the plaintiff appears to be entitled to it, to give judgment.
In some other common law jurisdictions, a court would allow a plaintiff to enter
judgment without itself making any enquiry into the merits of the claim. This sometimes
leads to problems when an attempt is made to enforce the judgment overseas, because
the merits of the claim have not been considered by the court.67
This should not be such
a problem with a Myanmar judgment, for if the court proceeds ex parte in the absence of
the defendant, it does still consider the merits of the claim, and gives judgment on that
basis.
(16) Grounds upon which a defendant may object to the exercise of jurisdiction
We have examined the mechanism by which a defendant may object to the jurisdiction
of a Myanmar court. We have also seen the grounds on which he may argue that the
court has no jurisdiction, for these are simply the reverse of Sections 16 to 20 of the Civil
Procedure Code. We should now say more about the arguments, which have special
relevance to private international law, which may be made by a defendant who objects
that the Myanmar court should not exercise jurisdiction, even though it has jurisdiction.
We set out above the statutory basis which would permit a Myanmar court to make an
order by which it declined to exercise its jurisdiction. Both Section 94(5) and Section 151
of the Civil Procedure Code allow the court to make orders in the interests of justice or
to prevent the misuse of the procedures of the court. We assume that a court in
Myanmar would adopt a position on this issue which is broadly in line with the common
law jurisdictions which allow the defendant to make this argument. And we repeat an
important point. The rules of jurisdiction in Sections 16 to 20 were designed for cases
which are internal to Myanmar (answering the question whether a claim may be brought
at one place or another in Myanmar), and in relation to which it may well be proper to
apply them strictly. When, however, they are adapted and used for cases with an
67 See Keymer v Visvanatham Reddi (1916) LR 44 IA 6; Oppenheim v Mahomed Haneef [1922] 1 AC 422
(refusing to enforce an English judgment, which had been given in default of appearance by the
defendant and without any examination by the court of the merits of the claim, by reference to
Section 13 of the Indian Code of Civil Procedure). These decisions will be accurate as statements
of Myanmar law, as Section 13 of the Civil Procedure Code is identical to that of India.

- 34 -
international dimension, there is good reason to apply them in a more flexible manner,
reflecting the fact that the international context is a rather different from the purely
domestic one.
In the field of private international law, there are two arguments which have particular
importance when seeking to persuade a court that it should not exercise the jurisdiction
which it has. These are (a) that the plaintiff is acting in breach of a contractual promise
which he made not to bring the proceedings before a court in Myanmar; and (b) that the
case is so much more closely connected to a foreign court that the interests of justice
would be better served if that foreign court were to deal with the claim. We deal with
them in that order.
(a) Objecting to the exercise of jurisdiction on the ground that the plaintiff is breaching his contract by
bringing the proceedings in the Myanmar court
If the plaintiff had made a contractual promise not to bring the proceedings which he has
brought before the Myanmar court, it is very hard to see how the ends of justice could be
served by allowing the proceedings to be brought.68
If the defendant objects to the suit
on the ground that the plaintiff is breaching his contract, the Myanmar court ought to,
and will, enforce the contract by refusing to exercise jurisdiction over a claim which the
plaintiff contracted not to bring.69
If the plaintiff objects that an agreement to oust the
jurisdiction of the Myanmar court is void, or contrary to public policy, his argument
should be rejected. It is true that Contract Act 1872, Section 28, provides that
28. Agreements in restraint of legal proceedings void. Every agreement by
which any party thereto is restrained absolutely from enforcing his rights under
or in respect of any contract, by the usual legal proceedings in the ordinary
tribunals, or which limits the time within which he may thus enforce his rights, is
void to that extent.
But an agreement to bring proceedings before the courts of a country outside Myanmar,
or to proceed to arbitration, can be construed as being partial, but not an ‘absolute’,
restraint on access to a court. It therefore does not fall within the prohibition contained
in Section 28 of the Contract Act.70
Almost all common law systems, and most civilian systems as well, will give effect to an
agreement of this kind;71
but such agreements have effects which go beyond the law of
objections to the jurisdiction of a court. In order to understand the real importance of
agreements about jurisdiction, and the many ways in which they have an effect in private
international law, the issue is considered in the round under point (17) below. At this
point is it sufficient to say that if the plaintiff is shown to be breaching his contract by
bringing the proceedings which he has brought, an objection to the exercise of
70 Steel Bros & Co Ltd v YA Ganny Sons BLR (1965) CC 449. It is, for the same reason, not
prohibited by Contract Act 1872, Section 23. Contrast VIE Ismolansa Kajar v Ebrahim Ram Co Ltd
BLR (1962) CC 152, where the arbitration agreement was invalidated by Section 28 as it
purported to remove every possibility of recourse to the courts, even after the award. It is not
clear that this decision should be followed today.
71 For the practice of the Indian courts, see also Modi Entertainment Network v WSG Cricket Pte Ltd
[2003] 4 SCC 341.

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jurisdiction by the court should be upheld. Of course, the Myanmar court is not obliged
to stay or dismiss the proceedings if they have been brought in breach of contract, for
specific and equitable relief is discretionary, and a court is allowed, in a proper case, to
decline to give specific effect to such a jurisdiction agreement for a foreign court. But
there is a strong expectation that it will enforce the jurisdiction agreement by specific
relief.72
A particular example of a breach of contract of this kind may be seen where parties have
agreed to resolve any dispute by commercial arbitration.73
A promise to go to arbitration,
rather than to bring a dispute before the courts, is taken very seriously. According to the
Arbitration Act 1944, Section 34, if proceedings are brought before a court in Myanmar
and the defendant, right at the beginning, shows the court that the parties had agreed to
settle the dispute by arbitration, the court may make an order staying its proceedings if
there is no sufficient reason not to. This means that the Myanmar court will, in most
cases, give effect to the arbitration agreement, but the language of the Section suggests
that it has some discretion in the matter.74
But, as was said earlier, an international Convention, made at New York in 1958 and
adopted by more than 150 states, which now include Myanmar, requires the courts of
Member States to respect and enforce agreements to arbitrate. The New York
Convention seeks to impose a stricter duty on courts to respect agreements to arbitrate.
Until the Arbitration Act 1944 is updated to reflect the provisions of the New York
Convention, a Myanmar court will still be able to use Section 34 of the Arbitration Act to
stay proceedings brought before a Myanmar court but which should have been raised in
an arbitration. When an updated Arbitration Act is adopted in Myanmar, it will contain a
specific provision imposing on the court a stricter duty to stay legal proceedings which
conflict with the parties’ agreement to arbitrate.
However, no similar legislation applies to require a court to give effect to a jurisdiction
agreement, and the powers of the court to grant relief will be those in Sections 94(5) and
151 of the Civil Procedure Code.
(b) Objecting to the exercise of jurisdiction on the ground that Myanmar is a forum non conveniens
The second broad objection to the exercise of jurisdiction, adopted throughout the
common law world, has always been given a Latin name: forum non conveniens. This
may suggest to some people that it has its roots in civilian legal systems, but nothing
could be further from the truth. It is a common law principle, and as it has been adopted
by the Indian courts, and is considered by them to be wholly consistent with the Indian
Code of Civil Procedure. Although older Myanmar cases have suggested (just as older
English cases held) that if a court has jurisdiction it should simply and always exercise
73 The enforcement of an arbitration agreement is in any event specifically excluded, by
Exception 1 to Section 28 of the Contract Act 1872, from any prohibition on agreements which
restrict absolutely the right of recourse to a court.
74 There is no reason to suppose that Section 34 applies only to agreements for arbitration in
Myanmar: Steel Bros & Co Ltd v YA Ganny Sons BLR (1965) CC 449 and VIE Ismolansa Kajar v
Ebrahim Ram Co Ltd BLR (1962) CC 152 make it clear that an agreement to arbitrate outside
Myanmar could be given effect by the court. For specific enforcement of agreements which do
not fall within the Arbitration Act 1944, see Specific Relief Act, Section 21.

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it,75
and should not consider itself to have a discretion not to, this approach would,
today, be out of line with common law across the world. It is therefore submitted that a
Myanmar court should be prepared to allow a defendant to argue that the court should
not exercise the jurisdiction which it admittedly has, and in an appropriate case, to grant
relief accordingly.
According to this principle, a defendant may ask a court not to exercise its jurisdiction if
the courts of another country are clearly more appropriate than the courts of Myanmar
for the trial of the proceedings. If the defendant is able to persuade the Myanmar court
that the courts of another country are clearly more appropriate for the trial of the
proceedings, the Myanmar court should suspend its proceedings unless the plaintiff can
persuade the court that it would be unjust for him to be required or expected to bring his
claim before the courts of the other country. At the end of the arguments, the Myanmar
court will be required to take a broad decision about what is called for in the interests of
justice; but it will be guided in its decision by these two parts of the overall enquiry. It is
important to understand that if it decides to grant relief, the Myanmar court does not
order the plaintiff to go to the foreign court: it has no power to do that, and it has no
power to order a foreign court to entertain proceedings. But it can make an order which
means that it will decline to adjudicate the substance of the claim, leaving it up to the
plaintiff to decide what to do next.
For the defendant to show that there is a court in another country which is clearly more
appropriate than Myanmar for the trial of the proceedings, many factors may be relevant.
Examples may be given, but no single issue is decisive all by itself. The defendant may
point to (i) the fact that the cause of action arose within the territory of the foreign court;
(ii) the fact that the parties have a stronger personal connection to the foreign country
than they do to Myanmar; (iii) the fact that the witnesses who will give evidence would
be able (and could be compelled) to give evidence to the foreign court, but would find it
inconvenient (and could not be compelled) to travel to Myanmar to give their evidence;
(iv) the fact that the relevant documents are in a foreign language, and would all have to
be translated for use in a Myanmar court; (v) the fact that the foreign court would be
applying its own domestic law to the issues in dispute, whereas the Myanmar court would
be trying to apply what is, for it, a foreign law; (vi) there are other persons who were
involved in the broader dispute, and some or all of them cannot be brought before the
Myanmar court, with the result that there will a trial in two countries which will be
wasteful and will risk inconsistent verdicts; (vii) that the case will come to trial more
quickly in the foreign country than it would in Myanmar; (viii) that there are related
proceedings already pending before the foreign court; (ix) that the order which the court
is asked to make is a discretionary one (such as for specific relief) which would be better
made and supervised by another court because the defendant is absent;76
and (x) - though
this is much more controversial - that the foreign court has much more experience than
the Myanmar court in the particular kind of litigation.
None of these factors is decisive, but any of them may help a court in Myanmar to assess
whether there is a court elsewhere which is more appropriate than it would be for the
75 See Cooverjee Ladha v Suleman Ismail & Co (1903-4) 2 LBR 47; Mohamed Khan v Damayanthi Parekh
BLR (1952) HC 356 (see also VRARM Chettyar Firm v CRACT Nachiappa Chettyar AIR (1935)
Ran 301, though this case may simply stand for the proposition that if the court has jurisdiction,
it cannot allow the plaintiff to change his mind and withdraw it on jurisdictional grounds).
76 Mohamed Khan v Damayanthi Parekh BLR (1952) HC 356; for Indian authority, see Noor Jehan
Begum v Tiscenko AIR (1942) 2 Cal 325.

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trial of the action. Of the factors listed above, it may be said that (v) is particularly
important. Everyone understands that the interests of justice are served by an accurate
application of the law; everyone understands that a court applies its own law much more
reliably than does a court for which it is a foreign law. As to (viii), we have seen from the
Illustration given in relation to Section 10 of the Civil Procedure Code that a Myanmar
court is not precluded from hearing a case just because there is a closely-related case
pending before the courts of another country, but this may still be a good reason for the
Myanmar court to decline to exercise the jurisdiction which it has.
If the defendant can show that there is a court in another country which is or would be
clearly more appropriate for the trial of the action, the plaintiff is allowed to try to
persuade the Myanmar court to continue hearing the case itself, on the broad ground that
it would be unjust to expect him to go before the foreign court instead. He cannot hope
to succeed on this point simply by saying that he prefers to sue in Myanmar: a court must
be even-handed when the litigants disagree about where their dispute should be brought
before a judge.
A plaintiff cannot succeed by showing the court that his chances of success are better in
Myanmar than they would be before a foreign court, because the interests of justice
require a court to be neutral on the question of who should succeed in litigation. Neither
can he succeed by showing that he has a valid cause of action before a court in Myanmar,
but would have no cause of action (because its law is different) before a foreign court.
Once again, the court must be even-handed. But if the plaintiff can show that he is
wholly unable to afford the cost of proceedings before a foreign court (the cost of legal
proceedings in some countries is absolutely enormous), he may then say that there would
be complete denial of justice if he were not allowed to proceed in Myanmar.
And if the plaintiff can show - it will not be easy - that the foreign court is corrupt, or
will not give him a fair trial for reasons of race or religion, or other reason, then the
Myanmar court should proceed to hear the case. It will, however, be very difficult for a
litigant to persuade a court if Myanmar to make such a finding about a court in another
state.
(17) The importance of contractual agreements about jurisdiction
We have already mentioned how an agreement made by the parties may be significant
when a defendant tries to persuade a court in Myanmar not to exercise jurisdiction.77
But
in modern private international law, agreements which are made about the jurisdiction of
a court or courts have a significance which goes beyond disputes about the exercise of
jurisdiction. An appreciation of private international law, especially in the area of
international trade and commerce, really requires that attention be specifically given to
contractual agreements on jurisdiction. Only then will it be clear why they are so
important, and why so much effort is78
devoted to drafting them.
(a) Distinguished from a choice of law clause or agreement on choice of law
77 The American International Underwriters (Burma) Ltd v U Maung San BLR (1961) HC 41; Steel Bros
& Co Ltd v YA Ganny Sons BLR (1965) CC 449.
78 Or should be, which is not the same thing at all.

- 38 -
An agreement on choice of court is an agreement by which the parties promise each
other where proceedings will and/or will not be brought if matters come to the point of
litigation. Whether a court – chosen or un-chosen – will give effect to such an agreement
is determined by the procedural laws of that court, but nowadays, most courts will,
generally, respect and give effect to such agreements, which are seen to serve an
important purpose.
A choice of court must be distinguished from a choice of law clause. An agreement on
choice of law is a term of a contract by which the parties identify the substantive law
which they intend to apply to and govern their contract. Of course, if a dispute arises
between the parties, and they come to court, the question whether effect will be given to
the agreement on choice of law will be determined by the private international law rules
of the court before which the dispute comes, but nowadays, most courts will, generally,
respect and give effect to such agreements. However, the primary purpose of a choice of
law agreement is not focused on litigation, but on the definition and regulation of the
rights and duties of the parties as they perform their respective obligations.
Parties to a contract will often choose a jurisdiction as well as a law, and incorporate such
a dual term into their contract. There is no obligation to choose a court and a law from
the same legal system: the parties may perfectly well choose English law and Myanmar
jurisdiction, or Myanmar law and Hong Kong arbitration. It will often make sense for
parties to choose a court as well as a law, for it tends to make life more predictable, but
they may elect to choose one, while saying nothing about the other. Suppose the parties
choose a court but do not choose a law. There is, on the face of it, no choice of law, and
a court called on to identify the law which governs the contract will have to do so by
using the rules which apply in the absence of a choice made by the parties.79
They may
seek to infer a choice of law, describing it as a choice which the parties made but did not
express, but although this sometimes happens, it seems wrong, for parties may – if they
wish – decide not to choose a law to govern their contract.80
Suppose, on the other hand,
that the parties choose a law to govern their contract but do not choose a court for
litigation. When that happens, it is obvious that there has been no choice of court; a
choice of law to govern a contractual rights and duties says nothing about where any
future litigation may take place, which must then by answered by the general law of
jurisdiction in the court in which the plaintiff seeks to institute proceedings.
Great and avoidable confusion is liable to arise if the distinction between clauses which
choose a court and clauses which choose a law is not maintained. The two clauses are
perfectly separate and distinct, in substance and in effect, even when combined in a dual
clause. It is, in truth, hard to see why there should be any confusion; it is rather shocking
to see how often experienced lawyers in developed legal systems seem to be unable to
grasp this elementary distinction.
(b) Potential effect and impact of a jurisdiction agreement
If the parties make a contract which contains a term specifying the court in which any
proceedings between them should be brought, the term may, depending on what it says
(i) provide a reason why a court which has jurisdiction should nevertheless not exercise
79 See Chapter 4, points (43) and (44), below.
80 It may not be a very sensible thing to do, but it is a consequence of party autonomy.

- 39 -
it,81
(ii) provide a reason why a court which would not otherwise have jurisdiction should
allow the claim to be brought, (iii) may provide the basis for an application for an
injunction to prevent a party to the agreement, who has brought proceedings in a foreign
court in breach of contract, from bringing or continuing those proceedings,82
(iv) may
provide the basis for a claim for damages for breach of contract if a party to the contract
brings proceedings in a court in which he promised not to,83
(v) may provide a reason to
recognise and enforce a foreign judgment if the judgment was obtained from a court to
whose jurisdiction the parties had agreed,84
and (vi) may provide a reason to refuse to
recognise a judgment from a court if the judgment has been obtained from a court in
which the parties had promised not to sue.85
The only point which calls for an additional explanation at this point is (ii): that where,
for example, the parties have agreed by contract that the courts of Myanmar are to have
jurisdiction, the agreement of the parties will justify the Myanmar court in taking
jurisdiction. It is quite correct that there is nothing specific in Sections 16 to 20 of the
Civil Procedure Code to justify this, but as has been said above,86
the general principle of
the common law is that if a defendant submits to the jurisdiction of a court, that court
has jurisdiction over him; it has been submitted that an agreement on jurisdiction for the
courts of Myanmar will suffice to give the court jurisdiction over the defendant in
relation to the claim, even though this is not stated in Sections 16 to 20 as a basis of
jurisdiction in Myanmar.87
If the law were not to accept this, the law would be seriously
deficient.
(c) Interpretation of a jurisdiction agreement
The issues discussed above are relatively easy to understand in a case in which the parties
agree that they made the agreement on jurisdiction, and that it applies to the dispute
between them. But suppose that this consensus is not present and that one of the parties,
who wishes to disavow the jurisdiction agreement, says (i) that it is ineffective because
the contract in which it was contained is itself invalid as a source of legal obligations, or
(ii) that the wording of the agreement is not wide enough to apply to the particular
proceedings with which the court is concerned, or (iii) that the agreement is worded to as
to be permissive, but not mandatory: that is to say, it permits proceedings to be brought
in a particular court, but does not require them to be brought in that court.
Any argument along these lines has to be assessed by reference to the law which governs
the contract of which this provision is a term. We examine choice of law in contract in
Chapter 5, but the principle is clear enough: any term of a contract which is governed by
Myanmar law is assessed by reference to Myanmar law; any term of a contract which is
governed by English law is assessed by reference to English law, and so on. We will
assume that the law which actually governs the contract is Myanmar law, or is not
materially different from Myanmar law.
81 See the discussion under point (16)(a) above.
82 See the discussion under point (19) below.
83 See the discussion under point (19) below.
86 Under point (16), above.

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To take (i) first, if it is argued that the jurisdiction agreement is invalid because the
contract in which it was contained was invalid - procured by fraud or coercion, for
example - this does not generally affect the validity of the jurisdiction agreement. This
may come as a surprise to some people, for if a contract is void as a source of obligation,
so must all its terms be. But though there is nothing wrong with the theory, this would
not make practical sense. In the context of arbitration, which is discussed under point
(18), it has long been accepted that an arbitration agreement is separate, or severable,
from the contract in which it is contained. There is no reason why a jurisdiction
agreement should be treated any differently. Next, when parties make an agreement on
jurisdiction, and designate a court for the trial of disputes, they probably intend that to be
the court which will determine whether the contract is valid and enforceable in the first
place: they intend that to be the court which will deal with complaints concerning the
performance and non-performance of the contract, as well as arguments about mistake,
fraud, coercion, and undue influence. It would make no sense to say that the jurisdiction
agreement is binding on the parties only if the contract in which it is contained is valid
and binding as a source of legal obligation. At this point the legal theory is a little untidy,
but the common sense is clear.
So far as concerns (ii), it is true that sometimes a jurisdiction clause is worded in a rather
narrow way. If it says ‘all disputes arising from this contract shall be determined by the
courts of Myanmar’, would it apply to a case in which the plaintiff argued that, as a result
of fraud or misrepresentation, he was not bound by the contract ? He might say that the
dispute does not arise from the contract, but from some behaviour which took place
outside and before the making of the contract, with the result that the jurisdiction
agreement does not apply to it. But this would be a very unfortunate result, for it would
mean that some cases, which will eventually decide whether the contract is valid, will fall
inside the jurisdiction agreement, while others do not. This would make no sense: it is
hard to see why parties to a contract would wish to bring about a situation in which some
parts of the claim could be brought in one court, while other parts of the claim could
not. This thinking has led courts in many common law jurisdictions - England and
Australia being the most obvious two - to give the words of a jurisdiction agreement a
generous meaning and a broad scope. Any argument which tries to show that the dispute
between the parties does not fall within the four corners of a jurisdiction agreement
which they made, and which they intended to be binding, will be viewed with great
suspicion.
So far as (iii) is concerned, if it is to be argued that the plaintiff is breaching his contract
by bringing certain proceedings, in Myanmar or overseas, it will be necessary to show
that the jurisdiction agreement, on its proper construction, required the parties to sue in a
particular court, rather than permitting them to sue in that court. Sometimes the terms of
the agreement make this an easy thing to do: a term which provides that ‘the parties
submit to the exclusive jurisdiction of the courts of Myanmar’ means that for either party
to bring proceedings before the courts of a country outside Myanmar is to commit a
breach of contract, from which certain consequences (in terms of specific relief and
damages for breach) follow as a matter of law.
But if the term is worded in a less clear way: for example, that ‘the parties submit to the
jurisdiction of the courts of Myanmar’, it is not immediately clear whether this means
that they agreed that their disputes may be or must be submitted to those courts. Where
this happens, the court will have to decide the correct meaning of the term used, and it is
obvious that this will not always be an easy thing to do.

- 41 -
(18) The effect of an arbitration agreement on the jurisdiction of a Myanmar
court
As was mentioned above, where the parties have agreed to arbitrate their differences or
disputes, the agreement to arbitrate is generally understood to be separate or separable
from the contract of which it would otherwise be a part. This is because the international
arbitration community has long understood that an important part of the arbitrators’ task
is to determine whether the contract between the parties was valid and binding or not. It
would make no sense if one party could argue that the contract was not valid (because he
had rescinded it for fraud, for example), and that the arbitration agreement had ceased to
be valid, and that the arbitral tribunal had been eliminated, as a result. The principle that
an arbitration agreement was separate from the contract in which it was usually88
contained, and that its validity was separate and distinct from the validity of the contract
in which it may have been contained, is almost universally accepted. It is not currently
clear whether it has been accepted as part of the law of Myanmar, but there is no reason
to doubt that it will be accepted. Even those countries - especially those countries -
which have legal systems of questionable reliability respect and give effect to arbitration
agreements. Entities from Russia, China, Vietnam, and other places in which the legal
system is not wholly trustworthy, know that if they are to enter into commercial relations
with foreign parties, the foreign party will only enter into relations if it is clear that all
disputes will be kept away from the courts and dealt with instead by arbitration.89
The
practical need to respect and defend the integrity of agreements to arbitrate is almost
universally understood and accepted.
Further analysis of the law of commercial arbitration is outside the scope of this book,
for reasons which were outlined in Chapter I. It is also likely that the law of Myanmar on
arbitration, as mostly contained in Arbitration Act 1944, will soon be reformed by
legislation, and it is therefore unnecessary to say any more about it here.
(19) The power of a Myanmar court to interfere with proceedings before a
foreign court
Suppose that the parties have agreed that the courts of Myanmar are to have exclusive
jurisdiction to decide matters which are now in dispute between them, but that one of
the parties brings proceedings before the courts of a foreign country, or that the parties
agreed to arbitrate in Myanmar but one of them has brought proceedings before the
courts of a country outside Myanmar, or that proceedings have been brought before the
courts of a foreign country in circumstances in which the proper place to have brought
them would have been Myanmar. Suppose that the party who objects to having been
sued before a foreign court applies to the Myanmar court for an injunction to restrain his
opponent from bringing the proceedings: may the court grant the relief ?
Although there is little history of a court in Myanmar having granted such relief in the
past, the High Court was prepared in principle to do so on at least one previous
88 Not all arbitration agreements are made as part of a larger contract. It is perfectly possible to
make an agreement to arbitrate separately from the contract or other relationship which has
given rise to a dispute, or to enter into an agreement to arbitrate even after a dispute has arisen.
89 As to whether it is possible, in the light of Contract Act, Section 28, to have an agreement
which amounts to an agreement to arbitrate and which prevents all access to the court, even for
the purpose of challenging the award, see above, point (16).

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occasion,90
and there is no reason why specific relief, in the form of an injunction, should
not be granted in a proper case. The courts of all other common law jurisdictions,
including India, allow applications for such relief in appropriate circumstances.
An injunction is specific relief, and in principle at least, it is available against a
wrongdoer, and is ordered to restrain the commission of a wrong. It is not aimed or
directed at the foreign judge in whose court the foreign proceedings are taking place: this
is obvious, for a court in Myanmar has no right or power to make orders against a
foreign judge who is not party to the proceedings before the Myanmar court. But the
foreign judge may well feel that another court has interfered (directly or indirectly) with
the proceedings in his court, and as a result the Myanmar court will exercise considerable
caution before making the order.
An injunction is specific relief, and is available only against a person who is, or who has
been made, subject to the jurisdiction of the Myanmar court. This means he must either
be party to pending proceedings in Myanmar, in which case the injunction may be sought
as specific relief in those proceedings, or he must be subject to the jurisdiction of the
Myanmar court as provided for by Sections 16 to 20 of the Civil Procedure Code, and
must have been served with summons or other document by which the injunction is
claimed. It may follow, therefore, that if the party who is suing before the foreign court is
not in Myanmar, and none of Sections 16 to 20 applies to him, there will be no
jurisdiction to bring him before the Myanmar court, and no basis for an injunction to be
ordered.
(a) Injunction to restrain a party who is breaching his contract by suing overseas
If the party to be restrained had agreed by contract to sue only in the courts of Myanmar,
it may be said that he is breaching his contract. If this plea may be sustained, one might
think that the court should generally order specific relief in the form of a perpetual
injunction.91
A contractual promise not to sue in the court in which proceedings have
now been brought creates an obligation, and Section 54 of the Specific Relief Act
justifies the ordering of an injunction to enforce that obligation. It is unlikely that a claim
for damages for breach of contract would be sufficient to compensate the applicant for
the loss - for one thing, damages will very difficult to quantify - with the result that an
injunction is consistent with Sections 12 and 54 of the Specific Relief Act.
In many countries of the common law world, it is accepted that the need to exhibit
caution in the granting of an injunction is not really appropriate when the basis for relief
is that the foreign proceedings are brought in breach of a legal obligation not to do so.
The fact that the foreign court has not prevented the bringing of the proceedings before
it will make little or no difference.
90 VAS Arogya Odeyar v VRRMNS Sathappa Chettiar BLR (1951) HC 211.
91 Steel Bros & Co Ltd v YA Ganny Sons BLR (1965) CC 449 is authority for the proposition that
the court may enforce a jurisdiction agreement for a foreign court by dismissing proceedings
brought before the Myanmar courts; it would take the authority further to argue that an
injunction should be ordered to prevent a person who had agreed to the exclusive jurisdiction of
the Myanmar court from breaching his contract. But the passage from the judgment in Steel Bros
& Co Ltd v YA Ganny Sons, which is in Chapter 1, point (7), would provide a general justification
for the relief. Common sense, equity, and good conscience all suggest that a court should enforce
contractual promises.

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It may be argued that Section 56 of the Specific Relief Act means that there is a further
limitation on the power of the Myanmar court to grant relief to enforce a jurisdiction
agreement. Section 56 provides that:
56. Injunction when refused. An injunction cannot be granted
(a) to stay a judicial proceeding pending at the institution of the suit in which
the injunction is sought, unless such restraint is necessary to prevent a
multiplicity of proceedings;
(b) to stay proceedings in a Court not subordinate to that from which the
injunction is sought.
But this Section is not applicable in the present context. Section 56(b) applies only to
proceedings in a court in Myanmar, which means that it is irrelevant in this context.
Section 56(a) should also be interpreted as being confined to cases in which judicial
proceedings are pending in separate proceedings in Myanmar. There is no need to
consider it to apply where the proceedings to be restrained - more properly, where the
person bringing those proceedings is to be restrained - from instituting or continuing
proceedings in a court outside Myanmar.
It should also be noted that where the foreign proceedings are brought in breach of a
contractual agreement to arbitrate differences, an injunction to reinforce the arbitration
agreement is correct in principle.
(b) Injunction to restrain a party who is committing an equitable wrong by suing overseas
The idea that a court may grant an injunction to restrain the party who is bringing
proceedings before a foreign court, when his doing so does not involve the breach of a
legal right or obligation, is more challenging. But a person who brings proceedings in
circumstances which may be considered as vexatious or oppressive may be restrained
from commission of what is an equitable wrong. The English courts, including the Privy
Council, have said so repeatedly; and the Indian courts have agreed with them.92
Particularly in the case in which there will be a multiplicity of proceedings if the foreign
proceedings are allowed to go forward unchecked, but in other cases as well, the
Myanmar court should ask whether the interests of justice favour the grant of an
injunction, or whether the grant of an injunction would prevent the perpetuation of an
injustice.
The English cases hold that an injunction under this head cannot be granted unless the
English court would represent the natural forum for the litigation between the parties. It
is not completely clear that the Indian courts take quite the same view, but unless the
Myanmar court considers that it is clearly the most appropriate place for the litigation of
the substantive dispute, it would be surprising for an injunction to be granted on this
basis. If the Indian courts take a more relaxed view, their approach should be respectfully
questioned.
(c) Pecuniary alternative to an injunction
There may be reasons why a court in Myanmar is unwilling to order an injunction, even
in circumstances in which the applicant for specific relief is able to show that the
92 Modi Entertainment Network v WSG Cricket Pte Ltd [2003] 4 SCC 341.

- 44 -
bringing of proceedings before the foreign court is a breach of contract. The impact of
the principle of comity, or an unwillingness to interfere, even indirectly and even though
it would be legally justified, with a foreign court may be a reason not to order relief.
In such circumstances, an applicant for specific relief who is refused relief on these
grounds may bring a claim for compensation for breach of contract. There is no reason
in principle why this should not be done, and although it may not be always easy to
assess the sums due as compensation for loss caused by the breach, in principle at least, a
person who has been the victim of a breach of contract should be awarded
compensation to put him into the position which he would have been in if the breach
had not occurred. In principle, that means that all the sums paid and lost as a result of
the foreign proceedings should be recoverable. Section 73 of the Contract Act is easily
satisfied.
English courts have accepted that damages are available, on the basis of a cause of action
for damages for breach of contract, where the breach of contract consists of the breach
of a jurisdiction or an arbitration agreement. The development is considered to be sound.
But in the absence of a breach of contract, it is improbable that a claim for financial
compensation can be pleaded.
(20) The power of a foreign court to interfere with proceedings before a
Myanmar court
For the sake of completeness, it should be observed that if a plaintiff has brought
proceedings against the defendant before the Myanmar courts in circumstances in which
this could be said to be a breach of contract, a court in a foreign country may order the
plaintiff, by means of an injunction, to discontinue proceedings before the Myanmar
court. This may be done where the foreign court considers that the parties were
contractually bound to bring their proceedings before it, or where it considers that the
parties were contractually bound to arbitrate their dispute in an arbitral tribunal with its
seat in the territory of the foreign court.
The injunction in such a case will have no direct effect on the Myanmar court, as the
order for specific relief will not be worded so as to apply to the judge. But the party
against whom the order is made may feel that he has no practical choice but to conform
to the order which has been made against him.
These last points go to illustrate the way in which private international law in the twenty-
first century is very different indeed from the way the subject was understood, even in
the major commercial centres of the common law, a few decades ago. It is understood
that the material examined under points (15) to (20) of this Chapter will have rarely,
perhaps never, been raised before a court in Myanmar. But as Myanmar re-joins the
common law world, and as it embraces international trade and commerce, arguments of
this kind are bound to arise for consideration by its courts. Unless Myanmar, and those
who do business in Myanmar, are prepared to surrender their sovereignty and allow all
their disputes to be brought before foreign courts, it will be necessary for the legal
system in Myanmar to accept and adopt the principles set out, in particular, in this
Chapter.

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CHAPTER 3
FOREIGN JUDGMENTS AND THEIR EFFECT IN MYANMAR
In this Chapter we consider the effect of foreign judgments in Myanmar. The question is
to determine when a foreign judgment has the status of res judicata in Myanmar, and
what consequences follow from that status.
(21) The recognition of foreign judgments; the enforcement of foreign
judgments
If there has been an adjudication by a foreign court there are circumstances in which that
judgment may have an effect in an Myanmar court. This may seem surprising, for the
starting point is that only the judgments and decrees of a Myanmar judge have automatic
effect in Myanmar; a judge who has not been appointed under Myanmar law has no
authority in Myanmar.
But as explained above, and examined in detail in this Chapter, there are good reasons
why the law and courts of Myanmar should give some effect to certain foreign
judgments, for otherwise there would no end to the litigation between parties, and no-
one would have the security of knowing that a dispute had been finally resolved. It is the
task of Myanmar private international law to determine which judgments will have an
effect in Myanmar.
When a judgment from a court outside Myanmar satisfies the conditions established by
the private international law of Myanmar, there are, broadly speaking, two consequences
which may be produced: the recognition of the judgment as res judicata, and the
enforcement of the judgment as a debt. It is helpful to say something about these two
consequences at this point, and to examine their details later.
(a) Recognition of judgment as res judicata
The term res judicata is a Latin expression, but it is used in the Civil Procedure Code in
the context of domestic law. If a court in Myanmar has already tried a case and given a
judgment, another court in Myanmar is prevented from trying the case again. As it is put
in Section 11 of the Civil Procedure Code:
11. Res judicata. No Court shall try any suit or issue in which the matter directly
and substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or an of them
claim, litigating under the same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised, and has been
heard and finally decided by such Court.
The language of this provision is not completely clear, but its meaning is obvious: if a
suit or issue has already been brought before and decided by a Myanmar court, whoever
was party to (and who is bound by) the decision of that Myanmar court is not allowed to
bring the matter before another Myanmar court. The reason for this is that the second
court would recognise the first decision as res judicata, as something which has already

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been adjudicated. Consider it this way: if a court in Yangon has decided and ruled in a
dispute between A and B, and has ruled in favour of B, it would be ludicrous if A could
issue a new suit before the same court in Yangon, based on the same claim. It would be
no different if A, having lost before the court in Yangon, were to issue a new suit before
the court in Mandalay: Section 11 would prevent that as well.
And although Section 11 only applies to proceedings before courts in Myanmar, the
desire to treat a judgment as res judicata applies where the first proceedings between A
and B were in a foreign court, and resulted in a foreign judgment. If the foreign
judgment is one which satisfies the requirements of Myanmar private international law,
as this is spelled out in Section 13 of the Civil Procedure Code, which we examine in
detail under point (24) below, the judgment of that foreign court may be recognised as
making the issues with which it dealt res judicata in Myanmar. And if the issues are res
judicata, further proceedings in respect of them before a Myanmar court will be
prevented.
This effect, by which a foreign judgment is treated as making the issues res judicata, so that
that cannot be re-opened and gone into again, is known as the recognition of a foreign
judgment.93
It does not mean that anything which the foreign judge ordered the
defendant to do must be done by him in Myanmar. It simply means that that if the same
issues were to be raised before a Myanmar judge, he would be obliged to declare that the
issues raised in the suit before him have already been decided, that there is nothing more
for him to do, and to dismiss the suit.
It is obvious from Section 11, and from general principle, that there are detailed
conditions which apply to the principle of res judicata and to the recognition of foreign
judgments. Suppose that D has made contracts with A, B, and C to sell goods which he
has manufactured. If A considers that the goods are defective and sues D, any decision
by the court – whether in favour of A or of D – is irrelevant if B then sues D, because A
and B are not connected, and their claims against D are not connected either. If A sues
D in Yangon and succeeds in his claim, and then B sues D in Mandalay, the judge in
Mandalay will have to come to his own decision whether B has a good claim: he should
ignore the judgment given in the proceedings between A and D. This follows from
Section 11, because A and B are not the same parties. But if A is an individual, and B is a
company in which A owns all the shares, it is not so clear that they are not the same
parties. In large books on this subject, this kind of point may be discussed at very great
length. We do not need to pursue it here.
Similar issues arise when dealing with a foreign judgment: if the judgment was given in
proceedings between X and Z, it may be recognised as a matter of Myanmar private
international law, but even if recognised, it will not operate in proceedings in Myanmar
between Y and Z, for a foreign judgment cannot have a broader effect than a Myanmar
judgment would have. However, if X sues Z before a foreign court, but the claim is
dismissed, if X were to try to sue Z in Myanmar in respect of the same cause of action, Z
would be entitled to ask the Myanmar court to recognise the foreign judgment, and to
treat the foreign decision as res judicata. If the Myanmar court does that, it will have
recognised the foreign judgment as res judicata, and will dismiss X’s new claim.
93 Recognition as res judicata applies to all findings which were made by the judge and which
needed to be made to sustain the judgment: U Po Khan v U Ba AIR (1935) Ran 118.

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(b) Enforcement of a foreign judgment in Myanmar
Before any question of enforcement of a foreign judgment can arise to be considered, it
is necessary to satisfy the Myanmar court that the foreign judgment is one which will be
recognised in Myanmar: the conditions in Section 13 of the Civil Procedure Code tell us
which judgments qualify for recognition, and if they do qualify for recognition, when
they may have effect as res judicata.
But suppose a foreign court has ordered Y to pay damages to X, and that Y has not paid.
X may be able to take steps in the foreign country in which the judgment was given, and
execute the judgment there. But Y may not be in that foreign country, and may not have
any assets in the foreign country. If X believes that Y has assets in Myanmar, he may try
to enforce the foreign judgment in Myanmar.
Of course, this is not possible. Part II of the Civil Procedure Code provides for the
execution of judgments, orders, and decrees of a Myanmar court, not of a foreign court.
But if X, the person who has a foreign judgment in his favour, can use this foreign
judgment to obtain a Myanmar judgment and decree, he will be able to enforce and
execute that Myanmar judgment. The enforcement of foreign judgments, therefore,
actually takes the form of using the foreign judgment to obtain a Myanmar judgment,
and executing that Myanmar judgment.
We examine the basis for this method of ‘enforcement’ under point (23) below, because
the procedure by which it is done explains much about the basis of the law. But before
we do that, we should understand the theoretical basis for the law on foreign judgments
in the common law system, as this will in turn help us to understand how Section 13 of
the Civil Procedure Code, which is examined under point (24) below, was intended to be
understood and applied. We do this next.
(22) The legal basis for giving a foreign judgment effect under the law of
Myanmar
For any reader who wishes to know what the private international law of Myanmar
provides, but who does not wish to know why it makes this provision, the material
discussed under this point is not essential reading. But for all other persons, it is. It is
particularly important in making sense of Section 13(a) of the Civil Procedure Code.
The private international law of Myanmar was drafted by common lawyers and adopted
in 1909. It seems very likely that Section 13, which deals with the effect of foreign
judgments, was intended to reflect and be consistent with the way in which the common
law understood foreign judgments.
The common law became clear in 1870. In that year, a case came before the English
courts, concerned with the effect of a non-English judgment in which the foreign court
was said to have tried to apply English law to the issue before them, but to have made a
serious mistake in doing so. The question for the English court was whether this
prevented the recognition of the French judgment. The court held that it did not,
reasoning that once a court ‘of competent jurisdiction’ had given a judgment, that
judgment created an obligation by which the parties to the foreign proceedings were
bound. The fact that the foreign court might have made a mistake of fact or law was
really irrelevant, for if the court was one ‘of competent jurisdiction’, the judgment itself

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was treated as creating and imposing a fresh obligation. The facts of the dispute which
had given rise to the judgment were now just a matter of history, and no longer of
interest or relevance.
The reference to ‘competent jurisdiction’ is picked up and used in Section 13 of the Civil
Procedure Code, but the so-called ‘doctrine of obligation’ is the basis for the operation
of the law. The judgment is an obligation separate and distinct from the facts which led
up to it. From this, several things follow, of which three should be mentioned.
(a) The reason why a foreign judgment creates an obligation
It will be seen below that a foreign judgment creates an obligation, or, more precisely,
imposes an obligation on the party against whom it was given – whether he was plaintiff
or defendant – if that party has behaved in a way which makes this appropriate. The
common law has always taken a clear and strong view of the principle of territoriality.
For example, and as we shall see, if property is within the territory of a state, the law of
that state, and the acts of officers of that state in respect of that property, will be
regarded as effective. If a person is within the territory of a state, he may be summoned
to court. And, the common law accepts, if the defendant was present within the territory
of a foreign sovereign, he may be summoned to court by that sovereign, and a claim
against him adjudicated. He chose to be in that country; it is fair, just, and reasonable that
the judgments of the courts of that country given against him be recognised as imposing
an obligation upon him. We may think of this as a natural obligation arising from the
general principle of respect for the sovereignty of states.
But if he was not present within the territory, an obligation may still arise by agreement
with the other party to the dispute. For example, if the parties made an agreement in
advance to litigate in a particular court, they will be taken to have agreed to accept and
abide by the judgment of that court: the obligation now arises from the bilateral
agreement of the parties, almost as though it were a contract. The same is true if there
was no prior agreement, but the plaintiff issued a writ and served it on the defendant,
and the defendant responded by appearing to defend the claim: almost as though there
were a contract by offer and acceptance. This is the basis of the doctrine of obligation,
and it explains why a foreign judgment may be given effect in Myanmar without the
Myanmar state being involved: if the parties have, in effect, made a bilateral agreement to
this effect, no harm is done when it is enforced.
(b) What does the obligation require the obliged party to do ?
The obligation obliges the party bound by it to accept the judgment as an authoritative
and binding unless there is an objection which can properly be made. The objections
permitted under the private international law of Myanmar are identified in Section 13 of
the Civil Procedure Code; in principle they are the kinds of objection which would be
expected to negate any obligation between the parties.
It also follows that the obligation is to accept the judgment, whether it is right or
wrong,94
as a final answer to the matter in dispute. Of course, if the judgment of the
94 The court will not investigate the rightness or wrongness of the foreign judgment if it
otherwise satisfies the requirements set out in point (24) and examined below: SPSN
Kasivisvanathan Chettiar v SS Krishnappa Chettiar BLR (1951) HC 399.

- 49 -
foreign court is not a final judgment - an interlocutory judgment, for example - a
Myanmar court will not treat it as final.
(c) Enforcing an obligation to pay money
If the foreign judgment ordered the losing party to pay money to the successful party –
the defendant was ordered to pay compensation to the plaintiff, or the unsuccessful
plaintiff was ordered to pay costs to the successful defendant – the sum ordered to be
paid is regarded as a debt, and the judgment itself may be used as the basis for a suit
against the other party. We examine this next.
(23) The method by which a foreign judgment is enforced in Myanmar
As was explained above, a foreign judgment is, technically, not enforceable in Myanmar.
But Myanmar law allows a person in whose favour a court has ordered the payment of a
fixed sum of money to claim the sum as a debt. It is necessary to distinguish between
judgments from foreign countries generally, and judgments from the United Kingdom.
(a) Judgments from foreign countries generally
The way in which a judgment from a foreign country other than England may be
enforced in Myanmar can best be understood by considering the standard form of plaint
when a suit is commenced by a party in whose favour a foreign court ordered the
payment of money. In Appendix A to the Civil Procedure Rules, which gives specimen
forms of plaint, Form no 11, entitled ‘On a Foreign Judgment’, sets out the model form
of pleading:95
A.B., the above-named plaintiff, states as follows:
1. On the [ ] day of [ ] 20 , at [ ], in the State [or Kingdom] of [ ], the
[ ] Court of that State [or Kingdom], in a suit therein pending between the
plaintiff and the defendant, duly adjudged that the defendant should pay to the
plaintiff [ ] kyats, with interest from the said date.
2. The defendant has not paid the money.
3. [Facts showing when the cause of action arose, and that the Court has jurisdiction.]
4. The value of the subject-matter of the suit for the purpose of jurisdiction is [ ]
kyats and for the purpose of court fees is [ ] kyats.
5. The plaintiff claims [ ] kyats with interest at [ ] per cent from the [ ] day of [
] 20
It follows from this that if the Myanmar court finds that the foreign judgment is one to
which Section 13 applies (or provides no basis for objection), the basis for the plaint is
established. But the form still requires the claimant in Myanmar to specify the sum of
money which the defendant was ordered to pay.
It also follows that if the foreign court did not order the payment of a fixed and final
sum of money, the plaintiff will not be able to point to the judgment as creating a money
debt which he may enforce. If, for example, the foreign court ordered the defendant to
pay all such sums as represent the profits made by it as a result of the breach (and would
95 We have updated the date and currency references from the original text in the Myanmar
Code.

- 50 -
then order the parties to go off for an assessment of damages), the judgment cannot yet
be enforced in Myanmar, because the sum of money ordered to be paid is not
ascertained. Likewise, if the foreign court has power under its own law to alter or amend
the amount of damages which it ordered to be paid, the judgment will not create a debt
which is enforceable in Myanmar, because it will not be possible to say how much,
precisely, the defendant has been ordered to pay.96
The form makes clear the point which
the common law always accepted: that a foreign judgment has to be for a fixed sum in
money before it can be enforced.
It also means that if the foreign court did not order the payment of money, but ordered
the handing over of property, for example, that such a judgment cannot be enforced in
Myanmar. If for example a foreign court ordered a defendant to deliver to the plaintiff a
piece of machinery which is situated in Myanmar, or ordered the defendant to transfer to
the plaintiff the defendant’s shares in a Myanmar company, the judgment cannot be
enforced: the common law always said so, the law of Myanmar is assumed to say so, and
the specimen form of plaint appears to make it clear that this is so.
In such a case, a plaintiff would need to sue on the original cause of action in Myanmar.
But this is not as difficult as it may seem, for as soon as the defendant denies that he is
liable, the plaintiff will be able to argue that the relevant issues have been made res judicata
by the foreign judgment (assuming it to be a judgment to which Section 13 applies), with
the consequence that the Myanmar court does not need to investigate – and may, by the
principle of res judicata, be prevented from investigating – the merits of the claim. In
accordance with Order 14 of the Civil Procedure Rules, the court should frame the issue
between the parties as being whether the foreign judgment is to be given effect in
Myanmar as res judicata. Once that issue has been dealt with by the court, it will usually be
obvious whether the plaintiff is entitled to the remedy for which he asks.
But if civil proceedings are to be brought to enforce and collect the debt created by the
foreign judgment, the court in Myanmar must have jurisdiction to entertain them. The
final question therefore concerns the application of the jurisdiction rules of Sections 18
to 21 of the Civil Procedure Code to suits to enforce a foreign judgment. A particular
point arises if the plaintiff needs to rely on Section 20(c) to establish the jurisdiction of
the court, for which it will be necessary to show that the cause of action to enforce the
foreign judgment as a debt arises, wholly or in part, in Myanmar. As to that, a part of the
cause of action obviously arises at the place at which the judgment was given. It may be
possible to argue that if the judgment debt should be paid to the plaintiff in Myanmar, on
the basis that a debtor should seek out his creditor and pay him where he resides,97
and
that Section 20(c) may be satisfied on that basis, but this seems rather difficult, for the
place at which a judgment debt should be paid is surely where the court decreed it; and if
this is the case, Section 20(c) will not be available to give the court jurisdiction.98
There
96 However, if the court ordered payment on a periodical basis, and while it may vary the
payments for the future, it has no power to alter those whose date for payment has passed, a debt
claim for those missed past payments may be brought: Walker v Walker AIR (1935) Ran 284
(periodical payments of spousal maintenance.
97 Soniram Jeetmull v Tata & Co Ltd (1927) ILR 5 Ran 451 (Privy Council on appeal from High
Court); NKLP Palaniappa Chettyar v STSP Subbiah Chettyar AIR (1937) Ran 443; KSLPA Annamalai
Chettyar v Daw Hin U ALR (1936) Ran 251. But these were not cases concerned with foreign
judgments.
98 For a similar view taken in India, see Badat & Co v East India Trading Co [1964] 4 SCR 19 (SC).

- 51 -
may therefore be a jurisdictional hurdle to overcome if a suit on the foreign judgment is
to be brought in Myanmar.
(b) Judgments from courts in the United Kingdom
The procedure for enforcing a judgment from a superior court of England, Scotland, or
Northern Ireland is slightly different, as a result of Section 44A of the Civil Procedure
Code.99
This provides that a certified copy of the decree may be filed in a District Court,
and that when this has been done, the decree may be executed on in Myanmar as though
it had been a decree of the District Court. However, Section 44A(3) allows the person
against whom the judgment was given to apply for the refusal of execution, on the basis
that any of the objections in Section 13 applies. The effect of all of this is that while the
procedure for enforcing an English judgment in Myanmar is a little different from the
procedure applicable to all other foreign judgments, the substantive grounds on which
the English judgment will or will not be accepted as res judicata are the same as for all
other foreign judgments.
(24) The foreign judgments which may and may not be given effect in
Myanmar
The earlier points of this Chapter sought to explain the basis on which the common law
approaches the effect of foreign judgments in the private international law of the state
which is asked to give effect to them. It did so because although Section 13 of the Civil
Procedure Code is a clear statement of the private international law of Myanmar, the
terms of Section 13 still leave questions of interpretation to be answered which can only
be answered by understanding the common law foundation on which Section 13 is
constructed. It is now time to turn to Section 13 of the Civil Procedure Code, which
states as follows:
13. When foreign judgment not conclusive. A foreign judgment shall be
conclusive as to any matter thereby directly adjudicated upon between the same
parties or between parties under whom they or any of them claim, litigating the
same title, except –
(a) where it has not been pronounced by a court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognise the law of the Union
of Myanmar in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to
natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on the breach of any law in force in the
Union of Myanmar.
Sections 9 to 14 of the Civil Procedure Code deal generally with suing in the courts of
Myanmar, and with the principle of res judicata after a judgment has been given. This
99 In fact, Section 44(1) extends this to the courts of any ‘reciprocating territory’. It does not
appear that Myanmar entered into reciprocal arrangements with any other foreign country, and
that this Section only applies to the United Kingdom. But it is possible that the authors have
failed to identify a reciprocal arrangement between Myanmar and a foreign country other than
the United Kingdom.

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principle prevents a second set of proceedings being brought by a party who has already
lost on a cause of action which has already been disposed of by a court in Myanmar. It
also – in Sections 13 and 14 – makes provision for res judicata to be applied to foreign
judgments, but it imposes conditions which need to be satisfied before this is done. This
is sensible. In every country of the civilised world, a legal system treats its own judgments
differently from those of a foreign country. Where a legal system is dealing with one of
its own judgments, it knows perfectly how the proceedings will have been conducted.
But where it is dealing with a judgment from a foreign country, it will have no knowledge
of the foreign legal system. The rules put in place by Section 13 apply to judgments100
from systems with which Myanmar is very familiar, such as India, but also to judgments
from legal systems which are, in every respect, a long way away from Myanmar and from
the common law. It would be absurd for the courts of Myanmar to be required to treat
any and every foreign judgment as the equivalent of a Myanmar judgment.101
Only if the
foreign judgment satisfied certain conditions, which are principally set out in Section 13,
will the judgment have the effect of res judicata in Myanmar; but if the foreign judgment
can be shown to have that effect, it will be received and accepted into the legal order in
Myanmar. Everything then turns on the conditions set out in Section 13.
In addition to the objections allowed for by Section 13, a judgment will be refused
recognition as res judicata if it was obtained to enforce foreign revenue laws or foreign
penal laws, or was based on other public laws of a similar kind;102
nor will a foreign
judgment be given effect if it contradicts the public policy of Myanmar law.103
These are
general rules of private international law which must be taken to apply to the law of
foreign judgments even though they are not specifically mentioned in Section 13.
It is slightly strange that the heading to Section 13 is framed in negative terms – when a
foreign judgment is not conclusive – rather than positive terms, but in the end this makes
little difference to the substance of the law. What is more difficult is that the wording of
Section 13(a), in particular, is liable to mislead those who do not understand the common
law principles on which Section 13 is based. It is therefore necessary to start our analysis
of the details of Section 13 with the meaning and effect of Section 13(a).
(25) The foreign court as one of ‘competent jurisdiction’ in relation to the party
against who the foreign judgment is to be recognised or enforced
According to Section 13(a), a foreign judgment will not be recognised as conclusive
where it was not pronounced by a court of competent jurisdiction. This does not mean
what it may appear to mean.
The law on foreign judgments104
is part of the private international law of Myanmar. The
question posed by Section 13(a), of whether a foreign court was one of competent
100 This will mean the decision of a judicial authority; it will not include a decision from a
regulatory or administrative authority: see Technip SA v SMS Holding (Pvt) Ltd [2005] 5 SCC 465.
101 An exception is made for judgments from superior courts in the United Kingdom: Civil
Procedure Code, Section 44A, above, point (23).
102 We examine this general principle under Chapter 4, point (39) below.
103 We examine this general principle under Chapter 4, point (40) below.
104 It is obvious that the material examined at this point has nothing whatever to do with the
ordinary rules of original jurisdiction of a Myanmar court: Mohammed Khan v Damayanthi Parekh
BLR (1952) HC 356: the law of jurisdiction (of a Myanmar court) and the rules of res judicata
applicable to a foreign court are completely different things.

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jurisdiction, asks whether the foreign court was, in the opinion of Myanmar law, a court
of competent jurisdiction. ‘Competent jurisdiction’, in this sense, means competent to
give a judgment which will be recognised as conclusive in Myanmar. It has little or
nothing to do with the question of whether the foreign court had jurisdiction according
to its own law. It is necessary, but also sufficient, that the foreign court had jurisdiction
according to the rules of Myanmar’s private international law.
This is very important. Foreign legal systems have some rather surprising rules of
jurisdiction for a plaintiff who wishes to sue in their courts. In France, the rule is that a
French citizen may sue anybody – any foreigner, no matter where he is – before a French
court. In Germany, the rule is that a person can be sued in Germany if he has any
property in Germany – even an umbrella, which he left behind in a hotel room – even
though the claim has nothing to do with that property, or with anything which happened
in Germany. No doubt many other countries have rules which appear to be just as
strange. They may make perfect sense when they take their place within the Civil Codes
of France or Germany, but they provide no proper basis for giving effect to a French or
German judgment in Myanmar.
Whether a foreign court is a court of competent jurisdiction for the purpose of Section
13(a) is, therefore, a reference to the common law rules of what makes a court one of
competent jurisdiction for the purpose of recognition of a judgment from that court as
res judicata against the party who lost in those proceedings. It follows that the law asks the
question of competent jurisdiction in relation to the defendant if he was the losing party,
or in relation to the claimant if he was the losing party. It does not ask the question in a
more abstract sense. There are two broad ways to satisfy this condition as against the
party who lost before the foreign court.
(a) The party against whom the judgment was given was present or resident within the territory of the
foreign court when proceedings were begun there
Suppose a foreign judgment has been given against a defendant. If the defendant was
present or resident within the jurisdiction of the foreign court when proceedings were
begun, the court will be regarded as one of competent jurisdiction for the purpose of
Section 13(a).
It is not completely clear whether the question is to be framed in terms of residence or
presence. In favour of residence is the fact that it probably points to a longer-term, or
deeper, connection with the foreign court than presence is, which makes it appear to be a
stronger basis for the recognition of a foreign judgment. And the courts of Myanmar
have jurisdiction, under Section 20(a), over a person who is actually resident, rather than
merely present, in Myanmar. And the Indian courts have favoured a test of residence.105
All of this may suggest that a foreign court is one of competent jurisdiction if a
defendant was resident in the foreign country, but not if he was merely present. On the
other hand, every person knows where he or she is present on any day, but it may be
more difficult to know where they are resident, at least during a period when they are
staying away from their home. Is a person who has been sent to study or work abroad
still resident in the country which is his home ? Is he also resident in the country in
105 Narasimha Rao v Venkata Lakshmi [1991] 3 SCC 451.

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which he studies or works ? It is harder to apply a test of residence rather than presence,
and this is a reason to prefer a test of presence to one of residence.106
Where a company is concerned, the ideas of presence and residence are to some extent
artificial. The law therefore has to apply them by analogy, and it tends to do so by
requiring a company to have had a fixed place of business from which it carried on its
business. If it does, no doubt a company is present and resident in that country. If it does
have a place of business of its own, but does is business through another (say a travel
agent sells tours which the company will provide), it may be regarded as present in the
foreign country is there is a fixed place of business which belongs to someone else, but at
which place contracts with the company are made: it is the making of contracts in a
country which indicates the doing of business. But if there is only a representative of the
company, who promotes the company but who has no authority to make contracts on
the company’s behalf, then the company will not be regarded as present in that place;
likewise, if the company’s chief executive officer goes to Thailand for a holiday, this does
not mean that the company is present in Thailand.
(b) The party against whom the judgment was given submitted to (or agreed to accept) the jurisdiction of
the foreign court
As explained above, a person who accepts the jurisdiction of a foreign court should be
taken to accept its judgment as res judicata. It follows that if the foreign court gives
judgment against the plaintiff, the court will be one of competent jurisdiction as far as he
is concerned, because he invoked the jurisdiction in the first place and must therefore be
taken to have submitted or agreed to the jurisdiction of the foreign court.
If the foreign judgment was given against the defendant, the question will be whether the
defendant submitted to, or agreed to submit to, the foreign court. Submission by
agreement is the simpler case. If the plaintiff and defendant were parties to a contract
which provided that all disputes were to be brought before the courts of Singapore, each
side should be bound, by reason of their agreement, to accept the judgment pronounced
by the court at Singapore. The court is one of competent jurisdiction because of the
parties’ bilateral agreement to accept its jurisdiction: a court in Myanmar will hold them
to their contract and to the consequences of it.
If there was no prior agreement, but the plaintiff issued a writ and summons from the
foreign court,107
and the defendant appeared before the foreign court without making any
objection to the jurisdiction of the foreign court, or to the exercise of jurisdiction by that
court, he may be taken to have submitted to it; he may also be said to have accepted the
invitation of the plaintiff, made in the rather special form of a summons, to accept the
jurisdiction of the foreign court. If he does that, the defendant submits to and will in
principle be bound by the judgment pronounced by the foreign court because the court
will be, for the purpose of Section 13(a), a court of competent jurisdiction.
The position is more complicated if the defendant wishes to object to the jurisdiction of
the foreign court. It appears from Section 21 of the Civil Procedure Code that a
defendant sued in Myanmar is allowed to object to the jurisdiction of the Myanmar
106 In England, the law now favours a test of presence rather than residence.
107 This submission by the plaintiff necessarily extends to his submission to a counter-claim by
the defendant: Walker v Walker AIR (1935) Ran 284.

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court. Almost all foreign legal systems do something similar. Suppose a defendant
appears before a foreign court to argue to the foreign court that it does not have, or
should not exercise, jurisdiction. If he does that, does the fact that he has appeared in the
proceedings mean that he has submitted to the jurisdiction of the foreign court ?
The answer should be no: that a defendant who appears before a foreign court to object
to its jurisdiction cannot be said to have agreed to accept, or to have submitted to, its
jurisdiction. However, some have argued that if a defendant appears before a foreign
judge to ask him to do something, he must have submitted by making the request.108
This
is an unattractive argument, but it has sometimes persuaded courts in common law
jurisdictions; it is a pity that this is so. A defendant who appears before a court to protest
about its jurisdiction should not be taken to have submitted to the foreign court and to
have made it, for the purposes of Myanmar law, a court of competent jurisdiction. Of
course, if the foreign court rejects the objection to its jurisdiction, and the defendant
then makes a fresh decision to defend the case, he will be taken to have submitted to the
jurisdiction of the court, and it will now be considered to be a court of competent
jurisdiction.
(c) Factors which do not make a foreign court a court of competent jurisdiction
A foreign court will not be a court of competent jurisdiction for the purposes of Section
13 just because the foreign court had jurisdiction according to its own civil code. As
explained above, the civil code, or other rules, in the foreign country may have been very
peculiar, and to have allowed a claim to be made against a defendant even though he had
no sensible connection to that country or court.
A foreign court will not be a court of competent jurisdiction just because it was a court
within whose jurisdiction the cause of action arose in whole of in part. Although this is a
basis on which a court in Myanmar may exercise jurisdiction, the private international law
of Myanmar on judgments is not a mirror image of its domestic law on jurisdiction: why
should it be ? The law of Myanmar does not say – or should not be understood to say –
that a foreign judgment will be recognised as res judicata just because its jurisdiction was a
mirror image of the jurisdiction of a Myanmar court. This precise point was decided
under the English common law in 1870,109
and it is certain that the drafters of the Civil
Procedure Code intended to preserve this principle in the Code.
A foreign court is not one of competent jurisdiction just because it comes from a court
which would, if the situation were reversed, recognise a judgment from the Myanmar
court. This is not the law (although it is the law in a number a legal systems) in Myanmar;
and the real objection to it is that it would mean that the decision whether a Myanmar
court would recognise a foreign judgment would be dependent on the private
international law of a foreign state, rather than being the independent question of
Myanmar law which it ought to be.
And a foreign court is not one of competent jurisdiction just because it comes from a
court in a country of which the defendant is a national. Although it has occasionally been
said that nationality is a basis for jurisdictional competence,110
no case has actually so
108 There is Indian authority to this effect, but it is old, and is not a decision of the Supreme
Court. It should not be followed.
109 Schibsby v Westenholz (1870) LR 6 QB 155.
110 In England, Emanuel v Symon [1908] 1 KB 302.

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decided, and the suggestion is unsound. Nationality has never played a part in the
common law of foreign judgments, though it is much more important in the laws of civil
law countries. The common law understands that a person’s nationality may be rather
remote from the circumstances of his present life; and a person who has dual nationality
(or who is stateless) would give rise to problems. Nationality is irrelevant to the private
international law of foreign judgments in Myanmar.
(d) What should a defendant do when served with a foreign writ of summons ?
The foreign court will be one of competent jurisdiction if the defendant was present
when the proceedings were commenced, or if he submits to its jurisdiction. But if he is
not present, and has not made a contractual agreement to submit to the jurisdiction of
the foreign court he will, if he ignores service of the summons, ensure that the foreign
court is not on of competent jurisdiction so far as Section 13 is concerned. If the only
place in which he fears enforcement of the foreign judgment is in Myanmar, because he
has assets only in Myanmar, it may be sensible to not appear and to allow the foreign
court to enter judgment in default of his appearance, or after proceeding ex parte, or
whatever its procedural law may say. But he should be aware that other countries may
have different rules for the recognition of foreign judgments, and he will need to check
the position under those laws as well; and as he will usually be under some time pressure
in the court in which proceedings have been instituted, the decision, which is of great
practical importance, can be a difficult one to take.
(e) The effect of Section 14 of the Civil Procedure Code
Section 14 of the Civil Procedure Code is a rather surprising provision. It reads:
14. Presumption as to foreign judgments. The court shall presume, upon the
production of any document purporting to be a certified copy of a foreign
judgment, that such judgment was pronounced by a court of competent
jurisdiction, unless the contrary appears on the record; but such presumption
may be displaced by proving want of jurisdiction.
This means that if a copy of the judgment which complies with Section 14 is produced to
the court, which it usually will be, it will be for the defendant to show that the court was
not one of competent jurisdiction by reference to the rules set out above; it will not be
the duty of the plaintiff to prove that the court was one of competent jurisdiction. Apart
from the law of India, where this provision also appears, there is no rule or presumption
like this in any other common law jurisdiction. Its practical significance is small.
(26) Permissible objections to the judgment or to way in which the foreign
court dealt with case
If the foreign court is shown to have been one of competent jurisdiction, there are other
objections which may be raised in an attempt to show the court in Myanmar why the
foreign judgment should not be recognised or enforced. These are listed in Section 13(b)-
(f), and we examine them here. We examine under point (27) below the objections which
a defendant may have, but which are not admissible as objections to the recognition of
the foreign judgment in Myanmar.
(a) The foreign court was not one of competent jurisdiction

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We have dealt with this above. It is mentioned here only to ensure that the sub-headings
under this point are aligned with Section 13 of the Civil Procedure Code.
(b) The foreign judgment was not given on the merits of the case
A foreign judgment is given on the merits if the controversy raised by the parties has
been directly adjudicated on by the foreign court. A foreign judgment will not be
recognised if it was pronounced without the foreign court investigating the merits of the
case. This may seem strange, but in many countries, if a defendant does not appear when
summoned to court, the court may allow the plaintiff to enter judgment there and then.
If a defendant does not appear, the court will not trouble itself to consider the claim or
the evidence and legal argument in support of it. If the defendant does not appear, it is
assumed that he has nothing to say in his defence, and there is no need for the court to
investigate any further. If this happens, the judgment will not have been given on the
merits of the case. The Privy Council said so in two Indian appeals,111
and there is no
doubt that its decision is reliable as part of Myanmar law as well.112
It gives rise to a
practical problem, in that a defendant who has absolutely no defence stays away from the
foreign court, he makes it more difficult for the plaintiff to get a judgment which is of
any use.113
In such a case the plaintiff will need to persuade the foreign court to make
some form of examination of the merits, even if this is not particularly thorough or
detailed.114
The judgment will not be given on the merits of the case if the case was dismissed by the
foreign court on the ground that it had no jurisdiction, or because the claim was out of
time, or for any other reason which meant that the foreign court, though acting entirely
in accordance with its own laws and rules of civil procedure, did not make any
assessment of the merits of the claim. The judgment will also need to be final, that is to
say, not one which represents a provisional view which the same court may revisit a later
stage in the proceedings. If it is only provisional, it cannot be said to have been given on
the merits of the case.
(c) The foreign judgment appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of the Union of Myanmar in cases in which such law is
applicable
111 See Keymer v Visvanatham Reddi (1916) LR 44 IA 6; Oppenheim v Mahomed Haneef [1922] 1 AC
422 (refusing to enforce an English judgment, which had been given in default of appearance by
the defendant and without any examination by the court of the merits of the claim, by reference
to Section 13 of the Indian Code of Civil Procedure, which is identical to Section 13 of the
Myanmar Civil Procedure Code). It follows that Burn v Keymer (1913-14) 7 LBR 56 cannot be
considered to be correct.
112 A conclusion accepted in Abdul Rahman v Mahomed Ali Rowther (1928) ILR 6 Ran 552.
113 In Abdul Rahman v Mahomed Ali Rowther (1928) ILR 6 Ran 552 the court (at p 557) considered
it ‘absurd’ that a defendant could deprive a judgment from a foreign court of the status of res
judicata by absconding from the foreign court, but it saw no way to avoid the conclusion to which
the Privy Council directed it.
114 Walker v Walker AIR (1935) Ran 284. Saraswati v Manikram Balabux Bajaj BLR (1956) HC 316
makes the point that the examination of the merits and the evidence made by the court in the
absence of the defendant may be cursory, but it will still be sufficient.

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It will be rare that a foreign judgment makes an obvious error of international law: it is
hard to think of any case in which this has happened. As the error has to be on the face
of the proceedings, it will be even rarer that it happens.
But if a foreign court has refused to apply the law of Myanmar to the dispute before it
when it should have applied Myanmar law, the judgment will not be recognised. The
most obvious example might be if the parties have chosen the law of Myanmar to govern
their contract, but the foreign court, for whatever reason, refuses to apply the law of
Myanmar. In such a case, there is good reason to refuse to recognise the foreign
judgment. So also if a court in the less developed parts of the Middle East simply refuses
to apply foreign law, and as a consequence does not apply Myanmar law: a judgment of
that kind should not be recognised in Myanmar. There may be other examples which
could be given, but today the cases are likely to be rare.
Section 13(c) is not triggered where the foreign court has attempted to apply the law of
Myanmar but has made an error in doing to. There is a world of difference between
refusing to apply a law and trying to apply a law but failing to do it correctly; the fact that
a foreign court failed to apply Myanmar law does not mean that it refused to do so. A
refusal requires a determination to not apply the law of Myanmar, so if the parties before
the foreign court do not ask the foreign judge to apply the law of Myanmar, and the
foreign judge does not apply the law of Myanmar, it cannot be said that he has refused to
do so.115
(d) The proceedings in which the foreign judgment was obtained are opposed to natural justice
If the foreign court adopted a procedure which is not procedurally fair: it did not give the
defendant proper notice of the proceedings, or it did not hear both sides of the case
when it should have done so, or it refused to allow the defendant to present evidence or
call witnesses, or to have a proper translation of the proceedings, the foreign court will
have fallen below the basic standards required by the rule of law. Its judgment will not be
recognised in Myanmar. So also if the court appears to have shown bias, or if there is
evidence that the court accepted a bribe and as a result did not approach the task of
adjudication in an impartial and judicious manner. It ought to be obvious that a judgment
produced in such circumstances should not be recognised in any country, foreign or not.
If there is a practical problem with Section 13(d), it is that some foreign procedures may
appear to be rather odd when compared with those which apply in Myanmar, but legal
systems do very in the way in which courts go about their business. But the standards of
natural justice are universal.
Of course, when parties make an agreement, of whichever kind, to accept the jurisdiction
of a foreign court and to abide by its judgment, they realise that the court may make a
mistake, and that if it does, they will still be expected to accept the judgment. But they
expect the court to behave properly; if they were to be asked whether they would be
content to accept a judgment which was produced by improper and unjudicial means, the
answer would surely be negative. It follows that a failure to abide by the rules of natural
justice will nullify the obligation which would otherwise arise from the foreign judgment.
(e) The foreign judgment was obtained by fraud
115 Brijlal Ramjidas v Govindram Gordhandas Seksaria (1947) LR 74 IA 203.

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If breach of the rules of natural justice is a failure on the part of the foreign court to
conduct itself in a proper manner, a judgment which is obtained in proceedings in which
one of the parties conducted itself improperly should also be refused the status of res
judicata in Myanmar. If one party has produced forged documents, or perjured testimony,
in support of his case, the judgment produced as a result is a tainted thing which should
not be recognised. Section 13(e) reflects the view taken in almost all common law
jurisdictions to judgments obtained by fraud: by wrongful conduct designed to mislead
and deceive the foreign court into giving a judgment it would not have given if this
misleading had not taken place.
This much is uncontroversial. What would make Section 13(e) more controversial would
be for it to be interpreted to reflect the English common law out of which it is derived.
For English common law allows a court to investigate whether a foreign judgment was
obtained by fraud even though the same objection, and the same evidence in support of
it, had already been put before, and rejected by, the foreign court. If, for example, the
defendant alleges that the documents on which the plaintiff relies are forged, but the
foreign court considers the matter and rejects this, the same point can be raised as an
objection to the recognition of the foreign judgment. This does look odd, for it makes it
appear that the second court considers itself to be superior to the original court; and in
some common law jurisdictions the English approach to the fraud defence has been
criticised; indeed, in India it may be that the point in Section 13(e) can only be based on
evidence which has come to light since the foreign judgment was given.116
But as is sometimes said, ‘fraud is a thing apart’. What this means is that fraud is not one
of those things which litigants accept as part of the process of litigation. It requires
special treatment; and Section 13(e) provides it.
Quite apart from all that, if proceedings were brought before the foreign court in breach
of a contractual agreement to bring them before a different court or tribunal, then unless
the defendant waived any objection, the judgment will be one which the plaintiff should
not have asked for and should not have obtained. Instituting proceedings in breach of
contract is, for these purposes, fraud; the resultant judgment will not be res judicata in
Myanmar.
(f) The foreign judgment sustains a claim founded on the breach of any law in force in the Union of
Myanmar
If a foreign judgment is based on a breach of the laws of Myanmar –for example, it seeks
damages for breach of a contract to export goods from Myanmar without a proper
permit, it cannot be recognised or enforced in Myanmar. Indeed, Section 13(f) may be
the means by which a court in Myanmar refuses to accept as res judicata any judgment of a
foreign court which is so contrary to the law of Myanmar that it is offensive to Myanmar
public policy and therefore shut out from recognition. Other legal systems have such a
rule; and Myanmar must also be able to accommodate it. Section 13(f) may be the place
for it. The issue is examined again under point (40) below.
(27) Other, mostly impermissible, objections to the judgment or to the way the
foreign court dealt with the case
116 Sankaran Govindan v Lakshmi Bharathi [1975] 3 SCC 351.

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There are several arguments which a defendant might be tempted to make in order to
prevent the recognition of a foreign judgment as res judicata, but which are not obviously
provided for by Section 13 of the Civil Procedure Code, and which are not allowed
under the common law, either. Three of them are mentioned here for the sake of
completeness and for the avoidance of doubt.
(a) Error by foreign court is irrelevant
It is irrelevant that, as the defendant may argue, the foreign court made an error of fact
or of law or both; it makes no difference if this error is on the face of the proceedings.117
All courts make mistakes, and anyway, not all allegations of mistake are well founded. If a
Myanmar court would refuse to treat a foreign judgment as res judicata whenever there
was said to have been a mistake made by the foreign court, no foreign judgments would
ever be recognised, for any party who was unwilling to abide by the judgment would
need only to allege an error, and that would be that. The line that separates error (which
is irrelevant and inadmissible) from error resulting from fraud (which is relevant and
admissible) is a very important one.
(b) Error by foreign court as to own jurisdiction may or may not be relevant
It is not clear what the correct answer is if the foreign court may have made a mistake in
the application of its own rules of jurisdiction. English law would certainly regard this as
irrelevant. It appears that the Myanmar courts have done likewise: although a court may
have acted without jurisdiction, and may have given a judgment which a court to which
an application is made may set aside as a nullity, as between the parties to the judgment it
remains valid and binding on them in personam.118
Although the law is well established in
relation to decisions of Myanmar courts, it must apply just as much as part of Myanmar
law on foreign judgments. A judicial decision binds the parties; it is not a nullity until a
court says it is. The only question will be whether the foreign judgment is res judicata
under the law of the foreign court.
The case will, no doubt, be a rare one, for in most legal systems the submission of the
defendant to the jurisdiction of the court cures any defect and establishes that the court
has jurisdiction for the purposes of its own law. We need not spend any longer on it.
(c) Judgment still subject to appeal to higher court irrelevant
It is irrelevant that the judgment is subject to appeal to a higher court. The common law
was always clear on that. If a court has given its final judgment, its decision is res judicata,
and the fact that the disappointed party has appealed against it does not prevent its being
res judicata, even if an appellate or revisional court may quash the decision. A matter is
considered to be res judicata in a particular court, rather than in the legal system as a
whole.
(28) International conventions and the effect of foreign judgments
117 SPSN Kasivisvanathan Chettiar v SS Krishnappa Chettiar BLR (1951) HC 399.
118 VERMNCT Chettyar v ARARRM Chettyar Firm (1934) ILR 12 Ran 370; Nathan v Samson
(1931) ILR 9 Ran 480; Bank of Chettinad v SPKPVR Chettyar Firm (1935) ILR 14 Ran 94 (reversing
Bank of Chettinad v SPKPVR Chettyar Firm AIR (1935) Ran 517).

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In many parts of the world, such as Europe, and North and South America, there are
systems set up by international convention for the mutual recognition of judgments
within the particular region. Judgments from courts in Europe are now recognised and
enforced almost automatically; something similar is true in North and South America.
One day, perhaps, the states of ASEAN will come to trust each other’s judicial systems
enough to create such a scheme in south-east Asia, but it still appears to be some way
off.
A state may also be party to bilateral or multilateral conventions which provide for the
mutual recognition of judgments. It does not appear that Myanmar, or Burma before it,
was party to any such conventions. The result is that the enforcement of foreign
judgments in Myanmar is governed by laws and procedures which were developed over
100 years ago. While there is nothing wrong with them, it is possible that the
enforcement of judgments of courts from Myanmar’s principal trading partners should
be modernised. Other parts of the world have realised that simplification, even
harmonisation, of the rules by which legal systems recognise and enforce each other’s
judgments, is beneficial to all those who participate in cross-border trade and commerce.
It is hard to disagree with them.
(29) International conventions and the effect of arbitral awards
For the purpose of providing a useful contrast to the law of foreign judgments, and as
illustration of what can be achieved by international conventions, it is convenient to say
something about the recognition of awards made by arbitral tribunals.
The law of international arbitration has developed on the basis of international
conventions: the contribution of the common law is relatively insignificant. A principal
purpose of these conventions is to provide for the recognition and enforcement of
awards from foreign arbitral tribunals. The first such Convention, made in Geneva in
1923 was extended to Myanmar by the Arbitration (Protocol and Convention) Act 1939,
and its Section 4 is typical of the way these conventions treat arbitration awards:
4. Effect of foreign awards. (1) A foreign award shall, subject to the provisions
of this Act, be enforceable in the Union of Myanmar as if it were an award made
on a matter referred to arbitration in the Union of Myanmar.
(2) Any foreign award which would be enforceable under this Act shall be
treated as binding for all purposes on the persons as between whom it was made,
and may accordingly be relied on by any of those persons by way of defence, set
off of otherwise in any legal proceedings in the Union of Myanmar, and any
references in this Act to enforcing a foreign award shall be construed as including
references to relying on an award.
The Geneva Convention applied to arbitrations in the countries which became party to
the Convention and with which there were reciprocal agreements.119
The grounds on
which a court was permitted to not recognise or enforce a foreign award were restricted;
but in due course it was decided that a new Convention, to supersede the Geneva
Convention and (among other things) to make the recognition and enforcement of
foreign awards even more guaranteed and certain, was required. The New York
119 As far as Myanmar is concerned, the Act extends to 18 European states and to Thailand: see
further, Moser, Arbitration in Asia (2nd edn, 2008), Part L (Myanmar).

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Convention of 1958, to which Myanmar has now acceded, contains improved provisions
which oblige all contracting states to recognise and give effect to awards of arbitrators in
proceedings which fall within the terms of the Convention, and severely restrict the
arguments which may be raised to object to the recognition and enforcement of the
award. A modernised Arbitration Act, to replace the 1939 Act and to align the arbitration
law of Myanmar with the obligations which the Union has assumed by adopting the New
York Convention, is now needed.
Arbitration awards, therefore, can be enforced in the 150-plus countries which have
adopted the New York Convention. It appears that states are entirely content to accept
and, if asked, to give effect to awards made by arbitral tribunals in foreign countries, but
nowhere near as happy to grant almost unquestioning recognition to the judgments of
foreign courts. This is remarkable; most people who learn the information for the first
time are amazed by it.
But there are good explanations for it. The first is that needs of international trade are
such that commercial pressure, exerted by those taking part in this trade, forced many
states to accede to the Convention. Putting the matter in simple terms, if a state sees a
sufficient economic need, or advantage, for its citizens and companies, it will be prepared
to accede to a Convention. Myanmar will have decided that the recognition and
enforcement of arbitration agreements and arbitral awards is in the interests of those
who do business in Myanmar and out of Myanmar.
And then there is the fact that arbitration only takes place between parties who agreed to
it: it is entirely based on consent. Although there are cases at the margins, where parties
may argue about the scope of their alleged agreement, or about the reality of their
consent, an arbitral award is, almost by definition, something which the parties agreed to.
It is therefore not difficult for states and their legal systems to agree to accept arbitral
awards from tribunals in foreign countries.
By contrast, judicial judgments come from courts which may not have agreed to by the
parties. The jurisdictional rules upon which those courts operate and give judgments may
be widely varied. Judgments and decrees coming from foreign courts cover a far wider
range of activities than trade and commerce, and a state may therefore be presented with
a foreign judgment which is, to it, rather surprising. It is because arbitral tribunals are
always (in principle at least) agreed to by the parties, and their awards limited in material
scope, that it is easy to accept an arbitral award coming from a tribunal in a country in
which judicial standards, by sharp contrast, are much less reliable. All this suggests that if
there are to be conventions which will lead to the enforcement of foreign judgments in
Myanmar, it will be very challenging to settle their terms.
(30) The effect of a Myanmar judgment in a legal system outside Myanmar
This book is concerned with the private international law of Myanmar. It therefore does
not deal with the recognition and enforcement of Myanmar judgments in countries
outside Myanmar, for this is a matter of foreign law. The question whether a Myanmar
judgment will be recognised of enforced in England is a question of English private
international law; the question whether a Myanmar judgment will be recognised and
enforced in China is a matter of Chinese law, and so on. This book does not deal with
these foreign laws.

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The effect of a Myanmar judgment in India, however, will be governed by rules which
are practically the same as those which apply in Myanmar, as the Indian Code Civil
Procedure and the Myanmar Civil Procedure Codes have Section 13 in common. This is
the only country for which it is possible to use Myanmar law to try to predict the effect
of a Myanmar judgment in a foreign country. Having said that, a Myanmar judgment,
given by a court to whose jurisdiction both parties agreed or submitted, is more likely to
satisfy the requirements of foreign laws than a judgment from a court to which the
defendant did not agree. It is therefore advantageous to obtain the agreement of the
defendant to the jurisdiction of the court in which the plaintiff is intending to sue.

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CHAPTER 4
PRINCIPLES GOVERNING THE APPLICATION OF FOREIGN LAW
In this Chapter we commence our examination of the rules by which a court in Myanmar
decides whether it must, or may, or may not, apply the law of a foreign country when
adjudicating the issues which have arisen before it. In doing so we move from an area in
which the written laws of Myanmar provide some guidance, to a broad area in which, as
far as one can tell, there are no written laws to guide the parties and direct the court. We
examine particular areas of law in Chapters 5 to 9, but in this Chapter we examine the
framework which applies when a Myanmar court, in exercising its jurisdiction to
adjudicate, addresses the question whether it should be applying the domestic laws of
Myanmar or, in accordance with the private international law of Myanmar, the laws of a
foreign country.
(31) The question whether a court should apply the domestic law of Myanmar
or follow the private international law of Myanmar
All legal systems, apart from a small number of extremely primitive legal systems which
need not be mentioned by name, are prepared, in appropriate cases, to apply the laws of
a foreign legal system to the issue, or to the case, before them for decision. The general
reasons why this is sometimes the proper thing to do are not, perhaps, as important as a
proper understanding of the rules and procedures by which the court guides itself. But in
general terms one may say that in some cases the application of foreign law is consistent
with the intentions of the parties in circumstances in which there is no good reason not
to give effect to what they intended; in other cases it is consistent with the reasonable
expectations of the parties; and in some cases it is justified because of the circumstances
of the case: how could a question concerning rights to land not be dealt with according
to the law of the country in which the land is situated, for example ?
So far as private international law in Myanmar is concerned, there appears to be
practically no legislation which deals with the question whether a court in Myanmar is
required to apply its domestic law or its rules of private international law (and through
them, the laws of a foreign country) on any issue which comes before it. In the absence
of any such statutory instruction to the courts, it seems proper to assume that the courts
in Myanmar will generally follow the rules of the common law as these rules may be
deduced from the decisions of courts and writing of scholars in England and India in
particular. Occasional reference will be made to authorities from other common law
jurisdictions, but it will be the common laws of England and India which provide the
most reliable sources of the common law as it is presumed to apply in Myanmar.
Although we are using foreign material to set out what we understand to be the law of
Myanmar, it is not suggested that a court in Myanmar would be obliged to follow these
foreign laws. We do it because, as far as we can see, it is the most helpful evidence of
what the private international law of Myanmar will be held to be when a court in
Myanmar is required to declare it.
The general approach of the common law to the question of whether to apply foreign
law is, as we shall see, a passive one. If neither party to the proceedings before the court
asks the court to apply the laws of a foreign country, the court will apply the domestic

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law of Myanmar, and there will be no more to be said. There is no rule of the common
law which requires a court to apply foreign law if the parties do not ask the court to do
so. Even if the parties make a contract which provides, in the clearest of terms, that ‘the
contract shall be governed by, and all disputes shall be determined by the application of
Chinese law’, if neither of the parties before the court invites the Myanmar court to apply
Chinese law to the dispute, then Chinese law will not be applied. This makes the private
international law of Myanmar more straightforward in practice than is the case in those
other jurisdictions, of which there are many, in which a court would, in a case like this,
be required to apply the rules of Chinese law, regardless of whether the parties actually
asked it or wished it to by the time the matter came to court.
Why, one may ask, would parties who had agreed in a contract that the law of a foreign
country should be applied decide that they did not want the Myanmar court to apply that
law after all ? Why, one may ask, would parties involved in what may have been a tort in
a foreign country, decide that they did not want the Myanmar court to apply the law of
that country ? The answer will, of course vary from case to case, but there are a number
of possible reasons.
First, the proof of foreign law is complex and may be expensive. If, for example, a court
in Myanmar is going to be asked to apply foreign law, someone will have to tell the court
what that foreign law actually says and actually means. After all, a Myanmar judge is not
trained in foreign law. According to the Evidence Act, Section 45:
45. Opinions of experts. When the Court has to form an opinion upon a point
of foreign law, or of science, or art, or as to the identity of handwriting or finger
impressions, the opinions of persons upon that point of persons specially skilled
in such foreign law, science or art, or in questions as to the identity of
handwriting, or finger impressions, are relevant facts. Such persons are called
experts.
To bring such opinion evidence before the court, the party who wishes to do so will have
to commission a report from an expert in the foreign legal system,120
which can be
extremely expensive, as anyone who has ever commissioned a report on American, or
English, or Singaporean law, will know. And anyway, there is no guarantee that the so-
called expert really is an expert. If each side of the dispute does this, a fortune may be
spent in obtaining what is no more than admissible opinion evidence, which may not
impress the judge, who is required to make up his own mind, rather than surrender to
the experts,121
in any event.
Second, the laws of various countries are, on very many points, very similar. All civilised
laws provide that contracts are required to be performed and that losses flowing from
breach of contract must be compensated. All civilised laws provide that injuries to the
person and damage to another’s goods should be compensated. And so on, and so on.
Of course, these laws will differ in their details, and will be liable to diverge at the edges;
but Myanmar law is very similar to the laws of India up to 1948; Myanmar law is similar
to much of the common law of England; and on basic private law it is not very different
120 Having said that, there appear to be a number of cases on family law in which the Myanmar
court has been prepared to apply foreign law without any obvious sign that this was given to the
court by expert witnesses: see for example Ma Sein Byu v Khoo Soon Thye (1931) ILR 9 Ran 310.
121 Re U, An Advocate AIR (1935) Ran 178 (a case on handwriting rather than foreign law, but the
principle will be the same).

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from the laws of France or Germany, Vietnam or Japan. Why should the parties go to
the trouble of providing expert opinion evidence of a foreign law which may not be any
different from the domestic law of Myanmar ?
Third, although the Civil Procedure Code, and Evidence Act, in particular, set out the
rules by which litigation is to be conducted in a court in Myanmar, the system of justice
is adversarial, not inquisitorial. It is the task of the judge in Myanmar to rule on the
disputes which are put before him, and on the issues which arise from those disputes, on
the basis of the evidence put forward by the parties. He has no obligation to go any
further, to poke his nose into matters which the parties have not put before him. If the
parties do not wish to put on expert opinion evidence of foreign law, there is no need for
them to do so. By contrast, in a country which follows a more inquisitorial system (such
as Germany) in which the duty of the judge is more investigative, and in which the judge
is required to apply the proper law, whether it is his domestic law or a foreign law, the
judge has to be able to find out what the relevant foreign law says. In a country like
Germany he may refer to a research institute in which there may well be someone who
can help, but the universities of Myanmar are not in a position to provide such a service
to a judge. It follows that the approach which is followed in Myanmar, so far as this can
be deduced from Section 45 of the Evidence Act, is perfectly suited to the conditions of
Myanmar. If a party wishes a court in Myanmar to apply a rule of foreign law, he will
need to put before the court expert opinion evidence as to the content of that foreign
law. If a party does not wish a court in Myanmar to apply a rule of foreign law, he will
simply disregard it and the court will apply the domestic law of Myanmar.
However, in some issues which come before a court in Myanmar, in a case in which the
private international law of Myanmar would allow a court to apply the laws of a foreign
country, a court is bound to apply the domestic law of Myanmar. Under the next two
points we will look at two such categories of legal issue.
(32) Issues which are seen as matters of procedure
Suppose a case is being brought before a court in Myanmar in which it is accepted that
the substance of the dispute would, according to the private international law of
Myanmar, be resolved by the application of foreign law. But suppose that as part of the
broad dispute, some of the following questions arise: (i) is it permissible to serve the
summons by fax or by e-mail ? (ii) is it permissible to bring the claim against a
representative of the defendant if the actual defendant has disappeared and cannot be
traced ? (iii) is it permissible for the proceedings to be brought by a person appointed by
a foreign court to act on behalf of a party who is alive but has lost his mind ? (iv) how
should the court proceed if, according to the law which will be applied to the substantive
issues, the defendant would be presumed to be liable and that the burden of proof would
lie on the defendant ? (v) how should the court proceed if, according to the law which
will be applied to the substantive issues, an individual would be compellable to give
evidence but according to the Evidence Act he would not be required to give evidence ?
(vi) how should the court proceed if, according to the law which will be applied to the
substance of the dispute, the defendant would not be required to disclose information
which would be regarded as privileged, but under Myanmar law the information would
not be regarded as privileged ? (vii) how should the court proceed if, according to the law
which will be applied to the substantive issues, parol evidence relating to a written
document would be permitted to be given in circumstances in which, according to
Sections 91 to 93 of the Evidence Act, such evidence would not be allowed ? (viii) how

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should the court proceed if, according to the law which will be applied to the substantive
issues, specific relief would be ordered in circumstances in which the Specific Relief Act
would not allow it ? Suppose that on all these points, the domestic law of Myanmar
would give one answer, but the rules of the foreign law which, according to the private
international law of Myanmar, would apply to the dispute, would give the opposite
answer.
These eight examples are of questions which have one thing in common. The common
law rules of private international law, and therefore the private international law rules of
Myanmar, regard these issues (and others closely related to them) as ‘procedural’ in
nature. In principle, where an issue which the court has to decide is a procedural one, a
court in a common law jurisdiction, and therefore a Myanmar court, will apply the rule
found in its own domestic law (sometimes known by the Latin expression, the lex fori, the
law of the court), and will not apply the corresponding, but different, rule found in the
system of law which will be applied to the substance of the claim (sometimes known by
the Latin expression, the lex causae, the law of the cause or the issue). Where a question
arises on issue which is procedural, a court applies its own rule, and does not apply a rule
taken from a foreign legal system.
Another way of looking at the point is that rules of procedure do not create rights, or
vested rights: they provide the framework of rules within which substantive rights are
litigated. It follows that if procedural rules change, a disappointed litigant has no right to
complain.122
The Civil Procedure Code does not confer rights as such.
(a) Rules regulating pre-trial and trial procedure
In relation to example (i) above, the rules which govern the documents and mechanism
by which a suit is instituted, and then progressed through the courts, are procedural in
nature. Only Myanmar law can say how a suit is to be commenced before the Myanmar
courts. Only Myanmar law can say whether and how a Myanmar summons is to be
served on the person to whom it is addressed: the fact that foreign law might give a
different answer is irrelevant to trial in a Myanmar court. Only Myanmar law can say
whether the suit should be tried by a judge or a judge and jury, or tried in one Division or
another, or whether the names of the litigants should be made public or anonymised, or
the evidence be given in public or in private, et cetera.
(b) Rules regulating representative proceedings
In relation to examples (ii) and (iii) above, the question whether a person other than the
actual plaintiff or actual defendant can sue or be sued in a court in Myanmar is, mostly, a
matter for the domestic law of Myanmar to say. For example, an unincorporated
association cannot sue simply because under a foreign law it has some form of legal
personality, though as a company formed under a foreign law may litigate by virtue of its
legal personality under a foreign law, this rule is not an absolute one. A personal
representative of a deceased person appointed under a foreign law has no right to take
part in succession proceedings before a Myanmar court without first being appointed by
the Myanmar court, but the liquidator of a foreign company may do so in his own right.
Indeed, the categories of legal representatives, who have authority to act under a foreign
122 Arunachallam Chettyar v Valliappa Chettyar (1938) RLR 176; Muthukaruppan Chettyar v Sellami Achi
(1938) RLR 355.

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law but who have not been appointed or confirmed by a Myanmar court, are numerous.
The rules of law which determine whether a Myanmar court will accept a status
conferred on a representative by a foreign law, or will refuse to allow a representative to
sue unless he has been appointed or approved by application to the Myanmar courts, are
very unclear.
(c) Rules governing the burden of proof, and presumptions
In relation to example (iv), it is often said that the question of which party bears the
burden of proof is a matter of procedural law on which a Myanmar court applies its own
rule, and in particular those rules set out in the Evidence Act. This may be correct, but
the problem with it is that it does have a significant effect on the rights of the parties,
and means that the outcome of the case may be different in a Myanmar court from what
it would be in another court. Some have argued that this means that the burden of proof
should be placed where the law which governs the substance of the claim would locate it,
but if this is the law, it cannot be regarded as settled or clear.
(d) Rules governing evidence
In relation to examples (v), (vi), and (vii) it is generally said that the rules of evidence
which operate in proceedings in a Myanmar court must be those of Myanmar law, and
not those of the law which applies to the substance of the dispute. Up to a point this
must be correct. But there may be cases in which this rule should not apply. If the parties
make a written contract governed by a law which would allow parol evidence to explain
or contradict its written terms, it is a little hard to see why a Myanmar court should apply
its own parol evidence rule and by doing so have a significant impact on the operation of
the contract which the parties made. But this may be the law; Sections 91 to 93 may be
worded in such a way that there is no way around them in a Myanmar court.
(e) Rules governing remedies ordered after rights have been established
In relation to example (viii), the usual understanding is the availability of remedies –
which remedies are available, when those remedies are available – is answered by the
court applying its own law. It would, it seems, be just too strange if a contract governed
by Myanmar law could not be enforced by a decree for specific relief, but a contract
which was otherwise identical but governed by a foreign law could be so enforced if that
is that the foreign law would have said. This distinction between right and remedy is of
particular and surprising importance when a court has to deal with issues of time bars,
which are examined under the next point.
It also means that although the law which governs the substance of a claim will
determine the heads or kinds of loss for which damages may be ordered, or the
principles on which assessment will take place, the actual, numerical quantification of
damages is a procedural matter, governed by the law and assessment rules of Myanmar.
This point is considered again, in the hope of making it clear, in the chapters dealing with
contract and tort. But it is fundamental to the common law.
(33) Limitation of actions, and other forms of time bar
All legal systems have rules which fix the time period after which the plaintiff will not be
able to bring a successful claim against the defendant, but there are two ways in which

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this can be done, and the approach of a Myanmar court to this general question depends
on the way the time-bar rule found in the law which governs the substance of the claim.
It can produce results which are rather odd, but the distinction between the two kinds of
time bar provision has been reaffirmed by the Indian courts,123
and is assumed to be
preserved in the private international law of Myanmar.
(a) Time bar rules which are procedural in nature
Some statutory rules which impose time bars are considered to be procedural in nature,
because they do not say that after so many years the right and duty (which would have
underpinned the claim) cease to bind the parties, but because they say that there is no
longer access to a court – that proceedings may not be brought – in respect of the claim.
The time bar rules of Myanmar are drafted in this form. The Limitation Act states that:
3. Dismissal of suits, &c, instituted &c, after period of limitation. Subject to
the provisions contained in Sections 4 to 25 inclusive, every suit instituted, appeal
preferred, and application made after the period of limitation prescribed
therefore by the First Schedule, shall be dismissed although limitation has not
been set up as a defence.
This is in line with the common law in general, in which suits are dismissed because it is
too late to bring them into court. The law of Myanmar, with very few exceptions,124
does
not provide that the rights of the parties are altered or affected, but that the door of the
court is no longer open. Time bar rules of this type are usually known as limitation
provisions.
(b) Time bar rules which are substantive in nature
In other legal systems, particularly those of the civil law tradition, the effect of a time bar
is that the rights and duties are annulled, are cancelled, cease to exist, all of which means
that although the door of the court is still open, the defendant has a substantive defence
to the claim. Time bar rules of this type are usually referred to as prescriptive, or as rules
which prescribe the right. Such a rule will typically say that rights ‘prescribe themselves’
after a period of years.
(c) Operation of time bar rules in a Myanmar court
Because the provisions of the Limitation Act are procedural in nature, in that they define
the time period after which a suit may not be instituted, a plaint may not be issued, et
cetera, the time periods set out in long and detailed list set out in Schedule 1 to the Act
will apply to all proceedings brought before a court in Myanmar, even though the claim
is, according to the private international law of Myanmar, governed by a foreign law.
If, however, the foreign law which governs the rights has a time bar provision which is
prescriptive in nature, this will also apply, as part of the law which a Myanmar court
applies to the rights of the parties. This is clear enough, but it is partially illustrated and
123 Syndicate Bank v Prabha D Naik [2001] 4 SCC 713.
124 Limitation Act, Section 27, dealing with suits for possession, may be a substantive rule, for if
possession may no longer be recovered it may be argued that the right to property is
extinguished.

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specifically provided for in the case of claims based on contracts governed by a foreign
law, by Section 11 of the Limitation Act, which provides as follows:
11. Suits on foreign contracts. (1) Suits instituted in the Union of Myanmar on
contracts entered into in a foreign country are subject to the rules of limitation
contained in this Act.
(2) No foreign rule of limitation shall be a defence to a suit instituted in the
Union of Myanmar on a contract entered into in a foreign country, unless the
rule has extinguished the contract and the parties were domiciled in such country
during the period prescribed by such rule.
There are two things to say about the detail of this provision, but the general point is
clear: if the law which governs the substantive rights created by the contract contains a
rule which extinguishes the contract and the rights which it generated, that law shall be
applied; but otherwise provisions of the lex contractus (the law which governs the contract)
which would be seen as procedural limitations of the time for instituting proceedings will
not be applied by a Myanmar court: on that issue the Myanmar court will apply its own
time bar periods as set out in Schedule 1 to the Limitation Act. That is because the
Myanmar limitation provision is a procedural rule which applies to all cases before a
court in Myanmar, even where the suit is based on a contract made outside Myanmar.
So far as the detail of Section 11(2) is concerned, however, the position is less happy.
The reference to the contract as having been entered into in a foreign country should, in
a perfect world, now be read and understood to say ‘governed a foreign law’. When the
Limitation Act was drafted, it was still arguable that a contract was governed by the law
of the place where it was made. On that basis, Section 11(2) would make sense; but the
idea that a contract is governed by the law of the place where it is made is, as will be
shown below, no longer considered to be the law.125
It is not so much the place of
making, but the law governing, the contract which is the law whose rule should be
applicable. In addition, the requirement that the parties have been domiciled in the
country in which the contract was made reflects the fact that the place of making rule for
contracts was beginning to break down, and it was possible – it turned out not to be –
that a domiciliary rule would replace it. The best solution, if a court is bold enough to see
the sense of it, is therefore to interpret Section 11(2) as though it made reference to the
proper law of the contract, or to the law by which the contract is governed. If not, the
private international law of Myanmar will need, as the law of India has needed, its
lawmakers to see the need for law reform.126
The effect of all this is that if both sets of time bar apply, the plaintiff gets the worst of
both worlds: he must bring his proceedings before Schedule 1 says it is too late to come
into court, no matter what law governs the substance of the claim, and also before the law
which, according to Myanmar private international law, governs the substance of the
claim says that the right has prescribed itself, been extinguished, and so on. Few will
think that this is a sensible outcome, and in some jurisdictions, legislation has been
enacted to alter and simplify the rule. But in Myanmar, the common law rules of private
international law work in the way set out above.
125 See Chapter 5, point (43), below.
126 In India, see the Report of the Law Commission (2005) on Transnational Litigation, Conflict
of Laws and Law of Limitation.

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(34) The application of foreign law by a Myanmar court
Having dealt with the two main categories of issue on which a Myanmar court applies its
own domestic law in preference to the rules of a foreign law, we return to the questions
which arise when it is argued by one or more of the parties to the litigation that the
Myanmar court should apply a rule or rules of law taken from a foreign system.
There are four stages in the process which leads (or may lead) to the application of
foreign law by a court in Myanmar.
First, the court’s rules of private international law must tell it that the issue before the
court is one on which a foreign law may be applied. This means that the issue before the
court is not a procedural one, but is one of those substantive ones on which the private
international law of Myanmar authorises a court to apply foreign law. We examine in
Chapters 5 to 9 many of the cases and circumstances in which a Myanmar court may be
asked to apply foreign law. But if these rules for choice of law actually tell the court to
apply the law of Myanmar (perhaps, for example, because the parties chose the law of
Myanmar to govern their contract), the enquiry stops there.
Second, if the private international law rules of Myanmar provides that, on the issue
before it, the court must apply the law of Myanmar and may not apply the law of a
foreign country, then that foreign law must not be applied. We examine under points
(39) and (40) in this Chapter a number of areas and issues on which a rule of foreign law
will not be applied even though it might appear that the substance of the issue before the
court should be dealt with by the application of foreign law.
Third, as explained above, the party or parties seeking to rely on foreign law must plead
that foreign law is applicable. It follows, as was explained above, that if neither party
pleads that foreign law is applicable, does so, the judge will apply the domestic law of
Myanmar to the issues in dispute. The judge has neither the power nor the duty to apply
foreign law ex officio. So in the example of personal injury or damage to property taking
place overseas, a plaintiff may consider that the law of the place where he was injured
affords him a cause of action, whereas Myanmar domestic law would not: it will be up to
him to plead the applicability of foreign law to the claim (and, in due course, to produce
expert opinion evidence on the content of that foreign law). Again, a defendant may
consider that the law of the place where the alleged tort happened furnishes her with a
defence which would not be available as a matter of Myanmar law: it will be for her to
plead the applicability of foreign law to the issue raised by way of defence. But neither
party is obliged to do this, and a judge will therefore be left to apply Myanmar domestic
law when the parties do not invoke foreign law.
In international cases in common law jurisdictions, cases based on international contracts
and torts are frequently decided without any reference to foreign law, even though the
rules of private international law might have indicated that a foreign law should be
applied. This may reflect the practical truth that the basics of the law of obligations are all
very similar, meaning that there is often little point in proving foreign law; and it may
also be driven by the practical problem, and expense, of actually proving foreign law, as
will be seen below. It means that courts in common law jurisdictions take a pragmatic,
rather than a dogmatic, view of their role: the parties are free to establish a common
position on the inapplicability of foreign law, and once they have done that, it is not for a
judge to think he knows better.

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Fourth, the content of the foreign law which has been argued to be applicable has to be
pleaded, and its content has to be established by expert evidence. The existence, content,
and meaning of a rule of foreign law is a matter of fact, to be pleaded and proved as such
by the parties. According to the Civil Procedure Rules, Order 6, rule 2:
2. Every pleading shall contain, and contain only, a statement in concise form of
the material facts on which the party pleading relies for his claim or defence, as
the case may be, but not the evidence by which they are to be proved…
The common law has always regarded foreign law as a fact, which therefore needs to be
pleaded and proved. So does the written law of Myanmar, if the wording of the Contract
Act, Section 21, is any indication:
21. Effect of mistakes as to law. A contract is not voidable because it was
caused by a mistake as to any law in force in Myanmar; but a mistake as to a law
not in force in Myanmar has the same effect as a mistake of fact.
Every proposition or statement of foreign law relied on needs to be pleaded, and must
then be admitted or proved in accordance with Myanmar procedural law, to the
satisfaction of the court.127
Once it is pleaded, evidence about that foreign law will be
given as opinion evidence by experts and evaluated by the judge, as was shown by the
reference to Section 45 of the Evidence Act. It is also permitted for evidence of foreign
law to be taken from certain official publications produced in the foreign state,128
but
such material is more commonly tabled and accepted as part of (and justification for) the
opinion evidence of the expert witness.
Expertise in foreign law is, however, easier to describe than it is to define. There is no
register of individuals who are qualified or authorized, to give such evidence. There is no
reliable way to evaluate the expert or his evidence. It may not be clear whether an
expert’s knowledge is practical and up to date. A professor who has taught courses and
written books may have had little or no practical experience of how the law he has
described would be understood and applied in a court; a lawyer in legal practice may give
his opinion with absolute certainty and confidence yet be talking complete nonsense; the
fact that a lawyer is in private practice or judicial office may nevertheless leave him
wholly unsuitable to give evidence in an area of law of which he has no direct experience.
These are not trivial points, for as the common law has committed itself to this
approach, it is legitimate to question whether the approach is fit for its purpose. In other
countries of the common law world there are many cases in which the judge has had to
pick his way through baffling and contradictory expert evidence of foreign law, with the
result that one may applaud the effort which was shown, yet still lack confidence in the
outcome; and in any case, the financial cost to the parties can be quite disproportionate
to the substance of the claim. On the other hand, a judge has no training in foreign laws,
and probably does not have the resources which the litigants and their legal advisers
have. In Myanmar, there is no a fund of knowledge to which the court may refer if it
were to try to research foreign law for itself. So a judge cannot take judicial notice of
127 If the court is prepared to be satisfied by less formal means of evidence and proof, and there
is no objection from the parties, a less formal procedure may be adopted.
128 Evidence Act, Section 38. The rule extends to laws and law reports, but will not extend to
textbooks, no matter how distinguished.

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foreign law, and although the common law system is far from perfect, in Myanmar, and
probably elsewhere, it is less bad than the alternatives.
Of course, if the party who is seeking to rely on foreign law fails to satisfy the judge as to
its content, the judge will apply the domestic law of Myanmar, for in default of proof of
the content of foreign law, a judge still has to adjudicate. But on rare occasions this will
not be possible. If for example a case concerns a matter of foreign company law, and the
content of that foreign law is not proved to the satisfaction of the judge, it may not be
possible to apply the Myanmar Companies Act, as this mostly applies only to companies
formed under the law of Myanmar. In such a case there may be no alternative but to rule
against the party who has failed to make his case.
(35) The way a court in Myanmar determines whether to apply foreign law
The basic structure of the common law conflict of laws is built from propositions which
link ‘issues’ to a particular law or legal system whose rules are, in principle, liable to be
applied. So for example, we say that the material validity of a contract is governed by its
proper law. Liability in tort is governed in part by the law of the place where the person
was when injured and in part by the law of the forum court. The effect of a disposition
of moveable property on title to that property is governed by the law of the place where
the thing was when it was transferred. Although we will not examine it in this book, the
common rule for determining the capacity of an individual to marry another is to look to
the law of his or her domicile at the time of the marriage. The ranking of claims and
distribution of assets in an insolvency is governed by the law of the court administering
the insolvency; and so on. The tools of the legal trade are, at this point, a list of legal
categories, and for each legal category, a rule which links that legal category to a law
whose relevant rule may be applied.
(a) Available categories of legal issue
The technique for identifying the law which should be applied depends, first, on
compiling a list of the legal categories for which a link to a law is made. If one asks where
these categories come from, the answer is that they come from the long tradition of the
common law. It is not impossible for new ones to be developed, but on the whole, these
are the legal categories which have served the common law, pretty well, for the last 150
or more years. A number of them will be encountered in Chapters 5 to 9. To take the
private international law of contract as an example, which we examine in Chapter 5, there
may be five categories of legal issue which might arise, and for which a rule which links
the category to a law will be needed. These are: (i) the essential validity of a contract; (ii)
the formal validity of a contract; (iii) the legality of the contract; (iv) the capacity to enter
into a contract; (v) the manner of performance of a contract. For each of these, the rules
of private international law link the issue in question to a law or to more than one law
from which the answer may be taken.
(b) Identifying the legal issue presented by the facts: characterisation
It is next necessary for the court to decide, for example, whether to frame the question
before it in terms, say, of the essential validity of a contract as opposed to its formal
validity, or just its validity. In another context, the court may have to decide whether to
frame the question before it in terms of the capacity of persons to marry as opposed to
the validity of the marriage. When the court does this, it is ‘characterizing’ an issue, or

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issues, as arising for decision. Characterisation is a legal technique which we examine in a
little more detail under point (36) below; but when the court has characterised the issue,
and fitted it into one of the legal categories for which there is a rule linking the issue to
the law, it will say that the issue before it is governed by the law of a particular state or
legal system.
(c) Thinking about the meaning of ‘law’: renvoi
If the court has followed this methodology and has decided that the issue before it is
governed by the law of state X, there may still be a question as to the meaning of ‘the law
of’ state X. The reference will, in most cases, be understood to be to the ordinary
domestic law of that state, in which case the expert witnesses will be expected to give
their opinion on the ordinary domestic law of state X.
But in a small number of legal areas, which means to say in relation to a small number of
the legal categories which we have mentioned and will examine in due course, we
understand ‘the law of state X’ to mean ‘the rule of law which a judge in state X would
apply if the issue were before him in his court and he were to apply his rules of private
international law to the issue, which might mean that he would apply - and that we would
therefore apply - the domestic law of state Y’. This cumbersome expression raises the
tricky problem of the application, or the non-application, of the principle of renvoi. It
can be difficult, though there is little reason to suppose that it is a significant part of the
private international law of Myanmar, and we will deal with it in very abbreviated detail
under point (37) below.
(d) The linking rule, or the ‘connecting factor’
The linking rule, or the ‘connecting factor’, as it is sometimes called, points the Myanmar
court to the legal system whose rule may be applied. These linking rules are often
encountered in Latin or Latinate forms, which may not be particularly helpful in
Myanmar in 2015. On the other hand, they are used in this sense in Indian cases and
Indian scholarly writing, and in the wider world, and it is useful to know what they mean.
They number somewhere between twenty and thirty, of which only some will be used in
this book. They are mentioned here; they will be examined in greater detail in the
Chapters in which they have a role to play.
In general, there are four linking rules which apply across the various areas of private
international law. The lex fori is the ordinary, domestic, law of the court in which the
proceedings are taking place. It applies in particular to issues of procedure, but also has a
part to play in liability in tort as well as a significant role in the private international law
of insolvency. The lex domicilii is the law of the domicile, which is, in a very simplified
sense, the law of the state which is the permanent home of an individual, or the law of
the state under which a company was created and formed. It applies to issues of personal
and legal capacity, and has a significant part to play in family law and the law of
succession which are not studied here. The lex patriae is the law of the nationality, but this
plays only a very minor part in the common law rules of private international law. And
finally, the lex causae can be used as a non-specific reference to the law – whichever law it
is – which is applicable to the issue.
With particular reference to Chapter 5 of this book, the lex contractus is the law which
governs a contract. It is also known as the proper law of the contract. It may be chosen

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by the parties, but will be ascertained by the court if the parties have not made the
choice. The lex loci contractus is the law of the place where the contract was made, which
was formerly important, but which is not now of any real importance.129
With reference to Chapter 6, the lex delicti is the law, or maybe the combination of laws
(the leges delicti) governing and determining liability in tort. The lex loci delicti commissi is the
law of the place where the tort was committed.
With reference to Chapter 7, the lex situs is the law of the place where land, or other
thing, is situated. It has a very prominent role in the private international law of property.
The lex loci actus is the law of the place at which a transaction was carried out, which will
be seen to have a rather minor role in the private international law of property. The lex
protectionis is the law which grants protection to an intellectual property right, and the lex
registri is the law of the place where the registration of title (for example, of an aircraft,
ship, or shares) or of some other right or entitlement takes place.
And with regard to Chapter 8, the lex incorporationis is the law under which a body is
incorporated or created. The lex concursus is the law of the court which is administering an
insolvent estate. It is the usual rule in the private international law of insolvency; and if a
court is administering an insolvent estate itself, the lex concursus will coincide with the lex
fori.
Once the issue has been identified and allocated to a legal category; and once the link
which connects that legal category has been identified, it will known whether the issue is
one on which a court in Myanmar may be asked to apply a rule of foreign law. If it is,
and if one of the parties wishes the court to do it, it is his task to plead the foreign law
and to establish, by expert evidence, what that law actually provides. The court will then
be in a position to apply it.
(36) Characterising the issues which the court has to decide
Suppose A had made a contract with B, but A claims that his agreement to the contract
was brought about by misrepresentation or fraud. Suppose A wishes to sue B (i) for a
declaration that he has lawfully rescinded the contract and is not bound by it, or (ii) for
an order that he is entitled to be put into the position he would have been in if the matter
misrepresented had been true, or (iii) for damages for fraud or deceit. Which of these
raises an issue of the essential validity of a contract, governed by the lex contractus ? Which
of these raises an issue of tort, governed by the choice of law rule for torts ? Does the
claimant have a choice of laws on which to found his claim ?
Or suppose that C had made a contract with D, and that D now owes money to C.
Suppose that C assigns the benefit of the contract to E, and that E now sues D for
payment, and D refuses to pay. When E sues D, is the issue to be seen as a contractual
one, governed by the lex contractus ? If it is contractual, which of the two contracts is the
one whose proper law will be applied: the proper law of the contract between C and D,
on the basis that the question is who D has to pay to be discharged, or the proper law of
the contract between C and E, because the question is whether the transaction between
C and E was effective to transfer the right to receive payment from D ? Or is the issue
perhaps not a contractual one at all, but one concerned with property, intangible
129 Unless Limitation Act, Section 11(2) is read literally: see above, point (33).

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property, and governed by the choice of law rules for intangible property in the form of
debts,130
which we will examine later ?
Or suppose that F made a contract with G, according to which F would repair G’s Rolex
watch. Because the watch is so striking, G decides to wear it himself when he goes to
Bangkok for the weekend; and while he is there, he loses. When G sues F, is his claim a
contractual one, governed by the lex contractus, or is a claim in tort, liable to be governed
by the lex delicti ?
The principle of characterisation tries to answer these questions. Private international law
has a linking rule for issues which are contractual, and a linking rule for issues which
relate to a tort, but if these are going to work, the court must first be able to decide
which category, or categories, of issue it is faced with. The answer appears to be that, for
the purposes of private international law, the categories of legal issue are defined by
Myanmar domestic law, albeit with a little flexibility for difficult cases at the margins. If
in any of these cases the domestic law of Myanmar would say that the issue was
contractual, or was not contractual but something else, it is likely that the private
international law of Myanmar will proceed on the same basis. If in any of these cases the
domestic law of Myanmar would say that the issue was one of the transfer of property
rather than one concerning the substitution of parties to a contract, it is likely that the
private international law of Myanmar will proceed on the same basis.
This is not to say that the approach of the court will be rigid. A court should be prepared
to see an issue as a contractual one even though the Contract Act might have said that
there was no contract because there was not, for example, an effective communication of
acceptance: an issue may still be contractual for the purposes of private international law,
even though the Contract Act would say there was no contract, because other legal
systems have their own, sometimes different, rules for the making of contracts. The
categories are therefore interpreted – because they have been designed to be interpreted
– with a degree of flexibility and common sense.
And perhaps the most striking thing about cases decided on this point is that there are
practically no cases which discuss it in any detail: there are few in England, and none at
all in India. It appears that the court knows how to characterise issues, to allow a link to
be made to a law, and that any attempt to explain or make rules to regulate something
which happens almost automatically is really pointless.
(37) The meaning of ‘law’, and the principle of renvoi
We can deal with this question shortly, because we do not need to say much about it. No
Indian case has ever dealt with it; and it would be very surprising if it were to arise before
a court in Myanmar. It follows that the material considered at this point is not of great
practical importance. But it is still necessary to be able to recognise the issue.
Suppose H made a contract with J to sell and convey to J land which is situated in India.
Suppose J refuses to sign the documents by which transfer would be transferred to him,
and which would trigger the obligation to pay the price, because, as he says, H is not the
owner of the land, with the result that any purported transfer of the land by H would be
ineffective. Suppose a court in Myanmar is asked to deal with the claim to enforce the
130 Chapter 7, point (67), below.

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contract, and it needs to know whether H did own the land. It is obvious that it will look
to Indian law, as the lex situs of the land, for the answer.
But what, precisely, does that mean ? Does it mean that the Myanmar court must look to
the domestic law of India ? Perhaps is does. But suppose the evidence to be that if an
Indian court were to be asked to answer the question of H’s title to the land it would
have applied the law of England, on the basis that the land had belonged to H’s father,
who had been English, and that the question whether H or his brother had inherited the
land from their father would, in an Indian court, be answered by reference to English
law. Will the court in Myanmar still limit its attention to domestic Indian law, or would it
follow the path of reasoning which would be followed by the Indian judge, and look on
to English law ?
The answer is that it will look to English law. The reason for the answer is that it will
look in the first instance to Indian law, but if it is informed that an Indian judge would in
fact apply the law of a different country, the Myanmar judge will follow the links from
India to England. It will, to put the matter another way, follow the reasoning as the issue
is sent on (envoyer is French for ‘to send’, and renvoyer is French for ‘to send again’; and a
renvoi is what has taken place when this has been done) to the rules which would be
applied by the judge in India.
Now suppose that K was sent by his employer to work on a project in China and that L,
his wife, accompanied him. Suppose that the accommodation which was provided for
them was dangerous, and that L was injured. If L sues K’s employer for damages for
personal injury, the usual choice of law rule for tort claims will look, in part at least, to
Chinese law as the law of the place where the tort was committed. But suppose that a
Chinese judge, looking at this case, would have applied the law of the country from
which K, and L and the employer all came. What should a judge in Myanmar then do ?
Should he, when he links the issue to China, apply the domestic law of China, or the
rules of the legal system to which a Chinese judge would look for the answer ? Once
again, the answer requires us to think about the principle of renvoi, and about what it
means to apply foreign law to an issue;131
but the answer is that the Myanmar judge will
link the case to and apply the domestic law of China, and will not be interested in how a
Chinese judge would have dealt with the case.
When a judge is applying the law which governs a contract, or the law which applies to a
tort, the link is made to the domestic law of that country. If the contract is governed by
the law of Indonesia, it is governed by the domestic law of Indonesia, even though an
Indonesian court might have come to a different conclusion. Where he is applying the
law which governs a tort, if he links the case to a foreign law, the Myanmar judge will
apply the domestic law of that foreign country, even if a judge in that country would
have done something different. With contracts and torts, the judge is concerned with the
law of obligations, and with rights and duties of individuals to each other, with no third
party being concerned by the outcome of the case. The reasoning can therefore be kept
simple.
But where a Myanmar court applies rules of private international law to determine the
ownership of a thing, especially of land, it is determining an issue which may operate in
131 The example is also taken from a decision of the High Court of Australia, Neilson v Overseas
Projects Corporation of Victoria (2005) 233 CLR 331.

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rem: that is, it is answering a question which may affect persons not involved in the
litigation. In such cases it probably makes more sense to try to answer the question as it
would be answered in the place where it really belongs. It is most obvious in the case of
land: the only sensible way to answer the question of who is entitled to land situated in
India is to give the answer that an Indian court would give, and that may not be the
answer which the domestic law of India would have given. So also with the ownership of
other property: the lex situs is taken to mean the lex which would be applied by a judge at
the situs.
It follows that no reference to renvoi is made in Chapters 5 and 6. But at various points
in Chapter 7, when we mention the rule which links an issue concerning title to property
to the lex situs, we will ask whether this means the domestic law of the place where the
thing is, or the law which would be applied by a judge in the courts of the place where
the thing is. The greater complexities of the doctrine of renvoi need not be gone into.
And anyway, even in a case in which the Myanmar judge would be willing to apply the
principle of renvoi, if the parties do not put in evidence which suggests that a judge in
the foreign court would apply a law other than his own domestic law, the Myanmar judge
will simply apply the ordinary domestic law of that foreign country.
We now move to consider three areas in which a Myanmar court must apply the law of
Myanmar, even though the issue before the court is one which is linked, as a matter of
private international law, to the law of a foreign country.
(38) Circumstances in which a Myanmar court must apply a rule of Myanmar
law
The general approach of a court in Myanmar to the question of whether to apply a rule
of foreign law is liable to be displaced if there is a rule of Myanmar statute law which has
been worded in such a way that is must be applied by the court even though the issue
before the court for decision would be liable to be governed by a foreign law. Such laws,
where they can be identified, are sometimes called ‘mandatory’ or ‘overriding’ rules of
law, though the terminology is really just a label.
The difficulty with such a rule is that although it makes perfect sense in principle, it is
much harder to operate in practice. It is not easy to see, from the terms of a statute,
whether a rule has been made so as to apply when (but only when) the issue before the
court for decision is to be determined by applying the domestic law of Myanmar, or is to
be applied even though the rules of Myanmar private international law link the issue to,
and direct the court to apply, the law of a foreign country. One may take a familiar
provision as an example. Contract Act, Section 27, reads as follows:
27. Agreement in restraint of trade void. Every agreement by which anyone is
restrained from exercising a lawful profession, trade or business of any kind, is to
that extent void.
Suppose that the parties to the contract have chosen a foreign law to govern it, and that
this choice of law by the parties would be accepted as effective according to the rules we
will look at in Chapter 5. Suppose that the rules of that foreign law, which differ from
the approach taken by Myanmar law to the restraint of trade, would not render the
contract in question void. If the issue of the validity of the contract were to come before
a court in Myanmar, would the court decline to apply Section 27, on the ground that

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Section 27 applies only if the contract is governed by the law of Myanmar ? Or would the
court consider that Section 27 was to be applied to the case, even though the contract
was not otherwise governed by the law of Myanmar, on the ground that the intention of
the lawmaker, as deduced from the language of the Act, was that Section 27 should apply
to all contracts, and not just to Myanmar contracts, which come before a Myanmar court
?
The answer is, alas, that there is no answer: there are only questions. It is the same all
across the common law world: statutes are not drafted in a way which means that this
question is easy to answer. Lawyers have sometimes fallen back on a number of
presumptions: that a rule which prohibits conduct is presumed not to be applicable to
conduct taking place overseas; a rule which applies to agreements is presumed not to be
applicable to agreements governed by a foreign law, and so on. But these presumptions
add little clarity to the law, and in the end a court simply has to ask this question:
assuming that the rules of Myanmar private international law would point to the
conclusion that Myanmar law was not to be applied to the matter before the court, is the
particular provision of the written law of Myanmar one which the court has been
directed to apply in any event and therefore in this event ?
It may be helpful to ask whether there would be an adverse effect on Myanmar if the
particular provision of the written law were not to be applied; but in the end, the answer
will involve rather more guesswork than adjudication really should. But if the lawmakers
have not made their intentions clear, it is not reasonable to blame a court which has
arrived at an answer which is not particularly welcome.
(39) Rules of foreign law which a Myanmar court will not apply
The previous point (38) was concerned with the case in which there is a rule of the
written laws of Myanmar which, as the court sees it, has to be applied to the case, even
though the rules of private international law would link the issue to the law of a foreign
country. We now move on to consider a related question, which may be seen as the other
side of the coin. At this point we are not concerned with a rule of Myanmar law which
may be superimposed on a case not otherwise governed by Myanmar law, but with cases
in which a Myanmar court will simply refuse to apply a rule of foreign law of a particular
sort. For there are certain circumstances in which a court in Myanmar will not apply a
particular rule of foreign law, which is to say that although the private international law
rules of Myanmar might direct the court to apply a foreign law, there are some foreign
laws which it will not give effect to.
(a) Penal laws and revenue laws
Assuming that it will follow the private international law of Indian, English, and other
common law systems, a court in Myanmar will not enforce a foreign penal law, and will
not enforce a claim for taxes due under a foreign law. Accordingly, proceedings brought
by or on behalf of a foreign state to collect a sum imposed as a fine, or to obtain delivery
up of property ordered to be confiscated because of the commission of a crime, or to
collect a sum due in lawful taxes, will be not be allowed in a Myanmar court. There is no
private international law of crime or of tax.
When it is used in this context the term ‘penal’ means ‘criminal’, and almost always
involves an order having been made in favour of the state. This rule will, therefore,

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probably not prevent a court in Myanmar enforcing a foreign judgment for exemplary
damages, even if the court which ordered them to be paid did so with a view to
punishing a defendant for having committed a wrong in a particularly disreputable way.
A payment ordered to be made to a private individual cannot easily be seen as penal in
nature.
A penal law is easy enough to identify: it is one designed to punish by requiring a
payment to be made to the state, or other unwelcome thing to be done, as a consequence
of criminal wrongdoing. A revenue law may also be easily identified in cases in which an
individual or a company is required to pay taxes. But suppose that a person or a company
is required to pay for a licence to engage in certain commercial activity: is the payment
which it is required to pay to acquire or to renew its licence a revenue payment,
demanded and made under a revenue law ? Or suppose that a motorist has to pay the
state for a licence to use a car or commercial vehicle on the road: is the payment which
the law requires made under a revenue law ? Suppose a person who receives hospital
treatment is required to make a payment to the Ministry of Health: is the payment made
under a revenue law ?
It may appear that in these cases the sum paid is paid under a revenue law: the payment
goes to the state or to a part of it; and payments which have to be made to the state, or
to some part of the apparatus of the state, do tend to look like taxes. After all, some
states raise money by imposing direct taxes on income, profit, spending or wealth.
Others, which pretend to have low tax rates, raise money by other means: for example,
by requiring all manner of activities to need a licence, certificate,132
or other document,
which may be costly. Would it be right to regard the fee which the individual or company
is liable to pay as being imposed under a revenue law ?
On one view, the answer may be that these charges are not made and paid (or not paid)
under a revenue law. If the payment is a voluntary one - no-one required the applicant to
apply for a licence, and he obtained a licence in return for his payment - it may not be
made pursuant to a revenue law. If something is given or conferred in return for the
payment - even if there was no bargaining and no negotiation of the price - the
relationship between the parties is voluntary, not based on the one-sided duty to pay
taxes. But if the payment is just a demand for a proportion of income or earnings or
property value, it is a tax, and if it is demanded it is demanded under a revenue law. Even
so, there are certainly cases where the payment looks from one viewpoint like a revenue
law, and from another viewpoint as a rather one-sided contract, but a contract all the
same.
(b) Enforcement distinguished from recognition
The prohibition on the enforcement of a foreign penal or a foreign revenue law extends
to cases of indirect enforcement: it would otherwise be too easy to evade the rule.
Obviously a foreign state cannot come to Myanmar and institute a suit against a
defendant who has not paid foreign taxes.133
But if the foreign state tries to get round
132 Such as Singapore, where car ownership requires the purchase of a ‘Certificate of Entitlement’
which may cost many tens of thousands of dollars.
133 It would be different if Myanmar has made a treaty with the foreign state which would allow
the foreign state, in defined circumstances, to sue in the Myanmar courts. A Myanmar court
would then simply give effect to the domestic legislation made in consequence of the treaty. But
such arrangements are rare.

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this rule, by first getting a judgment from its courts, and then coming to Myanmar to
enforce its judgment,134
the suit will also be dismissed on the ground that it is an attempt
to enforce the foreign revenue law in a Myanmar court by indirect means; the suit will
fail as being an indirect attempt to collect foreign taxes by judicial means.
But there is no rule which requires the non-recognition of such laws. If, for example,
parties make a contract to evade foreign taxes by agreeing to smuggle goods into a
foreign state, a court in Myanmar would certainly recognise the existence of the foreign
law, and to conclude that an agreement to breach such a law - which the foreign state is
not trying to enforce in a Myanmar court - would be illegal as a matter of Myanmar
private international law. If the Myanmar court is not being asked to enforce the revenue
law, it should have no problem with the suit.
There is, therefore, a distinction to be drawn between the enforcement of a foreign penal
or revenue law, which a court will not do, and its recognition, which a court will not
normally object to. But the line which separates indirect enforcement from recognition
may be fine. For example, a trader who sues on a foreign invoice which includes an
element of sales tax should be entitled to recover a decree ordering payment of the whole
sum due, including the sales tax component; but it has to be admitted that part of the
claim appears to be being brought by him in his (unwanted) capacity as involuntary
collector of taxes for the foreign state, and this looks much like indirect enforcement of a
foreign revenue law. Sometimes a court simply has to look for the sensible answer, and
not worry too much about the objections. This may be one of those occasions.
(c) Analogous laws
Most authority maintains that there is a third category, of ‘other public laws’, to which
the same principle applies. Laws analogous to penal and revenue laws (confiscation and
nationalization, exchange control, laws regulating the security services, and so forth)
should probably be dealt with in the same way as penal and revenue laws, but whether it
is beneficial to call these ‘other public laws’ is doubtful. It may be better to consider them
as laws serving an analogous purpose, and to leave it at that.
(40) The impact of Myanmar public policy
It remains to say something of the rule of private international law which exists to
protect a court from being led to a conclusion which it finds to be legally valid, but
intolerable or offensive. The court is protected from having to do this by the power to
avoid an answer which would be contrary to Myanmar public policy.
Accordingly, a rule of foreign law, to which the issue before the court for decision has
been linked, will not be applied if the rule itself is repugnant to the public policy of
Myanmar, or if the result of the application of the rule would be contrary to the public
policy of Myanmar. ‘Public policy’ in this sense refers to the fundamental values of
Myanmar and Myanmar law,135
and though the doctrine of public policy is generally
understood to be a narrow one - if it applies too freely or casually, it undermines the
134 See Chapter 3, point (23).
135 Including the protection of the state in time of war: Ramaswamy Iyengar v Velayudhan Chettiar
BLR (1952) SC 25.

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rules of Myanmar’s private international law - it does make a distinctive contribution to
the rules of private international law.136
There are a few examples which may be given to illustrate the technique. A law depriving
a racial group of its property or of its nationality will usually be considered to be so
uncivilised that no effect will be given to it, in a court in another common law country:
the case will proceed as though such a wicked law simply did not exist. Suppose for
example a law were to be passed in Barbaria,137
confiscating all the property of persons
whose presence in Barbaria was considered to be illegal. Suppose the Barbarian state
were to seize the property of Myanmar nationals in Barbaria who did not have
documents, and to sell or transfer that property to other people in Barbaria. Although
the private international law of Myanmar would normally look to the law of the place
where the property was to determine whether the transfer of title to the property was
legally effective,138
the rule of Barbarian law which would have to be taken into
consideration and applied in this case would, one may imagine, be considered to be so
offensive and uncivilised that it will be completely ignored in a court in Myanmar.
An understanding of public policy, as it is seen in a particular country, is not always easy
for an outside observer to obtain. It will be informed in particular by local circumstances,
but also by local cultural values; and although some of these are universal, others are
much more individual. Ideas of equality of sex, race, religion, and so forth, are, one
observes, not universal. For this reason, the decisions of English courts, which explain
the content and values of English public policy, may not be directly applicable in
countries far from England in which local conditions are very different.
Perhaps all that may properly be said is that common lawyers are agreed that just because
a foreign law is different from a local one, it cannot possibly be said that this is enough to
establish that the foreign law is contrary to public policy. Only in rare and extreme cases
is it proper to find that the law of a foreign country, to which our rules of private
international law have directed us, is so offensive that we will simply refuse to listen to it,
never mind give it an effect in our courts.139
137 An imaginary state, used for the purpose of illustration to avoid causing offence.
138 See Chapter 8, point (70), below.
139 For the view that a court should not freely or casually invent new grounds of public policy, see
Gillespie v Maung Maung (1911-12) 6 LBR 1 (a case on the Contract Act rather than private
international law, but the point is a general one).

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CHAPTER 5
CONTRACTS, AND RELATIONS WHICH RESEMBLE CONTRACTS
In this Chapter we consider the process by which a court in Myanmar would consider
whether to apply its own domestic law, or the domestic law of a foreign country,140
to an
issue before it which is contractual in nature. We do not reconsider the rules on
jurisdiction: at this point it is being assumed that the court has jurisdiction and will
exercise it.
We are here concerned with the principles of the common law, as these were understood
generally. There is no statute law in Myanmar which deals with the rules for identifying
the law to apply to contract issues: neither is there any in India. There are no obvious
reported cases from the courts of Myanmar which deal with the rules for identifying the
law to apply to contract issues: there are, for all practical purposes, none from the Indian
courts, either. This obviously does not mean that Myanmar does not have rules of private
international law applicable to contract issues. It is just that these have not yet been
spelled out by Myanmar courts or by writers in Myanmar. This Chapter therefore draws
on the general principles of common law reasoning which will, inevitably, form the basis
for the private international law of Myanmar.
(41) The meaning of ‘contract’ for the purpose of private international law
The rules which are examined in this Chapter will be applied to issues which are regarded
as ‘contractual’ for the purpose of Myanmar’s private international law. We explained in
Chapter 4 that the rules of private international are based on the existence of certain legal
categories for which a linking rule will direct the Myanmar court to the legal system -
which may be a foreign legal system - which will provide the rule which gives the answer
to the question which has arisen. So far as the private international law of contract is
concerned, we need to define the legal category of ‘contract’ to which this particular
linking rule will be applied.
The reader’s first instinct may be to think that the word ‘contract’, when used as a term
in Myanmar private international law, must mean the same as ‘contract’ in the Contract
Act 1872, and that the rules in this Chapter apply where the Contract Act would consider
there to be a contract, and that they do not apply where the Contract Act would not
consider there to be a contract.
But it does not take long to see that this would not be helpful, and cannot be correct. It
seems safe to say that every legal system in the world has a sense of what a contract is
(and of what is not a contract), and that while these definitions will overlap, they will not
all be identical. For example, according to the 1872 Act there are rules which determine
the parties have made an agreement, and whether that agreement has become a contract.
According to Section 10 of the Contract Act:
140 The principle of renvoi has no part to play in the private international law of contract: see
above, Chapter 4, point (37).

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10. What agreements are contracts. (1) All agreements are contracts if they are
made by the free consent of parties competent to contract, for a lawful
consideration and with a lawful object, and are not hereby expressly declared to
be void.
However, there are many legal systems which do not incorporate a requirement of
consideration as part of the definition of a contract. In civilian systems - French and
Italian law, for example - there is no requirement that there be consideration in order
that there be a contract. In an old, but useful, English case, the court had to deal with
proceedings brought to enforce a written agreement which, as a matter of English law,
would not have been contractually binding because there was no consideration for the
written promise which had been made. The parties to the agreement had stated that it
was to be governed by Italian law. If the issue before the court were considered to be a
contractual one, or if it had fallen within the private international law category marked
‘contract’ it would, for reasons we will examine below, have been governed by the law
which the parties had chosen. But if it had not been seen as a contractual issue, it would
not have been linked to the law chosen by the parties. The English court took the view –
and it was right to do so – that the issue before the court was contractual, and the validity
of the agreement as a contract was therefore governed by the law chosen by the parties.
This old case shows that the private international law category marked ‘contract’ may be
larger, or wider, or looser, than the definition of contract in the Contract Act 1872. The
1872 Act contains rules which operate in the domestic law of Myanmar, but it does not
claim to, does not try to, and does not define the category of ‘contract’ for the purposes
of the private international law of Myanmar. It is understood that every domestic legal
system has its own definition of what amounts to a contract. These definitions have
much in common: maybe 80% or more of the cases in which Myanmar domestic law
would be cases in which the domestic laws of all other states would agree. But though at
the edges these domestic laws differ, we can still say that they are sufficiently like a
contract to be seen as contractual for the purposes of our private international law. This
is because our private international law has purposes which are distinct from those of our
domestic law. The purpose of our rules of private international law are, in the main, to
direct the Myanmar court to apply its own domestic law (which, in this context, will
mean the Contract Act 1872, with relevant amendment), or to apply the contract law of
another country. For that purpose we need a neutral, or more general, sense of what a
contract is.
We therefore say that a matter may be contractual, and the rules applying to it will be
those discussed in this Chapter, if it is ‘sufficiently contractual’, or ‘so contractual that we
ought to apply our private international laws of contract, rather than our private
international law of something else, to it’. It cannot be denied that this can make the law
a little uncertain, but it is better to admit that where it is true, and work to make it less
uncertain. For example, it seems unlikely that the rules in this Chapter apply to gifts: the
common law has never regarded a gift as a contract, and the linking rule for gifts is
probably a property rule of the kind examined in Chapter 7. Gifts do not sufficiently
resemble contracts, at least in the eyes of a common lawyer.
But the rules in this Chapter must, in principle, apply to contracts and to situations which
are sufficiently like contracts for them to be dealt with in the same way. In litigation
between two parties who agree that there was a contract between them, but who disagree
on whether it was performed, not performed for reasons which the law regards as a

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proper excuse, not performed in circumstances in which the law says that the contract
was breached, the rules in this Chapter will apply. If the parties agree that there is a
contract, there is no reason to question whether the matter falls within this Chapter: it
will do so.
If the parties do not agree that there was a contract, however, the rules in this Chapter
are still likely to be applicable. Let us take some examples. Suppose that (i) A contends
that the parties made a contract while B contends that they did not reach agreement; or
(ii) C contends that the contract was formed but D denies that there was an agreement
with C because he actually thought that C was someone else; or (iii) E contends that the
contract was formed with F, but F denies that there was a contract because at the time of
the alleged contract the subject matter of it did not exist; or (iv) G contends that a
contract was validly formed, but H says that his consent to the contract was obtained by
misrepresentation or fraud, and that there is therefore no binding contract; or (v) J
contends that a contract was validly formed but K denies this on the basis that he had
been coerced by coercion or undue influence to enter into the contract; or (vi) L
contends that a contract was validly formed but M denies that there was a contract on
the basis that the contract was made for an illegal purpose and was therefore no contract
at all; or (vii) N contends that a contract was validly formed but that because O had
failed to perform his side of the agreement, N was released from the obligation to
perform; or (viii) P contends that there was a contract but Q argues that because of
legislation enacted by the government of the country in which he was required to
perform, the contract has ceased to be legally binding; or (ix) R contends that there was a
contract with S, but S argues that he was not the person with whom R agreed, and that
he is not therefore bound by the contract; or (x) T contends that he never made a
contract with U and that he is therefore free to sell his goods to another person, but U
claims that T made a contract with him and that T is not free to act as though there were
no contract; or (xi) V contends that he made a contract with W, but W says that V lacked
capacity to make a contract and that W is therefore not bound; or (xii) X contends that
he made a contract with Y Co, and that the person who acted on behalf of Y Co was Z,
but Y Co argues that Z did not have authority to act on Y Co’s behalf.
What these cases have in common is that a court, called upon to determine the rights and
duties of the parties, will need to decide whether they are bound by a contract, and if
they are, what the obligations of that contract are. The allegation of a contract lies at the
heart of the dispute. But an allegation of contract is not the existence of a contract. The
rules of private international law have to be sensitive to the fact that where the parties are
in disagreement as to whether there is a contract. The rules of private international law
cannot say ‘suppose that there is a contract; now apply the rule which would apply if
there were a contract’, for that would, in some sense, be to pre-judge the case. On the
other hand, in a case in which there may be a contract between the parties, and where the
answer to the question whether there is a contract will be central to the litigation, it
makes sense for the rules of private international law to treat the broad issue as a
contractual – meaning that it is sufficiently close to a contract for these to be the rules to
be applied – and to proceed on that basis. A number of such relations are, at least for the
purpose of domestic law, set out in the Contract Act 1872, in Sections 68 to 72. It seems
very likely that for the purposes of private international law, these relations are linked to
the proper law of the contract, or to a law identified on a similar basis: we return to these
specifically under point (50) of this Chapter.

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(42) Some problems which may be encountered in the private international law
of contracts
This point may be skipped over by those who wish to avoid some of the complexity of
the law. But it is useful to explain, before examining the rules of private international law
as they apply to contractual issues, some of the problems which the law must either face
up to or ignore.
As will be seen below, the first rule of law in this area is that a contract is governed by
the law which the parties chose to govern it. This makes perfect sense if one accepts, as
the common law does, that the parties may decide for themselves the terms on which
they will make a contract. If they may choose the terms of their contract, it seems to
follow that they should be able to choose, as a term of the contract, the legal system
which will provide the rules by which it will be interpreted and understood. Although
their freedom may not be absolute, it is generally agreed that there are few limits.
This works excellently well if the parties who have come before the court agree, more or
less, that they are parties to a contract. It is possible to start with the contract which the
parties agree that they made, identify the law which governs it generally, which we will
call its proper law, and then ask whether the precise issue before the court is one which is
linked to that proper law (as most issues related to contracts are) or is linked (as a small
number of issues related to contracts are) to a different law. It is hard to see how anyone
could disagree with that approach.
But what if the parties do not agree that they made a contract ? Take a case in which the
plaintiff contends that they did, while the defendant denies that they did agree to a
contract. The answer to this question will be the one on which practically the whole of
the case will turn; and this may very well depend on which legal system’s rules are used to
provide the answer to our question. The answer which most common lawyers would give
would be that the court should look to the law which would have governed the contract
if the contract were agreed to be valid. There is some sense in doing so. First, the law
which governs the contract has the privilege of confirming that the contract is valid and
binding as well as the task of deciding that it is not valid. It makes sense to look to the
law which would govern the contract to decide whether there really was a contract by
which the parties were bound. Second, where parties have allowed themselves to get into
such close proximity that a law might consider them to be contractually bound, it may be
said that each has taken the risk of having his legal position assessed and determined by
reference to the law which would have governed that contract if the contract had been
made. Third, if one were to ask the parties which law should be applied to answer this
threshold question, the answer may very well be the law of the supposed contract.
On the other hand, suppose that there have been negotiations between a Myanmar and a
Thai person, and that when the negotiations come to an end, they disagree about
whether the negotiations resulted in a contract. Suppose that if this disagreement were
resolved by the application of Myanmar law, as set out in the Contract Act, the answer
would be that there was a valid contract; but if one were to apply the corresponding rules
of Thai law, the answer would be that there was no contract. What should a court do ? If
it applies Myanmar law, it appears to be taking sides, in the claimant’s favour, when there
is no obvious reason to do so: why should it not take the defendant’s side, and apply
Thai law ? There are two sides to the dispute, and either one may be right. If the plaintiff
argues that any contract which they made or make would be governed by Myanmar law,

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the defendant may counter by arguing that one cannot justify the application of Myanmar
law, on the basis that it is the law which governs the contract, if there actually is no
contract; the defendant may say that because there was no contract there is no basis for
applying Myanmar law to answer the question whether there was a contract. If we apply
the law which would govern the contract to decide whether it is valid in the first place,
we are putting the cart before the horse, and it is hard to see why that would be a
principled thing to do.
It gets even worse if we assume, in the example just mentioned, that the reason the
plaintiff argues that Myanmar law would govern, or would have governed, the contract if
there had been a contract, is that there was an express ‘choice’ of law by the Myanmar
party. Suppose that, in his communications with the defendant, he had proposed that
there should be a contract between them, and that it would be governed by Myanmar
law. As we shall see, an express agreement on the law which will govern a contract will
be respected and given effect under the private international law rules of Myanmar. But if
it were to be argued by the plaintiff that the law which would govern, or would have
governed, the contract will be the law of Myanmar, pointing to his choice of Myanmar
law (and to the absence of contrary words in correspondence with the defendant), then
that really does seem to go too far. The law is really tricky at this point.
We will return to the tricky issues of disputes as to the formation and very existence of
the contract in due course, under point (48) of this Chapter. As we shall see, the law is
not very clear, and the approach which a Myanmar court would be expected to take is
not very easy to indicate. But it is important, at this point, to appreciate why the problem
exists. The rules of the common law, as these apply in Myanmar and in India, will respect
and will give effect to exercises of autonomy or contractual freedom, at least by those
who have capacity to exercise that freedom. But the autonomy which is respected, and
given effect to, is the joint autonomy of the parties, not the autonomy of one, but not the
other, of the parties. It therefore makes no sense - because it undermines the true
principle of respect for joint autonomy - to make reference to a ‘choice of law’ made by
one of the parties. It has no status, no right to be taken seriously, unless the court is
satisfied that it is the choice of both parties, acting jointly.
It is fair to say that the English common law was not very successful in explaining this
point; that there is no Indian authority which deals with it, and nothing in the written or
unwritten laws of Myanmar which faces up to the challenges posed by cases in which one
side argues that there was a contract by which they were bound but the other side denies
it. There is little doubt that cases of this sort should be dealt with by the rules which we
will endeavour to set out in this Chapter. What is less straightforward is to explain what
those rules should be.
The problem of the common law is that there is no superior, or external, rule to which a
court may refer for an answer: the common law has to generate the answer for and by
itself. In Europe, in recent years, a statute has been adopted - it applies as part of the
private international laws of all the Member States of the European Union - to provide
an external point of reference for tricky questions like this. It is, perhaps, disappointing
that the common law of England has been displaced by a statutory rule. But one should
admit that the problems of autonomy are not easily soluble by applying the principle of
autonomy. Sometimes an answer to intractable questions has to be supplied by an
outside source; and in the private international law of contract this may be the way ahead.
Accordingly, we will note this statutory rule when we reach point (48) of this Chapter.

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We will do so not because a court in Myanmar has any duty to apply141
a rule of
European law, but because it may help a court in Myanmar to take a clear approach to a
problem which has puzzled courts, and bewildered writers, in many other common law
jurisdictions.
We proceed to deal with the identification of the law which will apply to most issues
considered to be contractual in those cases in which the very existence of the contract is
not in dispute. We will have to return to the more problematic cases later.
(43) The ‘proper law of the contract’
A contract is governed by its ‘proper law’.
For over a century, the common law rules of private international law have accepted that
this means the law by which the parties to the contract intended it to be governed.142
As
we will see below, the manner in which the proper law of a contract is identified depends
on whether the parties have formed and expressed their intention as to the proper law: if
they have done so, the proper law will not be difficult to identify, but where they have
not been so obliging, the task facing a court is a more difficult one. We examine the law
which applies where the parties have made and expressed their intention as to governing
or proper law under point (44) of this Chapter, and the task which faces the court where
they have not done so under point (45).
It seems likely that the ‘proper law’, with its focus on the intentions of the parties,
replaced an earlier understanding, that a contract was governed by the law of the place at
which it was made. In a world in which there was little international travel, and very little
in the way of international communications, this may have made sense. Contracts were,
in most cases, made in one place - they were not made by letter, or telephone, or fax, or
computer - with the persons who made the contract both being present in that place.
The idea that a contract should be governed by the law of the place in which it was made
was a sensible one. But by the middle of the 19th century, international trade, travel, and
commerce was much more common, and the idea that a contract should be governed by
the law of the place at which it was made was less appealing. The point arose sharply in a
case in which a Scottish lawyer was sent to Mauritius where he was to serve as Chief
Justice. His journey was to be undertaken by ship to Suez, by land across Suez, and then
by ship to Mauritius. While he was at Suez, he made a contract with an English company
for the transport of his luggage to his port of embarkation. The luggage disappeared and
was never seen again; and the question which arose was as to the law which governed the
contract for transport of the luggage. The idea that this individual’s contract with an
English company might have been governed by whatever law was in force at Suez does
not appear to have been attractive to the court. Instead, it decided that the parties to the
contract must have intended their contract to be governed by English143
law, and that
was that: the idea that a contract was governed by the law of the place at which it was
made was not really heard of again.
141 Presumably under Myanmar Laws Act, section 13(3), on the basis that the taking up of this
rule would be justified by justice, equity and good conscience.
142 See State Aided Bank of Travancore Ltd v Dhrit Ram (1942) LR 69 IA 1, in which the Privy
Council accepted, in an Indian appeal, that a contract was governed by the law chosen by the
parties expressly or by implication.
143 The idea that a Scotsman might have intended that his contract be governed by the law of
Scotland, rather than the law of England, does not appear to have occurred to the court.

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It seems likely that a court in Myanmar would agree with this, and would not consider
that a contract was governed by the law of the place at which the contract was made. In
any event, such a rule would today be extremely inconvenient. In international trade and
commerce, contracts are frequently negotiated between and concluded by persons who
are not in the same country, but who deal with each other by communication of one sort
or another. If a contract is made between a Myanmar company and a Japanese company,
and the negotiation and settling of terms is all done by telephone or computer, where is
the contract made ? Although the Contract Act has rules by which to decide when a
contract is concluded,144
these are rules which determine when a contract is made, not
where a contract is made, and in any event were not designed to serve as rules of
Myanmar private international law. And anyway, if a contract is made between two
persons, one in Myanmar and one in Japan, it seems natural to say that the contract was
made in Myanmar and Japan, because the contract was made by things done in Myanmar
and in Japan. For these, and probably for other reasons, the idea that a contract is
governed by the law of the place at which it was made would be a very inconvenient rule
in the 21st century.
Having said that, it is necessary to mention again that Section 11 of the Limitation Act
appears to regard the place where the contract was made as being the law which governs
the substance of the contract.145
That provision seems to say that if the time bar
provisions of the law of the place where the contract was made - rather than the time bar
provisions of the legal system which is the proper law of the contract - have extinguished
the right on which the suit would have been based, then the Myanmar court will give
effect to that time bar. It seems likely that this provision was worded by a draftsman who
still believed that a contract was governed by the law of the place where it was made, and
who had not really grasped that the common law rules of private international law were
undergoing a change in favour of the proper law. If it cannot be overlooked in its
entirety, Section 11 of the Limitation Act should be confined to questions of time bars,
and should not be taken to have any wider effect.
If a contract is governed by its proper law, that proper law has several functions. But the
first and most important will be to provide the rules by which arguments about the legal
validity of the contract are governed. If, according to the rules which we are about to
examine, it is decided that the proper law of the contract is the law of Myanmar, it will be
the Contract Act 1872 (or any other relevant laws of Myanmar) which will decide
whether the contract is valid and binding as a source of legal obligations, or is not so
binding. If, according to the rules which we are about to examine, it is decided that the
proper law of the contract is the law of Thailand, the Civil and Commercial Code 1925
of Thailand (or any other relevant laws of Thailand) will decide whether the contract is
valid and binding as a source of legal obligations. It follows that the proper law of the
contract may tell the court that there is no contract after all. This may appear strange:
how can the law which governs a contract lead to the conclusion that there is no contract
? Does that not contradict the reason for looking to the proper law in the first place, for
if there is no contract, there is nothing to produce a proper law ? But it is the law, for no
other approach makes any sense. If the parties can be seen to have chosen a law, they
will have chosen the law which will tell them whether they are or are not bound to each
144 Section 4(2) defines when the communication of an acceptance is complete; Section 8 defines
acceptance by the performance of the conditions of a proposal.
145 See above, Chapter 4, point (33).

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other. If it feels more natural to refer to the ‘provisional’ proper law, or something like
that, this would not be a big problem. But it is not really necessary to do so.
The law which governs a contract must be determined at the date on which the contract
was made. The proper law must be the law of a country, such as the law of Myanmar or
the law of England. It is not possible for a contract to be governed by the laws of two
countries: a contract cannot be governed by ‘the laws of Myanmar and India’. Nor can a
contract be governed by the rules or texts of a religion, for these are not laws in the sense
used here. A contract, therefore, cannot be governed by ‘Moslem law’,146
or by Jewish
law.147
A contract cannot be governed by abstract principles of good faith or commercial
morality, or by ‘international law’.148
A contract cannot be governed by no law at all:
every contract is governed by a law, even if the parties have agreed that that law may be
changed at a later date. The proper law cannot be left ‘floating’, or as a vacuum to be
dealt with by the parties a later date:149
if the parties have tried to make such an
agreement, it will be ignored. This is because, as a matter of principle but also of
common sense, all contracts have to have a proper law from the instant of their creation.
For if there is no governing law, there is no standard by which to assess, for example,
what the contract permits or requires, or whether the contract has been performed or
breached, and so forth. It is very unlikely that a contract can be governed by two proper
laws, for this would be bound to give rise to clashes of rule and interpretation which
could not then be resolved. It is entirely possible for related contracts to be governed by
different laws, though. Suppose a Myanmar distributor agrees with a Chinese company to
distribute the Chinese company’s goods in Myanmar. It is perfectly possible for the
overall distribution contract to be governed by Chinese law, but for the individual
contracts of sale or supply of goods to the distributor to be governed by Myanmar law,
or vice versa.
(44) The ‘proper law of the contract’ when it is chosen or agreed by the parties
Subject to the points made in point (43) above, which explain the laws which can and
cannot be held to govern a contract, and hence to be the proper law of the contract, the
common law accepts that if the parties had a common intention that a particular law
should govern the contract, the law which they intended will, in principle govern it, and
will, in most cases, resolve issues which are contractual in nature. The parties may assist
the court by expressing their common intention, in which case the court will be able to
proceed to the proof and application of that law as the proper law; but it may instead be
argued that the parties had a common intention but which they did not express. The
common law rules probably accept that an unexpressed, but proven, intention as to
governing law will be as effective as an expressed choice of law would be. It will,
however, be more likely to provoke disagreement, and the cost and trouble of trying to
decide whether the parties did have a common intention, but which they did not
communicate, means that this is always a very unsatisfactory state of affairs. To put the
matter in simple terms: the private international law rules of Myanmar allow the parties
to choose the law to govern their contract, and gives the parties every encouragement,
146 Although a contract may be governed by the law of a country which has incorporated
principles drawn from a religious code into its civil law.
147 If this is what the parties really want, they are free to agree to arbitration before a tribunal
which has power and competence to apply these bodies of rules which are not laws.
148 If this is what the parties really want, they are free to agree to arbitration before a tribunal
which has power and competence to apply these principles which are not laws.
149 National Thermal Power Corp v Singer Co [1992] 3 SCC 551.

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where they do actually agree upon the law to govern the contract, to express that choice
in terms which will make it easy for a court to give effect to it as the proper law of the
contract.
(a) Proper law of the contract chosen and expressed
The parties may choose any law to govern their contract. Occasionally someone will
question whether parties may choose the law of a country which has no objective
connection with the contract, but the answer almost always is that they may.150
There are
many reasons for this, but two will suffice. First, if the freedom of the parties in this
respect was limited, perhaps by a rule that the law chosen had to have some kind of
connection with the contract, it would be necessary to explain what counted (and what
did not count) as a sufficient connection. To most lawyers this would appear to be a
completely useless exercise. If it is suspected that the parties have chosen a law in order
to avoid or evade the provisions of a legal system which would otherwise have applied to
the contract, so what ? The whole point of freedom to make contracts in general, and to
choose the law in particular, is to allow the parties commercial freedom. It would be a
very limited freedom if it were to be withdrawn in any case in which there was a real
reason for exercising it. Second, the choice of a law unconnected with either party may
reflect the fact that neither party was prepared to trust the other party’s law. If a contract
is made between a Myanmar company and a Thai company, each party may be unwilling
to trust the other party’s law: a choice of (say) English law, or of Indian law, may be a
choice of a neutral law,151
whose rules are clear and predictable and which contain no
traps into which an unwary foreigner may fall. It has never really been doubted that the
parties may choose any law they like.
It follows that the parties may choose a law to govern their contract in circumstances in
which it appears that they have done so in order to avoid the application of a law which
would otherwise have applied: they may have chosen one law to avoid the application of
another law. If parties choose a law other than Myanmar law, a Myanmar court may still
hold that certain rules of Myanmar law apply to the contract, as ‘overriding ‘ or as
‘mandatory’ rules.152
But if they choose a law in order to avoid the application of a
foreign law, a court in Myanmar will neither object nor complain.
Given that the parties may choose the law to govern their contract, it is rather
unfortunate when they do so in a careless manner. For example, it is helpful if the parties
express their choice in conventional form: ‘this contract is governed by the law of X’, for
example. Sometimes a less clear form of words may be used: ‘this contract shall be
construed in accordance with the law of X’ will be taken as a choice of the law of X to
govern the contract, because a contract is construed in accordance with its proper law.
But sometimes the parties choose a law which does not actually exist. An agreement
which stated: ‘this contract shall be governed by British law’ would be a good example,
because there is no such thing as British law (there is English law, and Scottish law, and
the law of Northern Ireland), though most people will interpret this as though it had said
150 See Vita Foods Inc v Unus Shipping Co Ltd [1939] AC 277; National Thermal Power Corp v Singer Co
[1992] 3 SCC 551. Vita Foods Inc v Unus Shipping Co Ltd was followed in China-Siam Line v Nay Yi
Yi Stores BLR (1954) HC 270.
151 If it is possible to choose a neutral court (see, for example, Modi Entertainment Network Ltd v
WSG Cricket Pte Ltd [2003] 4 SCC 341, it must be possible to choose a neutral law.
152 See further, point (47) below.

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‘English law’. Likewise, if the contract states that it shall be governed by ‘Korean law’:
there is no country called Korea, but two Korean states with very different laws. Unless
one of the parties to the contract is from North Korea, it seems certain that this will be
understood as a choice of the laws of South Korea. If a Myanmar company makes a
contract with an entity from the island of Taiwan, and the contract states that it is
governed by ‘Chinese law’, it might be awkward to have to decide whether this was a
reference to the law of the People’s Republic of China or of the Republic of China, as
the Taiwanese state styles itself. Usually the court can solve these questions with a bit of
common sense, but it should not be necessary, and it would not be necessary if
contracting parties did their jobs properly.
Occasionally in maritime cases one will encounter a really troublesome choice of law:
‘this contract shall be governed by the law of the carrier’s principal place of business’, as
is used in one standard form of contract. There is a real risk that this will not make sense,
and will not work: is the ‘principal place of business’ the place of the day-to-day running
of the business, or the place where senior management, which directs the running of the
business, has its meeting place ? Is the carrier the owner of the vessel on which the goods
are carried, or the company which has undertaken the carriage (and which has discharged
its duties by sub-contracting the carriage to another company) ? Such choices of law are
worse than useless unless the parties to the contract can agree in advance what they really
mean.
(b) Proper law of the contract chosen or agreed, but not expressed
It is possible, at least in theory, that parties to a contract may have agreed upon the law
which they wish to have govern it, but not have made that common intention obvious or
express. The common law accepts that an implied, or inferred, or unexpressed common
intention may identify the law which will govern a contract, but naturally, the exercise of
exploring whether there really was such a common intention is liable to lead to difficulty.
For the question is what the parties did intend, or did choose (even though they have not
said what they intended or had chosen). It is not ‘what would the parties have intended
or have chosen if they had put their minds to it?’. On some occasions, the fact that the
parties did not express a choice of law may mean that they gave the issue plenty of
thought but, in the end, could not agree and decided to leave it to the court to find the
governing law by other means. The question for the court, therefore, is whether it feels
sufficiently sure that the parties did form a common intention on the law which would
govern the contract.
If the parties do not express a choice of law, but do instead choose and identify the court
or tribunal before which all disputes will be resolved, it is sometimes argued that this
conveys an implied choice that the contract will be governed by the law which applies at
the place of the court, or at the place of the arbitration.153
The High Court has held, for
example, that the wording ‘all claims must be made at the port of delivery’ in a bill of
lading is to be read as a choice of law for the law in force at that place.154
Even though
some courts and lawyers have been attracted by this reasoning, it really is not convincing,
and it should not be adopted. If the parties went to the trouble of choosing, and
expressing a choice, of court, but did not express a choice of the law which would apply to
the contract, it is easy to conclude that they could agree on the court but did not agree on
153 See above, Chapter 2, point (17)(a).
154 China-Siam Line v Nay Yi Yi Stores BLR (1954) HC 270.

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the law. Especially where they have chosen a court which is experienced in the
application of (what is to it) foreign law, they may well have been happy to agree to the
court and to leave it to the court to apply its own rules on private international law to
decide what law to apply to the contract. Having said that, it must be admitted that if
parties to a contract choose the courts for any disputes which may arise, it may be
inferred that they intended Myanmar law to govern the contract, on the basis that a
Myanmar court is not experienced in the application of foreign laws.
However, where the parties have chosen an arbitral tribunal for the resolution of their
disputes, they will have expressed a choice that their dispute, and the identification of the
law which is to be applied, should be kept away from the courts altogether. As arbitrators
are not usually selected on the basis of their experience as lawyers, the idea that an
express choice of arbitral tribunal is an implied choice of law to govern the contract is
untenable (even though it is sometimes said).
The fact that a contract is written a particular language is no indication that the parties
intended the law of the country whose language it is to be applied. If the contract is
written in the English language, or uses English terminology, will this indicate that the
parties intended it to be governed by English law ? Why not American law, or Australian
law, or the law of New Zealand, or even the law of Singapore ? The language and form
of the contract is not a reliable guide to anything. The fact that there are two possible
systems of law which may have been chosen, and that under one of them the contract
would be valid while under the other it would not be, is sometimes taken as a reason to
lean in favour of the former and against the latter. But although validity or invalidity may
be a consequence of the choice of the parties, it seems unlikely that it was a reason for
the choice, for if so much importance turned on it, one would expect the parties to have
expressed the agreement to which they had come.
(45) The ‘proper law of the contract’ when it is not chosen or agreed by the
parties
Where the parties do not take advantage of the freedom which Myanmar private
international law gives them to choose or to agree upon the law which will govern their
contract, the proper law must be identified by the court by other means. A court will
therefore ask: ‘with which law or legal system does the transaction have its closest and
most real connection?’155
A test which is expressed in such a form is almost bound, if it works well, to produce the
most desirable answer: of course a contract should be governed by the law with which it
has its closest connection. The trouble is that the operation of this test is rather less
straightforward, for there may not be as much guidance as the court may really need to
allow it to operate the test in a smooth and predictable fashion.
In principle, the approach demanded by this test is that the court - no doubt with the
assistance of the parties - identify all the material facts and matters associated with the
contract, and in the light of this information identify the law with which there is the
closest connection. That connection may not be very close: in a contractual situation
with elements in many countries, the idea of ‘closest’ connection may really only mean
‘least far away’. In other cases the factors pointing to the possible laws may be very finely
155 Delhi Cloth & General Mills Co Ltd v Harnam Singh [1955] 2 SCR 402.

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balanced: in a contract in which a Myanmar buyer is to buy machinery from a Chinese
seller, taking delivery in Myanmar but paying by bank transfer to an account in China, it
may be that the contract is as closely connected with Myanmar law as it is with Chinese
law. In such a case it may be difficult to predict the answer which a court will reach, but
if the parties have failed to exercise the freedom which the rules of private international
law extend to them, by failing to choose a law to govern their contract, they can hardly
complain if the answer given by a court in these circumstances is one with which they are
unhappy.
Not all factors have the same weight in this exercise. The task of the court is not to
assemble and count up the factors which point to one law and another, and conclude
that the contract is most closely connected to the law which has the greatest number of
pointers. Each of the factors has a certain weight, this probably based on how likely it
would be that this factor would play a part in the decision which is the closer law. For
example, the place of performance of the contract may have a significant weight in this
exercise, at least if the whole of the performance called for by the contract is located in a
single state; by contrast, the place of contracting (which may, of course, be more than
one place) may have rather less weight. The reason for this is that the place of
performance is usually fixed and deliberate, whereas the contract could have been made
anywhere. The places of residence of the contracting parties may have some weight; and
in the case of carriage by sea, the flag of the ship may be significant. But in the end the
analysis is one which the court has to make for itself. It has to ask where the transaction
or contract had its centre of gravity. This will be easy to answer in some cases, less easy
in others.
If the contract with which the court is concerned is closely connected with another
contract, it will often make sense if they are governed by the same law. For example, if a
contract of insurance is governed by the law of country X, it would be convenient if a
contract of reinsurance in respect of the same risk were to be governed by the same law.
But this cannot be pressed too far: if services provided to a customer under a contract
governed by the law of state Y, and the service-provider takes out insurance to cover any
liability which he may incur, there is no particular reason for supposing that the insurance
should be governed by the same law.
It will be apparent that a substantial measure of unpredictability when a court is called
upon to determine the law with which a contract has its closest and most real
connection. If this is inconvenient for the parties, they really have only themselves to
blame, because if they had chosen and expressed a choice of the law which they wished
to govern their contract, all the difficulty would have been avoided. Contracting parties
sometimes do foolish things. Not choosing, and expressing their choice of law to govern
the contract is one of them.
(46) The issues which are referred to (and answered by) the proper law of the
contract
Many of the issues which may arise in contractual litigation are liable to be referred to the
proper law of the contract for that law to supply the answer. At this point we will
examine issues on which the proper law of the contract is the law, and the only law, to
which the issue is linked and the court will look. In contrast with these, under point (47)
below we will deal with those issues on which a court in Myanmar may look to the
proper law of the contract, but may also (or instead) make reference to a law other than

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this which is the proper law of the contract: for reference, these issues are those of
formation of the contract, the capacity of parties to bind themselves by contract, the
need for compliance with formal requirements, the effect of illegality under various laws,
the quantification of damages, and the availability of other remedies, including specific
relief.
The principal function of the proper law, ascertained in accordance with the rules which
we have just examined, is to provide the answers to questions concerning the material or
essential validity of the contract; the interpretation of the terms used in the contract; the
effect of the contract, including any effect on persons who are not party to it; the nature
of the rights and obligations created by the contract, the discharge of the contract by
performance and by things other than performance; and the consequences of breach.
The proper law of the contract will decide whether a mistake by one or both of the
parties to the contract affects its validity and enforceability (and if it may affect it, it will
also determine what the consequence is). It will, in principle, determine the effect of
fraud, or misrepresentation, or duress, or undue influence, on the obligations created by
the contract: whether or not this makes perfect sense, it is impossible to see any better
alternative. The proper law of the contract will determine whether there was any need for
(and if there was, whether there was) any consideration.
The proper law of the contract will decide what the terms of a contract actually mean.
For example, the contract may have provided for payment in ‘dollars’ without making it
clear whether this means US dollars or Singapore dollars: the proper law of the contract
will interpret the wording used and give the answer. For another, legal systems may take
different approaches to the question whether a contractual term is to be interpreted as
one which requires the obliged party to perform, or obliges him only to use his best
endeavours to perform. The proper law of the contract will determine whether any terms
are to be implied, or not to be implied, into the contract; and it will determine whether
there is an overriding duty to act in good faith.
The proper law of the contract will decide who is bound by the obligations created by
the contract, and who is able to claim the right to enforce the contract. For example,
many common law systems have a strict rule according to which only the parties to the
contract may sue and be sued on it; other systems are more flexible, and allow someone
who was not a party to the contract, but who was intended to derive a benefit from its
performance, to sue on it. All such questions are referred to the proper law of the
contract for their answer.
The proper law of the contract will decide what has to be done to perform the
obligations of the contract. It will decide – if the parties have not specified it – where
contractual obligations are required to be performed. It will decide whether the party
who is obliged to perform an act has any choice over where that act is to be performed.
The proper law of the contract will decide whether the non-performance by one of the
parties allows the other to bring the contract to an end, or to take any other steps.
The proper law of the contract will decide whether the contract has been broken, and if
it has been broken, which are the kinds of loss for which the plaintiff is entitled to sue.
The proper law of the contract will determine what counts as loss, and whether the loss
which the plaintiff claims is in principle recoverable.

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In short, the proper law of the contract serves as the book of instructions which a court
will use when seeking to interpret and give effect to the contract. The fact that it answers
so many of the questions which may arise underlines how important it is that the parties
to a contract apply their minds to, and choose, and express their choice, of the law to
govern the contract. Life is so much easier, and litigation is so much less trouble, when
they do.
(47) The issues which are not referred to the proper law of the contract alone,
or not referred to the proper law at all
Although the proper law of the contract will provide the answer to most questions which
may arise in litigation concerning a contractual relationship, there are some for which it
does not. At this point we are concerned with those issues on which the proper law of
the contract may operate alongside another law. Under the following point (48) we return
to some problems which we raised at the outset, principally concerned with the
formation of the agreement, for which recourse to the proper law of the contract is
fundamentally difficult to justify. Here, however, we are concerned with formalities,
capacity, remedies, illegality, and public policy. For these, the sense that the proper law,
and only the proper law, has a claim to be applied is not as compelling as it was when
considering the issues dealt with under point (46) above.
(a) Formal requirements
Whether a contract needs to be made in writing, or made orally but evidenced in writing,
or notarised, or witnessed, or sealed, or any other similar requirement, is regarded as a
matter of formal validity, or of formality. It is generally understood that if the contract
satisfied the formal requirements of the proper law (if, indeed, it has any requirements), it
will be formally valid. If it does not comply with these, but complies with the formal
requirements of the place where the contract was made, it will be considered to be
formally valid. It is unlikely that a contract which was not made in Myanmar, and which
does not have Myanmar law as its proper law, will need to comply with the formality
requirements of Myanmar law, but if any of these requirements – there are not many of
them – is considered to be a procedural or evidentiary requirement,156
that rule of
Myanmar law may need to be complied with as well.
(b) Capacity of parties to contract
In a commercial contract, if the parties would be regarded as having capacity by the rules
of the proper law – for example, the proper law considers that a person is of the age of
majority and is not otherwise debarred from contracting – it would be inconvenient if a
rule taken from another legal system should be applied to invalidate the contract.157
The
same would be true if a contract were governed by Myanmar law but one of the parties
to it were a married woman from a country under the law of which she had no personal
capacity to contract without the consent of her husband.
On the other hand, it would be strange if a person who lacked capacity under his or her
personal law could ‘give himself capacity’ by purporting to make a contract with a proper
157 An Indian case (TNS Firm v Muhammad Hussain (1933) 65 Mad LJ 458) suggested that in a
commercial case, capacity should be governed by the law of the place where the contract was
made, but which may make the answer depend on factors which have little real significance.

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law under which he would not be under any incapacity. It may therefore be that the rule
in Section 11 of the Contract Act
11. Who are competent to contract. Every person is competent to contract
who is of the age of majority according to the law to which he is subject, and
who is of sound mind, and who is not disqualified from contracting by any law to
which he is subject.
should be taken as a rule of private international law. A person would therefore need to
have capacity according to his or her personal law;158
and a company would be required
to have capacity according to the law under which it was organised or incorporated.
Certainly where a party does not have capacity by reference to this law it will be difficult
to persuade a court to enforce the contract.
(c) Remedies for breach of contract
The law on remedies for breach of contract is governed in the first part by the proper
law and in the second part by the domestic law of Myanmar.
It is the function of the proper law of the contract to define and clarify the obligations of
the contract. It will decide whether the contract has been breached; and it will decide, in
principle at least, the consequences of that breach. It will determine whether the loss or
damage of which the plaintiff complains can justify a claim for compensation, for the
obligation to compensate is an obligation which is part of the contract: to put it crudely:
if you make a contract governed by US law you assume an obligation, if you breach the
contract, to compensate the claimant for those losses which US law says you are liable
for. The proper law – here US law – will determine whether the fact that the loss is
remote or indirect, for example,159
is a barrier to the recovery of damages.
But if the proper law of the contract provides that a particular form of loss or damage
may be compensated for, the quantification of the loss – the calculation of how much
damages should be awarded – is done by the application of Myanmar law, not US law. If
for example the contract governed by US law is breached, and as a matter of US law it is
possible to obtain damages for loss of business opportunity, the quantification of the
sum of damages which a Myanmar court will award will be done by applying Myanmar
laws and values, not US ones. This means that a court in Myanmar will not have to award
damages which are at the extraordinarily high level which a US court would award. In
technical terms, this result comes about because the quantification of damages is a matter
of procedure, as we saw under point (32) above.
The same reasoning explains why the Myanmar court will apply the Specific Relief Act to
decide whether to make an order of the type which falls within that Act. Even though
the contract is governed by foreign law, the question whether to grant one or another
remedy by way of specific relief, is a matter of the law of remedies, a matter governed by
Myanmar law and not by the proper law of the contract.
(d) Illegality in making or in performing the contract
158 Technip SA v SMS Holding (P) Ltd [2005] 5 SCC 465; see also Rohilkhand and Kamaun Bank Ltd v
Row (1884) ILR 7 All 490; Kahiba bin Narsapa Nikhade v Shripat Narshiv (1894) ILR 19 Bom 697;
Shrinivas Abaja Desai v Damodar Appaji AIR (1946) Bom 452.
159 See Section 73(2) of the Contract Act 1872, for use of these terms.

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One should start with the proper law of the contract. If the contract is illegal according
to the proper law of the contract – that is to say, either the making of the contract is a
criminal wrong under the proper law, or the performance of the contract would involve
the commission of a criminal wrong according to the proper law – there will no
obligation to enforce in a Myanmar court. No doubt the proper law will also decide
whether any money or other property has to be returned.
But the proper law is not the only law which is entitled to have a view about the legality
or illegality of the contract or its performance. If a contract is illegal as a matter of
Myanmar law – that is to say, either the making of the contract is a criminal wrong under
Myanmar law, or the performance of the contract would involve the commission of a
criminal wrong under Myanmar law – the Myanmar court cannot enforce the contract. It
would be an astonishing thing if, for example, a court in Myanmar were to enforce a
contract for the export of goods which may not be exported from Myanmar, simply
because the proper law of the contract did not regard the contract as an illegal one.
If the contract is legal according to its proper law, and involves no infringement of the
criminal law of Myanmar, it may still be one which the Myanmar court will refuse to
enforce if the performance of the contract would be illegal according to the law of the
place where performance was required to take place. It may be that this rule is not
triggered if the illegality in the place of performance is of a very minor or technical kind,
but the courts of Myanmar cannot be expected to order a person to pay compensation
for refusing to commit what would be a crime in the place where it was to be performed.
(e) Public policy
Related to the previous point is the proposition that a Myanmar court cannot be
expected to enforce a contract which it considers to be contrary to its public policy.
Examples of this kind of thing are rare, but a contract may be contrary to public policy if
it involves conduct which would be unlawful if it were to take place in Myanmar. As
Myanmar criminal law does not, generally, apply to conduct outside Myanmar, a contract
which involves doing something which would be unlawful if done in Myanmar will
probably not be enforceable in Myanmar, on the ground that the conduct is contrary to
public policy. A contract to smuggle goods from Malaysia to Thailand, for example,
could not be enforced in Myanmar on this ground; it would not matter whether the
conduct in question was illegal under Thai or Malaysian law.
(f) Cases to which Myanmar statutory law applies in a mandatory way
For the sake of completeness, we should remind ourselves that there will be some issues
on which a rule of Myanmar statute law applies even though the contract in question is
governed by a foreign law. The examples of this are relatively few, but they are not
confined to the cases in which the law of Myanmar makes the contract or its
performance illegal. But suppose that the law of Myanmar were to provide that all
transactions of a certain kind required the approval of a Minister, or required registration
on a certain public register, and that if the approval or registration did not take place the
transaction was void (if it were also criminally illegal, it would fall under the provision for
illegality, discussed above). In such a case, a court in Myanmar would accept that the
contract was governed by its proper law, but would also accept that the statutory
instruction, made by the Myanmar legislators and communicated directly to the Myanmar

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judge, would have to be applied, and would therefore override or displace the answer
which the proper law of the contract would have given.
For this result to happen, we need to be sure that the rule of Myanmar statute law was
intended to have this mandatory effect, of overriding and pushing aside the answer
which the proper law would have given. Not all statutes do this: many, perhaps most,
apply only when Myanmar law is the proper law of the contract. It would be ridiculous to
argue, for example, that the Contract Act 1872 applied to every contract litigated before
the Myanmar court even though the rules of Myanmar private international law
considered it to be governed by a foreign law. But statutes which deal with regulatory
matters, foreign exchange, and protection of the economy and of the essential interests
of the state, may be found to have this rather special effect.
(48) Problems which arise where there is disagreement as to the validity of the
contract, or the original creation of the contract
The situations which we have examined have been those in which the parties agree that
there was a contract between them, or at any rate accept that there was a contract but
which one of the parties may be entitled to escape from. In such cases, it is defensible to
use the proper law of the contract, because the parties agree, or accept, that there was a
contract, they must concede that it will have a proper law, for every contract must. If
they do that, using the proper law to answer questions arising from the contract seems
appropriate.
But if one party simply says that there never was an agreement – and that there therefore
never was a contract – it is not obvious that the proper law of the contract should be
used. If there really was no agreement and no contract, there can be no proper law of the
contract to use for any purpose; and if the court genuinely does not know – because it
still has to decide – whether there was an agreement and a contract, it does not seem
right to proceed by assuming that there was a contract and applying what would be its
proper law if it were to exist to decide whether it existed in the first place. We noted the
difficulty which this poses under point (42) above; it is now time to propose a solution.
The first thing to say is that the common law systems of the world have never found this
an easy problem to solve. It is not possible to look to the common law rules of private
international law as found in India, England, or Australia, for example, and to find a
good solution there: there is none. The second thing to say is, therefore, that a court in
Myanmar would be free to adopt any sensible solution which appeared to be right in
principle.
The third thing to say is that there is a good solution to be found in legislation adopted
across the European Union: a solution to this problem which is, therefore, acceptable to
common law systems as well as civil law systems; and it is therefore proposed that a
court in Myanmar could adopt it in order to clarify and improve its common law rules of
private international law: at least, there is no rule of Myanmar law which would prevent a
court declaring its common law in these terms. The rule is made in two parts. The
existence and validity of a contract should be determined by the proper law of the
contract, or by the law which would be the proper law if the contract were valid. But if
the party who says he did not agree to be bound is able to show the court that (i)
according to the law of the place in which he is resident or established he would not be
held to have made an agreement, and (ii) it would be reasonable for him to rely on the

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law of the place where he is resident, then he will not be bound and the court will
determine that there is no contract. The purpose of the second of these little points is
that what may be reasonable for a person who has no experience of making international
contracts, and who may have no reason to suspect that the law of a foreign country may
be different from what he was expecting, may not be reasonable for an experienced
trader or for a corporation which knows or ought to know of the existence and
difference of foreign laws.
It cannot be said that the solution described above is part of the private international law
of Myanmar; but equally, it cannot be said that there is any other answer to the particular
question. The solution described above tries to take a pragmatic, fair, and even-handed
approach to a practical problem, and in this sense it is ideally suited for adoption into the
common law rules of private international law as they apply in Myanmar.
(49) Particular kinds of contract with special rules
In a general book of this kind, there is no room to deal with the rules of private
international law as they apply to certain specialist kinds of contract. But indemnity and
guarantee, and agency, are species of contract which are, to a certain extent, separate
from the ordinary rules applicable to contracts as a whole. In the Contract Act 1872,
guarantee and indemnity, and agency, are made subject to detailed and precise rules of
domestic law, no doubt because of their commercial importance at the time the Contract
Act was made. Parts VIII and X of the Contract Act do not contain any rules of private
international law; but it can be seen that the two kinds of contract are liable to give rise
to particular problems. There are several reasons for this, but the most important is that
in each case there are at least two, interlinked or associated, contracts (actually, in the
case of agency there are three relationships in the triangle of principal, agent, and third
party). This is bound to mean that the rules by which the proper law of the contract is
ascertained will work in a somewhat different way: the rules are basically the same, but
the manner and outcome of their application may be distinct.160
Other parts of the common law world have developed, with increasing emphasis, distinct
rules and approaches for certain and particular types of contract. For example, contracts
for the sale or other dealing with land are almost invariably governed by the lex situs, the
place where the land is. More complex provision tends to be made for contracts of
employment, for contracts made by consumers with professionals, for banking contracts
(and in particular, for letters of credit), for insurance contracts, for wagering contracts,
and so on. There does not appear to be any similar development in the domestic law of
Myanmar, and no development of its rules of private international law by courts in
Myanmar for cases of this kind. It is therefore premature to embark on a detailed
treatment of this kind of contract, though it is important to be aware that in other parts
of the common law world, principles of private international law, applicable to these
specialist contracts, have increasingly been developed.
Contracts concerned with the international carriage of goods and persons, in particular,
are often regulated by international conventions; similar international agreements exist to
harmonise rules for the international sale of goods. Myanmar may be expected to adopt
160 In Ramaswamy Iyengar v Velayudhan Chettiar BLR (1952) SC 25, the Supreme Court accepted the
English view that a contract of agency was not necessarily governed by the law of the place
where the principal was established (and if it was, the application of Indian law could be
displaced on grounds of Myanmar public policy on the facts of the case).

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more and more of these; and where these conventions contain rules of private
international law – as some do – they will, when adopted and given effect in the law of
Myanmar, displace the ordinary rules of private international law which would otherwise
have applied.
(50) Cases concerned with relationships resembling contract
The rules which we have set out in this Chapter apply not only to contracts, but also to
claims in respect of ‘certain relations resembling those created by contract’. This language
comes from Part V of the Contract Act 1872, but it is necessary for the rules which we
have examined to apply to relationships which resemble contractual relations so closely
that it would make no sense to subject them to any other rules of private international
law.
The common law rules in other jurisdictions tended to come to the same general
conclusion, though many now prefer to view the issue as one in which the obligation is
not so much contractual, or resembling contractual, but concerned with ‘unjust
enrichment’. But these other common law systems all accept that where the relationship
between the parties resembles a contractual one, the rules of private international law
which apply to it, and to the parties to it, and to the existence, content, and consequences
of it, are the contractual ones. For no other solution would make any sense.
As a result, claims in respect of a contract which failed because one party lacked
capacity,161
claims by a person who has discharged another person’s debt,162
the claim for
compensation against a person who received a benefit for which he was expected to pay
but who has not paid for it,163
the claim against a person who finds another’s goods but
who allowed them to come to harm,164
the claim against a person who received money or
other property as a result of coercion or mistake,165
and claims which are analogous to
these, will be governed by the principles examined in this Chapter. If they arise in the
context of a relationship for which the parties chose the law which was to govern it, that
law will apply here as well; if they arise in the context of a relationship in which the
parties did not choose the law to govern it, the rights and obligations of the parties will
be governed by the law with which the relationship has its closest and most real
connection.
161 See Section 68 of the Contract Act 1872.
165 See Section 72 of the Contract Act 1872, though not every mistaken payment is paid on the
basis of a mistake about the existence of a contract (think of a gift, for example).

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CHAPTER 6
TORTS, AND SITUATIONS WHICH RESEMBLE TORTS
In this chapter we set out the rules of private international law applicable to torts.
(51) The meaning of ‘tort’ for the purpose of Myanmar private international law
The rules of private international for contracts and for relations which resemble
contracts were dealt with above. What those contracts and associated relationships have
in common is that it in most (if not in all) cases, the parties will be known to each other,
will have realised that they were coming into a relationship with each other, and will have
had an opportunity to choose the law which will apply to that relationship. A contract is
an agreement, and if the law to be applied is not one which the parties chose, it will still
be deduced from points of connection which the parties knew or should have known
about from the start: choice of law for contract is easy and uncontroversial, with only the
detail requiring analysis and debate.
Torts, by contrast, are the law’s accidents, messy and unplanned, and covering a more
diverse set of interests and duties. A single or uniform choice of law rule may struggle to
encompass and deal in a satisfactory way with trespass to the person, battery, negligence
causing personal injury, negligence causing other kinds of loss, economic torts and
conspiracies, unfair competition, liability for fires and animals, defamation, nuisance,
false imprisonment and interference with another’s property. But when causes of action
arising under foreign laws of tort and delict are added to the category for which a rule
must be found, a single and reliable choice of law rule, whether very flexible or very
inflexible, will be difficult to devise. Whereas the parties to a contract know of each
other, and the range of persons with a potential claim will be limited and predictable, the
parties to a tort claim, often flung together or strewn about by the tort, may well be
strangers to each other. In devising choice of law rules this has to be borne in mind; and
it tends to mean that choice of law for tort issues is very different from the approach
taken to contractual issues. They may all be part of the law of obligations, but they are
obligations of a very different kind. The result is that the choice of law rules for issues in
tort are very different from those which apply to contracts.
In seeking to state the private international law of Myanmar applicable to torts, we have
not been able to locate any Myanmar authority on the broad question, never mind any on
individual points of detail. English common law underwent substantial changes over the
150 years in which it was developed. One Indian decision took the view that the ‘justice,
equity and good conscience’ provision, which is replicated in the Myanmar Laws Act,
section 13(3), provided the basis for the English common law rule of double
actionability166
to be applied to torts committed outside India;167
and in the absence of
other authority, section 13(3) has to serve as the legal foundation for the modern law
which we seek to describe here.168
This chapter therefore approaches the question on the
basis of English common law authority, but also on the basis of common sense.
166 Examined below, point (54).
167 Govindan Nair v Achutha Menon (1915) 2 LW 290 (Mad), at 295-6.
168 And for the view that section 13(3) provides the basis for much of the domestic tort law of
Myanmar, see Kovtunenko v U Law Yone BLR (1960) SC 51.

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A tort, for the purposes of the private international law of Myanmar, must be taken to
mean an obligation which is not contractual, whether the obligation arises under
Myanmar law or foreign law. There is no sense in attempting to find a more precise
definition, for the only effect of doing so would be to leave some obligations out of the
law altogether, on the ground that they are neither tortious nor contractual in nature.
There would be no sense in that. That is not to say, of course, that every such obligation
arising under a foreign system of law will be recognised and enforced in a Myanmar court
in the same way that a tort (as understood in Myanmar domestic law) would be. But we
have to define the outer edges of the material which will be examined in this Chapter,
and this is probably the way to do it. If the issue or claim before the court is based on an
obligation but is not contractual in nature, it will fall within the scope of this Chapter and
be treated, for the purposes of private international law, as a tort, or as though it were a
tort.
It will follow that certain sorts of wrong or liability, not naturally thought of as torts in
domestic law, will fall within this Chapter. Claims based on insult or injury to self-esteem,
which are probably not recognised as tortious in Myanmar law, will be dealt with within
this Chapter. Claims based on misuse of confidential information, if recognised at all
under Myanmar law as wrongs, will be dealt with within this Chapter. Claims based on
deliberate economic infliction of harm, or on conspiracy to injure another, or based on
unfair competition – all of which are significant and important causes of action in the
developed world – will, whether or not reflected in the domestic tort law of Myanmar, be
dealt with by the rules set out in this Chapter. Claims based on statutory rights and
duties, including claims based on foreign statutory rights and duties, will be dealt with
(and if the claim arises under a foreign statute, dealt with rather unsympathetically) by the
rules in this Chapter. So also claims brought against a defendant which would require the
defendant to pay sums of money (otherwise than by way of criminal sanction) for the
environmental clean-up of land or waterways which it has polluted: all of these kinds of
claim will be dealt with by the rules of private international law examined in this Chapter,
because all will be treated as torts for the purposes of private international law.
A significant complication for any attempt to explain the private international law of
Myanmar as it applies to torts is that the domestic law of Myanmar on torts is not well
developed. Lacking any real statutory basis – there is nothing to compare with the
Contract Act 1872, for example – the domestic law of Myanmar on torts appears to
consist of a single statute concerning torts to the person – the Fatal Accidents Act – and
nothing else.169
There are very few reported cases, and the consequence is that one has to
suppose that the English common law would be a guide to the development of the
domestic law of Myanmar on tort. While this is not a complete barrier to an
understanding of the private international law of torts, it does mean that the confidence
with which a writer can seek to explain the law is rather less. What we describe in this
Chapter is the law as we consider a Myanmar court would understand it.
(52) The place where a tort was committed
The basis of the private international law of tort, in Myanmar as in most other countries,
will be to identify the place where the tort was committed. Whereas where contract is
concerned the starting point is to see whether the parties chose the law to govern their
169 See Kovtunenko v U Law Yone BLR (1960) SC 51 for the comment that tort law in Myanmar has
based on Section 13(3) of the Myanmar Laws Act 1898: Chapter 1, point (7) above.

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relationship, the point of departure for torts is to identify the place where the tort, or the
alleged tort, occurred. If the law is going to apply a rule which links the claim to the law
of the place where a tort was committed, as indeed it does, it must be able to decide
where a tort was committed. And this is where the difficulties begin.
Some torts are easy to locate. If a person is knocked down and injured by a recklessly
driven bus when crossing Sule Pagoda Road, the tort – by which, at this point, we mean
the alleged tort – was committed in Myanmar. But not all torts are so easy to pin down.
Take the example of a medicine, made to prevent travel sickness, which causes sickness
in the person who uses it. Suppose the scientific research work was done in country A,
the medicine manufactured in country B, the medicine sold to a chain of shops in
country C where it is bought by a customer, who uses it while he is in country D and
who comes down with symptoms of illness when he arrives in country E. If the
customer wishes to sue the manufacturer for compensation for personal injury, and
assuming the court has jurisdiction, where will the tort be held to have been committed ?
Of course, there is no naturally right answer to this question: the tort was made up from
components which were spread across five countries. To say that the tort was committed
in any one of them is, surely artificial; but the answer that it was not committed in a
single country means that a choice of law rule which depends on locating the tort in a
single country simply will not work. As a result, private international law has to ascribe a
location to a tort which, really, does not have one. It is far from perfect, but it makes
sense, because in most cases (such as the reckless bus driver case) there is no difficulty,
and a rule which works well in 95% of cases is not such a bad rule. The private
international law of tort can be untidy in unusual cases, but that is because torts
themselves are untidy, and the rules of private international law reflect that.
So how does the law answer the question of where the tort was committed ? The answer
is that it looks at all the elements which go to make up the tort – the conduct of the
defendant, the acts of the victim, and the consequences of each – and it asks: ‘where in
substance did the cause of action arise?’. The technique is to try and identify the heart, or
the centre, of the tort, and to ask where that happened. For example, in the case of the
travel sickness medicine which causes illness, it may be that the heart of the tort is the
sale to the customer: that is the point at which the dangerous article is transferred to a
person who will suffer from taking it. It would be possible to see everything which
happened after the purchase as being just the consequence of something which was
bound to case damage (the only question being when and where it would do it), and the
transfer of the thing to the customer the heart of the tort. Of course, there are other
answers which could be given: that the manufacture or the testing were obviously done
without proper care, and that everything which happened after that was just a
consequence of that wrongful behaviour; and it is hard to give a truly convincing reason
why the first answer is better than the second. It could also be argued, perfectly sensibly,
that there is no tort until there is damage done to the victim, and that the cause of action
arose, in the sense of its being complete, only when and where the damage was done.
The best answer which can be given is that a court has to try and locate the heart of a
tort, even though the tort will have limbs which stretch out to other places. The fact that
the question may be hard to answer in a few cases is not good enough as a reason to
reject a test which works perfectly well in all but a handful of cases.

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The rules by which a court in Myanmar decides which law to apply to a claim or to an
issue which it regards as a tort depends on where the tort takes place.
(53) The law which applies when an alleged tort was committed in Myanmar:
the general rule
If a tort is committed in Myanmar, the question of liability will be answered by the
domestic law of Myanmar. This will be true when plaintiff and defendant are Myanmar
residents; it will be true where one of the parties is a foreigner; it will be true even if both
parties are foreigners; and it will still be true – which may seem surprising – even if both
parties are foreigners who are only temporarily in Myanmar.
This, at any rate, was the answer given by English courts. It is not clear how widely this
approach is shared; and there will be cases – for example, where the plaintiff and
defendant have travelled together for a holiday, and returned to their home after a few
days – in which it might be thought that the tort is really more closely connected with a
country overseas. But the English rule, for good or ill, was that if the tort was committed
(in the sense that the cause of action arose) within the jurisdiction of the court, it would
apply its own domestic law. In a recent decision the Singapore courts, who had inherited
the same rule from English law which we assume to have been inherited by Myanmar as
well, decided that where a tort took place in Singapore it might be possible to apply
something other than Singapore law to it: it seems strange to think that a tort, involving
two foreigners who were in Singapore only in order to change planes at Changi airport,
should be governed by the law of Singapore simply because it took place within the
territorial jurisdiction of the court, but an English court would have rejected any
suggestion that there should be any flexibility in such atypical cases. The Singapore court
disagreed, and there is much to be said in support of their more flexible, sensible, view.
We consider the issue again, under point (55).
Having said that, and as we shall see below, where a tort is committed overseas, the rules
of private international law look to the law of the place where the tort takes place, and to
the law of the forum. Where both these signposts point in the same direction, where
both linking rules come to the same country, and that country is Myanmar, there is a very
strong reason for saying that the court in Myanmar should simply apply the domestic law
of Myanmar, as though there were no international element, and leave it at that.
(54) The laws which apply when an alleged tort was committed overseas: the
general rule
If a court in Myanmar has jurisdiction, and is going to exercise that jurisdiction, over a
defendant to a claim in tort, when that tort has, in substance, taken place overseas, it will
be dealing with a case in which two legal systems have a claim to provide the answer to
the question before the court. If a tort has taken place overseas, it is consistent with the
answer given above for the court to look to the law of the place where the tort was
committed. But there is a risk that if the court does this, and if that is all it does, it will be
applying a law which is significantly different, and perhaps not in a good way, from its
own domestic law. As a result, it will also look to and apply its own domestic law; and
the result of all this will be that the plaintiff will win if, but will win only if, he can make
his claim good by reference to the law of the place of the commission of the tort and by
reference to the law of the forum court. The rule is therefore one of ‘double
actionability’. As a matter of simple arithmetic, it means that the plaintiff, if he is going to

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prevail, has to show that he wins under each of two laws; it means that the defendant
wins if the plaintiff can show that he wins under only one of these two laws. This, at any
rate, was the rule of the common law as developed by the English courts and adopted by
the laws of almost all other common law jurisdictions. Though in more recent years,
courts in some other common law jurisdictions have modified (or rejected) it, the Indian
courts have not done so; and if the question for a court in Myanmar is to ask what was
the content of the common law rule when it was inherited by the Myanmar legal system,
it will be this rule of ‘double actionability’.
In fact, in many cases concerned with an overseas tort, a court will simply apply its own
law, and will not be asked to look to the law of the place where the tort occurred. This is
because, as was said above,170
there is no duty on either of the parties, or on the court, to
invoke the law of a foreign country. If the parties are content that the Myanmar court
resolve the case on the basis of Myanmar domestic law, without reference (through its
rules of private international law) to foreign law, they are free to do so. It follows that
any reference to the law of a foreign country will be made by the defendant: the plaintiff
has nothing to gain, but everything to lose, by asking the court to look, in addition to
applying its own law, to the law of a foreign country.171
It will, in practice at least, be the
defendant who asks the court to conclude that the tort, in substance, was committed in a
country outside Myanmar, and then to conclude that according to the law of that foreign
country, the defendant is not liable to the plaintiff. If this all happens, the plaintiff’s claim
will be dismissed.
Many people have argued that the rule of double actionability is unprincipled and
unnecessary. They say it is unprincipled because it makes life much easier for the
defendant than for the plaintiff: if two laws are involved, and the plaintiff has to satisfy
the requirements of both of them, he is at a clear, structural, disadvantage when his
position is compared to that of the defendant. They say it is unnecessary because there is
nothing similar in the private international law of contract. A Myanmar court will be
willing to apply the proper law the contract, all by itself. A court in Myanmar, dealing
with a claim for compensation for breach of contract, will not say that the plaintiff has to
show that his claim could be sustained under the terms of the Contract Act 1872 as well
as under the law which governs the contract. Why, they ask, should the law be any
different when dealing with a foreign tort ? Why is it so different from a foreign contract
?
It is a good question, and it is hard to answer in a convincing fashion. Certainly, in
Australia and Canada, mature common law systems, the requirement that the claim be
actionable by the law of the forum has been dropped, leaving the rule one which simply
looks to the law of the place of the tort. The best answer which can be given is, probably,
that there are, in some foreign legal systems, some really rather strange torts, and that for
its rules of private international law to require a Myanmar court to apply the tort laws of
these systems would sometimes be unacceptable. The advantage of a rule of double
actionability is that a plaintiff can only succeed if his claim is one of a kind which
Myanmar domestic law would also allow. Whether that is enough of a justification is not
easy to say; not everyone accepts that it is sufficient.
170 Chapter 4, point (31), above.
171 One possible and slight exception to this is given under the following point (55).

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However, the courts of Myanmar have rather little experience of applying the tort rules
of foreign legal systems. Until this changes, it is reasonable to suppose the Myanmar
courts will favour a rule of double actionability, and not give judgment in a tort case in
favour of a plaintiff unless the conduct complained of gives rise to civil liability as a
matter of Myanmar law.
On the footing, therefore, that the double actionability rule for torts committed outside
Myanmar is part of the private international law of Myanmar, it is necessary to explain
exactly what it requires the plaintiff to do. It means that the plaintiff will be required to
show that he has a good claim against this defendant, under the laws of each system, for
the same head or heads of damages. Suppose he sustained a personal injury on the streets
of Bangkok when he was knocked down by a carelessly-driven bus; suppose also that he
suffers financial loss (when he has to pay for medical treatment in Thailand), and sustains
pain and suffering, and suffers from a loss of earnings when he is unable to work for the
next six months, and has to pay for nursing care at home in Yangon while he is
recovering. If he sues the driver of the bus for compensation he will have to prove (i) as
a matter of Myanmar law and as a matter of Thai law, that the bus driver committed a
trespass against him, (ii) as a matter of Myanmar law and as a matter of Thai law, that he
is entitled to be compensated for medical expenses; (iii) as a matter of Myanmar law and
as a matter of Thai law, that he is entitled to compensation in respect of pain and
suffering; (iv) as a matter of Myanmar law and as a matter of Thai law, that he is entitled
to be compensated for loss of earnings; (v) as a matter of Myanmar law, and as a matter
of Thai law that the cost of nursing care can be claimed as compensation. If he wishes to
sue the bus driver’s employer, on the basis that the employer is responsible in law for the
wrongs committed by his employee when he is acting in the course of his employment,172
he will need to show, as a matter of Myanmar law and as a matter of Thai law, that the
employer is liable for the wrong committed by his employee.
It is as thought the plaintiff was required to set out his claim, and the basis for and extent
of it, by reference to Myanmar domestic law, and show that it is sustainable; and the
delete ‘Myanmar’ and replace it with the name of the foreign legal system within which
jurisdiction the tort was committed, and show, once again, that the claim is sustainable.
That is what double actionability means. If we return to the example of the traffic
accident in Bangkok, suppose that the domestic law of Myanmar allows a plaintiff to
recover compensation in respect of pain and suffering and for the nursing care after the
discharge from hospital, but that Thai law would not award compensation for either of
these. In those circumstances the Myanmar court would not award such damages, for the
plaintiff would have failed the test of double actionability in respect of compensation for
pain and suffering and in respect of compensation for nursing care.
Or take an even more awkward case. Suppose that as a matter of Myanmar law, the claim
for compensation could be brought against the bus driver but not against the employer,
because the driver was acting outside his contract of employment, but that as a matter of
Thai law, the employer could be sued (because it owned the bus which did the damage)
but the driver could not be, because Thai law provided, in such circumstances, that the
claim could not be brought against an individual employee. In such a case, the rule of
double actionability will mean that the plaintiff completely fails: the facts and matter
172 This liability is generally known as ‘vicarious liability’. The reason for suing the employer is
usually that the employer is more likely to have the money to honour any order that
compensation be paid.

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which give him a claim under the law of Myanmar do not give rise to a claim under Thai
law; and the facts and matters which give rise to a claim under Thai law would not, on
these facts, give rise to a claim under the law of Myanmar. Even though both systems
agree that the plaintiff has been the victim of a tort, and should be compensated, the
effect of the double actionability rule will be that the claim is dismissed in its entirety.
The possibility that the double actionability rule produces an effect like this leads some to
suppose, and may lead a Myanmar court to agree, that there should be some flexibility in
the operation of the rule, or that in a case like the one just discussed, for example, the
law should be able to produce a result in favour of the injured plaintiff. If this is not to
be done by rejecting the double actionability rule in its entirety, it is necessary to allow
for some flexibility in the way that it works. That, at any rate, was the conclusion to
which the English courts came, and the reasoning which led to this conclusion was itself
perfectly sensible.
(55) A more flexible approach for dealing with awkward cases
(a) Torts committed overseas
It can be seen that the strict application of a rule of double actionability for overseas
torts can produce unexpected, and rather unsatisfactory, results in some cases. This has
led courts in some common law jurisdictions, notably in England but also in Singapore,
to modify the rule so that, in an appropriate case, it is not necessary for the plaintiff to
satisfy both parts of the double actionability rule. For example, suppose that two
Myanmar nationals are sent by their employer to work in Qatar, and one causes injury to
the other, and proceedings are brought before the Myanmar court. It would be open to
the Myanmar court to say that the dispute was overwhelmingly connected to Myanmar
and to Myanmar law, and that it had no real connection to Qatar or Qatar law, and that
the court should just apply the law of Myanmar, even though the cause of action arose in
a foreign country, and even though the defendant asks the court to apply the law of that
foreign country. It is, to put the matter a little simply, a Myanmar dispute which just
happened to take place in a foreign country.
Similarly, if two English employees of a NGO who are working in Myanmar, go to
Thailand for the weekend, where they are involved in a driving accident: suppose that
they are in a car which one is driving with the other as passenger, and the driver crashes
the car and injures the other. A court in Myanmar might consider that is a matter which
really has nothing to do with Myanmar and its legal system, and that as a result it would
not be necessary for the plaintiff to be able to show that he would be able to succeed
against the defendant under Myanmar law.
It may be asked what makes a case an exceptional one for the purpose of this exceptional
rule. It is a good question, and the answer is not completely easy to give. But if the
plaintiff and defendant were known to each other, or had a relationship with each other,
and the tort took place within that relationship in such a way that it may be said that the
tort is more concerned with their relationship than it is with the place where it took
place, the case will be an exceptional one, and there may be no need to satisfy the
requirements of the law of the place of the tort. Similarly, if the plaintiff and defendant
were known to each other, or had a relationship with each other, and the tort took place
within that relationship in such a way that it may be said that the tort is more concerned
with their relationship than it is with Myanmar, where the litigation is taking place, the

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case may also be seen as an exceptional one, and there may be no need to comply with
the requirements of Myanmar domestic law.
So also if the case is one in which the connection to the place where the tort occurred is
a relatively weak one for the very reason that the place of the tort was difficult to identify
in the first place. In the case of the pharmaceutical product, discussed under point (51)
above, it was rather difficult, perhaps even artificial, to argue that the tort was committed
in a particular place. In a case like that, where the place of the tort is not so obvious, it
will be easier to see that a court may conclude that the connection to the place of the tort
is relatively weak, and that the connection to another country is stronger.
But where the plaintiff and defendant are not known to each other, but are just strangers
to each other in the way that plaintiff and defendant in a tort case frequently are, it will
be very much more difficult to argue that there is so strong a connection to another
country or to another legal system that an exception to the rule of double actionability
may be made.
It is difficult to be any more precise than this, however, because if a rule is intended to be
flexible in the manner in which it operates, it will inevitably be imprecise in the way it is
defined. This has certainly been seen by some courts - Australia is the clearest example -
to say that the very idea of a ‘flexible exception’ is misguided. The Australian view is that
flexibility simply means uncertainty, and that uncertainty is a bad thing. After all, the law
presumably wishes parties, where possible, to settle their disputes without going to court.
Parties to a dispute are much more likely to settle their disputes if they think they know
what will happen if they go to court to fight the case; by contrast, if the law is uncertain,
each party may consider that it is worth trying to fight the case in court in the hope of a
better outcome than his opponent expects to happen.
(b) Torts committed in Myanmar
The view expressed above was that a Myanmar court would be likely to adopt a rule of
double actionability for torts which were, in substance, committed overseas. It was also
suggested that where the tort was committed in Myanmar, the court would apply
Myanmar law, and would not look to foreign law at all. But there will be torts committed
in Myanmar which really have little or nothing to do with Myanmar (such as two NGO
employees driving a car in Myanmar, which goes out of control and injures the passenger
but does no harm to anyone else), just as there will be torts committed overseas which
have just as little to do with the place in which they undoubtedly take place (in the transit
lounge at Bangkok or Changi airport, for example).
In any such case,173
if it came before a Myanmar court, it would be proper for the court
to say that the case is sufficiently exceptional that the general rule of private international
law for tort claims does not apply. The wide and untidy territory which is regulated by
the private international law of tort really requires this to be the answer.
(56) Torts committed between the parties to a contractual relationship
173 If an exception is made in the case in which the tort is committed in Myanmar, it will mean
that the Myanmar court is following the lead of the Singapore courts, and not following the
contradictory advice of the English court.

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We have seen that where the plaintiff and defendant are linked to each other much more
obviously than they are connected to the place where the tort arose, the case may be an
exceptional one which does not need to be fitted within the general rule of double
actionability for tort claims. If there is a relationship between the parties, which can be
seen to point to a country or a law, more powerfully that the commission of the tort
points to the law of the place where the tort occurred or to the law of Myanmar, an
exception may be made to the general rule which would ordinarily apply.
But suppose the plaintiff and defendant are also party to a contract. Suppose, for
example, that they are employer and employee, and that the employee sustains injury as a
result of the employer failing to maintain a safe system of work. If the employee decides
to sue the employer, he could do so by framing his claim as one by which the employer
breached his contractual duty to take care of the health and safety of the employee. He
could also do so by framing the claim as a tort: that the employer, in breach of the
common duty of care which everyone owes to another who may be injured by our
carelessness, caused the injury as a result of tortious negligence. Is the employee free to
choose between these possibilities ? Is he free to advance both of them, taking ultimate
advantage of the one which appears to be most beneficial to him ? Or is this a case in
which he has to advance the claim as one for breach of contract ?
The reason it matters is that the linking rules are different, according to whether the
claim is contractual (it will be governed by its proper law) or is tortious (it is governed by
the rules, or by the rules and flexible exceptions, which have been discussed above). The
answer is very unclear, even in those mature systems of the common law which have had
a long time to think about it. But if a defendant commits a tort against me - suppose he
assaults me, or injures me by his careless driving - the fact that he also has a contract with
me does not mean that his wrongful conduct is somehow no longer a tort. It is a tort,
and if the plaintiff wishes to proceed on that basis, the rules of private international law
which will apply to his claim are those in this Chapter. However, if a person with whom I
have made a contract injures me by failing to behave in accordance with his
responsibilities under the contract, the fact that he may have (also) committed a tort, by
the very same act, does not mean that he has not committed a breach of his contract.
It would follow from this analysis - and it is probably correct - that the plaintiff can
advance his case as a contractual one if he wishes, and as one in tort if he wishes. If he
succeeds on either way of looking at the case, he will win. If he succeeds on the contract
claim by reference to the rules examined in Chapter 5, he will obtain compensation for
breach of contract. If he succeeds on the tort claim by reference to the rules examined in
this Chapter, he will obtain compensation for the tort committed against him. However,
the flexible approach to choice of law for tort claims, examined under point (55) above,
may well mean that the claim in tort will be governed by the proper law of the contract;
and if that is correct, it will not matter whether the plaintiff can bring only one claim, or
two claims which will be governed by the same law.
A variation of the problem arises where, for example, an employee has signed a contract
with the employer, by which he promises not to sue the employer in respect of any tort
for which the employer may be responsible, but agrees instead to accept a payment from
the employer as a full settlement of any claim. If the employee, considering that a claim
founded on the contract would be likely to be dismissed (on the ground that the contract
says it will not be brought), sues in tort, what is the effect of the contractual promise not
to sue ? The answer may appear complex, but it will be as follows. If the tort was

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committed outside Myanmar, the plaintiff will need to satisfy the requirements of the
rule of double actionability. He will need to show that under Myanmar law, and under
the law of the place where the tort occurred, the defendant is liable to him. The
defendant will argue, however, that the plaintiff’s claim will fail because he has promised
not to sue to enforce it. If a defence of that kind would be permitted or allowed by the
law of Myanmar, or by the law of the place where the tort occurred, the plaintiff will
have failed to satisfy the requirements of double actionability, and unless there is any
more to be said on the matter,174
the claim will fail. That may seem harsh, but if a person
signs a contract the validity of which he cannot call into question, it may have the effect
of barring a claim in tort which would otherwise have been open to him.
(57) Remedies when an actionable tort has been committed
We observed in relation to contracts, in Chapter 5, that there was a distinction to be
drawn between the kinds of loss for which the defendant was liable, and the
quantification of, or other remedies for, that loss which the court would order the
defendant to pay or perform. The question of the kinds of loss for which recovery was
permissible were issues of substance, governed by the proper law of the contract, but the
assessment of that loss, or the availability of specific relief, was a matter for the domestic
law of Myanmar, because it would be seen as a procedural issue.
It is no different in a tort case. Let us take as our example the case of the plaintiff injured
by a badly-driven bus on the streets of Bangkok examined under point (54) above. We
saw that he may seek to recover compensation for medical expenses, pain and suffering,
loss of earnings, and the cost of nursing care. In each case, and unless the case is treated
as an exceptional one in accordance with the approach examined in point (55) above, the
plaintiff will recover each of these only if they are available to him under the laws of
Myanmar and of Thailand: if they are not doubly available, the rule of double
actionability will mean that they are not recoverable at all.
If the particular head of damages is recoverable, or (as one might say) doubly
recoverable, the final question of what it awarded in respect of it is governed by the law
of Myanmar and by nothing else. If the law of Myanmar says that the proper award for
medical expenses is for basic care in a public ward, whereas Thai law would assess
damages at a higher level if the plaintiff had checked into a private hospital, a Myanmar
court will award damages at the level considered appropriate by Myanmar law. If the law
of Myanmar says that damages for pain and suffering, which cannot be directly
computed in money terms, are at a very modest or token level, the fact that Thai law
would have awarded a much higher figure is irrelevant: the assessment or quantification
of damages is a procedural matter on which the Myanmar court applies its own rules.175
If this were not so, there would be a danger (particularly in the exceptional case in which
the court applies a flexible rule and looks only to the law of the place of the tort) of a
Myanmar court being asked to award damages at the astronomic levels encountered in
some foreign legal systems. Some will know the story of the customer who was scalded
by a cup of hot coffee, purchased from a well-known US restaurant chain, when she
drove away from the restaurant with the coffee cup held between her knees. The
174 See the material under point (60) below.
175 Chapter 4, point (32), above.

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American court awarded damages of almost $3 million.176
It would not be satisfactory for
a court in Myanmar to be invited to assess damages in accordance with US law. And it
gets worse. In 2014, a court in Florida awarded damages to the widow of a man who had
died as a result of smoking: the widow blamed the tobacco company which had
manufactured the cigarettes to which her husband had been addicted. She sued them in
tort, and was awarded the sum of approximately $23 billion.177
No doubt she had a claim
in tort under US law; but if the litigation had been before a Myanmar court (assuming
that negligence on the part of the defendant could be shown), any damages awarded
would be assessed by reference to Myanmar law, not US law.
(58) Claims arising under foreign statutes
One consequence of the double actionability rule is that as foreign legal systems make
adjustments to their laws, and in particular to the their tort laws, by legislation, there is an
increasing chance that the rules of double actionability will mean that a claim fails as
Myanmar law does not precisely correspond to the law of the foreign system. Whether
this is an indication that the rules of double actionability are themselves objectionable is
not clear, but it certainly allows one to see that the rules produce a consequence which
may not be entirely beneficial.
A good example may be taken from the law of consumer protection. The laws of many
countries have been altered to provide that a manufacturer or an importer of goods
provided (by sale or otherwise) to a consumer will be under a strict liability to
compensate for loss or damage done to the consumer, and that it will not be necessary to
prove any negligence, recklessness, or suchlike. It can be extremely difficult for a
consumer to establish that a manufacturer or importer - which will have sufficient
economic power to crush a consumer - was negligent, so the law gives the consumer a
strict right to recover which does not depend on proof of fault.
Myanmar law, so far as we can discover, has not been altered in a similar fashion. The
result would be that if a consumer were injured overseas in one of those countries which
had adopted legislation of this kind, and were to sue the manufacturer for compensation,
relying on the foreign statute to do so, the fact that the consumer would have a clear case
for recovery under the legislation in force in the place where the tort was committed
would be irrelevant if, under the law of Myanmar, the consumer-plaintiff would be
required to prove that the defendant was negligent. Unless the case could be dealt with
by means of the flexible exception outlined under point (55) above, the fact that the
plaintiff would be able to recover under the modernised law of the place where the tort
occurred would be irrelevant if he would be unable to recover under the unmodernised
law of Myanmar.
The point may also be illustrated by foreign laws which allow civil claims against
defendants who have caused environmental damage: foreign laws may allow
compensation claims to be brought by or on behalf of a National Park, for example, or
176 That is to say, around 3 billion kyats. The sum, awarded by a jury, was reduced on appeal, but
was still left at a very high figure. The case was Liebeck v McDonald’s Restaurants (18 August 1994;
New Mexico District Court).
177 Or 23 trillion kyats. To look at the figure another way, the widow was awarded a sum of
damages which equated to approximately 40% of the Gross Domestic Product of the Union of
Myanmar in 2012. No doubt the damages were very substantially reduced on appeal, but even
after that they would be liable to be very high.

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by a community whose lands have been damaged or ruined by an oil company or some
other large industrial concern. As far as we know, Myanmar law does not have provision
for such civil claims for environmental damage. It would follow that if proceedings were
to be brought before a Myanmar court by a plaintiff who sought to base his claim on
such foreign legislation, the plaintiff would fail unless the case could be seen as an
exceptional one to which the flexible rule, discussed at point (55) above, might apply.
Of course, these are not new points. They simply involve, or illustrate, the operation of
the principles of double actionability. Moreover, some people may consider that the idea
of imposing strict liability on a defendant who may not have behaved at all irresponsibly
wrong in principle; some people may question whether the proper response to
environmental pollution is to allow civil compensatory claims by those whose land is said
to have been affected. It may be argued that foreign laws, in this sense, have not been
modernised but have been distorted or deformed. However that may be, it simply goes
to show that where the law of the foreign state and of Myanmar have got out of
alignment, the double actionability rule will make it more difficult for the plaintiff. While
this may sometimes be a good thing, in that it prevents the Myanmar court having to give
effect to a cause of action which does not exist under the domestic law of Myanmar, it
may also be a bad thing if it prevents the Myanmar court being able to give effect to a
perfectly sensible cause of action which is not replicated under the domestic law of
Myanmar.
(59) The role of Myanmar public policy and claims made in respect of a tort
As we have noted before, where its rules of private international law would link the issue
before the Myanmar court to a foreign legal system, a Myanmar court will not apply a
rule of the foreign legal system, or if the effect of its being applied, would be contrary to
the public policy of Myanmar. In a contractual case, a rule of the proper law of the
contract will not be applied if it would offend the public policy of Myanmar: we
considered the possibility – it was no more than a possibility – that a Myanmar court
would refuse to give effect to a term in a contract, governed by a foreign law which
considered it to be a valid restriction, which operated in restraint of trade. It must, in
principle at least, be open to a Myanmar court to refuse to apply a rule of foreign tort law
which was, in its own way, contrary to public policy.
But this is unlikely to arise as an issue all the while the private international law of
Myanmar applies a rule of double actionability. Even if a tort is committed overseas, and
the law of the place where the tort occurs contains a rule which the Myanmar court
would find to be shocking or offensive, that rule will not be applied unless there is a rule
of Myanmar law to the same effect: the rule of double actionability will prevent the
application of any rule of foreign law which does not correspond to a rule of Myanmar
law. The need to fall back on rules of public policy is, in tort cases, much less than it is in,
say, contract cases, in which a Myanmar court may be invited to apply the law of a
foreign country with no reference to Myanmar domestic law.
This also explains why the rule which prevents a court enforcing a foreign rule of a penal
or a revenue kind is not needed in this context. In some recent cases in western
countries, a state which considers a company to have behaved unlawfully in evading
taxes and charges for which it was liable, may bring civil proceedings against it in tort: for
a civil conspiracy to deprive the plaintiff state of money if it has acted with another (and
in these cases, there is almost always another with whom or with which the company has

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acted). But if the plaintiff state comes to Myanmar, and seeks to sue the defendant
company in tort, for compensation, the question will be whether a conspiracy to evade
the taxes of a foreign country would be a tort under the domestic law of Myanmar. The
answer will obviously be that is it not a tort, and the claim will therefore fail.
If Myanmar were to abolish the requirement, which we take to be part of its current rules
of private international law, that the conduct complained of be a tort under the domestic
law of Myanmar, there would be a much greater need (or opportunity) for the application
of public policy as a way of keeping objectionable foreign laws out of a Myanmar court.
It is far from clear that this would be a change for the better.
(60) Non-contractual obligations which resemble torts
There are certain other forms of civil liability are probably liable to be seen as torts for
the purpose of private international law in Myanmar, and which are therefore governed
by the rules described in this Chapter. But they tend to show, again, that the rules of
private international law which we have described here do not always work in a wholly
satisfactory way.
(a) Infringement of rights of intellectual property
Consider first a case involving the infringement of intellectual property rights. It is well
understood that intellectual property rights, such as patents or copyright, are strictly and
territorially limited to the country in which or for which they have been granted or
protected; when this fact collides with the rule of double actionability it produces some
very odd results. Suppose a Myanmar company is said to have infringed a Thai patent by
selling products which would, if they had been sold in Thailand would have infringed the
Thai patent. If it is sued in respect of sales in Myanmar, it will not be liable, because
infringement of a Thai patent is not a tort in Myanmar where a Thai patent has no status.
But if the company is sued in Myanmar in respect of sales in Thailand, it will not be liable
for that, either: its conduct may well be wrongful, even tortious, under the law of
Thailand, but again, it is not a tort under the law of Myanmar because if it was done in
Myanmar, no tort would be committed, as the Thai patent has no status in Myanmar.
Or suppose that an author has copyright under Myanmar law, but that a Myanmar
person starts selling pirated copies of the work in Thailand. If the author sues the
defendant in Myanmar, he will fail: although the conduct of the defendant would have
been a tort if committed in Myanmar, it is not tortious under Thai law, because a
Myanmar copyright has no effect, and does not make unlawful, acts carried on in
Thailand.
It is hard to know whether the blame for this set of outcomes, which seem to offer less
protection than the law should to persons who have intellectual property rights, lies with
the strictly territorial nature of intellectual property rights, or with the rule of double
actionability as it applies to issues characterised as torts. But it is hard to see that the
answers given by the combination of these rules are very satisfactory.
(b) Equitable wrongs
Common law systems generally draw a distinction between torts, which were developed
by the courts exercising a common law jurisdiction, and ‘equitable wrongs’ which were

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analogous, but which were developed in a separate court system. Leaving aside the law of
trusts, to which the Trusts Act applies, it is not clear that Myanmar law has inherited a
separate set of equitable principles, for it did not have separate courts of common law
and equity. But sometimes a claim will come before a court which is not precisely a tort.
The allegation or complaint may be that there has been a breach of fiduciary duty, which
means a failure to comply with the obligations which arise from certain kinds of
relationship which were developed in equity.178
In other cases it may be alleged that a
wrong which in (say) England or Australia would be regarded as an ‘equitable wrong’,
such as the misuse of confidential information, has been committed, and if the allegation
were to come before a Myanmar court and raise a question of private international law,
the question is what the Myanmar court should do.
The answer is that it should pay little or no attention to the label of ‘equitable duty’ or
‘equitable wrong’. These terms may not be part of the domestic law of Myanmar; they are
certainly not part of its private international law. If the obligation arises between parties
to a contract, such as a contract of employment, it will be governed by the proper law of
the contract. If it arises between parties to a relationship which is similar to a contract -
between a company and its directors, for example - it will be governed by the law which
created that relationship, such as the lex incorporationis. If it arises between strangers, such
as may happen when someone comes across information which he knows to be
confidential, which he then misuses, the wrong resembles a tort, and should be governed
by the rules set out in this Chapter.
178 The relations between a director and the company which he serves are, where not expressly
statutory, fiduciary in nature: see for the position in Myanmar, the doctoral dissertation of Dr Ma
Ma Thant (Nagoya University, 2011).

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CHAPTER 7
PROPERTY, AND RIGHTS WHICH RESEMBLE PROPERTY
In this Chapter we examine the rules of private international law which apply to the most
important forms of property. Our principal concern is the issue of title to property of
various kinds, but in doing so we need to understand the various categories and kinds of
property to which these rules apply.
(61) The distinction between immoveable and moveable property
The private international law of property, in all legal systems, whether they are derived
from the common law or not, draws a fundamental distinction between immoveable and
moveable property. The reasons for this are obvious, but they may be stated shortly.
Immoveable property is in practical terms, subject the law and to the courts of the place
where the immoveable property is. This reality is reflected in special rules of jurisdiction
and of choice of law. As to jurisdiction, if the immoveable is outside Myanmar, there may
be little real point in a court in Myanmar adjudicating disputes as to its title, for the only
court which can, for example, order and direct the Land Registry to amend the recorded
title is the court where the Register is kept. Of course, not all legal systems have registers
of land titles, but a significant and growing number do, and where the land is in such a
country, the sense in adjudicating disputes title in Myanmar is far from obvious.
However, if the court does adjudicate, it would make sense for the court to try to apply
the law which is in force at the place where the immoveable property is, in the way in
which a court at that place would itself apply it. At this point, the principle of renvoi,
which we mentioned under point (37) above, may be relevant. For if a court in Myanmar
really does seek to apply foreign law as it would be applied by the foreign court if it were
trying the case itself, it may have to understand and then apply the rules of private
international law of that court.
The thing about moveable property - its defining characteristic - is that it moves. That is
not to say that all moveable property moves all the time, but it may move, at any time. As
a result, the rules on jurisdiction are not as firmly fixed and exclusively restricted to the
place at which the property is located; and if a court in Myanmar exercises jurisdiction
and applies the law of the place where the thing was, there is no particular need for it to
do so in complete conformity with what would be done by a judge holding court at that
place. To put the point another way, the connection between a moveable and its location,
its situs, is less rigid than in the case of immoveables.
The distinction is reflected in the Civil Procedure Code which, as we have mentioned in
passing but shall here examine in greater detail, has precise rules for claims which
concern land in Myanmar, and which do not apply to other property (no matter how
valuable) which is in Myanmar. It is therefore no real surprise that the private
international law rules, as we understand them, should reflect this basic distinction
between immoveable and moveable property.
The question whether property is immoveable or moveable is, in some legal systems, left
to be answered by the law of the place where the property is. However, Myanmar law has
a statutory definition of ‘immoveable property’ for the purposes of any enactment.

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Where the property is in Myanmar, the general definition of immoveable property is
given by the Section 2(29) of the Myanmar General Clauses Act, 1898, which states that
2. Definitions. In all Acts, unless there is something repugnant in the subject or
context…
(29) ‘Immoveable property’ shall include land, benefits to arise out of land and
things attached to the earth, or permanently fastened to anything attached to the
earth.
Although this definition is enacted to apply to property in Myanmar and not outside it
(there do not appear to be any Acts which deal with property outside Myanmar), there is
no reason why this perfectly sensible definition should not also be used for the purposes
of Myanmar private international law.179
All property which is not immoveable property
is, by necessity, moveable property.
There may be cases in which the distinction between immoveable and moveable property
is hard to draw: an oil drilling rig, or a pontoon bridge, for example, may appear to be
partly immoveable and partly moveable, because it is not easy to say whether their being
fastened to the land is permanent. But the number of cases in which issues relating to
title to such property will need to be examined are likely to be very few, and there is no
need to devote more space to the question.180
(62) Suits concerning immoveable property situated in Myanmar
We are, at this point, dealing with immoveable property situated in Myanmar, and we
need to mention jurisdiction, choice of law, and the effect of foreign judgments. Much of
the material here deals with the domestic law, and not with the private international law,
of Myanmar, but as the rules of private international law will reflect those of domestic
law, this is the place to start.
(a) Jurisdiction over disputes concerning land in Myanmar
As was said above, this is not a matter of private international law, but the domestic law
of Myanmar will provide the basis for an explanation of the private international law of
Myanmar. Section 16 of the Civil Procedure Code states as follows:
16. Suits to be instituted where subject matter situate. Subject to the
pecuniary or other limitations prescribed by any law, suits -
(a) for the recovery of immoveable property with or without rent or profits,
(b) for the partition of immoveable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge
upon immoveable property,
179 The Registration Act 1909, Section 2(6) has a slightly different definition, but the divergences
are of no significance. It provides that: ‘Immoveable property’ includes land, buildings, hereditary
allowances, rights to ways, lights, ferries, fisheries of any other benefit to arise out of land and
things attached to the earth, or permanently fastened to anything which is attached to the earth,
but not standing timber, growing crops, nor grass.
180 A mortgage of land is immovable property: VERMNCT Chettyar v ARARRM Chettyar (1934)
ILR 12 Ran 178; an interest under a settlement of land was held to be an interest in an
immoveable: Official Assignee v ME Moolla & Sons Ltd (1934) ILR 12 Ran 589.

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(d) for the determination of any other right to or interest in immoveable
property.
(e) for compensation for wrong to immoveable property,
(f) for the recovery of moveable property actually under distraint or attachment,
shall be instituted in the court within the local limits of whose jurisdiction the
property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to,
immoveable property held by or on behalf of the defendant may, where the relief
sought can be entirely obtained through his personal obedience, be instituted
either in the court within the local limits of whose jurisdiction the property is
situate, or in the court within the local limits of whose jurisdiction the defendant
actually and voluntarily resides, or carries on business, or personally works for
gain.
Explanation. - In this section ‘property’ means property situate in the Union of
Myanmar.
It follows that the kinds of suit set out in Section 16 must be brought at the place where
the land is.181
So far as they concern immoveable property,182
what these suits have in
common is that they seek the adjudication of title to the land, recovery of the land or of
its rents and profits, and so forth. It reflects the fundamental reality that only the courts
at the situs of the land can make an effective adjudication of the rights of property which
relate to that land; and if this is considered to be correct in the domestic law of Myanmar,
it is all the more so as a matter of private international law.183
The proviso to Section 16 is, however, important, as it allows a Myanmar court to take
jurisdiction, by reference to the other rules of the Civil Procedure Code, if the
compensation sought, or the relief in respect of the property, may be ‘entirely obtained
through [the defendant’s] personal obedience’. That means that if the order for the
payment of damages, or the order for specific relief, is one which the defendant is liable
to be made to perform (this condition will not be met, for example, if he no longer has
the land whose conveyance is sought) the jurisdictional limitations set out in Section 16
do not apply, but Section 20(a) does apply. If the suit is for damages for trespass, for
example, it may be brought where the property is or where the defendant actually and
voluntarily resides, or carries on business, or personally works for gain.184
It also means
that if the suit is brought to obtain a decree of specific performance of a contract to sell
land, of which the defendant is in breach, the suit may be brought where the defendant
actually and voluntarily resides, or carries on business, or personally works for gain. In
essence, proceedings which seek to enforce personal obligations owed to a plaintiff may
be brought in the court which has personal jurisdiction over the defendant, and are not
confined to the court at the situs of the land to which these obligations relate.185
181 Sections 17 and 18 of the Civil Procedure Code make provision for cases in which the land is
within the jurisdiction of two courts in Myanmar, or where the court is uncertain where in
Myanmar the land actually is. This does not appear to be a problem for private international law,
and the Sections are not reproduced here.
182 That is, excluding Section 16(f).
184 Which is the jurisdictional rule set out in Civil Procedure Code, Section 20(a). See Ayesha Bee v
Gulam Husein Suleman Aboo (1921-22) 11 LBR 188.
185 However, a claim to enforce a mortgage by sale, but in which the borrower is given an
opportunity to pay up and redeem, is not within this principle, because the right enforced is that
of the mortgagee to sell the land, not that of the mortgagee to be repaid by the borrower, even if

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(b) Choice of law
Almost all questions of the kind set out in the first paragraph of Section 16 will be
answered by the domestic law of Myanmar. It is very hard to see how any other law
could ever be applied. But insofar as the claim is one with the Proviso to Section 16,
such a suit to enforce a contract for the sale of land, it is possible that, if the parties had
chosen a law other than Myanmar law to govern their contract, the contractual claim
would be governed by that law. However, any provisions of Myanmar law which are of
mandatory application in the circumstances would, to the extent that they apply, override
any contradictory rule of the proper law of the contract. For example, Section 3 of the
Transfer of Immoveable Property (Restriction) Act 1947 places limits on the effect of
certain dispositions186
of land in Myanmar:
3. Prohibition of transfer of immoveable property to foreigners.
Notwithstanding anything contained in any other law for the time being in force,
no person shall transfer any immoveable property by way of sale, gift, mortgage
or otherwise, or grant a lease for a term exceeding one year, of any immoveable
property in favour of a foreigner or any person on his behalf, and no foreigner
shall acquire any immoveable property by way of purchase, gift, mortgage or
otherwise, or accept any lease of immoveable property for a term exceeding one
year.
This will obviously mean that a purported transfer of land in Myanmar to a foreigner will
be void.187
It also means that if parties to a contract, which they have chosen to be
governed by a foreign law, agree to make a transfer of land in Myanmar contrary to the
Act, the contract will one which requires performance of an act which is illegal in
Myanmar,188
and as a result, and no matter what the proper law of the contract may be or
may say, the contract will be unenforceable in a Myanmar court.189
(c) Effect of foreign judgments concerning land in Myanmar
Although Section 13 of the Civil Procedure Code does not say so in express terms, in any
case in which Section 16(a) to 16(e) would give jurisdiction to a Myanmar court, it will be
open to a court in Myanmar to hold that a decree pronounced by a foreign court was a
judgment given by a Court which was not of competent jurisdiction, and that Section
13(a) will treat the judgment to be treated as not entitled to recognition or enforcement
in Myanmar.190
No doubt other arguments may be possible, but this one seems correct.
this is in some sense ancillary to the claim: VERMNCT Chettyar v ARARRM Chettyar (1934) ILR
12 Ran 178.
186 Though the prohibition does not apply to the acquisition of title by adverse possession by a
squatter: U Saw v Loke Mani BLR (1957) HC 221.
187 See for example Sabir Hussein v Ramanatha Chettiar BLR (1957) HC 172. The Foreign
Investment Law of 2012 makes some modification to this law (and a proposed Condominium
Law may make further modification), but the reliability of basic principle is not affected.
188 The Transfer of Immoveable Property (Restriction) Act 1947 creates several criminal
offences, and prescribes punishment for those who commit them.
189 See Chapter 5, point (47), above.
190 Chokkappa Chetty v Raman Chetty (1917-18) 9 LBR 103. A clearer approval of this principle is to
be found in State Bank of India v Collector of Rangoon BLR (1961) HC 336, where Indian legislation

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However, a foreign judgment based on a claim of the kind which falls within the Proviso
to Section 16, that is, one based on personal obligations of a defendant to the claimant,
probably can be recognised in Myanmar in accordance with Section 13 of the Civil
Procedure Code. So if a foreign judgment orders a defendant to pay damages for trespass
to the plaintiff’s land in Myanmar, or if it orders him to pay damages for breach of his
contractual obligation to convey land in Myanmar, there is no obvious reason of
principle or law why the foreign judgment against him which merely requires his personal
obedience, should not be recognised as res judicata, or enforced.
(63) Suits concerning immoveable property outside Myanmar
It is next necessary to consider the jurisdiction of a Myanmar court when the suit relates
to land outside Myanmar, and in the cases in which a court does have jurisdiction, the
rules of choice of law.
(a) Jurisdiction
As is made apparent by the Explanation,191
Section 16 of the Civil Procedure Code does
not lay down the law in respect of suits concerned with land outside Myanmar. But the
principle must be the same: a court in Myanmar should consider that if the land in
question is outside Myanmar, the court has no jurisdiction over a suit of the kind set out
in Section 16(a) to 16(e). In coming to this conclusion on the basis, or on the application
by analogy, of Section 16, a court in Myanmar would be reaching the same answer as
would be reached by courts in other common law jurisdictions which do not have a
statutory rule of the kind in Section 16, but which follow an ancient rule of the common
law that a court had no jurisdiction in a suit which depended on title to foreign land.
However, if the first paragraph of Section 16 applies by analogy to explain why the court
has no jurisdiction over certain kinds of suit relating to foreign land, the proviso to that
Section must also mean that where the suit is based on a personal obligation which can
be enforced by the obedience of the defendant, the court will have jurisdiction even
though the obligation in question relates to foreign land.192
So for example, the court will
not be deprived of jurisdiction to entertain a suit against a defendant who has failed to
perform his contractual duty to convey land which he agreed to sell to the purchaser:
although a Myanmar court will not order specific performance of a contract which it
would be illegal for the defendant to perform, there is no reason why it cannot order
damages for breach; likewise, a suit for damages for trespass to foreign land would not
be one which the court had no jurisdiction to hear by reason of the land being outside
Myanmar. A Myanmar court would be able to order a trustee to perform his duties even
though the trust property was land outside Myanmar: in all these cases, the obedience of
the defendant is all that is required to complete the legal process instituted by the suit.
(b) Choice of law
The distinction which applies to the jurisdiction of the Myanmar court, based on the first
paragraph of Section 16, and the proviso, is reflected in the approach a court should take
which confiscated the shares in an Indian bank which owned property in Yangon was held not to
alter title to a commercial building situated in Sule Pagoda Road.
191 Point (62) above sets out Section 16 and the Explanation.
192 Ayesha Bee v Gulam Husein Suleman Aboo (1921-22) 11 LBR 188.

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to the issue of choice of law. All questions concerning title to land in a foreign country,
including the capacity of transferor and of transferee to deal with that land (whether
generally or in a particular way)193
will be referred to and answered by the application of
the law of the situs of the land. It could hardly be otherwise: only the law at the place
where the land is can say whether a transaction was effective or not.
The need to apply the law of the situs of the land as closely as possible to the way in
which it would be applied by the courts of that situs leads to the conclusion that the
principle of renvoi should be applied,194
and that the whole of the law of the situs should
be applied, including those of its rules of private international law which would lead a
judge in that court to look to a domestic law other than his own. For example, suppose
that the land is in Ruritania,195
and that A has purported to transfer the land to B by way
of gift. If the validity of the transfer were to be challenged before a court in Myanmar,
the Myanmar judge would ask himself how a judge in Ruritania would approach the case.
If the judge in Ruritania would apply the domestic law of Ruritania to answer this
question, a Myanmar court should do likewise. But if the Ruritanian judge would look
instead to the law of another country - suppose for example that A and B were married,
and came from the same country whose law provided that transfers between husband
and wife were void - to answer the question which he has to decide, then the Myanmar
judge should follow and go where the Ruritanian judge is pointing. Having said that, the
cases in which a judge, dealing with the effect of a dealing with land which is within his
jurisdiction, will look to a law other than his own domestic law will be rare, and the
opportunity to apply the principle of renvoi will be rarer still.
A contract concerning land in a foreign country will be, like any other contract, governed
by its proper law. The parties may choose the law to govern their contract: there is
nothing to prevent two Myanmar parties agreeing that a contract, by which one agrees to
sell to the other an apartment which the seller owns in Singapore, will be governed by
Myanmar law. If a suit is brought on the contract, if there should be some problem with
its performance, the Myanmar court, having jurisdiction under the proviso to Section 16,
will apply Myanmar law to the rights and obligations of the parties. Of course, if the
contract is one which it would be illegal to perform in Singapore - suppose that a rule of
Singapore law makes it unlawful to transfer this particular land in Singapore to someone
who does not have entitlement to reside in Singapore and prescribes a penal sanction for
anyone who contravenes this law - the contract will be unenforceable in a Myanmar
court.196
And a court in Myanmar cannot properly order specific relief in circumstances
in which the defendant would be unable to comply with the order of the court.
If the parties do not choose the law to govern a contract which has foreign land as its
main subject, it is inevitable that it will be governed by the law of the situs of the land,
which will be the law with which it is most closely connected.
(64) The range of property which counts as moveable property
We turn to consider the private international law of moveable property. All property that
is not immoveable is, by definition, moveable. The consequence of this is that although
193 An Indian court so held in Nachiappa Chettiar v MYAA Muthu Karuppan Chettiar AIR (1946)
Mad 398, but the answer does not depend on this authority.
194 See Chapter 4, point (37) above.
195 An imaginary country, used for illustration only.

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the property which the law considers immoveable is coherent, the range of property
which the law considers moveable is very diverse.
It is usual to divide moveable property into tangible and intangible property: in effect,
property which can be touched, and property which cannot be touched. Property which
can be touched will include all goods. It will also include merchant ships and aircraft,
even though their ownership is subject to procedures for registration which do not
extend to other tangible property. Intangible property is exemplified by debts: obligations
owed to another. Although it may seem strange, at first sight, to consider a debt to be a
thing, it becomes less strange if one focuses on the credit, on the right or advantage
which the debt represents. It is well known - though it has to be explained to students at
the beginning of their legal education - that the expression ‘I have $1000 in the Bank’ is
misleading and inaccurate. I do not own $1000 if by this we mean particular banknotes.
Even if the Bank would allow me to, I cannot go into the vault of the Bank, point to ten
$100 notes, and say that those banknotes are mine: they all belong to the bank, every one
of them. I do not ‘have $1000’ in the Bank, if by this is meant that there are banknotes,
belonging to me, in the Bank. What I do have is a credit balance: I have an account with
the bank according to which the Bank owes me $1000 and I ‘have’ a debt of $1000 which
the Bank owes to me. This debt is an article of property, and that article of property is
intangible. I cannot touch the debt, though if the debt is converted into cash, as it is
when the Bank hands over ten of its banknotes to me, my intangible property has been
turned into tangible property.
What is true for debts is true for all manner of other contractual rights. Rights under a
policy of insurance are intangible property: intangible property which may one day give
rise to or be converted into tangible property, but intangible property all the same. A
letter of credit creates intangible property in the obligation of the debtor (though the
paper letter is tangible property). A judgment debt is intangible property. So also are
shares in a company: no-one would question that they are property, and as a share in (or
a share of) a company cannot be touched, the share is intangible property. The share
certificate may be tangible property (as is the paper copy of the policy of insurance) but
the right to which it bears witness is an intangible article of property.
Rights under a contract may be the commonest form of intangible property, but rights
under a trust are also intangible property. The Trusts Act regulates the rights and duties
of the participants in a trust; the rights of a beneficiary of the trust against the trustee, or
against another beneficiary, are intangible property. The trust may be established over
moveable or immoveable property. Chapter VI of the Trusts Act sets out the rights of a
beneficiary. According to Section 55 of the Trusts Act, a beneficiary has…a right to the
rents and profits of the trust property. When paid to him, the rents and profits in cash
form are, no doubt, tangible property, but his right to receive these from the trustee is a
right, an article of intangible property.
Intellectual property is certainly intangible: although a book or a work of art may be
tangible, the copyright which protects the author’s intellectual property is intangible.
However, the possibility that these are intangible immoveables is a reason to deal with
them separately, which we do below.
It is more debatable whether a reputation is property. There is a sense in which it can be
damaged, but the notion of ‘damaged’ is itself rather artificial, even if legal proceedings
can be brought when it has been ‘damaged’. It cannot be sold or given away, obtained,

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pledged, mortgaged or assigned, and for this reason it probably is not to be seen as
property.
(65) Questions of title to tangible moveable property (things)
It is universally accepted that the question of whether an act done in relation to a thing
has any effect on the title to the thing is governed by the law of the place where the thing
was when the act or event took place. The reason for this is obvious. If I buy a painting
in a market in Yangon, the question whether I become owner of the painting is answered
by Myanmar law: it has to be that way, for a buyer, or someone to whom something is
given, loaned or bailed would not know whether he has become owner, or bailee or
neither. All parties to the transaction would expect this answer to be given by the law of
the place where the thing was when something happened to it. If the painting had been
stolen, or was being sold by someone to whom it had only been bailed, or if the seller
genuinely thought he had the owner’s permission to sell it when he did not have that
permission, of if the painting is an antique which cannot be sold without the permission
of the relevant Minister, a question may arise as to whether the buyer obtained
ownership of the thing. The buyer would expect Myanmar law to answer that question.
So would the seller, and so (probably) would the owner if he were to discover that his
thing had been sold without his permission.
A person who buys a watch in a market in Thailand may be aware that many of the
things offered for sale are fake or stolen. But he would also expect that if there was any
question about the proprietary consequences of the transaction, it would be for Thai law
to provide the answer. The same principle will apply if I ‘lose’ my camera when I am on
holiday in China: I expect that if it is sold to someone else by the person who ‘found’ it,
it will be for Chinese law to explain whether the buyer becomes owner of the camera.
This can produce some harsh results, or some results which certainly look harsh. In one
famous case, a painting was stolen from its owner in England, and taken to Italy by the
thief, where it was put up for auction and sold to a purchaser. The original owner
claimed that the painting was originally his – which it certainly was – and that he could
not lose ownership of it as a result of theft – which would certainly be the answer given
by English domestic law. But when the painting was sold in Italy, it was Italian law which
determined the effect of the sale by public auction on behalf of a person who was not
the owner of a thing to a purchaser who had no reason to suspect that there was any
defect in the seller’s title. Italian law said that the purchaser got good title, and that the
original owner’s title was extinguished.
On reflection, though, this may not be such a harsh outcome. Where a thief or other
fraudster has got involved in the affairs of innocent people, and has then vanished
without trace, as they tend to, one innocent person is going to win, and one innocent
person is going to lose. There is, therefore, nothing harsh in the outcome which our rules
produce. One person will win; one will lose. That being so, and there being no other
relevant factor to exercise influence, the rules of private international law refer to the law
which is most convenient, predictable and rational, which is the law of the place of the
act or event which is supposed to have affected the earlier title.
The situs rule applies to cases in which one person acquires property from another: as is
sometimes said, to the acquisition of derivative (that is to say, derived from another’s)
title. But it also applies to cases in which a person claims to have acquired an original,

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independent, title. For example, if I find a ring which appears to have been lost, and I
take it, intending to keep it, the question whether I become owner is answered by the law
of the place where the ring was when I found it. If I take another person’s cloth and use
it to make a suit, the question of who the suit belongs to – whether to me, because I
made it, or to the owner of the cloth because it was his material – will be answered by the
law of the place where the cloth was made into a suit.
This can be important in cases of industrial manufacture. An owner of raw materials,
who sells them to a person who is planning to use them to manufacture goods for sale,
may be concerned that the buyer will not be able to pay for the goods supplied. The
seller and buyer may therefore agree, in a contract, that the ownership of the materials
will not pass to the buyer until the buyer has paid for the materials, even if the buyer has
already used them in the manufacture of goods. This can have very important
consequences if the buyer becomes insolvent: if the goods still belong to the person who
sold the materials, he can take them back. But the question whether this works to
prevent title to the materials passing in the way in which it would if there were no such
agreement is answered by the law of the place where the materials were when they were
manufactured into goods. If the law of that place accepts and gives effect to the terms of
the contract, the contract will have the effect it was intended to have. If the law of that
place does not allow the parties, by contract, to alter the point at which ownership
passes, then the contract will have no effect.
As can then be seen, the rules of private international law place great emphasis on the
law of the place where the thing was, or the goods were, when the event which is said to
have affected ownership took place. The only real exception to this is made for the case
where the rule cannot be applied and would make no sense. If goods are dealt with at a
point in time at which they are in transit, and their location is unclear or unknown –
suppose they are being carried by air across the airspace of a number of countries, or
carried by sea and are in international waters – the idea that the law of the situs may be
applied does not make any sense. In that case the rules of private international law may
instead look to the proper law of the contract by which the goods were to be dealt with,
but the case is one which had hardly ever arisen in practice.
(66) Recovering tangible moveable property from another
We should make a brief note to explain the meaning and effect, but also the limited
meaning and effect of the matters discussed under point (65). The rules under point (65)
tell the court in Myanmar how to decide the effect of a dealing with tangible moveable
property, but that is all it does. It does not mean that if a person is able to demonstrate
that a thing belongs to him he may demand it back from another person who has it. The
owner may have bailed or hired the thing to the other person, and for him to take the
thing back when the bailor has done nothing wrong may amount to a breach of his
contract of bailment or hire.
The person who wishes to obtain property which he says belongs to him, and who brings
a suit for this purpose, will normally have to prove two things: that the property in
question is his, and that the defendant has no right to keep the owner out of possession
of the property. The rules which examined under Point (65) are helpful on the first of
these points, but they do not have any further role to play when it is necessary for the
plaintiff to show, for example, that the defendant was a bailee whose bailment may be

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lawfully terminated (according to Myanmar law,197
this is to be seen as a contractual
question, governed by the proper law of the contract of bailment), or that the defendant
was a trespasser who had excluded the plaintiff from possession of his goods without
legal justification. In English law such a claim would be seen as a claim in tort, and it may
be that Myanmar law would take the same view and would apply the law or laws which
governed the tort, as examined in Chapter 6. But the important point is that the rules in
this Chapter show the Myanmar court how to decide the ownership of things. It does
not, by itself, establish that a plaintiff has any right to take or to re-take the goods from
the defendant who has possession of them.
(67) Title to intangible moveable property (debts and other obligations)
In order to understand the private international law rules of intangible property, it is
helpful to look first at debts, and then at other forms of intangible property.
(a) Debts
The issues examined under this point may seem obscure, but they are big business.
Debts, under which a debtor owes money to a creditor, are property. Maybe it would
have been more helpful to call them ‘credits’, so as to focus on the fact that they are
rights to receive rather than obligations to pay, but the terminology of ‘debts’ is well
established and it is, alas, too late to change it.
Once upon a time it might have been argued that voluntary transactions concerning
debts were governed, like transactions concerning tangible property, by the law at the
place of the debt. But really, debts do not have places in the way that tangible things do,
and this approach has generally been abandoned. In the cases in which it is necessary to
do so to give a location to a debt (for example, if it is argued that a debt may be attached,
or has otherwise has been confiscated by a state, on which see further below), one may
say that it is located where the debtor is. But this would not be a convenient rule in
commercial law, where a corporate debtor may be in several places at once. The
proposition that transactions concerning debts are governed by the law of the situs of the
debt has no real use in the context of voluntary transactions concerning debts.
If B owes $100 to A, A has a debt, or owns a debt (it is the same thing) of $100. He may
try to enforce this debt, by demanding and collecting $100 from B. This is what happens,
after all, when a customer of a bank, who has a credit balance in his account, goes to the
bank and asks for payment to be made to him. He enforces the debt, and the intangible
debt is converted into tangible cash. The basic picture is the same is C is owed money by
D, with whom he does business: let us suppose that D owes C $50,000. C has a debt of
$50,000 owed to him by D. Perhaps D is willing and able to pay the sum today, in which
case C may wish to enforce the debt and convert it into case. But D may not be willing
and able to pay the sum today. One possible reason is that D is currently rather short of
funds. Another reason may be that the debt is not yet due for payment: D may have
contracted to pay $50,000, but not until the last day of the year. C, however, may have an
urgent need for money. C may therefore sell his ‘debt’ to E. C will not be able to do so
for $50,000 – that would bring no advantage to E, who would not make a profit – but he
may be able to sell it for $40,000. That will mean that C has money today, which he
197 Bailment is dealt with in detail in Chapter IX of the Contract Act 1872.

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needs, and that E had paid $40,000 for a right to recover $50,000 from D. Everyone is
happy.
The example we have just given represents the basic model upon which the financial
systems of the developed world is based. Dealing with debts – selling, pledging,
discounting debts – is how much of the world does its business. The manner in which
the rules of law, including private international law, deal with transactions of this kind is
obviously important, for if there is any doubt about the way the law works, confidence in
the markets will be shaken. It follows that the rules which we examine here will apply to
ordinary customers of local banks as well as to the big financial organisations which trade
in debts.
The rules of private international law draw a distinction between whether the debt is
capable of being transferred or assigned at all, and the separate question whether the
transaction between assignor and assignee is binding on and effective between the parties
to it. Let us take a case in which B owes money to A, and A intends to assign or transfer
the rights to this debt to C. The question whether the debt which B owes to A is
assignable at all is answered by the proper law of the contract between A and B, under
which the debt arose. The question whether the transaction between A and C was valid
and legally binding on them is governed by the law which governs the contract (or other
relationship, such as gift) between A and C. As a result of this, if the debt is assignable
according to its proper law, and if the assignment is effective by reference to its proper
law, the right to the debt will have bee assigned. If the debt is not assignable according to
its proper law, that is, if the law governing the contract between A and B provides that
the benefit of that contract cannot be assigned, then the contract between A and C may
be valid, but will not transfer the right to the debt. C may then sue A for breach of
contract, for failing to bring about the result which he promised, but the debt will not be
assigned, because according to the law which created it, it is not capable of being
assigned.
In the even that the party who has the right to the debt assigns it twice - which is almost
bound to cause trouble - the question of who has the prior claim to the debt against the
debtor will be governed by the law which created the debt in the first place. Whichever
of the assignees who considers that he has a claim against the assignor will be able to sue
him for compensation for breach of contract.
(b) Shares in companies
Debts arising from contracts are by far the most important articles of intangible property.
But shares in companies are also intangible property, and where there is some sort of
dealing with company shares, the rule just described applies by analogy. The question
whether (or in what circumstances, or to whom) the shares are assignable is governed by
the law of the company’s incorporation, for it would be absurd to refer the question to
any other law. The question whether an assignment is itself valid will be referred to the
law which governs the transaction between assignor and assignee. Of course, if it is
alleged that the shares in a company have been confiscated by state action, it will be
necessary to look instead to the place at which the shares are situated, which will be the
place of the company’s incorporation.
(c) Attachment and garnishment of debts and shares

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A common form of enforcement for judgments and decrees is the attachment of the
debtor’s property. Among the forms of property which may be attached by way of
execution, Section 60 of the Civil Procedure Code identifies ‘debts, shares in a
corporation’. That means that the property described is liable to be attached and sold (or
otherwise liquidated for the benefit of the judgment creditor). Such measures can only be
applied to property which is within the territorial jurisdiction of the Myanmar court.
The process is further explained by Order 21 of the Civil Procedure Rules. In particular,
the attachment of debts which are due to the judgment debtor, with the aim of having
the court direct the sums due to the judgment debtor be paid to the judgment creditor in
satisfaction of the judgment in his favour is provided for by Order 21 rule 46 of the Civil
Procedure Rules, which allows the court to make a prohibitory order198
(because debts
not secured by a negotiable instrument199
cannot be seized by the taking of possession).
It follows that the order can only be made by a court if the debtor, who is to be directed
to pay the sums to the judgment creditor, is within the jurisdiction of the court. Here,
therefore, the state is, in effect, taking control of the debt. It is therefore necessary to
show that the debt is situated - which means that the debtor is situated - within the
jurisdiction of the Myanmar court.
When a debt has been attached under Order 21 rule 46, and the debtor has been ordered
not to pay the money without the order of the court, the further procedure by which the
judgment creditor completes the process and obtains an order that the sums in question
be paid to him instead is known as ‘garnishment’.200
The judgment creditor applies for an
order that the debtor, who owes money to the judgment debtor, be ordered to pay those
sums over to the judgment creditor, and once these have been paid, the debtor be
deemed to be released from the original debt. The mechanism of this garnishment is set
out in Order 21 rules 63A-63G; and because of the way that it works, garnishment must
be confined in its operation to debts - and therefore to debtors - within the territorial
jurisdiction of the Myanmar court. The process of garnishment is a form of compulsory
acquisition of the debt, and it must therefore be confined to property which is within the
territorial jurisdiction of the court.
(d) Intellectual property rights
At various points in the chapters above, we have made reference to the private
international law of intellectual property: patents, copyright and trade marks. It is
mentioned here only to make the point that the rules of private international law relating
to such rights are complex, and their detail is outside the scope of a general textbook of
this sort. It is sufficient to say that such intangible property is, in many ways,
immoveable: it is certainly territorial in the way that the rights of the right-holder are
protected. Patents, copyrights and trademarks are governed by the law which given them
their existence, and they are regarded as located where they are granted, issued, or
protected. This tends to mean that a Myanmar court may be asked to adjudicate a
Myanmar patent, copyright or trademark, but will not be asked (or able) to adjudicate a
foreign equivalent. The Myanmar Copyright Act 1914 deals only with Myanmar
copyright as a matter of domestic law; the Myanmar Patents and Designs Act 1945 is
198 See for illustration, Burma Railways Co Ltd v Hira Lall (1915-16) 8 LBR 62.
199 As to which, see point (68) below.
200 For illustration, see Singer Sewing Machine Co v Surath Singh (1941) RLR 177.

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likewise limited to rights granted under Myanmar law.201
International coordination of
rights which are naturally limited in territorial scope requires treaties or conventions, and
progress in this respect has been slow.
(68) Negotiable instruments
It is convenient to say something brief about negotiable instruments, which in Myanmar
are regulated by statute in the Negotiable Instruments Act 1882. The basic approach of
the law is that an instrument is negotiable if it is negotiable by mercantile custom or by
Myanmar law. What makes an instrument a negotiable instrument is that it can be
transferred by endorsement or delivery, or by simple delivery, and that if the instrument
is in the hands of the holder, his rights are not affected by any defect in the title of a
prior holder. The law is, as the 1882 Act shows, really very complex, but in effect the
negotiable instrument is treated much more as a tangible moveable than an intangible
moveable.
A promissory note, bill, or cheque made in Myanmar and payable in Myanmar or drawn
on a person in Myanmar, is an ‘inland instrument’, and all other instruments are ‘foreign
instruments’.202
A foreign bill must be protested for dishonour if such protest is required
by the law of the place where the bill was drawn.203
Chapter XVI of the Negotiable Instruments Act 1882 sets out a small number of rules of
private international law. According to these, unless a contract provides otherwise, the
liability of the maker or drawer of a foreign promissory note, bill of exchange or cheque
is governed by the law of the place where it was made or drawn, and the liability of the
acceptor or endorser is governed by the law of the place where it is payable.204
Where a
bill is payable at a place different from that at which it was made or endorsed, the law of
the place where it is payable determines what counts as dishonour.205
If an instrument is made, drawn, accepted or endorsed outside Myanmar but in
accordance with the laws of Myanmar, it is to be regarded as valid in Myanmar even
though the agreement evidenced by the instrument is invalid according to the law of the
country where it was entered into;206
and in the absence of evidence, the law of a foreign
country regarding negotiable instruments is presumed to be the same as Myanmar law.207
This is the only example of the rule of the common law, that foreign law is presumed to
be the same as that of the forum court unless the contrary is proved, which is to be
found in legislative form.
(69) Trusts of property
The private international law of trusts is not well developed. Insofar as it is affected by
the laws of family, succession and inheritance, it lies outside the scope of this book. The
201 Although Section 93 of the Act makes provision for reciprocal rights in relation to Britain and
India (it is not known whether this Section has ever been applied or is still considered to be in
force).
202 Negotiable Instruments Act 1882, Sections 11 and 12.
203 Negotiable Instruments Act 1882, Section 104.

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law which governs a trust may be chosen by the author of the trust,208
for if the trust
property is his, it is his to dispose of as he wishes, and there is no real reason to restrict
the freedom he has to choose the law which governs the trust he chooses to create. If the
law is not chosen by the author of the trust, the trust will be governed by the system of
law with which it has its closest connection. That law will govern the rights and duties of
the trustee and the beneficiaries, the day-to-day administration of the trust, the alteration
and the extinction of the trust.
Where a trust is governed by Myanmar law, the detailed regulations which apply to the
trust, and to those involved in it, answer is liable to be found in the Trusts Act 1882. The
one provision of the Trusts Act 1882 which makes a reference to foreign law is Section
4, which deals with the lawful purpose for which a trust governed by Myanmar law may
be created. It provides as follows:
4. Lawful purpose. A trust may be created for any lawful purpose. The purpose
of a trust is lawful unless it is (a) forbidden by law…
Explanation – in this section the expression ‘law’ includes, where the trust-
property is immoveable and situate in a foreign country, the law of such country.
Apart from that, the general rule, that a trust which is created and operates inter vivos is
governed by its proper law appears to be wholly reliable.
(70) The seizure of property by governments and states
It is not uncommon that states and governments seize, with or without compensation,
property which until that moment had been held in private hands. When a court is called
upon to deal with a case in which such an event has taken place, the answers can be
mostly derived from the application of the rules which we have set out above. To
illustrate the law, it is convenient to distinguish seizure by the government of Myanmar,
and seizure by foreign governments. The principles of territoriality and comity, and the
role of the law of the situs of property, provide most of the answers.
(a) Seizure of property by the government of Myanmar
If the government of Myanmar seizes, confiscates, or nationalises property situated
within the territory of Myanmar, a court in Myanmar will obviously give effect to the title
acquired by the Union in accordance with Union law. No real question of private
international law arises, at least where the question of title to the property arises for
decision before the Myanmar court. The only circumstance in which this conclusion may
be questioned is where the seizure is contrary to the international obligations of the
Union of Myanmar as set out by or established in a treaty, though this will not usually
call into question the effectiveness of the seizure as a matter of private international
law.209
208 This is the terminology used in Trusts Act 1882, Section 3. In other common law legal system,
the author of the trust is called the ‘settlor’.
209 A bilateral investment treaty may contain provisions which guarantee the freedom from state
seizure of certain property. If the state acts in breach of the provisions of such a treaty, it
breaches a rule of public international law, and the matter may proceed to a form of international
arbitration, but it is most unlikely that the alleged (or admitted) breach of such a treaty has any
effect in private international law.

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The question whether the seizure of property situated within the territory of Myanmar
will be recognised and given effect by the courts of a state outside Myanmar is,
obviously, a matter for the rules of private international law of that foreign state. But the
general approach of states to confiscations of property taking place outside their territory
can be seen under the next heading.
(b) Seizure of property by foreign states and governments
If property is within the territorial jurisdiction of a foreign state, and the government of
that state confiscates it, whether by legislative decree or by seizure pursuant to existing
legal powers, the change in title will be recognised in Myanmar as effective, and if
necessary the rights of the person with the new title will be enforced, if the property is
brought to Myanmar. This rule applies to tangible and to intangible property. For
example, if a company is incorporated under Indian law, and the Indian government
nationalises the shares in the company, for whatever reason, the courts of Myanmar will
accept that title to the shares has passed to the Indian state, or to the new company into
which Indian law has passed them.210
If the Indian company now pursues different
policies, under the direction of its new owners, there is nothing surprising in that, as it
was not a company in some abstract sense, but was an Indian company. As will be seen
in the next Chapter, that means that its fate is dependent on Indian law and on powers
exercised in accordance with Indian law. Likewise, if a debt (which for these purposes
means a debtor) is within the territorial jurisdiction of the foreign state, and under the
law of that state the debtor is ordered to pay to the state the sum by which he was
indebted to a creditor, the confiscation of the debt will be recognised as effective to
annul the former creditor’s rights.211
And if the Thai government were to nationalise and confiscate property located in
Thailand but belonging to a political enemy, a court in Myanmar will still recognise the
effect of the confiscation. If the Thai government then sells the property in Thailand to a
purchaser, who gets good title under Thai law, and who then brings the property to
Myanmar, the former owner will have no claim against the new owner. He may seek to
say that he has title to the property, and that he has a claim for relief as a result; but the
short answer will be that he does not have title: the new owner acquired good title
according to Thai law and (therefore) according to the private international law of
Myanmar. That will be enough to defeat any claim by the former owner against the new
owner.
The only possible circumstance in which the effect of a foreign seizure of property
within the territory of the foreign state will not be recognised as conclusive is if the
grounds on which the seizure was made are offensive to Myanmar public policy. For
example, if the government of a state were to seize the property within that state of all
Myanmar nationals,212
it would be contrary to the public policy of Myanmar law to give
210 State Bank of India v Collector of Rangoon BLR (1961) HC 336. This confirms that the new
company will be recognised as a matter of Myanmar law, but that as the Indian legislation cannot
affect title to land in Myanmar (in the actual case, it did not purport to do so), a stampable
conveyance will be needed to bring legal title to the Myanmar land into line with the new
company ownership.
211 Chaturbhuj Piramal v Chunilal Oomkarmal (1933) LR 60 IA 211.
212 It should be noted, though, that nationality generally has no relevance to this question. A state
may, as a matter of private international law, acquire title to all property within its territorial
jurisdiction, whether this belongs to its own nationals or to aliens generally (or to enemy aliens).

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any effect at all to the foreign governmental act, even if it related to property within the
territory of the foreign government. In England, it had been suggested that laws enacted
by the Nazi German state to confiscate the property and other rights of Jews were so
wicked that they would be completely ignored; in more recent times, the English courts
refused to recognise the legislative confiscation of Kuwaiti property after the government
of Iraq had taken it from Kuwait to Iraq and had given it to Iraqi companies. But these
are really extreme cases, and when they arise, the ordinary rules of private international
law are bound to come under some strain.
It naturally follows that if a foreign government purports to confiscate or seize property
in Myanmar, the act of the foreign state will be wholly ignored.213
If property is within
the territory of Myanmar, the acts of a foreign state are not part of the lex situs, and are
therefore irrelevant to the ownership of the property.
The only problem arises when a particular ethnic group, religious group, or nationality, is singled
out for such treatment, for an acceptance of this would appear to impair the general expectations
of the rule of law.
213 State Bank of India v Collector of Rangoon BLR (1961) HC 336 (though in that case, the Indian
legislation did not purport to do that).

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CHAPTER 8
CORPORATIONS AND INSOLVENCY
In this Chapter we examine the private international law of companies and corporations;
and the insolvency and winding up of companies. It is convenient to make a brief
mention of personal (that is to say, non-company) insolvency at the end of the Chapter,
though it does not really belong in a chapter principally concerned with companies and
corporations.
(71) The definition and identification of a corporation
A company or corporation – the terms are usually interchangeable – is an artificial thing,
or an artificial person. A company cannot be born, or form itself: it must be created by
someone, acting in accordance with, and under, a law. Once it has been created, it does
not acquire an independent existence: it remains governed by the rules of the legal system
under which it was created.214
The private international law of corporations places much of its emphasis on the law
under which the corporation was formed, the lex incorporationis. The rules of private
international law take the view that the law under which the corporation was created can
create, alter, dissolve, and abolish, the corporation. It is important to understand that
because the corporation is an artificial creation, it depends entirely on the law which
created it. It means that persons who hold shares in a company do not hold shares in a
company but in a Myanmar company, or in a Thai company, or in an English company;
and this corporate ‘nationality’ is important. It means that the person who has shares in a
Russian company can lose them, or can lose some or all of the rights associated with
them, if Russian law changes in a particular way. There is nothing surprising or unfair
about any of this: a person who becomes a member of a company knows that the rules
which define his relationship with the company are to be found in the constitutional
documents of the company, but also in the rules of company law in that country. A
person who takes shares in a Myanmar company knows that his rights are given and
defined, and may be altered or annulled, by Myanmar law. It also means that a person
who makes a contract with a company knows or ought to know that the law which
created the company could always un-create it again, at which point his contractual
counter-party will have disappeared. These things happen only rarely, of course, but
when they do, the disappointed party can hardly claim to have been taken by surprise.
Whoever takes shares in, or deals with, a company formed under a particular law, takes a
risk with that law; and some laws are, in this sense, more risky than others.
As a result of this, the Myanmar Companies Act 1914, as amended in 1955,215
states the
law by which a company may be established under Myanmar law, and provides the rules
which set out the powers and responsibilities of the various organs of a company formed
under Myanmar law.216
Most of the Act does not, and perhaps cannot, be applied to a
214 To use another image, it retains its domicile of origin (as to which, see below, Chapter 9, point
(82)).
215 Myanmar Companies (Amendment) Act 1955.
216 Although it is expected that the Companies Act 1914 will be further amended, the nature of
the alterations is not yet known. But the main purpose of any Companies Act will be to regulate

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company created under the law of a foreign country. The only real effect of the
Companies Act on companies created under the law of a foreign country is to regulate
certain aspects of their activity in Myanmar.217
There are, for example, provisions which
require an overseas company which carries on business in Myanmar to obtain licences,
and to register certain particulars with the Registrar of Companies. But in the same way
that the Contract Act applies principally to contracts governed by Myanmar law, the
Companies Act applies principally to companies formed under and therefore governed
by Myanmar law. Its treatment of companies formed under foreign laws is, mostly,
limited to setting out the conditions in which they may carry on business in Myanmar,
which will (or should) include provision for service summonses on them.
It is well understood that the Companies Act, now over 100 years old, needs to be
reformed. A project to bring about this reform is now underway; but at the time of
writing is did not appear that the changes proposed to be made would substantially alter
the rules of private international law, although they would make the law clearer and easier
to understand.
For present purposes, even if it is not completely accurate, it is convenient to refer to a
company formed under the Act as a ‘Myanmar company’, and a company formed under
the laws of another country as an ‘overseas company’.218
(72) Jurisdiction over companies
The first practical question is the one which arises a plaintiff wishes to assert jurisdiction
over a company for the purpose of a suit in Myanmar. It is necessary to draw a
distinction between Myanmar companies and overseas companies.
(a) Myanmar companies
A company formed under the Companies Act is by definition subject to the jurisdiction
of the Myanmar courts, by submission, but also because its registered office is to be seen
as the company’s place of residence. The question of how and where it may be served
with process is answered by Section 148 of the Companies Act 1914, which states as
follows:
148. Service of documents on company. A document may be served on a
company by leaving it at, or by sending it by post to, the registered office of the
company.
Service in accordance with Section 148 will give the court jurisdiction over the company
in respect of the suit. But in addition to this rule – and having a somewhat uncertain
in detail companies created under it, and to make only piecemeal provision for companies
formed under a foreign law.
217 Part X of the Myanmar Companies Act 1914 is of particular application to companies formed
under the laws of a foreign country, though Part IX, which deals with the winding up of
unregistered companies will apply, in principle at least, to overseas companies.
218 The term ‘foreign company’ is, in this context, not a helpful one, for it extends to all
companies whose share capital is not wholly owned by citizens of the Union of Myanmar:
Companies Act, Section 2B. It appears to follow that some companies formed under Myanmar
law are ‘foreign companies’, as well as companies formed under foreign laws, which is rather
confusing.

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relationship to it – is the rule contained in Order 29 of the Civil Procedure Rules, which
allows service to be made on any company which is present in Myanmar. This appears to
offer an alternative method of service, and therefore of establishing jurisdiction, which is
analogous to that available in the case of individual defendants. Order 29 rule 2 provides
as follows:
Order 29 rule 2. Subject to any statutory provision regulating service of process,
where the suit is against a corporation, the summons may be served -
(a) on the secretary, or on any director, or other principal officer of the
corporation, or
(b) by leaving it or sending it by post addressed to the corporation at the
registered office, or if there is no registered office then at the place where the
corporation carried on business.
This provision appears to apply to all companies which are present in Myanmar: at least,
there is no indication that it is confined to companies created under the law of Myanmar;
we will therefore refer to it again.
These options appear to provide a sufficient basis for the assertion of jurisdiction and for
the making of service on the defendant company.
(b) Overseas companies doing business (with a place of business) in Myanmar
Before it was deleted in 1955, Section 277 of the Companies Act made specific provision
for service on an overseas company which had, when establishing a place of business in
Myanmar, notified the Registrar of Companies of the names of persons authorised to
accept service of process. Most common law systems have something similar in their
laws, but in Myanmar this provision was repealed in 1955.219
An overseas company which establishes a place of business in Myanmar is required to
obtain a licence,220
and if it does so, it seems reasonable to argue that it becomes resident
within, or otherwise submits to, the jurisdiction of the Myanmar court. Once this is done,
there is no reason to doubt that Order 29 rule 2 applies to overseas companies which
have a place of business in Myanmar. This means that on overseas company may be
served at the place at which it carries on business in Myanmar. It follows that the real
question, from which everything follows, is whether the activities of the overseas
company constitute the doing of business in Myanmar.
There are, in outline, two ways to address that question. In some common law systems,
the approach is to look for a place of business, in the sense of somewhere fixed and
definite, at or from which the business of the company is carried on; and business will be
regarded as being carried on there if (and, according to some, only if) contracts are made
there.221
As said above, where there is such a place of business, jurisdictional competence
219 Myanmar Companies Amendment Act 1955, Sections 15 and 16. It seems likely that a
provision to this effect will be reintroduced into a new Companies Act when one is made in or
after 2015.
220 See Sections 2B(b) and 27A(3) Companies Act 1914 (the amendment was made by Myanmar
Companies Amendment Act 1955, Sections 2 and 5).
221 It is expected that the new Companies Act will also contain a more thorough definition of
‘doing business’, which will be very welcome, for a company may do all manner of things which
maybe should not count as the doing of business.

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over the company is not limited to claims arising from the activities of the place of
business, but any claim against the company may be brought there. It will certainly follow
that if the Managing Director or Chief Executive Officer is in Myanmar for a meeting or
for a golfing holiday, it will not be possible to effect service on the company by serving
such officers, for even if they are the directing minds of the company, and even if they
are in Myanmar for purposes related to the business of the company, their presence does
not give their company a place of business within Myanmar.
But the making of contract by a company is, in many cases, only the culmination of the
business which it does. What of the activities which are carried on before a contract is
successfully concluded? An alternative approach would be for the definition to be spelled
out, in detail, in legislation. One possibility would be to list the activities which a
company might undertake in Myanmar, but which do not amount to ‘doing business’ in
Myanmar. At the time of writing, the first draft of a new Companies Act proposed, in
Section 269C, examples of activity in Myanmar which would be insufficient to amount to
the doing of business in Myanmar.222
These were given as: becoming party to legal
proceedings in Myanmar, holding meetings of directors or shareholders in Myanmar,
maintaining a bank account in Myanmar, effecting a sale of property through an
independent contractor in Myanmar, soliciting orders in Myanmar but which will only
become a contract if the offer is accepted and the contract made outside Myanmar,
lending money or creating a charge on property in Myanmar, collecting debts due to it in
Myanmar, conducting a one-time transaction in Myanmar which is completed within 30
days and which is not part of a series of such transactions, and investing funds or holding
property in Myanmar. It seems reasonable to say that some of these are easier to accept
than others; and that the enacted legislation may well cut down the contents of this list.
That, however, is not the important point. What is important is to understand the
difficulty and complexity which surrounds the simple-looking question whether a
company, not formed under Myanmar law, does business in Myanmar. It all depends on
what is meant by ‘doing business’, and the clearer the legislation is, the easier the answer
is to give.
It may be asked whether the fact that a company can be served also means that the court
has jurisdiction over claim in the document which has been served. For in the case of
suits against individuals, the rules of jurisdiction in Sections 16 to 20 of the Civil
Procedure Code define, but also limit, the jurisdiction of the court over a defendant who
may still be served within Myanmar. The best practical answer to a question which is a
little awkward223
is that if a company has a place of business in Myanmar, it is resident
there, and jurisdiction over it is consistent with, or justified by, Section 20 of the Civil
Procedure Code.
(c) Overseas companies which do not have a place of business in Myanmar
A company incorporated under a foreign law which does not have a place of business in
Myanmar in the sense just described, cannot be served in Myanmar. Any service on it will
have to be made out of the jurisdiction.224
In such a case, the jurisdiction of the court in
222 A first draft of the proposed Law on the website of the Directorate of Investment and
Company Administration in February 2015.
223 The problem recurs in many common law systems in Asia which inherited from England a
law which did not blend civil procedure law and company law as carefully as it should have.

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relation to the company will need to be justified by Sections 16 to 20 of the Civil
Procedure Code.
(73) The recognition of corporations formed under foreign laws
If a body has legal personality under the law under which it was created, its personality
will be recognised under the private international law of Myanmar.225
Whether a body has
been created with legal personality under the law of a foreign country can only be
answered by referring the question to the law of that country.
This will obviously apply to entities formed under foreign laws analogous to the
Companies Act. But the point is actually wider than the law of companies: if a foreign
legal system regards another kind of artificial person as having legal personality, Myanmar
private international law will accept this. So for example, if a Hindu temple has legal
personality under Indian law, there is no reason in principle why its legal personality will
not be recognised in Myanmar.
Recognition is not a single issue, but involves a number of issues; and the recognition of
a corporation can arise in a number of contexts. It will certainly involve recognition of
the legal personality as something separate from the personality of the shareholders or
members of the company. It will mean that the question of who is entitled to act on
behalf of the company is answered in accordance with the lex incorporationis: if that law
says that an officer may not act on behalf of the company, its conclusion cannot be
challenged. If under the law of the place of incorporation a liquidator is appointed to act
on the company’s behalf, or as the competent officer of the company, the appointment
should be recognised.
If the law of the place of incorporation provides that in the event of a judgment being
given against a company, or other liability being incurred by a company, the liability
cannot be enforced against anyone other than the company, that will normally be treated
as conclusive. But there are occasions on which a court may suspect that the use of the
corporate form – the creation of a body with separate legal personality – has been done
for improper purposes, or even to allow fraudulent trading. In such cases, a court may be
tempted to ‘lift the corporate veil’ and to fix the liability to meet the obligations on the
individuals who formed the company. Of course, if the lex incorporationis allows this to be
done, there is no problem of principle. But if it does not, the Myanmar court may still
decide, in an appropriate and extreme case, to lift the veil itself. This would be justifiable
on the basis that it should not be permitted to use the corporate form to justify a fraud,
or perhaps because a Myanmar court, in giving judgment, is entitled (because the matter
of remedies is a procedural one)226
to determine the persons against whom its order is to
be enforceable.
If a group of companies in common ownership or control is organised in such a way that
the company which undertakes obligations has few assets with which to meet those
obligations, while the real wealth is held in other, separate, companies which are part of
the greater organisation, a court may be tempted to treat all these technically-separate
entities as forming a ‘single economic unit’, with the consequence that it is all treated as a
225 Leong Ah Foon v The Italian Colonial Trading Co (1905-6) 3 LBR 261; State Bank of India v Collector
of Rangoon BLR (1961) HC 336.

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single organisation, present as a whole where any part is present, liable as a whole when
any part is liable, and so forth. Such reasoning is more commonly accepted in the United
States than in other parts of the common law world. It is probably not to be understood
as a part of the private international law of Myanmar.
In other words, the recognition of a foreign company includes accepting the legal
conclusions which the foreign law applies to the existence of the company as a separate
legal person. But it is still possible to recognise the separate legal personality of a
company as this is created and conferred by a foreign law, and still apply rules of
Myanmar law as to (what is meant by) presence, and remedies, to produce an answer
which would not be entirely consistent with the lex incorporationis.
(74) The dissolution of corporations formed under foreign laws
If a foreign law creates a company, it can also un-create it. If a company was formed
under the law of a foreign country which then acts, or authorises an act, to dissolve that
company, the rules of Myanmar private international law must accept that the company
has ceased to exist. Neither the Companies Act, nor any other rule of Myanmar law, can
provide that a company exists under the law of a foreign country if the law of that
foreign country says that it does not. In Europe a century ago, a large number of
companies formed under the laws of the Russian Empire were dissolved by the acts of
the Soviet regime which replaced it: even though the government of the United
Kingdom strongly disapproved of the acts of the new Russian powers, the English courts
never doubted that if a Russian company had been dissolved under and in accordance
with what now appeared to be Russian law, that was the end of the company.
Of course, it also follows that a company formed under Myanmar law may be wound up
and dissolved in accordance with Myanmar law. As the most usual reason for doing so is
on the insolvency of the company, we will examine it under point (76) below.
If the lex incorporationis can create and can dissolve a company, it must follow that it can
amalgamate two companies and create a new body from the amalgamation. If the law
under which the amalgamation and dissolution takes place provides, as it usually will, for
the new company to succeed to the old, which means to succeed to the rights and
liabilities of the original-and-now-dissolved companies, this succession will be recognised
and accepted by the private international law rules of the Myanmar court.227
If, however,
the foreign legislator provides that the new company succeeds to the assets, but to none
of the liabilities, of the old company, it seems probable, but is less certain, that a
Myanmar court would accept that this could not be questioned.
As we shall see, if a company is dissolved in accordance with the lex incorporationis, this
does not necessarily affect a contract made by that company if that contract is governed
by a different law. The contract may still be valid, though the question of who it may be
enforced against is undoubtedly more difficult. We turn to that general issue next.
(75) Problems associated with contracts made by or on behalf of corporations
Companies and other corporations make contracts, and those contracts will be governed
by their proper law, which may be chosen, or which will otherwise be identified by the

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rules we examined in Chapter 5. But two particular issues arise when a contract has been
made by a corporation, and both are, in some sense, issues of capacity.
The first problem which may arise does so if a company makes a contract which,
according to the company’s documents, or the lex incorporationis, the company or
corporation does not have legal power or capacity to enter into. In such a case, if the
company really does lack capacity under the law which created it, any purported contract
with that company or corporation must be void of legal effect, in just the same way as a
contract with a child or with a person who is out of his mind will be void. It may be
awkward for a person who makes a contract with a company, for it may not be easy for
him to discover whether there are any limits on the capacity of the company to contract,
and what those limits might be; but in principle he should check before entering into the
contract. And in any event, there is always a risk in contracting with a company, that the
company may not have assets to meet its obligations, that it may be dissolved by or in
accordance with the law under which it was formed; that the law under which it was
formed may even allow its controllers to dissolve the company for the very purpose of
preventing its obligations from being performed. Those who deal with companies need
to be aware of the risks, and to adjust accordingly the terms on which they are prepared
to deal with a company.
The second problem arises from the fact that a company cannot just act; it must act
through a natural person. If that person has authority to bind the company to the
contract in question – this will be a matter on which the lex incorporationis provides the
answer – there will be no difficulty. But suppose that it is said that the individual had no
authority to bind the company, or that the individual had power to bind the company
only if he secured the approval of the board of the company in advance, and that this did
not happen. The position is then that a contract has been concluded, but in
circumstances in which the person who acted on behalf of the company should not have
done as he did: the contract is one which the company had legal power to make, but in
circumstances which were irregular. Faced with this, the rules of private international law
have a choice. They may see the issue as one of company law, and refer to the lex
incorporationis to see what consequences follow from the irregularity; or they may say that
it is a contractual matter, and look to the proper law of the contract to determine
whether the contract is binding on the company. It is very difficult to say which
approach should be taken to represent the private international law of Myanmar. On
balance, the better analysis appears to be that if a contract has been made by an agent
acting on behalf of another, and the contract is one which such a person would appear to
have authority to make, the contract should be binding. Chapter X of the Contract Act
1872 sets out the rules of agency as they apply in the domestic law of Myanmar law. They
refer to situations in which a person with authority in relation to a principal’s business
makes contracts for that principal, or may go beyond the power which he has been given;
it also deals with the case in which the principal gives the impression to the world that
the person has authority.228
These rules regulate the issues which arise in circumstances
of the kind we have described here; and it may therefore be correct to view the question
set out above as a contractual one, governed by the proper law of the contract, rather
than as one governed by the law of companies.
(76) Dealing with a Myanmar company close to or in insolvency
228 Contract Act 1872, Section 237.

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If a Myanmar company is in financial trouble, there are several steps which may be taken.
These do not appear to raise issues of private international law, but they need to be
mentioned for the sake of the completeness of the picture.
(a) Schemes of arrangement
A compromise between a Myanmar company and its creditors may be arranged, and
sanctioned by the court, in accordance with Companies Act 1914, Sections 153, 153A
and 153B. If the court sanctions the scheme of arrangement, the rights of the creditors
and members are dealt with by the scheme, and have the effect provided for by the Act.
The purpose of the scheme of arrangement is to try and keep the company afloat as a
going concern in circumstances in which the members or creditors realise that the
company is in such difficulty that one false move might lead to its insolvency and
therefore to a winding up. The procedures in Section 153 are confined in their scope to
companies created under the Act; they have no relevance to overseas companies.
Of course, if a Myanmar court approves a scheme of arrangement, and decrees an
alteration of the rights of creditors, it may have this effect on a contract which was
governed by a law other than Myanmar law. Although a court in Myanmar will regard
this as valid, effective and binding, it does not follow that a court in another country will
necessarily agree: it may take the view that if a contract is governed by a law other than
Myanmar law, it is not open to Myanmar law, or for a Myanmar court, to determine or
decide whether it is still valid. This possibility of difference in view is one of many
reasons why efforts are made to bring greater international harmony to insolvency and to
procedures related to it.
(b) Winding up of Myanmar companies
Part V of the Companies Act 1914 makes provision for a company to be wound up, as
Section 155 Companies Act explains, in three ways: by the court, or voluntarily, or under
the supervision of the court. By far the most important of these is the provision which is
made in the Act for a company to be wound up by the court if it is unable to pay its
debts;229
and Part V of the Act sets out in detail the powers of the court and the
procedures which it will follow in the course of the winding up. The Act also provides
for voluntary winding up, at the behest of members or of creditors; and it allows such a
voluntary winding up to be undertaken under the supervision of the court.
The detailed law of corporate insolvency, which is contained in Part V of the Act, is not
within the proper scope of a book on private international law. Insofar as the Act
provides for the winding up of a Myanmar company, it raises no particular issues of
private international law. Those claims to payment which are to have priority are set out
in Section 230 of the Act. By Section 231 the court has power to set aside a fraudulent
preference.
231. Fraudulent preferences. (1) Any transfer, delivery of goods, payment,
execution, or other act relating to property which would, if made or done by or
against an individual, be deemed in his insolvency a fraudulent preference, shall,
if made or done by or against a company, be deemed., in the event of its being
wound up, a fraudulent preference of its creditors, and be invalid accordingly.
229 Companies Act, Section 162(5).

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It is to be observed that Section 231 appears to give the court a power to act which is
without any obvious limitation. It appears that it may be applied to payments or transfers
which were and are wholly valid according to the law by reference to which they were
originally made, and to persons who are not, and who never were, within the territorial
jurisdiction of the Myanmar court. This does give rise to a question of private
international law. It is obvious that Section 231 may be applied to a transaction which
was connected to Myanmar and to the law of Myanmar and to nothing else, but
otherwise, what is its international reach ? Does it really allow the court to declare invalid
a transfer of goods in China, to an individual in China, under a transaction governed by
Chinese law and according to which law there is no problem with the transaction ? On
the face of it, Section 231 does do that; and that is a surprising state of affairs. It is
sometimes said that power such as those in Section 231 only apply if there is a ‘sufficient
connection’ to Myanmar or to its law, but the moment one asks what that actually means,
the answer is a blank. It is a good question, and it has no obvious answer.
(77) Winding up an overseas (foreign) company
The previous point dealt, in the barest outline, with the procedure for winding up a
Myanmar company created under the Companies Act. But the Act also makes provision
for the winding up of an unregistered company. For as those foreign or overseas
companies which are formed under foreign laws are not created and registered under the
Companies Act, and as Part IX of the Act provides for the winding up of an unregistered
company, it follows that a Myanmar court can wind up an overseas company.230
271. Winding up of unregistered foreign companies. (1) Subject to the
provisions of this Part, any unregistered company may be wound up under this
Act, and all the provisions of this Act with respect to winding up shall apply to
an unregistered company, with the following exceptions and additions:
(i) the principal place of business of the company in the Union of Myanmar
shall be deemed to be the registered office of the company;
(ii) no unregistered company shall be wound up under this Act voluntarily or
under supervision;
(iii) the circumstances in which an unregistered company may be wound up are
as follows (that is to say): (a) if the company is dissolved, or has ceased to carry
on business or is carrying on its business only for the purpose of winding up its
affairs; (b) if the company is unable to pay its debts; (c) if the court is of opinion
that it is just and equitable that the company should be wound up…
(3) Where a company incorporated outside the Union of Myanmar which had
been carrying on business in the Union of Myanmar ceases to carry on business
in the Union of Myanmar it may be wound up as an unregistered company under
this Part, notwithstanding that it has been dissolved or otherwise ceased to exist
as a company under or by virtue of the laws of the country under which it was
incorporated.
This may take some people by surprise, but it makes practical sense. A company formed
under a foreign law may have a place of business in Myanmar, and if it does, the power
of the court over the company and its local affairs is necessary and proper. It may mean
230 Indian law was (and still is) to the same effect: Re Calcutta Jute Mills Ltd (1880) ILR 5 Cal 888;
Re Strauss & Co Ltd AIR (1937) Bom 15; Re Travancore & Quilon Bank Ltd AIR (1939) Mad 318.

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that a company is being wound up in two countries at the same time, and in a rather
uncoordinated way, but the idea that a Myanmar court would not have such a degree of
control over an entity which had a place of business within its territorial jurisdiction
would not make a lot of sense. It may be thought to follow from Section 271(1)(a) that if
the foreign company does not have a place of business in Myanmar, the court will not be
empowered to wind it up, but this may not always be correct. If the foreign company had
assets or liabilities in Myanmar, it is, in the final analysis, for the Myanmar court to order
the proper arrangement of these. It may therefore sometimes be appropriate to wind up
a foreign company which did not have a place of business in Myanmar.
The power in Section 271(3), to wind up a company which had been dissolved under the
law which created it, is a practical solution to an untidy problem. If the company has
ceased to exist under the law which created it, it may be thought that there no company,
and therefore nothing for the Myanmar court to wind up. But there may be assets or
liabilities in Myanmar, and there has to be a way for the court to deal with them. The
solution is therefore to allow a winding up proceeding in Myanmar, even though there is
no company to wind up. It may not be logical, but logic is not always a guide to what
common sense requires.
(78) The effect of foreign insolvency proceedings
Foreign proceedings will be recognised if a company is being wound up in the place in
which it is incorporated. As was said above, the law which created the company in the
first place can un-create it again. As was said above, the law which created the company
in the first place can determine who (such as a liquidator) is empowered to act on the
company’s behalf; and it follows from all of this that winding up proceedings which are
being carried on in the courts where the company was created will be regarded in
Myanmar as having been conducted in the proper place. As a result, the consequences of
that winding up will be recognised and given effect in Myanmar; the authority of a
liquidator appointed in accordance with the law under which the company was
incorporated will, as a matter of principle, be recognised in Myanmar.
There is a tendency in some developed jurisdictions to question whether deference to the
law and courts of the place of incorporation is completely satisfactory. It is open to abuse
if companies can incorporate (or, more precisely, be incorporated) in places in which the
rules of corporate insolvency are generous, when things go wrong, to those who
incorporate the company in the first place, but ungenerous to creditors who may wish to
call the company, or those who have caused it to become insolvent, to account. For this
reason, a preference for the place of incorporation to be superseded by the ‘centre of
main interests’ of the company is noticeable, increasingly discussed, and even adopted in
some laws which we will mention briefly below. But it does not appear to be part of the
private international law of Myanmar, which continues to accept that the law of the place
of incorporation is the relevant law.
(79) International co-operation in relation to cross-border insolvency
If a Myanmar company, with assets and liabilities only in Myanmar, is wound up, there is
no problem of private international law. But, in a way which was rare when the
Companies Act was drafted, there are now companies whose activities are in many
countries and which, when they are unable to pay their debts, give rise to real problems.
There are also corporate groups, with separate companies in different countries, which

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collapse and have adverse financial consequences in many countries at once; and as
international and cross-border corporate activity becomes greater and greater, the
possibility of there being an enormous cross-border mess when insolvency overwhelms
the company or the group of companies, is all the greater.
One possible answer to the problem is that each jurisdiction in which the company had a
place of business, or had assets or liabilities, should act for itself in sorting out the
consequences. But one immediately sees why this is not a good solution. When an
international conglomerate collapses, as banks and insurance companies, as well as
trading companies, are prone to do, there may be parallel winding up proceedings in ten
or more jurisdictions. As the individual transactions and liabilities will have crossed
borders, it is not ideal if each national court behaves as if it were an island.
Another answer is that all countries in which there is a reason to conduct a winding up
should stand back and allow the courts of the place of incorporation to take the lead,
regarding their own proceedings as in some sense secondary or supportive, and being
prepared to exercise any discretion which they may have in line with, or in support of,
the proceedings in the place of incorporation. But where the place of incorporation was a
tax haven or other offshore centre with which the company had no genuine connection,
this is neither attractive nor sensible.
As a result, a number of international agreements, of uneven coverage, have been made
(i) to allow insolvency courts in one jurisdiction to cooperate with insolvency courts in
another jurisdiction to a far greater extent than the laws of the individual countries would
ever have allowed; and (ii) to regard the company’s ‘centre of main interests’ as the
principal jurisdiction, in which the main proceedings will take place, and in relation to
which other proceedings will be regarded as secondary or supplementary.231
This
certainly increases the prospect of a coordinated approach to a cross-border insolvency,
but it does not appear that Myanmar is ready to participate in any such schemes. The
result is that Myanmar courts will conduct a winding up without obvious regard for
proceedings in other jurisdictions. While this may have been acceptable during and
shortly after Myanmar had closed its door to the outside world, it will not be long before
the practical problems reveal themselves. As soon as a substantial Myanmar corporation
gets into financial trouble and has to be wound up, the intervention and interference of
foreign courts in which the corporation was also present, or had assets or liabilities, will
be a problem. When that happens, only proper and well-written international
conventions and other schemes can avoid the problems.
(80) Personal insolvency
In the interests of completeness, it is necessary to say that the main principles of
corporate insolvency apply to personal insolvency. The original Rangoon Insolvency Act
1910 and the subsequent Myanmar Insolvency Act 1920 apply to, and regulate the
procedure of domestic insolvency: if the court has jurisdiction to act it pays little or no
regard to the presence of any foreign connections. Although the later Act has wider
territorial scope, it does not affect the earlier Act.232
231 By far the most important is the UNCITRAL Model Law on Cross-Border Insolvency (1997).
232 Myanmar Insolvency Act 1920, Section 82. Indian law had the same structure: the Presidency
Towns Insolvency Act 1909 and the Provincial Insolvency Act 1920 are the direct counterparts
of the two Myanmar statutes.

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(a) Jurisdiction and choice of law
The manner in which jurisdiction is dealt with is conveniently illustrated by the Myanmar
Insolvency Act 1920. It does not matter where the act of insolvency was committed, but
the Act confines the jurisdiction of the court to those who reside, &c, in Myanmar. It
states that:
11. Court to which petition shall be presented. Every insolvency petition shall
be presented to a court having jurisdiction under this Act in any local area in
which the debtor ordinarily resides or carries on business, or works for gain, or if
he has been arrested or imprisoned, where he is in custody.
Provided that no objection as to the place of presentment shall be allowed by
any Court in the exercise of appellate or revisional jurisdiction unless such
objection was taken in the Court by which the petition was heard at the earliest
opportunity, and unless there has been a consequent failure of justice.
Section 11 of the Rangoon Insolvency Act 1910 was in substantially233
similar terms. As a
court in Myanmar has insolvency jurisdiction only in these cases,234
in which there is a
proper connection to Myanmar, it is right and proper that Myanmar law be applied to the
conduct of the proceedings. All creditors, whether inside or outside Myanmar, can claim
in a Myanmar insolvency.235
(b) Effect of concurrent proceedings
As the 1910 Act was limited to Rangoon, the only concurrent proceedings of which
notice might be taken would be concurrent proceedings overseas. According to the
Rangoon Insolvency Act 1910, if there were insolvency proceedings in another British
court, the Rangoon court had power to annul the Myanmar adjudication, and defer to
that other British court.236
The Rangoon Insolvency Act 1910 provides as follows:
22. Concurrent proceedings in British courts. Where it is proved to the
satisfaction of the court that insolvency proceedings are pending in any other
British court whether within or without the Union of Myanmar against the same
debtor, and that property of the debtor can be more conveniently distributed by
such other court the Court may annul the adjudication or may stay all
proceedings thereon.
The Myanmar Insolvency Act 1920 has national jurisdiction, and its provision for
concurrent proceedings is concerned only with concurrent proceedings elsewhere in
Myanmar. According to Myanmar Insolvency Act 1920, Section 36:
233 But not identical.
234 For the general meaning of ‘resides’, see Re Ramnira Jan Lhila v Daw Than BLR (1966) CC 763
(appeal dismissed: BLR (1968) CC 67). It has even been held that a person detained in jail in
Yangon resides in Yangon, because he intends to reside there (any intention of his to escape
from jail being an illegal and inadmissible intention): Re MVR Veluswamy Thevar (1935) ILR 13
Ran 192: this seems rather strained. It has been held that if the court has jurisdiction, it must
exercise it, and may not transfer the matter to another Myanmar court which would also have
jurisdiction: Re Oomer Ahmed Bros (1926) ILR 4 Ran 554.
235 Re Naoroji Sorabji Talati (1908) ILR 33 Bom 462; Re Mogi & Co AIR (1926) Cal 898.
236 The test is one of convenience: Re Motilal Premsukhdas (1938) RLR 166.

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36. Power to cancel one of concurrent orders of adjudication. If, in any case
in which an order of adjudication has been made, it shall be proved to the Court
by which such adjudication was made that insolvency proceedings are pending in
another court against the same debtor, and that property of the debtor can be
more conveniently distributed by such other Court the Court may annul the
adjudication or may stay all proceedings thereon.
This therefore only looks to concurrent proceedings in Myanmar, and makes no
provision for concurrent proceedings before a court outside Myanmar.
(c) Effect of foreign adjudications
Neither Act makes any express provision for the effect which is to be given in Myanmar
to adjudications of insolvency made in any country outside Myanmar. In principle, it is to
be expected that if an adjudication is made by a court which appears to have a proper or
equivalent connection to the debtor, it would be proper to recognise at least some of the
effects of the foreign adjudication, but authority in Myanmar on this issue is slight. If the
bankrupt submitted to the jurisdiction of the foreign insolvency court, or if was actually
resident within the jurisdiction of that court, it would be possible to recognise the effect
of the bankruptcy, in principle at least.
Two in particular of those effects might be considered. First, if under the law of the
insolvency the effect is that all the property of the bankrupt passes (by assignment or
otherwise) to his representative in bankruptcy, that will alter title to property in that
foreign country. The extent to which it would affect title to property in Myanmar
depends in the property. So far as moveable property is concerned, English and Indian237
law accept that it had this result. In an ordinary case of voluntary dealing with property,
an order made under the law of a foreign country would not have any effect on title to
property whose situs is in Myanmar; but it may well be that where there is an insolvency
in the place which is regarded as proper for it to be brought, an exception is made. A
Myanmar court might hope a foreign court would recognise a Myanmar adjudication as
transferring title to the debtor’s moveable property, wherever it was; it should be
prepared to accept this conclusion for a foreign adjudication. But a foreign adjudication
will not affect title to land in Myanmar:238
it is not, therefore, necessary to consider
whether Myanmar domestic law on (foreign) ownership of land needs to be taken into
account.
Second, if the law of the insolvency is also the law governing any debt – say under a
contract governed by that law – the making of an order in accordance with that law
which has the effect of cancelling the debt will be recognised in accordance with general
principle: if the law which governs a contract undergoes a material alteration, the rights
of the parties will be altered as well. An adjudication of bankruptcy counts as such an act
or alteration. But if the law of the insolvency is not also the law governing the debt, the
adjudication will not affect the legal status of the debt, though it may well affect the
prospects of recovering it.
237 Re Mogi & Co AIR (1926) Cal 898.
238 Re Motilal Premsukhdas (1938) RLR 166. To the same effect: Jayantilal Keshavlal Gajjar v Kantilal
Jesingbhai Dada AIR (1955) Bom 170. The English common law would reach the same
conclusion.

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CHAPTER 9
OTHER AREAS OF PRIVATE INTERNATIONAL LAW
We have not covered the whole of private international law in this book, for otherwise it
would be excessively large and much more complicated. We say a little more about what
we have not covered, and why, in this Chapter.
(81) The reason for excluding certain topics from this book
It remains to say something brief about the topics which certainly form a part of private
international law but which, for one reason or another, are not dealt with in this book.
This is not because they unimportant: the very opposite is true. It is because they are so
important that they need to be dealt with in full and proper detail, but also by writers
who have a special interest in the material which would need to be dealt with.
The private international law of the family of personal status and family property requires
knowledge, for example, of the organisation of the various communities which make up
the Union of Myanmar. One can see from legislation in Volume XI, Part XXII, of the
Myanmar Code that statutory framework of personal laws in Myanmar is organised, in
part at least, to reflect religious and cultural values by which various communities in
Myanmar identify themselves. This makes it difficult to explain ‘the law of Myanmar’ on,
for example, capacity to enter into marriage; it is no easier to explain the law on
inheritance. There is also an excellent book on these issues already in print;239
and for all
these reasons we have taken the view that these topics will not be addressed in any detail
in this book. Points (82) to (85) give only an abbreviated account of the principles of
private international law as generally understood in the common law, and as they may be
understood in Myanmar.
Private international law is increasingly made, or harmonised across states, by
international convention. Myanmar has acceded to very few of these, but in order to
complete the picture of private international law in the 21st century, it is necessary to say
something of these, which we do under Point (86). One international agreement to which
Myanmar has acceded concerns international commercial arbitration. We have made
occasional reference to that, but we say a final word under Point (87).
Also too specialist for the space available for it is the relationship between public
international law and private international law. But an outline needs to be given to
explain the relationship, as well as the lack of relationship, between these two forms of
international law. We consider this under Point (88).
We finally consider the issue of possible reform of and to Myanmar’s rules on private
international law under Point (89); and under Point (90) give our assessment of the
current state of private international law in Myanmar.
(82) Family law and the law of adult status
239 Maung Maung, Law and Custom in Burma and the Burmese Family (Springer, Dordrecht, 1963).

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The statutes in the Myanmar Code make it plain that the personal status of adults (and
children) in the domestic law of Myanmar is substantially affected by their religious
identification. That does not necessarily make it difficult to explain the private
international law of adults, for these detailed provisions of Myanmar domestic law only
arise if the rules of private international law direct the court to apply the (rather
complicated) domestic law of Myanmar. Certainly, if the rules of private international law
applied by the Myanmar court direct it to apply Myanmar law, these will be among the
detailed rules of Myanmar domestic law which may apply. What it less certain however, is
whether any (and if so, which) of these rules of domestic Myanmar law apply as
mandatory rules, or as overriding rules, or by reason of the public policy of Myanmar, in
cases in which the issue before the court for decision is not otherwise governed by the
domestic law of Myanmar. Given the absence of case-law, and of scholarly writing, on
this precise point, it seemed most appropriate to admit that there is a large question,
which we did not feel able to answer, and to confine ourselves to a brief summary of the
general common law approach to adult status. It is not known whether a court in
Myanmar would follow these principles, for there is no reported case-law, and no other
material from which a conclusion may be taken.
(a) Domicile
The common law uses the concept of the ‘domicile’ for a significant part of the law of
status. Every individual has a domicile, from birth, through life, to death. At a very
general level domicile connotes a person’s permanent home, but the detailed rules which
determine domicile often yield an answer which is distant from the reality of the
individual’s life. For the purpose of Myanmar law, a definition of domicile for the
purpose of the law of succession - and, one supposes, for any other purpose for which
the private international law of Myanmar may contain a rule formulated in terms of
domicile - is given in Part II of the Succession Act 1930. The starting point is that for the
purpose of succession, Section 6 provides that a person can have only domicile at any
given time.
According to Sections 7 and 8, the domicile of origin is the domicile of one’s father (or of
the child’s mother, if the child is born out of wedlock or after the father’s death) at the
date of one’s birth. According to Section 9, this domicile prevails until a new one has
been acquired. According to Section 10, a new domicile is acquired by taking up a fixed
habitation in a country which is not that of the domicile of origin; and according to
Section 13, this domicile continues until the former domicile has been resumed or
another has been acquired. Section 14 provides that the domicile of a minor follows that
of the parent from which he acquired his domicile of origin. Section 15 provides that a
married woman acquires the domicile of her husband if she did not herself have that
domicile before marriage, and Section 16 provides that her domicile then follows that of
her husband.
(b) Creation of marriage
The rules of private international law usually draw a distinction between the formal
requirements of a valid marriage, and the capacity of spouses to enter into it. Formal
validity is concerned with the nature of the ceremony, the presence of particular
celebrants or witnesses, and so on: it is almost always linked to the law of the place of
celebration, and the lex loci celebrationis will determine the formal validity of the marriage.
By contrast, the capacity of a person to marry, and to marry the other spouse, is linked to

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his or her domiciliary law. This law will apply its rules on the age or marital capacity, on
the closeness of the relationship which is a bar to marriage, on the ability to enter into a
polygamous marriage, and to the question of consent.240
If each spouse has capacity
under his or her domiciliary law to marry the other, the requirements of capacity will be
satisfied. But if one party lacks capacity in this sense, the marriage will be invalid unless
some exceptional rule – of which there are some, but which vary from system to system
– will validate it.241
(c) Termination and annulment of marriage
Most states which provide for divorces to be obtained by judicial decree apply their own
domestic law to the grounds on which a divorce may be obtained or ordered. They will
usually recognise divorces obtained from courts overseas if the court was one with which
the marriage, or perhaps one of the parties, had a sufficient connection, but what counts
as a sufficient connection varies from country to country. Divorces obtained by
processes242
which do not involve a judicial authority give rise to rather more difficulty,
and there is no consistency of treatment. In the end, though, if a marriage is terminated
by a court at the place which represents the domicile of the parties, the termination will
probably be recognised as an effective divorce; in other cases the answer will be less
certain. Annulment of marriage, on grounds that it was defective from the start, is based
on the laws which regulate form and capacity in the first place.
(d) Public policy
There is a significant role for public policy to affect the recognition of marriages and
divorces. In some systems of law, a person may marry at a very young age, or may marry
a close relative, or may be forced to marry without consent; and in such cases, a law may
consider that its own public policy would be offended by regarding the marriage as valid
(or, perhaps, as invalid). In the case of divorce, it is possible that a court would refuse,
also on grounds of public policy, to recognise a divorce or dissolution obtained or
ordered on grounds which discriminate in a way which is fundamentally opposed to
human rights and equality in the court called upon to recognise it.
(83) Family law and the law of children
The personal laws of adults also play a large part in the laws of parental responsibility for
and legal power over children. Once again the domestic law of Myanmar in relation to
children and their position in a family (and in relation to inheritance) is complex, and is
well outside the scope of this book. Once again, the complexity is caused in part by the
question whether the provisions of Myanmar domestic law on these issues are applicable
in a Myanmar court only when the rules of Myanmar private international law direct the
court to apply Myanmar law. For it is possible that some of these provisions are of
mandatory or overriding effect, or apply as a matter of Myanmar public policy. Once
240 And it will also determine the capacity of a person to marry another of the same sex.
241 The Majority Act 1875 establishes 18 as the age of majority in Myanmar law, but Section 2 of
the Act provides that it does not extend to capacity in relation to marriage, dower, divorce or
adoption. But the Child Marriage Restraint Act 1930 appears to impose an age of 18 for males
and 14 for females as the ages below which a marriage is a ‘child marriage’, which is void and
punishable.
242 Including religious and purely administrative processes.

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again, we confined our account to a brief mention of the rules of private international
law as they are understood in common law jurisdictions generally.
In most common law systems, the law allows the courts to make orders in respect of
children within their jurisdiction which are in the best interests of the child. The
Guardians and Wards Act 1890 is a good example of this. The rules of private
international law by which courts take account of, or give effect to, such orders made by
foreign courts are very muddled: some writers even question whether there actually is any
private international law in this area, the matter being treated instead as entirely a matter
of domestic law. Perhaps for this reason, there has been significant international
agreement in the form of conventions, for it is sometimes very hard for a court in one
country to allow the critical decision concerning the welfare of a child to be taken by a
court in another jurisdiction. Moreover, the problem of child abduction – of children
being removed from one country to another as part of a dispute between their parents –
is so depressing and common that many states have entered into international
conventions to try and deal with the legal issues which arise from it.
So far as concerns243
any question of the ‘legitimacy’ of a child, the common law rules of
private international law are concerned, the legitimacy of a child is determined simply by
asking whether he was born to parents to were lawfully married: there is no conflicts rule
as such, just a consequence drawn from the private international law of marriage.
Adoption in private international law is complicated, because different systems of
national law have their individual views of the purpose adoption should serve, the
methods by which it is effected, the requirements which are to be satisfied, especially on
the part of the adopter, and the effects of adoption, in particular in relation to succession.
The law reports in Myanmar – at least those available in the English language – suggest
that there is much litigation of the domestic law of children and adoption of formal and
informal kinds; its complication places it far beyond the scope of this book. So far as
private international law is concerned, the law will not usually provide for the adoption
of a child who is not within its jurisdiction, and will not usually recognise a foreign
adoption unless the parents were domiciled, and the child resident, in the country of the
adoption. But the practice of adoption of foreign children is now so common that it
tends to be regulated by statute. The rules of the common law are, therefore, hard to
discern.
(84) Family law and the law of property: dealings inter vivos
Different legal systems have rules of their own about the ownership of property. The
particular issue mentioned here is the approach of private international law to the
question whether marriage has any effect on the property rights of spouses prior to the
marriage. In some systems spouses who owned property before they married continue to
own that property during marriage, as the fact of marriage has no effect on the property
of spouses: English law takes this approach. In other systems, the effect of marriage is to
impose a regime of shared ownership, or ‘community’, on their assets. In order to decide
whether this has happened, the rules of private international law generally allow the
parties to choose whether to adopt one or the other of these forms of post-matrimonial
property ownership, but if they do not make any such choice, the law under which they
243 In many common law jurisdictions, the status of ‘legitimate’ or ‘illegitimate’ child has been
completely removed from the law, as serving no useful or proper purpose.

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marry – which may well be the law of the husband’s domicile – will determine whether
the marriage has any effect on their property rights, and if so, what effect.
The Married Women’s Property Act 1874, which is in this respect re-enacted in
Succession Act 1930, Section 20, enacts the English rule, that no person acquires, simply
by marriage, any interest in the property of his or her spouse; and that no person
becomes incapable of holding property in a way which was possible for them prior to
marriage: in short, it enacts the principle of separation of property rights. But Section 2
exempts the Act from any marriage in which either the husband or the wife, at the date
of marriage ‘professed the Hindu, Muhammadan, Buddhist, Sikh or Jaina religions’, and
the exclusion is replicated by Succession Act 1930, Section 20(2)(b).. The 1874 Act must
therefore have been, and must now be, of very limited personal scope.
If the personal law denies a spouse the capacity to own property, or to own property in
her own name, or if the law under which they marry provides that all the woman’s
property passes into the ownership of the husband, the rules of private international law
may respect this. But the possibility that the outcome will be considered to offend the
public policy of the court called upon to recognise this effect on the ownership of
property is a real one. The rules of private international law are designed to respect legal
and social traditions which are very different from those of the state in which the
question of recognition has arisen, but every legal system is free to refuse to draw the
consequences which would otherwise follow where it would otherwise have to give effect
to an outcome which it regards as simply intolerable.
(85) The law of succession to property
As with the rest of property law as it relates in particular to family relations, the law on
succession varies very widely from one country to another. A very detailed statement of
Myanmar domestic law is contained in the Succession Act 1930, but substantial parts of
the Act do not apply ‘if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or
Jaina’.244
So far as the rules of private international law are concerned – so far as concerns the
question of which system’s rules on succession to the property of a deceased will apply –
the common law, and the Succession Act 1930, draw a distinction based on whether or
not the deceased left a will. In the case of a deceased person who died without making a
valid will, the succession to his estate is governed by the law of his domicile at the date of
death,245
except in the case of immoveable property which devolves in accordance with
the law of the situs of the land.246
In the case of a person who died having left a will, the
terms of the will govern the inheritance if the will is valid according to the law of the
domicile of the person at either the date of making the will or at death. This law will also
resolve any question of capacity to make a will. But where the effectiveness of a bequest
of immoveable property is concerned, it will not be possible to regard as valid a bequest
regarded by the lex situs as invalid or ineffective.
If the will of a deceased is proved and deposited in a country outside Myanmar, the
representatives appointed under that law do not have any standing to act in Myanmar
244 For example, Succession Act 1930, Section 4.
245 Succession Act 1930, Section 5(2).
246 For succession to land in Myanmar, Section 5(1) Succession Act 1930 applies Myanmar law if
the deceased was domiciled in Myanmar at the date of his death.

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unless and until letters of administration, with the will attached, are granted by the
Myanmar court to the foreign representative.
(86) International conventions on particular subjects
One of the general ambitions of private international law is to evolve a set of rules which
produces a result which fits harmoniously with the answers which would be given by
other laws which might be concerned to answer the particular question. It is often said
that the goal of the common law rules is to ensure that the same substantive answer is
arrived at regardless of which court actually tries the suit and determines the issue. It
would be unsatisfactory if differences in rules in private international law were to mean,
for example, that if A sued B in State 1, A would win, but if B sued A in State 2, B would
win: these things do happen, but it is not desirable as an outcome. It would be much
worse if the courts of State 1 were to regard H and W as lawfully married, but the courts
of State 2 were to regard the marriage as having been terminated by divorce: it will make
the position of A and B as individuals247
much more difficult than it would be if the laws
of State 1 and State 2 agreed on whether they were married.
And in international trade and commerce, uniform rules of private international law are
widely considered essential to build the confidence of those who participate in the
market. To put it a little simply, those who take part in the international sale or carriage
of goods, and those who provide and take the benefit of financial guarantees give to
assist such trade, will be much more willing to take part in international trade if they
know that, no matter which court they come before, the answer will be the same. This
reduces the risk, and therefore reduces the cost, of commerce; and it appears to be a
thoroughly good thing.
But it cannot be achieved by individual countries adapting their own rules of private
international law. States and legal systems have their own views about the rights and
duties of parties in these relationships, and their views do not necessarily coincide. And
not only that. It may be that the rules of private international law need to draw a
distinction between, say contracts for the carriage of goods by sea, contracts for the
carriage of goods by road, contracts of insurance, contracts of reinsurance, contracts of
employment, contracts for the sale of goods, contracts made by consumers, and so on.
That suggests that we may not need clear and uniform rules of private international law
for contracts as a group, but need instead clear and distinct rules of private international
law for different kinds of contract. The idea that Myanmar – or, indeed, any country –
can invent rules of private international law for each of these sub-categories, and that the
rules developed for these sub-categories will be consistent with the views taken in other
countries, is absurd. It can never happen.
The only way to bring harmony across states is by international agreement: by
multilateral convention or treaty. If a number of countries agree to a framework for rules
of private international law, and adopt that framework and legislate it into their law, a
uniform rule will have been imposed. There are many – maybe as many as 100 – of these
conventions. Few of them have been widely adopted, but some have obtained a very
large number of adherents. Where the states party to the conventions adopt them, and
enact legislation to give effect to them, a small step towards the harmonisation of private
247 And any other person, who may wish to marry either of them.

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international law will have been taken, and a small step towards making the law more
predictable and rational will have been taken as well.
Progress is not always quick, but in a number of areas – arbitration248
and cross-border
insolvency249
being two such areas – the international agreements prepared by the United
Nations have secured very broad acceptance, not least because they are not considered to
have been drafted one-sidedly, or in favour of certain interests and to the disadvantage of
other interests. These may take the form of Conventions to which states choose to
adhere, or the form of Model Laws which provide an agreed template for a state which is
considering the reform of its law, including its rules of private international law.
For a developing country, the attraction of these international instruments is that they
appear to have been tested and found to be agreeable; their adoption, more or less
precisely, is an easy way to bring up to date national laws which have become rather
ancient.
(87) The law of commercial arbitration
As was said in Chapter 1, we do not examine the law of commercial arbitration in any
detail in this book. There are several reasons, but the principal one is that we are
concerned to explain the rules of private international law – the rules of jurisdiction, of
choice of law, and of foreign judgments – as these apply to proceedings in a court in
Myanmar. Arbitration is different.
The Arbitration Act 1944 has its focus on the arbitration of domestic disputes. It
therefore says nothing to indicate whether, in an international case, a tribunal to which
the Act applies is required to apply the rules of private international law which would
apply in proceedings before a court in Myanmar. It does not say whether they are
required to apply Myanmar domestic law, or the law of another country, or to apply
principles different and distinct from the law of a country, or none of the above. Section
37 of the Arbitration Act 1944 provides that the Limitation Act applies to arbitration as
it applies to proceedings in court, but there is no equivalent provision to explain what
approach the arbitrators must or may take to any issue of private international law which
arises in the course of the arbitration: the issue is just not addressed. The point is made if
one compares the silence of the Arbitration Act 1944 with the provision in the
UNCITRAL Model Law, which says:
(UNCITRAL Model Law) Article 28: Rules applicable to substance of
dispute. (1) The arbitral tribunal shall decide the dispute in accordance with such
rules of law as are chosen by the parties as applicable to the substance of the
dispute. Any designation of the law or legal system of a given State shall be
construed, unless otherwise expressed, as directly referring to the substantive law
of that State and not to its conflict of laws rules. (2) Failing any designation by
the parties, the arbitral tribunal shall apply the law determined by the conflict of
laws rules which it considers applicable. (3) The arbitral tribunal shall decide ex
aequo et bono or as amiable compositeur only if the parties have expressly authorized it
to do so.
248 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(1958); and the UNCITRAL Model Law on International Commercial Arbitration (1985;
amended 2006).
249 UNCITRAL Model Law on Cross-Border Insolvency (1997).

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For states which have adopted the Model Law into their legal systems, as Myanmar will
soon do, it will have been made plain that the arbitral tribunal is not bound, unless the
parties so choose, to follow and apply the rules of private international law which would
be applied by a court hearing a suit in respect of the same matter as that which has been
referred to arbitration. But because the Arbitration Act 1944 contains no instruction on
this point, it is not at all clear what a tribunal would be required, or permitted, to do.
At the time of writing, a proposed Arbitration Law was under consideration by the
Myanmar legislators and those who advise them. This will deal with the establishment of
an arbitral tribunal, its supervision and control (and defence from being undermined), the
enforcement of its awards, the enforcement of foreign awards, and (for example) the
power or duty of a court to refer a dispute to arbitration if that is what the parties had
agreed that they would do. It is therefore sensible to say rather little about the current
law on arbitration. In any event, international arbitration is widely understood to deserve
a course in its own right, dedicated to it. Those who are interested in it will need to
pursue that interest elsewhere.
(88) The relationship of private international law to public international law
The relationship between private and public international law is not close. They are not
to be understood as two forms of international law. The subject matter examined in this
book is private law, but in a context in which there is some non-Myanmar element.
Public international law, by contrast, is the law which governs relations between states.
We therefore repeat what we said in Chapter 1:250
‘Some readers may assume that ‘international’ in the expression ‘private international law’
refers to what is usually described as ‘public international law’, or the law or laws which
regulate relations between states, the laws of war and of peace, the international laws of
the sea and of the environment, the laws which deal with the sovereigns, governments,
and diplomats.251
They would be wrong. It is rarely necessary to deal with any issues of
public international law when analysing issues of private international law, and vice versa,
and the instances in which rules of public international law have an impact on a private
law dispute can be dealt with where they arise.’
If, for example, a state were to confiscate property within its territorial jurisdiction in a
manner which, according to some, was a violation of the rules of public international law,
it is difficult to see how this could be relevant to a Myanmar court which, in applying the
ordinary choice of law rules concerning title to property, would otherwise regard the
change of title to the property effective. Of course, if the Union of Myanmar enters into
bilateral treaty relations with other states, and the treaty provides its own mechanism for
the arbitration of disputes, the treaty, and the mechanism for settling disputes, will be
binding on the State as a matter of public international law. But matters such as this will
not come before the ordinary courts.
In the immediate aftermath of the Japanese occupation of 1942-45 the courts accepted,
cautiously, that some of the principles of public international law may be considered as
part of the law of Myanmar, in the absence of express incorporation of these by statute,
250 Chapter 1, point (2).

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where the particular rule of public international law invoked was consistent with
Myanmar law.252
In the aftermath of Japanese occupation, and when called upon to
assess the effect of certain acts of the Japanese military administration, it was necessary –
in a way in which it had never been in England – to allow a court in Myanmar to adopt
and apply some of the principles of public international law,253
particularly those which
dealt with the acts of an occupying power.
It is not clear that this cautious openness to rules of public international law survived. In
1960, the Supreme Court said that, in effect, public international law is not naturally a
part of the law of Myanmar as applied by its courts.254
Article 214 of the 1948
Constitution provided that an international treaty, such as one providing for the
immunity of sovereigns and diplomats, did not become part of Myanmar law as applied
by its courts until legislation was passed to amend the domestic law of Myanmar. This
was consistent with the view in many common law jurisdictions that international treaties
are not ‘self-executing’; it meant that such treaties have to be incorporated into domestic
legislation before they pass into and become part of the domestic law of Myanmar.
However, Article 211 of the 1948 Constitution had also provided that ‘the State accepts
the generally recognised principle of international law as its rule of conduct in its relation
with foreign States’. This might have been understood to reflect the view of the courts in
the immediate aftermath of the war, which we have mentioned. But Article 211,
according to the Court in 1960, had no effect on or in the domestic law of Myanmar as
applied in the courts.
The case in question concerned the alleged immunity of a Soviet citizen, claimed by the
Soviet Union to be diplomat,255
and to have immunity from legal proceedings as a result.
However, no legislation of the kind to which Article 214 referred had been made. And
when the individual argued that such immunity was ‘generally recognised’ as part of
international law, as many would have accepted that it was, the Court held that Article
211 of the Constitution did not assist the Soviet citizen in his argument. The Court
understood the point which was being made entirely. It said that the argument advanced
on behalf of the individual was an attractive proposition,
‘but in our judgment, a rule of conduct that the Union Government should follow in its
relation to foreign states is not necessarily the procedure that a Burmese court is to
observe in the absence of specific enactment which would make such observance legal.
We interpret [Article 211] to mean that it is a declaration of policy which provides
guidance to Government in its international relations and makes it incumbent upon it to
take such legislative measures as may be necessary to bring it into line with other States’.
Moreover, it is not clear whether the law as laid down in 1960 on the basis of the 1948
Constitution has changed,256
or whether the Supreme Court would today agree with the
252 The particular provisions were the Hague Conventions on the laws of war of 1899 and 1907.
253 See for example The King v Maung Hmin (1946) RLR 1; Dr T Chan Taik v Ariff Moosajee Dooply
(1948) BLR 454.
254 Kovtunenko v U Law Yone BLR (1960) SC 51 (a case on sovereign or diplomatic immunity).
255 Working for the TASS news agency. One assumes that this means that he was a spy.
256 Article 73(h) of the 1974 Constitution provided that the Council of State made decisions on
the ratification of international treaties ‘with the approval of the Pyithu Hluttaw. That suggests
that Section 214 of the 1948 Constitution was carried across into the 1974 Constitution; Article
211 of the 1948 Convention is not reproduced, in any recognisable form, in the 1974
Constitution.

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view of its predecessor expressed over fifty years ago. Article 108 of the Constitution of
2008 provides that:
108. The Pyidaungsu Hluttaw: (a) shall give the resolution on matters relating to
ratifying, annulling and revoking from international, regional or bilateral treaties,
agreement submitted by the President…
That appears to mean that a treaty will not enter into the domestic law of Myanmar
unless and until approved (in one form or another) by legislative act, and that in this
respect, the substance of Article 214 of the 1948 Constitution has been re-adopted. As
the 2008 Constitution does not contain any provision corresponding to Article 211 of
the 1948 Constitution, there appears to be no real basis for arguing that public
international law has any part, as such, to play in the law applied by a Myanmar court
exercising jurisdiction in a private matter. For this reason, issues of public international
law, properly so called, are not applicable to the issues covered in this book.
(89) Reform of private international law in Myanmar
As Myanmar re-enters the world of international commerce and much freer personal
mobility, and as its courts take up the challenge of providing a reliable service to its
citizens (and to those who engage with them) in accordance with the general principles
of the rule of law, one of the priorities must be the promulgation of new laws which are
fit for the purpose for which they are made. No doubt it would be possible to draw up a
new statute on private international law. There are many templates which might be used.
If the law as applied in a court in Myanmar remains uncertain, it will discourage people
and companies from using the courts of Myanmar as a forum for the resolution of their
disputes. We offer the opinion that, if this were to happen, it would be a matter of deep
regret. Citizens of Myanmar, and those who enter into relations with them, should be
able to use the courts of Myanmar to determine their rights. Judicial reform is obviously
an urgent need, but so is the clarification of law, so that everyone knows the rules by
which they are to abide, be governed, and be judged.
If this does not happen, there will be a tendency for commercial parties, in particular, to
insist that the resolution of disputes takes place outside Myanmar, in countries in which
the control of Myanmar matters is taken over by foreigners. Quite apart from everything
else, these overseas countries see in Myanmar an opportunity to make great profit at the
expense of Myanmar, its citizens, and its resources. No doubt the lawyers in these
foreign centres offer a service which is neutral, and possibly one which is good, but it is
absurdly expensive, and is designed for the sole benefit of the foreign country or those
who pursue professional activity in it. The existence of these overseas arrangements for
the resolution of legal disputes involving Myanmar persons and other entities is a sure
sign that Myanmar needs to make improvements to its law and legal system. Once that
happens, there will be no reason to spend money overseas to resolve disputes which
belong in a Myanmar court or before a Myanmar arbitral tribunal.
The reform of private international law will be an important part of that process.
(90) The rules of private international law in Myanmar: a partial (re)statement
We have set out the principal rules of Myanmar law on issues of private international law
as we understand them. Some of the answers come directly from written laws. Other

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answers have been found by thinking about the gaps in the written laws, and analysing
the solution which best fills the gaps. Myanmar is, still, a common law jurisdiction, as
everyone knows and as the Union Attorney General has clearly explained. We have
therefore drawn on our understanding of the principles of the common law to provide
answers to questions which naturally arise when civil and commercial disputes contain
international elements. The ‘rules’ which we set out in summary form in Chapter 10 do
not precisely follow the pattern of the analysis in this book. This is because we have
allowed the discussion in the text to lead to this summary of the law, and not the other
way round: the ‘rules’ are the consequence of our analysis, but our analysis is not a
commentary on these ‘rules’.
We have not assumed the task of seeking to say what the private international law of
Myanmar should be. But we have made an attempt to put into organised form a
statement of Myanmar private international law based on the written laws, the reported
judicial decisions to which we have had access, and the more general principles of the
common law as we understand them, for all of this makes up the existing law of
Myanmar on private international law. It is this that appears in Chapter 10 of this book.
We repeat: Chapter 10 is not a statement of what the law should be, but it represents our
best effort to state what the current law actually is. We hope that this may help those
who wish to gain an overall understanding of the shape and principles of private
international law in Myanmar. But we also hope that if work is to be undertaken to
improve the existing rules of private international law in Myanmar, this will prove to be a
useful starting point.

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CHAPTER 10
PRIVATE INTERNATIONAL LAW:
A PARTIAL (RE)STATEMENT OF MYANMAR LAW
General principles
1. The rules set out below represent the private international law of Myanmar law.
They are derived from the written laws of Myanmar and from the general
principles of the common law. Those which are derived from the written laws of
Myanmar are binding on the court according to the letter of the written law.
Those which are derived from the general principles of the common law provide
the court with guidance, but are not binding on it.
The jurisdiction of a court in Myanmar
2 The international jurisdiction of the courts of Myanmar shall be determined in
accordance with the following rules. These rules do not determine the particular
court or courts within Myanmar which has or have jurisdiction over the
defendant in relation to the suit.
3 The plaintiff, whether a Myanmar citizen or an alien, may call upon the court to
exercise jurisdiction over the defendant in accordance with Rules 4 to 8.
4 In the case of suits concerned with immoveable property in Myanmar the court
has jurisdiction if the suit is for the recovery or partition of the property, or for
foreclosure, sale or redemption in the case of a mortgage on the property, or for
compensation for a wrong to the property. This jurisdiction does not depend on
the nationality, residence, presence, or submission of the defendant.
5. In the case of suits concerned with immoveable property outside Myanmar, the
court does not have jurisdiction in the suit unless
(a) the suit is for relief respecting, or compensation for wrong to, that property,
and
(b) the relief sought can be obtained entirely by the personal obedience of the
defendant, and
(c) the defendant has submitted or will submit to the jurisdiction of the court, or
resides, carries on business, or works for gain in Myanmar.
6. In cases not concerned with immoveable property, and without regard to
whether the defendant is present in Myanmar, the court has jurisdiction over the
defendant if
(a) the defendant has submitted or submits to the jurisdiction of the court, or
(b) the defendant actually and voluntarily resides, or carries on business, or
works for gain in Myanmar, or
(c) the cause of action arose, in whole or in part, in Myanmar, or

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(d) the suit is for compensation for a wrong to the person or to moveable
property, and the wrong was done in Myanmar.
7. The plaintiff may apply for leave to commence proceedings against a defendant,
who is not otherwise subject to the jurisdiction of the court if a co-defendant to
the suit actually and voluntarily resides, or carries on business, or works for gain
in Myanmar.
8. Apart from Rules 4 to 7, a court also has jurisdiction over a company or
corporation:
(a) if it was formed under the laws of Myanmar, or
(b) if it was not formed under the laws of Myanmar but has a place of business
in Myanmar.
Service of process on a defendant
9. A defendant who is in Myanmar
(a) may be served with the document which institutes the proceedings in
accordance with Order 5 of the Civil Procedure Rules, or
(b) may accept service of process by consent.
10. A defendant who is not in Myanmar
(a) may be served with the document which institutes the proceedings in
accordance with Order 5 rule 25 of the Civil Procedure Rules, which is to say, by
registered post, with acknowledgment paid, to an address outside Myanmar, or
(b) may accept service of process by consent.
Applications to contest the jurisdiction of the court or its exercise
11. A defendant who has been served with the summons, whether within the
territory of Myanmar or in a foreign country may, before he files his defence,
apply to the court for an order that the proceedings be dismissed on the ground
that the court does not have jurisdiction over him in relation to the claim; and
upon the applicant satisfying the court of the grounds on which the application is
based, the court shall set aside the summons and return the plaint, and grant such
other relief as may be appropriate in the circumstances.
12. A defendant who has been served with the summons, whether within the
territory of Myanmar or in a foreign country may, before he files his defence,
apply to the court for an order
(a) pursuant to Section 34 of the Arbitration Act 1944, that the proceedings be
stayed, on the ground that the parties had agreed that the matter be referred to
arbitration, and/or
(b) that the court not proceed further and that the proceedings be stayed, on the
ground that the parties agreed that the matter in dispute would be brought before
the courts of another country and not before the courts of Myanmar, and/or
(c) that the court not proceed further and that the proceedings be stayed on the
ground that the courts of another State are in all the circumstances of the case
clearly more appropriate for the trial of the suit and that the interests of justice
would be served by a stay of the proceedings,

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and upon the applicant satisfying the court of the grounds on which the
application is based, the court may grant the relief applied for if it considers that
it is in the interests of justice to do so.
Restraint of person within jurisdiction from suing outside Myanmar
13. Where proceedings have been or may be brought before the courts of a foreign
country contrary to an agreement between the parties, and the court considers
that the agreement should be enforced by specific relief, or in any other case,
where the court considers the case to be an exceptional one in which the interests
of justice require the respondent to be ordered to be restrained, the court, having
established jurisdiction over a natural person or a corporation, may order that
person to discontinue or, as the case may be, refrain from instituting proceedings
before the courts of a foreign country.
Res judicata and foreign judgments
14. No foreign judgment has any effect in Myanmar unless that judgment is
recognised as res judicata in accordance with Rules 15 to 21. A judgment which is
recognised as res judicata may, on certain conditions, be enforced by suit in the
courts of Myanmar.
15. A foreign judgment which satisfies the requirements of res judicata binds the party
against whom it was given, and those who claim under or through him, to abide
by and accept as conclusive the decision of the foreign court.
16. Subject to Rule 21, a judgment given against a plaintiff is binding on the plaintiff
as res judicata.
17. (1) Subject to Rule 21, a judgment given against a defendant is binding on a
defendant as res judicata
(a) if the defendant was present within the jurisdiction of the foreign court
when proceedings were instituted, or
(b) if the defendant submitted to the jurisdiction of the foreign court prior to
service of the summons, by contract or by the appointment of an agent with
authority to accept service of the summons on his behalf, or
(c) if the defendant submitted to the jurisdiction of the foreign court after
service of the summons, by voluntary appearance in response to the summons.
(2) But a defendant who appears before the foreign court for the purpose, and
only for the purpose, of contending
(a) that the foreign court had no jurisdiction under its own law, or
(b) that the foreign court should exercise a power or discretion to refer the
parties to arbitration, or
(c) that the foreign court should not exercise its jurisdiction on the ground that
the proceedings should be brought before the courts of another country,
does not thereby submit to the jurisdiction of the foreign court.

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18. Subject to Rule 21, a foreign judgment which determines title to property is res
judicata if the property was within the territorial jurisdiction of the foreign court
when the proceedings were commenced.
19. (1) A foreign judgment may be res judicata in Myanmar even though the foreign
court was in error in considering that it had jurisdiction according to its own law,
unless and until the foreign judgment is set aside by the foreign court.
(2) A foreign judgment will not be res judicata in Myanmar, even though the
foreign court had jurisdiction according to its own rules of jurisdiction, if the
judgment does not satisfy Rule 17 above.
(3) A foreign judgment may be res judicata in Myanmar even though the foreign
court may have made an error of fact or of law or both in giving the judgment.
20. A foreign judgment may be res judicata in Myanmar even though it is subject to
appeal to or revision by a higher court in the country in which it was given.
21. A foreign judgment is not res judicata in Myanmar, in any case in which
(a) the foreign court gave judgment, or allowed judgment to be entered, without
any consideration by it of the merits of the case, or
(b) the judgment was obtained by the fraud of the party in whose favour it was
given, or as a result of fraud by the court, or
(c) the judgment was given in breach of the rules of natural justice, or
(d) the foreign court refused to apply law of Myanmar when should be been
applied by that court, or
(e) the claim was founded on breach of a rule of Myanmar law, or
(f) the judgment purported to determine title to, or the right to possession of,
land in Myanmar, or
(g) the foreign judgment was given to enforce a penal liability or a liability to pay
foreign taxes or charges of a like nature, or
(h) recognition of the judgment would be contrary to the public policy of
Myanmar.
22. (1) A foreign judgment which is res judicata in Myanmar, and which orders a party
to the proceedings to pay a sum of money which is fixed and has been
determined, may to that extent be enforced in Myanmar by suit, and the court
may order that the sum adjudged to be payable by the foreign court by paid.
(2) A foreign judgment which is res judicata in Myanmar but which does not order
a party to the proceedings to pay a sum of money which is fixed and has been
determined may be relied on in proceedings brought in Myanmar on the original
cause of action.
Application of Myanmar law and foreign law in Myanmar court
23. ‘Foreign law’ means the rules of law which would be applied by a foreign court in
a domestic case, and save where the contrary is expressly stated, shall not include
the rules of private international law which would be applicable by a judge in a
court in the country whose law is to be applied.

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24. Judicial notice shall not be taken of any rule of foreign law. A rule of foreign law
which a party asks the court to apply shall be proved by expert testimony unless
the parties, with the consent of the court, agree that it may be proved by other
means.
25. A court may apply a rule of foreign law if
(a) one or both of the parties to the suit ask the court to do so, and
(b) the rules of private international set out herein provide that the issue is one
on which the court may apply foreign law, and
(c) the party who asks the court to apply foreign law satisfies the court as to the
meaning and effect of that foreign law.
26. No rule of foreign law shall be applied
(a) to the determination of any issue which is considered by the court to be one
of procedural rather than substantive law, or
(b) to determine the period of time from the accrual of the cause of action to
the date on which proceedings are commenced; provided that a rule of foreign
law which provides that the right of the plaintiff is extinguished after a certain
period of time may be applied as part of the law which governs the substance of
the issue before the court, or
(c) if, in the opinion of the court, the foreign law is penal in character, or a law
which provides for the payment or collection of foreign taxes, duties, or charges
of a like nature, or a law whose content is contrary to the public policy of
Myanmar, or a law whose application would, in the circumstances of the case, be
contrary to the public policy of Myanmar.
27. A rule of Myanmar law shall be applied, and a contradictory rule of foreign law
shall not be applied, when on a proper construction, a judge is directed to apply a
provision of the written law of Myanmar even though the rules of private
international law would otherwise authorise the application by the court of a rule
of foreign law.
Contracts and issues which are contractual in nature
28. Rules 29 to 38 apply to claims which are contractual, or which are in the nature
of contracts.
29. The parties to a contract may choose the law of any country to govern their
contract. They may express their choice of law, but if they do not express it, a
court may be satisfied that the contract is governed by the law which the parties
actually chose but which they did not express.
30. The parties to a contract may refrain from choosing the law by which their
contract is to be governed. The court will identify the law with which the
agreement has its closest and most real connection, and that the contract will be
governed by that law.
31. The law which governs the contract shall apply, in particular, to
(a) the construction and interpretation of the terms of the contract,
(b) the validity of any of the terms of the contract,
(c) the implication of terms into a contract,

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(d) the steps which are to be taken for the performance of the contract,
(e) the question whether the contract has been discharged by breach or by other
cause, and the consequences of the discharge of the contract;
(f) the question whether a contract may be avoided or rescinded for fraud,
misrepresentation, non-disclosure, duress, undue influence or any other vitiating
factor,
(g) the legality of the making of the contract.
32. (1) If the issue is disputed, the law which governs the contract shall determine
whether the parties formed a contract or failed to conclude an agreement ab initio.
(2) But if one of the parties is resident in a country according to the law of which
he would not be held to have entered into a contract, the court may conclude
that there is no binding contract if the court considers that it is in the
circumstances reasonable to come to that conclusion.
33. (1) If the issue is disputed, the law which governs the contract shall determine
whether the contract is valid in respect of form.
(2) But if that law would consider that the contract was invalid in point of form,
it may be regarded as valid in point of form if it satisfies the formality
requirements, if any, of the law of the place where it was made.
34. (1) If the issue is disputed and the contract is a mercantile one, the law which
governs the contract shall determine whether a natural person had personal
capacity to conclude it.
(2) But if the contract is not a mercantile one, and if a natural person lacked
capacity to contract by his or her personal law, the court may, if it is reasonable
to do so, hold that the party in question lacked capacity to contract.
(3) The capacity of a company or corporation to conclude a contract is governed
by the law under which the company or corporation is formed.
35. (1) The question whether a natural person has legal authority to act, or to make
contracts, on behalf of a company is determined by the law under which the
company was formed.
(2) The legal effect of a contract made or purported to be made by a person who
did not have authority to make the contract on behalf of the company shall be
determined by the law which governs the contract.
36. (1) The law which governs the contract shall determine whether the performance
of the contract is illegal, and if it is illegal, the consequences of that illegality.
(2) But though the law which governs the contract would consider the
performance of the contract legal, if the law of the place at which performance of
the contract is required would consider that performance to be illegal, the
performance of the contract shall be regarded as illegal.

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37. In any case in which the contract is governed by a foreign law, that law shall not
apply, and the law of Myanmar shall apply, to
(a) the quantification of recoverable loss or damage which is recoverable or
compensable according to the law which governs the contract,
(b) the determination of other remedies which a court may order or impose,
(c) the limitation of time since the accrual of the cause of action within which
the proceedings must be instituted, provided that if the law which governs the
contract provides that the right of the plaintiff is extinguished after a certain
period of time, that rule of the governing law may be applied as part of the law
which governs the substance of the issue before the court.
38. Rules 28 to 37 apply by analogy to identify the law which applies to those
relationships which are equivalent to contract.
Torts and issues which are tortious in nature
39. Rules 40 to 47 apply to claims which are, or which are in the nature of, torts.
That is to say, they apply to obligations which are not contractual, or equivalent
to contractual in nature.
40. The place at which a tort is committed is identified by asking where in substance
the cause of action arose. If the act or omission complained of, and the damage
said to have resulted from it, are located in the same country, that country is the
place at which the tort is committed. If the act or omission complained of, and
the damage said to have resulted from it, are located in different countries, the
tort is committed in the country which has the closer connection to the facts of
the dispute.
41. (1) If a tort is committed in Myanmar, it is governed by the law of Myanmar to
the exclusion of all other laws.
(2) But if the case is an exceptional one which has no substantial connection to
Myanmar but has a very close connection to the law of another country, the law
of that other country shall, subject to Rule 46, apply in place of the law of
Myanmar.
42. If a tort is committed in a country outside Myanmar, the defendant will not be
liable unless both
(a) the complaint would give rise to civil liability under the law of the country in
which, in substance, the cause of action arose, and
(b) the complaint would give rise to civil liability under the law of Myanmar.
43. If the case of a tort committed outside Myanmar is an exceptional one
(a) if the tort has no real connection to Myanmar but has a very close
connection to the law of the place where the tort occurred, the law of that
foreign country, but not the law of Myanmar, shall be applied,
(b) if the case is an exceptional one which has no real connection to the place
where the tort occurred, but had a very close connection to the law of a third
country, the law of that third country, but not the law of the place where the tort
was committed, shall be applied.

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44. If the claimant and defendant are parties to a contract or to a prior relationship
equivalent to a contract, and if the cause of action arises in connection with that
contract or prior relationship, the claim in tort shall be governed by the law
which governs the contract between them and not by the rules otherwise
applicable to claims in tort.
45. The law which applies to a tort (or the laws which apply to a tort, as the case may
be) shall apply, in particular, to determine
(a) the basis and extent of liability,
(b) the question whether a person may be liable for acts committed by another,
(c) the grounds for exemption from liability, any limitation of liability and any
division of liability,
(d) the heads or types of loss or damage for which a party is liable (but not the
quantification of the loss or damage liable to be awarded in respect of those
heads of damage),
(e) the identification of the persons entitled to compensation for damage
sustained personally.
46. Myanmar law shall always be applied, and foreign law shall not apply, to
(a) the quantification of recoverable loss or damage which is recoverable or
compensable according to the law or laws which apply to the tort,
(b) the availability and grant of other remedies which a court may order,
(c) the limitation of time since the accrual of the cause of action within which
the proceedings must be instituted, provided that if the law which governs the
contract provides that the right of the plaintiff is extinguished after a certain
period of time, that rule of the governing law may be applied as part of the law
which governs the substance of the issue before the court.
47. Rules 39 to 46 apply to causes of action regarded as founded on tort as this
expression is understood in the domestic law of Myanmar, and also to claims
arising under foreign laws which create or impose obligations equivalent to
liability in tort.
The Law of Property
48. For the purposes of these rules, property is divided into immoveable and
moveable. Moveable property is divided into tangible and intangible property.
Intangible moveable property is divided into debts and other intangibles.
49. (1) In the case of immoveable property in Myanmar the court has jurisdiction if
the suit is for the recovery or partition of the property, or for foreclosure, sale or
redemption in the case of a mortgage on the property, or for compensation for a
wrong to the property.
(2) The court shall apply the law of Myanmar to all such claims.
(3) No foreign judgment shall be recognised as res judicata insofar as it purports to
determine title to, or the right to recovery or partition of, or the foreclosure, sale
or redemption in the case of a mortgage of immoveable property in Myanmar.

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50. (1) In the case of immoveable property outside Myanmar, the court has
jurisdiction in a claim for personal relief if, but only if
(a) the suit is for relief respecting, or compensation for wrong to, that property,
and
(b) the relief sought can be obtained entirely by the personal obedience of the
defendant, and
(c) the defendant has submitted or will submit to the jurisdiction of the court, or
actually and voluntarily resides, or carries on business, or works for gain in
Myanmar.
(2) In dealing with such a claim, the court shall apply
(a) to any question of title, and notwithstanding Rule 23, the law which would
be applied by a court sitting at the situs of the land,
(b) to any question concerned with the existence or extent of an obligation, the
law which governs the right or obligation in question determined in accordance
with Rule, 28 to 47.
(c) to the issue of the relief which may be ordered, Myanmar law.
(3) A foreign judgment in respect of such a claim may be recognised as res judicata
in Myanmar even though the suit related to immoveable property in Myanmar.
51. (1) The effect of a finding of, using of, dealing with, disposal of, or other
transaction concerning tangible moveable property upon title to that moveable
property shall in general, be determined by the law of the situs of the property at
the time of the event said to have affected its title.
(2) A transfer of or other dealing with a tangible moveable which is effective by
the law of the country where the moveable is at the time of the transfer is valid
and effective in Myanmar.
(3) A transfer of or other dealing with a tangible moveable which is not effective
by the law of the country where the moveable is at the time of transfer is not
valid and effective in Myanmar; but if the moveable was in transit and its situs
was not known, a transfer which is valid and effective by the proper law of the
transfer will be effective in Myanmar.
52. The effect of a dealing with a negotiable instrument is governed by the law of the
country in which the instrument was when it the dealing took place.
53. (1) The question whether an intangible moveable has been assigned by the
person to whom it is owed (the assignor) to another (the assignee) is answered in
part by the law under which the moveable was created, and in part the law which
governs the assignment, as follows.
(2) The question whether the right to an obligation owed by another (the debtor)
is capable of being assigned to another is answered by the law under or by
reference to which the debt was created.
(3) The question whether a purported assignment to the assignee of the right to
an obligation owed by the debtor to the assignor is valid is answered by the law
which governs the agreement between the assignor and the assignee.

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54. The priority of competing assignments of a debt is governed by the law under
which the debt was created. The question whether a debtor is discharged by
making payment to the assignor, or to any assignee, is answered by the law under
which the debt was created.
55. However,
(a) the validity and effect of all dealings with registered shares in a company is
governed by the law under which the company was created,
(b) all questions concerning the validity of a patent, a copyright, a registered
design, or a trade mark are answered by the law under which the right was
created or is protected.
56. The effect upon its title of seizure or confiscation of property by judicial
authority is determined by the law of situs of the property seized or confiscated at
the date of the act in question.
57. The effect upon its title of seizure or confiscation of property by the government
of a foreign state is, subject in particular to Rule 26, determined by the law of situs
of the property seized or confiscated at the seizure or confiscation in question.
Companies and winding up
58. A company formed under the laws of a foreign state and having legal personality
under the law of that state shall be recognised in Myanmar as an overseas
company.
59. An overseas company which enjoys legal personality under the law under which
it was created may sue in Myanmar. An overseas company may be sued in
Myanmar if the court has jurisdiction over it in respect of the suit.
60. A company which is dissolved in accordance with law of country under which it
was created shall be treated as dissolved and without legal personality in
Myanmar, save that it may be wound up in Myanmar if it is necessary or
convenient to do so.
61. A court may wind up a company
(a) formed under the laws of Myanmar,
(b) formed under the laws of a foreign country which has or had a place of
business in Myanmar.
62. (1) The winding up of a company under the law under which it was created shall
be recognised as effective.
(2) A liquidator appointed by a court in the state under the law of which the
company was created will be recognised as having authority to represent the
company in Myanmar.

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Personal Insolvency
63. An insolvency petition in respect of a natural person may be presented if the
debtor ordinarily resides, or carries on business, or works for gain, in Myanmar,
or if he has been arrested or imprisoned, if he is in custody in Myanmar.
64. (1) A foreign adjudication will be recognised if made by a court with which the
debtor has a proper and sufficient connection.
(2) If under the foreign adjudication the moveable property of the debtor passes
to his representative, moveable property, but no immoveable property, in
Myanmar shall vest in the representative.

INDEX
Arbitration 10
- Arbitration agreement 18
- Enforcement of awards 29, 87
- International conventions 29, 87
- - New York Convention 87
- - UNCITRAL Model law 87
Attachment and garnishment 67
Bankruptcy: see Insolvency
Characterisation of issues 35, 36
- Concurrent liability in contract and tort 56
- Obligations resembling torts 60
- - equitable wrongs 60
- Relationships resembling contracts 50
Choice of court agreement 16, 17
- Arbitration clause, distinguished from 18
- Choice of law clause, distinguished from 17, 44
- Damages for breach 19
- Dismissal of suit brought in breach 19
- Injunction to restrain foreign proceedings 19
- Interpretation 17
Children 83
Company
- Contracts made by 75
- Doing business, meaning of 72
- Jurisdiction over 12, 72
- - Myanmar companies 72
- - overseas companies 72
- - service of process on 15, 72
- Legal personality of company 70
- - recognition of foreign companies 73
- - - dissolution of 74
- - - liquidator, appointment of 73
- - - merger and amalgamation 74
- Scheme of arrangement 76
- Shares, title to 67
- Veil of incorporation, lifting 73
- Winding up
- - Myanmar company 76
- - overseas or foreign company 77

- - see also Insolvency
Connecting factor: see Linking rule
Contracts
- Agency 49
- Capacity 47
- - company, of 75
- Carriage of goods 49
- Choice of law: see Proper law
- Company, made by 75
- Dispute as to creation or existence 41, 42, 48
- Formal requirements 47
- Formation 42, 48
- Guarantees 49
- Illegality 47
- Law governing: see Proper law
- Meaning of ‘contract’ 41
- - width of category 41
- - relationships resembling contracts 41, 50
- Mistake as to contract 50
- Proper law of the contract 43
- - distinguished from law of place 43
- - chosen by the parties 44
- - - chosen but not expressed 44
- - - laws which may (not) be chosen 44
- - issues referred to proper law 46
- - issues not referred to proper law 47
- - not chosen by the parties 45
- Public policy, role of 47
- Relationships resembling contracts 50
- Remedies for breach 47
- Tort within context of contract 56
Domicile, law of the 35, 82
Equitable wrongs 60
Evidence: see Procedural issues
Family law and personal status 9, 82, 83, 84
Foreign judgments
- Appeal, foreign judgment subject to 27
- Competent jurisdiction of foreign court 22, 25
- - defendant present in foreign jurisdiction 25
- - defendant submitting to foreign court 25
- - - appearance, submission by 25
- - - contract, submission by 25
- - - objection to jurisdiction, effect 25, 26
- - presumption of competent jurisdiction 25

- Conventions concerning 28
- - contrast with arbitrations 29
- Enforcement 21
- - judgment ordering payment of money 22
- - - jurisdiction to bring enforcement suit 23
- - - method of enforcement 23
- - judgment not for payment of money 23
- Fraud, judgment obtained by 26
- Immovable property in Myanmar 62
- Merits of the case, judgment on 26, 27
- - error by foreign court irrelevant 26, 27
- - error by foreign court as to jurisdiction 27
- - judgment in breach of Myanmar law 26
- - judgment in default not on merits 26
- Natural justice, breach by foreign court 26
- Obligation created by 22
- Reason for giving effect to 6, 21, 22
- Recognition and enforcement 6
- Res judicata 6, 21, 24
- United Kingdom, judgment from 23
Foreign law
- Application 5, 31, 34
- - method and procedure for application 35
- - reason for applying 5, 31
- - reason for not applying 5
- - - mandatory rule of Myanmar law 38, 47
- - - penal and revenue laws (foreign) 39
- - - public policy of Myanmar 40, 47, 59, 70, 82
- Domestic or private international law 35, 37
- Mistakes as to law 34
- Penal and revenue laws, not enforceable 39
- Procedural issues, non-application to 31
- Proof of foreign law by experts 31
Foreign proceedings
- Lis alibi pendens, effect on jurisdiction 15
- - in insolvency 80
- Injunction to restrain 19
Forum, law of the 35
Garnishment 67
Injunction
- Foreign proceedings, restraint of 19
- Ordered by foreign court 20
Insolvency
- Foreign or overseas company 76, 77
- Foreign proceedings, recognition 78

- - international cooperation 79
- Myanmar company 76
- Personal 80
- - foreign adjudication 80
- - Myanmar adjudication 80
International conventions 8
- Arbitration 87
- Insolvency 79
- Private international law reform 86, 88
Jurisdiction
- Agreements, contractual 17
- Alien, right to sue 11
- Cause of action, where arising 11
- - breach of contract, where arising 11
- - insurance, where cause of action arising 11
- - tort, where cause of action arising 11
- Compensation for wrongs, suit for 11
- Company, over 12, 72
- Defendant, where resident or employed 11
- - residence of co-defendant 11
- - resides, meaning 11, 80
- Defendant not present in Myanmar 13
- Existence distinguished from exercise of 4, 15, 16
- Improper purpose, suit having 15
- Land, suit for recovery 11
- - land in Myanmar 11, 62
- - land outside Myanmar 11, 63
- Leave of court required 11
- National and international jurisdiction 11
- Objections to
- - effect of not making objection 15
- - to basis or existence of jurisdiction 15
- - to exercise of jurisdiction 4, 15, 16
- - - Myanmar court forum non conveniens 16
- - - suit brought in breach of contract 16
- Service of process 14
- - defendant out of Myanmar, on 14
- Statutory basis of jurisdiction 11
- Summons, ignoring 15
- Submission to jurisdiction 11, 15
Justice, equity and good conscience 7, 42, 51
Lex
- concursus 35, 80
- contractus 35, 43, 44
- - loci contractus 35, 43
- delicti 35, 51
- - loci delicti commissi 35, 52

- domicilii 35, 82, 85
- fori 35
- incorporationis 35, 71
- patriae 35
- registri 35, 67
- situs 35, 61, 62, 65
Limitation 33
- Contrast with substantive time bars 33
- Foreign contracts, suits on 33
- Procedural law 33
Linking rules 35
Marriage 82
Myanmar law
- Mandatory or overriding rules of 38, 47
- - transfer of immovable property 62
- Public policy 40, 47, 59
Nationality, law of the 35
Negotiable instruments 68
Penal laws 39
Private International Law
- Conflict of laws, relationship with 1
- International element needed 3
- Meaning of 1
- Public international law, relationship to 2, 88
- Reform in Myanmar 89
- Restatement of Myanmar law 90
- Sources 7
- - common law 7
- - international conventions 8
- - justice, equity and good conscience 7, 42, 51
Procedural issues 32
- Evidence 32
- Limitation of actions 33
- Foreign law not applicable 32
- Proof and presumptions 32
- Remedies to give effect to rights 32
- - contractual 47
- - tort 57
Proof and presumptions: see procedural issues
Property

- Confiscation by governments 70
- Family law, impact of 84
- Intellectual property
- - infringement of rights 60
- - title to 67
- Immoveable and movable, distinction 61
- Immoveable property in Myanmar 62
- - contract concerning, law governing 62
- - foreign judgments concerning 62
- - jurisdiction over suits concerning 62
- - - suits requiring personal obedience 62
- - law applicable to issue of title 62
- - transfer to foreigners prohibited 62
- Immoveable property outside Myanmar 63
- - contract concerning, law governing 62
- - jurisdiction over suits concerning 63
- - - suits requiring personal obedience 63
- Moveable property 64
- - intangible property (debts), title to 67
- - - intellectual property, title to 67
- - - shares in companies, title to 67
- - tangible and intangible property 64
- - tangible property (things), title to 65
- - - suits to recover things 66
- Negotiable instruments 68
- Seizure by governments 70
- Succession 85
- Trusts of property 69
Public international law 2, 88
- Myanmar law, effect in 88
Public policy 40, 47, 59, 70, 82
Remedies: see procedural issues
Renvoi 35, 37
Res judicata: see Foreign Judgments
Revenue laws 39
Service of process 14
- company, on 72
Succession to property 85
Torts
- Contractual relationship, within 56
- Double actionability 54
- - flexible application of requirements 55

- Equitable wrongs 60
- Foreign statutes, claims under 58
- Intellectual property, infringement 60
- Justice, equity and good conscience 7, 51
- Law governing tort
- - committed in Myanmar 53
- - - flexible application of law 55
- - committed overseas 54
- - - flexible application of law 55
- Meaning of ‘tort’ 51, 60
- Obligations which resemble torts 60
- Place of commission of tort, locating 52
- - difficult cases 52
- Public policy 59
- Remedies 32, 57
Trusts 69
Unjust enrichment 50

3/12/2017 The Myanmar Law of Contract | Oxford Law Faculty
https://www.law.ox.ac.uk/researchandsubjectgroups/themyanmarlawofcontract 1/2
The Myanmar Law of Contract
THE LAW OF CONTRACT IN MYANMAR
The Law of Contract in Myanmar by Adrian Briggs and Andrew Burrows was published in
February 2017 and is the culmination of one of the major projects of the Oxford –
Burma/Myanmar Law Programme. The research and writing was primarily carried out in
Oxford using the facilities of the Bodleian Law Library and electronic databases but, in
addition, short teaching visits were made by the authors to Yangon where the opportunity
was taken to talk with law faculty, practitioners and judges about the Myanmar law of
contract.
This is the rst book to look in detail at
the Myanmar law of contract. This may
be thought surprising. After all, the law
of contract deals with the law on
agreements which are so central to all
our lives and lie at the heart of
commerce. Indeed the authors are not aware of any other jurisdiction in the developed
world which does not already have one or more books on the law of contract and most have
had such books for decades. In England and Wales, for example, the rst edition of Chitty on
Contracts was published in 1826 and the rst edition of Anson on Contract in 1884.
The book primarily looks at the Myanmar Contract Act 1872 (and a small number of other
statutes) and at the relevant Burmese/Myanmar case law. The authors have sought to
identify, read, and understand all the reported decisions on contract of the courts of
Burma/Myanmar since the enactment of the 1872 Act until about 1968 (after which the
Myanmar law reports are in the Burmese language only). The book shows how well
developed, in general, the law of contract in Myanmar actually is. It also shows the
excellence, for the most part, of the 1872 Act.
The book has three main purposes. The rst and most important is to contribute to the
restoration of legal education in the law schools of Myanmar. The law of contract is the
foundation of all commercial law and a thorough understanding of contract law, and of
contract law technique, is the rock on which much of the law is built. The universities in
particular, and those who worked and studied in them, had the most dif cult of times while
contact with the outside world was cut off. Though that unhappy state of affairs has come
to an end, it will take a while for the law schools to make up the ground which was lost.
Today’s generation of teachers and students may need to be shown what can be done with

3/12/2017 The Myanmar Law of Contract | Oxford Law Faculty
https://www.law.ox.ac.uk/researchandsubjectgroups/themyanmarlawofcontract 2/2
the law of Myanmar. So the hope is that this book will prove useful to all those working in
the universities.
A second purpose is to provide a guide to Myanmar contract law for those working in
Myanmar but outside the universities – in commerce and in law of ces but also, perhaps, in
courts and government of ces – who need to know the current state of Myanmar contract
law. It is also suggested, with those in government as the audience, that there are some
minor reforms of the 1872 Act that are worth considering.
A nal purpose is to explain the contract law of Myanmar to those from outside Myanmar
but who have dealings with individuals and companies inside Myanmar. The more that is
known about the laws of Myanmar, the more likely it is that contracts and other commercial
relations will be regulated by the laws of Myanmar rather than by the laws of foreign
countries.
The authors wish to make clear that, if there are relevant judgments on the general law of
contract after 1968 which are available only in the Burmese language they form no part of
this account. However, they have been told that the Union Supreme Court does not publish
large numbers of judgments on contract law; and it may be that they have missed little. If
anyone reading this book were able to draw their attention to judgments and other
materials which may have been missed, they would be very grateful indeed.
The book has been published with the generous professional help of OUP on behalf of the
Oxford University Law Faculty. It is available online for free by clicking the link to the book
at the top of the page or here.
A limited number of hard copies of the book have kindly been made available by OUP. They
will be distributed to those who helped with the project (for example in the law faculties in
Yangon, East Yangon and Dagon). Particular thanks are extended to Simon Makinson of
Allen and Overy for his generous sponsorship of the work of this programme, to Josh Htet
of A&O who assisted with translations of the preface and title pages into Burmese, and to
Krishna Kishakkevalappil for his invaluable research assistance.

3/12/2017 The OxfordBurma/Myanmar Law Programme | Oxford Law Faculty
https://www.law.ox.ac.uk/researchandsubjectgroups/oxfordburmamyanmarlawprogramme 1/2
The Oxford-Burma/Myanmar Law Programme
Upon receiving an honorary degree in June 2012, Daw Aung San Suu Kyi challenged Oxford to
support the redevelopment of Burmese education. The Faculty of Law is one of a few
departments across the University that has built a programme of research and teaching.
The Faculty of Law’s Myanmar Law Programme is part of a University-wide effort to aid
Myanmar’s redevelopment, which includes several other Oxford colleges and departments.
Upon receiving an honorary degree in
June 2012, Daw Aung San Suu Kyi
challenged Oxford to support the
redevelopment of education in her
country. Across Oxford, departments and
colleges, staff and students have taken
up this challenge enthusiastically, creating a range of projects that we believe are the most
diverse and productive of any foreign university working in the country.
In the years since Daw Suu received her degree, Oxford has sent student groups, law
researchers, senior professors, administrators, and more to Myanmar. They have provided
guest lectures, English tuition, advice on curriculum design, and book donations, among a
wealth of other contributions.
In the meantime, the University of Oxford has received visitors from Myanmar. Senior staff
from the University of Yangon spent almost a month here in Spring 2014, training in
various aspects of teaching and research, and developing a strategic plan to bring their
University into the 21st Century, and leaders of Myanmar’s student unions visited Oxford in
Spring 2015.

The Law Programme
Project
The Myanmar Law of Contract
Project
Private International Law in Myanma
Adrian Briggs has written a book to identi
rules of private international...

3/12/2017 The OxfordBurma/Myanmar Law Programme | Oxford Law Faculty
https://www.law.ox.ac.uk/researchandsubjectgroups/oxfordburmamyanmarlawprogramme 2/2
08 Sep 2015
03 Mar 2015
09 Oct 2014
Special thanks are owed to Andrew McLeod who, in his capacity as Director of the Law
Faculty’s Myanmar Law Programme from September 2014 to August 2015, and in his work
prior to that, has been the inspiration and driving force behind the work that has been
undertaken. His knowledge about the country, and his enthusiasm for doing what we can to
help, has been infectious and the teaching trips would not have been possible without his
hard work and expertise.
These pages describe some of the highlights and key achievements, as well as reporting on
visits by members of the Oxford Law Faculty, and showcasing lectures and a book written by
members of the Law Faculty.

NEWS
Report of Professor Adrian Briggs' visit to Yangon Auust-September 2015
Report of Visit of Professor Burrows to Yangon, February 2015
Report of visit by Professor Adrian Briggs to Yangon, delivering classes in September 2014

3/12/2017 Aung San Suu Kyi inspires University of Oxford to help Myanmar | Times Higher Education (THE)
https://www.timeshighereducation.com/news/aungsansuukyiinspiresuniversityoxfordhelpmyanmar 1/7
Registration successful. You are now logged in. ×
February 18, 2016
Aung San Suu Kyi inspires University of Oxford to help Myanmar
University academics answer an appeal for help from country's inspirational leader
By Matthew Reisz (/content/matthew-reisz)
Twitter: @MatthewReiszTHE (http://www.twitter.com/MatthewReiszTHE)
  

Source: Frank Noon Photography
Aung San Suu Kyi with Andrew Hamilton, former vice-chancellor of the University of Oxford
Aung San Suu Kyi was given an honorary doctorate in civil law by the University of Oxford (https://www.timeshighereducation.com/world-university-
rankings/university-of-oxford) in 1993. Yet it was only in 2012, after many years of house arrest in Myanmar, that she was able to come and receive
the award in person.
Her acceptance speech (http://www.ox.ac.uk/news/2012-06-20-transcript-aung-san-suu-kyi-speech)recalled “very precious memories” of her student
days and said that she would “like to see university life restored to Burma in all its glory. And I would be so grateful if my old university, the University
of Oxford (https://www.timeshighereducation.com/world-university-rankings/university-of-oxford), could help to bring this about once again.”
“Others had been keen to be involved before,” said Ed Nash, Oxford’s international strategy o៝�cer, “but the train really got moving then.” Today, he
goes on, Myanmar is “the country where we have the largest ‘development’ role” and where Oxford was “doing more than any other university in the
world”, through “a unique partnership which will deliver unique bene៯�ts”.
Given the spectacular victory of Ms Suu Kyi’s National League for Democracy in last November’s general election, there is obviously huge potential in
such a partnership, but what has been achieved so far and where is it going now?
Initial collaborations focused on the University of Yangon, Myanmar’s premier institution of higher education (although long closed to
undergraduates after the student protests of 1996), with a view to exerting in៯�uence outwards from there.
About 12 senior sta៛� from the institution, including the second in command, the chief librarian and the heads of the departments of Burmese,
chemistry, history, law and zoology, came to Oxford for a two-week visit in 2014 to discuss strategic planning, student support, curricula and
research. The Oxford team is led by Nick Rawlins, pro-vice-chancellor (development and external a៛�airs).

Many projects in the disciplines just mentioned have been developed. Oxford zoologists have joined forces with their Burmese counterparts in
e៛�orts to track the rare clouded leopard in the country’s forests. Like initiatives by the department of earth sciences to revive geology within
Myanmar, this also functions as a way of building local skills.
There is now a programme in modern Burmese studies at St Antony’s College, headed since 2013 by Matthew Walton, the ៯�rst Daw Aung San Suu
Kyi senior research fellow. The following year, Khin Mar Mar Kyi was appointed Daw Aung San Suu Kyi gender research fellow in Burmese studies at
Lady Margaret Hall’s International Gender Studies Centre.
Yet perhaps the most developed programme is taking place in the crucial discipline of law.
When Timothy Endicott, then dean of the law faculty, visited the University of Yangon in 2013, he found that the library there was lacking in the
crucial British law reports. He therefore appealed to the Bodleian Libraries to see if they had duplicates. It turned out that they did have complete
spare sets, recalls law librarian Ruth Bird, so they set about ៯�lling “about 300 boxes with 5,000 reports” and securing funding for the shipment.
Another 3,600 books in areas such as forestry have been donated by the Radcli៛�e Science Library.
Andrew Burrows, professor of the law of England, has long been interested in Myanmar and therefore grabbed the opportunity to spend a week
teaching tort and contract law (https://www.law.ox.ac.uk/news/2015-03-03-report-visit-professor-burrows-yangon-february-2015) at the universities
of Yangon, East Yangon and Dagon.
A major issue was a tradition of rote learning, with students “reciting the laws of contract as if they were a hymn, without understanding or being
able to apply them”. This led Professor Burrows to adopt a style of “interactive teaching”, with lots of questions and hypothetical examples, which
after a slow start generated much enthusiasm.
Yet his experiences in Myanmar also made him realise how many of its legal provisions date back to the 1872 Contract Act drafted by the British. The
system is theoretically based on precedent and court proceedings were indeed published in English up until 1965 – although these are available in
Oxford but very hard to ៯�nd in Myanmar itself. The result of all this, explains Professor Burrows, is that “no one quite knows what the law of contract
in Myanmar is” and that the country is e៛�ectively operating “a legal system without legal textbooks”.
His colleague Adrian Briggs, professor of private international law (which focuses on con៯�icts between di៛�erent legal systems), taught in Myanmar
(https://www.law.ox.ac.uk/news/2014-10-09-report-visit-professor-adrian-briggs-yangon-delivering-classes-september-2014) in 2014 and went back
(https://www.law.ox.ac.uk/news/2015-09-08-report-professor-adrian-briggs-visit-yangon-auust-september-2015) a year later. There were no
textbooks available in his ៯�eld either, which, as the country opens up, risks leaving the Burmese “seriously underarmed in dealing with foreign
lawyers”. He therefore decided to produce his own, now freely available online (https://www.law.ox.ac.uk/research-and-subject-groups/private-
international-law-myanmar) as Private International Law in Myanmar.
matthew.reisz@tesglobal.com (mailto:matthew.reisz@tesglobal.com)
In numbers
300 boxes were required to transfer 5,000 law reports from the Bodleian Libraries to Myanmar
Campus news
Northumbria University (https://www.timeshighereducation.com/world-university-rankings/northumbria-university)
A university has announced a major investment in its use of solar energy in a bid to reduce its carbon emissions. Northumbria University
(https://www.timeshighereducation.com/world-university-rankings/northumbria-university) has installed new solar panels on the roof of its Sport
Central facility in a move that aims to save the institution 40 tonnes of carbon dioxide per year and £9,000 in electricity charges. The panels should
generate so much power that they will also provide the university with an income of about £8,500 per year by selling surplus electricity back to the
National Grid.
Keele University (https://www.timeshighereducation.com/world-university-rankings/keele-university)
A teaching and research exchange aims to forge cooperation between Serbia and Albania, two nations with a history of con៯�ict. Aleksandar Radu,
lecturer in chemistry at Keele University (https://www.timeshighereducation.com/world-university-rankings/keele-university), has won funding for an
exchange between Keele and the University of Belgrade (https://www.timeshighereducation.com/world-university-rankings/university-belgrade), in
Serbia, and the University of Tirana, in Albania. He hopes that the scheme – in which senior and junior sta៛� will ៯�ow between the UK and the Balkans
to work on joint research – will “demonstrate the ability of science to bring people together even when [the] political situation works against them”.

 Read more about: Internationalisation (/policy/internationalisation)
University of Warwick (https://www.timeshighereducation.com/world-university-rankings/university-of-warwick)
A laser scan of 30 miles of Coventry roads will be used to test “driverless pods” in a simulator. WMG at the University of Warwick
(https://www.timeshighereducation.com/world-university-rankings/university-of-warwick) will work with RDM Group – the UK’s only designer and
manufacturer of driverless pods – in a project called INnovative Testing of Autonomous Control Techniques (INTACT). The project, funded by
Innovate UK, will enable Coventry-based automotive innovation experts RDM to test its vehicles on one of the world’s most adaptable and advanced
driving simulators at WMG.
Cardi៛� Metropolitan University (https://www.timeshighereducation.com/world-university-rankings/cardi៛�-metropolitan-university)
Cardi៛� Metropolitan University (https://www.timeshighereducation.com/world-university-rankings/cardi៛�-metropolitan-university) is to build a new
media and communications school in partnership with a Chinese television company. The joint venture with Phoenix Education, a subsidiary of
Phoenix Satellite Television Holdings, is the ៯�rst of its kind involving a private ៯�rm and a Welsh university. The new centre is expected to house a
media centre, teaching space and accommodation for up to 2,000 students. Phoenix already has four media colleges in China.
Teesside University (https://www.timeshighereducation.com/world-university-rankings/teesside-university)
A university has placed the student learning experience at the heart of its new ៯�ve-year plan. “Teesside 2020”, which aims to grow student numbers
at Teesside University (https://www.timeshighereducation.com/world-university-rankings/teesside-university), also places emphasis on the
importance of growing the institution’s research and innovation portfolio, as well as strengthening its ties with business and industry. The university
hopes to improve the student experience by delivering an innovative curriculum, working with employers to develop graduate skills and creating a
stimulating learning environment.
Bucks New University (https://www.timeshighereducation.com/world-university-rankings/bucks-new-university)
A university is o៛�ering a new course to train charity shop managers on how to run their operations more e៛�ectively. Bucks New University
(https://www.timeshighereducation.com/world-university-rankings/bucks-new-university) has developed the six-month course, known as the Retail
Academy for the Voluntary Sector, to improve leadership skills, volunteer management and merchandising. Lesley Bridges, principal lecturer in
advanced and continuing professional development, said that the course had been created to help organisations “respond e៛�ectively to the
challenges faced in the charitable sector”.
University of Roehampton (https://www.timeshighereducation.com/world-university-rankings/university-roehampton)
Award-winning poet David Harsent is one of three academics chosen as judges for this year’s Man Booker Prize. The professor of creative writing at
the University of Roehampton (https://www.timeshighereducation.com/world-university-rankings/university-roehampton), who won the TS Eliot
Prize for Poetry in 2015, is joined on the judging panel by critic Jon Day, lecturer in English at King’s College London
(https://www.timeshighereducation.com/world-university-rankings/kings-college-london), and Abdulrazak Gurnah, the Booker Prize-shortlisted
novelist and professor of English and postcolonial literatures at the University of Kent (https://www.timeshighereducation.com/world-university-
rankings/university-of-kent).
University of Winchester (https://www.timeshighereducation.com/world-university-rankings/university-winchester)
Labour politician Tristram Hunt has argued at a university’s newly established Centre for English Identity and Politics that patriotism and socialism
are crucial to the future of England. The MP spoke on 4 February at the University of Winchester (https://www.timeshighereducation.com/world-
university-rankings/university-winchester), which set up the centre last year and recruited John Denham, the former Labour secretary of state for
universities, as a professor of English identity and politics. Mr Hunt’s speech is part of a series of events at the centre looking at the forces shaping
English identity.
POSTSCRIPT:
Print headline: Suu Kyi moves Oxford to reach out to Myanmar
Have your say
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