Myanmar: Renewable energy in the Asia Pacific: a legal overview (3rd edition) - Myanmar

Carbon Markets and Renewable Energy Update (Australia)
Last Updated: 11 September 2013
Article by Stephen Webb

MYANMAR

OVERVIEW

JURISDICTION LANGUAGE
Common law and customary law Burmese


BUSINESS ENVIRONMENT

  • Ease of Doing Business Report 2013: not listed out of 185
  • Global Competitiveness Index 2013: not listed out of 144
  • Index of Economic Freedom 2013: 172 out of 177 (up 1 ranking)
  • Corruption Perceptions Index 2012: 172 out of 176 (up 8 rankings)
POPULATION INCOME GNI PER CAPITA (PPP TERMS)
48.3 million Low <$1,025 (est.)

PROFILE

Myanmar (or Burma) attained independence in 1948. This was the start of a long period of military rule, civil unrest, ethnic-based conflict and isolation from the outside world. Multiparty legislative elections were held in 1990 which resulted in Aung San Suu Kyi's National League for Democracy winning in a landslide victory, however the ruling military junta did not hand over power and Aung San Suu Kyi subsequently faced years of house arrest.

Despite another brutal crackdown of pro-democracy activists in 2007 and a cyclone which killed 138,000 people in 2008, parliamentary elections were held in 2010. The ruling Union Solidarity and Development Party won 75% of the seats in a controversial election whilst the new parliament appointed Thein Sein as president. Since then though, political and social reforms have abounded. Aung San Suu Kyi is now the leader of the opposition, the Government has signed peace deals with ethnic rebels, foreign investment laws have been released as President Sein has toured global capitals promoting the country, political prisoners have been released and the country has gradually eased civil rights restrictions. Despite the relaxing of some economic sanctions as a result of these reforms, the country remains one of the least developed nations in the world. In 2014, Myanmar will chair the Association of South East Asian Nations.

ELECTRICITY INDUSTRY OVERVIEW

  • Total installed electricity capacity is estimated to be 3.3GW, consisting of:
    • 2,520MW of hydropower (76%);
    • 715MW of gas (21%); and
    • 120MW of coal (3%).
  • Myanmar's per capita electricity consumption is amongst the lowest in the region, while the electrification rate is just 26% (although it has risen from 11% in 1988 and 16% in 2006).
  • Energy demand has increased consistently since 1990. Peak demand was 322MW in 1990 and 1.53GW in 2011. This accounts for an annual increase of 6.9%. The economy is expected to grow by 6% in 2013, resulting in a further increase in energy demand.
  • Rolling blackouts are introduced to cover the excess in demand, particularly in the dry season when hydropower facilities are less productive.
  • Myanmar's National Energy Policy has a number of aims, including:
    • to maintain current energy dependence;
    • the promotion of renewable energy;
    • the promotion of energy efficiency and conservation; and
    • the use of alternative fuels in households.
  • Myanmar Agenda 21 is a national development document that seeks to facilitate the integration of environmental and sustainable evelopment considerations. The 2009 National Sustainable Development Strategy also envisages a similar focus.
  • Myanmar has not received extensive development assistance from organisations like the Asian Development Bank, because of economic sanctions.

Electricity laws

  • The Electricity Act 1984, sets out the requirements for the electricity authority, the duties and responsibilities of electricity inspectors and also sets out punishments/fines for various offences.
  • Other important electricity regulation includes the:
    • Electricity Act 1948 (amended in 1967);
    • Electricity Rules 1985; and
    • National Environment Policy 1994.

Government

  • The Ministry of Electric Power (MOEP) formerly divided the electricity sector into the gas and hydro power sector (controlled by the MOEP (1)) and the power distribution sector (controlled by the MOEP (2)). However in September 2012, the MOEP was merged into one ministry.
  • Under the MOEP exists a number of departments with varying roles, including the:
    • Department of Hydropower Planning, which is responsible for hydropower and thermal power project planning;
    • Department of Electric Power, which oversees gas turbines, wind and other projects;
    • Department of Hydropower Implementation, which (as its name suggests) governs the implementation of hydropower and thermal power projects;
    • Myanmar Electric Power Enterprise, which administers transmission lines, sub-stations, gas turbines, wind farms and small hydropower
    • generation;
    • Hydropower Generation Enterprise, which is responsible for hydropower stations and coal-fired thermal plant generation;
    • Electric Supply Enterprise, which is responsible for electricity distribution outside of the capital; and
    • Yangon City Electricity Supply Board, which is responsible for electricity distribution within Yangon (Rangoon).

Generation, distribution and transmission

  • All power generation companies are state-owned.
  • Distribution and transmission infrastructure is limited, particularly outside of the capital. In an effort to address such shortages, Myanmar joined the Greater Mekong Sub-region Economic Cooperation to aid in regional power interconnections and power trade arrangements, as well as to facilitate the exchange of information on renewable energy.
  • The inadequacy of transmission infrastructure was seen in 2011 with technical and non-technical losses at 27% and as high as 30% in 2003.
  • The transmission infrastructure consists of an interconnected overhead grid of 230kV, 132kV and 66kW. There are plans to introduce a 500kV line to connect the north and the south of the country. The
  • existing three lines are 9,886km long.
  • In early June 2013, the Japanese Prime Minister visited Myanmar and announced extensive Japanese support for developing Myanmar's electricity infrastructure.

RENEWABLES INDUSTRY OVERVIEW

  • According to government statistics, renewable energy use (and energy used from fossil fuels), has increased across all types of renewable energy in the 10 years from 2000.
  • Total installed renewables capacity is now 150MW.
  • The Ministry of Energy is targeting an additional 500MW of renewable energy by 2015. This represents 15% of current installed capacity.
  • In 2005, Myanmar signed a memorandum of understanding with Thailand to cooperate on renewable energy matters.
  • The Government has stated that it needs international assistance to develop solar energy, wind energy, tidal energy and geothermal energy due to high capital costs and a lack of technological knowledge in the country.
  • The Ministries of Science, Technology and Agriculture together have a regulatory purview which covers renewable energy.
  • The National Environmental Conservation Committee is responsible for national climate change policy, however the country does not have a climate change strategy at present.

Hydropower

  • Myanmar has a hydropower potential of over 100GW from its four main river basins: Ayeyarwaddy, Chindwin, Thanlwin and Sittaun.
  • Over 200 sites have been recognised as suitable for hydropower development throughout the country, 92 of them for large hydropower projects.
  • Approximately 1.5GW to 2.65GW of hydropower has been developed. Amongst this capacity, there are 11 existing small hydropower facilities and 14 facilities are currently under construction.
  • Hydropower will be the main contributor to any increase in renewable energy capacity in Myanmar and it is the only renewables source currently being commercially exploited.
  • The majority of hydropower potential is located on the eastern side of the country in Kayin State (17GW potential), Shan State (7GW potential) and Kayah State (3.9GW potential).
  • Hydropower facilities within the country range from village-scale projects made from wood to modern turbine systems.

Wind energy

  • Myanmar has vast potential for wind energy, however the industry is currently underdeveloped.
  • There are some small wind farms in operation in the country, including a 1.2kW wind turbine in Kyauske Township in Mandalay, a 1.2kW facility at the Government Technical High School in Ayeyarwaddy Region and a 3kW wint turbine run by the Ministry of Science and Technology.

Solar energy

  • As with other South East Asian nations, Myanmar has high solar radiation levels. However, like the country's wind industry, the solar industry is also at a research and development phase.
  • Stand-alone PV systems are being used for rural electrification for areas that cannot be connected to the national grid, with notable initiatives in schools and universities.

Geothermal energy

  • 93 geothermal locations have been identified throughout Myanmar.
  • The country is considered to have commercially viable geothermal sites.
  • The Electric Power Development Company of Japan has been involved in helping government ministries and state-owned enterprises in testing various sites.
  • Hot springs are found in Kachin State, Shan State, Taninthayi Region and other areas.

Biomass/biogas energy

  • Approximately two-thirds of primary energy is supplied from biomass sources in Myanmar. This includes fuel wood, charcoal, agriculture residue and animal waste. This is a strong indicator that Myanmar is an agriculture-based economy.
  • Installed capacity of biomass in 2008 was 18MW.
  • Biogas generators have been used to supplement fuel wood scarcity.
  • Rice husk gasification technology is currently being researched by the Government. Some mid to largescale rice mills use husks as fuel to generate steam for steam engines.
  • The country is also seeking to grow dedicated energy crops.
  • The Ministries of Forestry and Agriculture deal specifically with biomass energy matters.

Ocean energy

  • Myanmar has a vast coastline that is 2,832km long.
  • There is potential for tidal and ocean current energy given the strong currents and tides along the coast.
  • The first tidal power plant was commissioned in 2007 in Kambalar village. It has a 3kW turbine and provides electricity to 220 village households.

CURRENT ISSUES IN THE RENEWABLES INDUSTRY

  • Myanmar's renewables industry is underdeveloped, and faces a number of issues in developing viable projects, including the:
    • lack of a renewables regulatory regime;
    • subsidised cost of electricity that discourages power investments;
    • lack of transparency in dealings with government;
    • lack of human resource capacity;
    • lack of adequate transmission and distribution infrastructure;
    • competition from cheaper gas alternatives (Myanmar has the 10th largest gas reserves of any country); and
    • need for greater inter-governmental cooperation in the electricity market generally.
  • About half the country's land area is covered in forests, however significant deforestation has occurred. The Asian Development Bank estimates that the average rural household uses 2.5 cubic tonnes of fuel wood per year. The National Forestry Master Plan introduced by the Forestry Ministry, forecasts uses of fuel wood to decrease because of greater reliance on energy efficient stoves and alternative energy sources, including hydropower and natural gas.
  • Myanmar could use its vast forest covering to establish carbon offset agreements with a developed economy (much like Indonesia's agreement with Norway for instance).

RENEWABLES LAWS

  • There is no renewable energy law in Myanmar at present. Regulatory guidance can be found in national energy policies and through electricity laws.

GOVERNMENT INCENTIVE PROGRAMS

  • There are no specific renewable energy incentives at present, however the Government has recently announced a new foreign investment law (see below) which offers foreign investment incentives generally.
  • For instance, there is a general five year tax holiday for all foreign investors. Other tax exemptions are more tailored and include:

    • exemption from a tax on profits if the profits are maintained in a reserve fund and reinvested therein within one year;
    • if goods are exported, relief for income tax of up to 50% of the profits accrued is available;
    • deductions for expenses in respect of research and development relating to the enterprise;
    • the right to carry forward and offset a loss for up to three consecutive years from the year the loss is sustained; and
    • exemptions or relief from customs duties for the importation of machinery, equipment, instruments, machinery components, spare parts and materials that are required for the enterprise.
  • The new law also assures that the Government will not nationalise an investor's enterprise during the contract period, nor terminate permits without a proper reason and that the investor's foreign currency shall be repatriated in the same foreign currency.

MAJOR PROJECTS/COMPANIES

  • The HOPIN hydropower station is one of the largest hydropower facilities in Myanmar. Its two generators produce 630kW each.
  • There are a number of planned micro-hydropower plants, including the 1.2MW Mepan Chaung project, the 6MW Nam Mae Sai project and the 1.2MW Kang Hkawng in Eastern Shan State, as well as the 6MW Tumpang Hka Chaung in Kachlin State.
  • The first medium-scale hydropower plant was Baluchaung 2 in central-east Myanmar. It was commissioned in 1960 with an installed capacity of 84MW.
  • In 2005, the 280MW Paunglaung hydropower plant was commissioned just east of Yangon. This was followed by eight more plants, totalling nearly 2GW, with two large-scale hydropower plants (Shewli-1, 600MW and Yeywas, 790MW) commissioned in 2008 and 2010 respectively.
  • Thailand's Green Earth Power company is currently seeking partners for a joint development of a 210MW solar plant in Myanmar. The company also has plans for a 300MW solar project in the country.

FOREIGN INVESTMENT/OWNERSHIP

  • The local currency, the Kyat, was floated in April 2012 which broadly encouraged foreign investment.
  • The Myanmar Foreign Investment Law 2012 (FIL) which was passed by the Myanmar National Assembly on 2 November 2012 and approved by President Thein Sein the next day, is a crucial part of the Myanmar Government's push to attract foreign investment and reform the country's once-isolated industry.
  • The FIL prohibits and restricts investment in only a small number of industries while also offering significant incentives to investors. Indeed, the objectives and "fundamental principles" of the FIL recognise the need to create jobs, develop basic infrastructure and for Myanmar to be brought into line with international standards.

Myanmar Investment Commission

  • The Myanmar Investment Commission (MIC) is created under the FIL. The MIC's chief duty is to scrutinise investment proposals and to accept proposals that are in the State's interests. It is comprised of members from various Ministries, government departments and organisations as well as other non-government persons.

Restricted and prohibited activities

  • The FIL has both general and specific restrictions/prohibitions.
  • The general restrictions/prohibitions relate to preserving cultures and customs of ethnic nationalities, activities detrimental to public health, natural resources, the environment and biodiversity, as well as the importation of toxic waste products or the use of hazardous chemicals.
  • The specific restrictions/prohibitions relate to industries that "can be operated by [Myanmar] citizens" such as agricultural activities, livestock activities and fishery activities. There are also restrictions on manufacturing and service activities, subject to regulations underneath the FIL. As regulations have yet to be passed, there is no guidance as to whether an industry is "restricted" or "prohibited".
  • Nonetheless, the MIC may permit investments in restricted or prohibited sectors with approval from the Union Government Board. It is also important to note that the State-Owned Economic Enterprises Law gives the government the sole right to carry out economic enterprises in a number of sectors.

How to invest

  • There are now three ways to invest in Myanmar according to the FIL:
    • a 100% foreign capital investment for activities permitted by the MIC;
    • a joint venture between foreigners and citizens/government departments, whereby the ratio of foreign and local capital can be decided by the parties, unless the investment is a restricted activity; and
    • through an "agreed contract".
  • There are no minimum capital requirements under the FIL, except for a joint venture in a restricted sector. Insurance must be obtained from an insurance company permitted within the country

Permits process

  • There is broadly a three-step process to invest in Myanmar under the FIL:
    • an investor must submit a proposal to the MIC. The initial decision will be either to accept or reject a proposal for further scrutiny which is given within 15 days of an application;
    • if the proposal is accepted for scrutiny, the MIC has 90 days in which to approve or not approve the proposal; and
    • if a permit is granted by the MIC, the investor must establish an enterprise with the relevant government department or organisation.

Land leases and land usage permits

  • MIC may allow an investor up to 50 years to lease or use land. Ten year extensions may be permitted after the expiry of the term of the initial lease. Longer leases and land usage permits may be granted for investments in remote or undeveloped areas. Under the law, foreign investors are not allowed to own land.

Duties of investors

  • There are numerous duties for investors to comply with, ranging from the obvious, such as abiding by existing laws and issued permits, through to specific duties relating to notification of the discovery of natural resources or antiques. There is an important duty in relation to transferring of shares, which states that if the investor transfers shares in a foreign company, then the investor should seek approval from MIC. An investor is also required to open a foreign currency account.

Hiring local staff requirements

  • When hiring local experts and technicians, at least 25% of employees should be "local staff" for the first two years of the enterprise, increasing to at least 50% within the next two years and at least 75% in the third two year period. MIC may amend this however. There are also duties as to training of local staff and importantly, the provision of the same benefits to local staff vis-à-vis foreign staff, specifically in regards to salary levels. Foreign workers must obtain work permits and resident permits issued by the State.

Rights of investors

  • The rights of an investor include the right to sell basic equipment with the MIC's approval, to expand activities with MIC's approval as well as various rights to present applications and requests to MIC.
  • For foreign capital and currency, MIC will register foreign capital in the name of an investor in an accepted foreign currency, while an investor has the right to transfer foreign currency.

Penalties and disputes

  • In the event of a breach of any law or permit conditions, the MIC may issue a number of administrative penalties, ranging from a warning through to revocations of permits and black listing. The FIL mentions that an investor may be criminally prosecuted for more serious breaches (for example, because of deliberate misrepresentations).
  • Contractual provisions between parties related to dispute resolution takes precedence over state law relating to conflict resolution.

RELEVANT INTERNATIONAL TREATIES

  • Myanmar ratified the United Nations Framework Convention on Climate Change in 1994 and also ascended to the Kyoto Protocol in 2003. The country's carbon footprint however, is extremely low.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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