Division 2: Companies and corporations
2. Companies that may be incorporated
The following types of body corporate may be incorporated under this Law:
(a)a company limited by shares, which may be either:
(i)a private company which may have no more than 50 members (not including persons who are in the employment of the company); or
(ii)a public company which may have any number of members;
(b)a company limited by guarantee which may have any number of members; and
(c)an unlimited company which may have any number of members.
3. Other corporations that may be registered under this Law
As further provided by and subject to Division 9 of this Part, the following bodies corporate formed under this Law or other laws may be registered under this Law:
(a)a not for profit business association;
(b)an overseas corporation;
(c)any other corporation which is entitled to register as a company by this Law or any other applicable law; and
(d)such other entities as may be prescribed by the Union Minister from time to time.
Division 3: Essential requirements and powers of companies
4. Essential requirements of companies
(a)A company registered under this Law must have:
(i) a name;
(ii)a constitution;
(iii)at least one share in issue (provided that a company limited by guarantee need not have a share capital);
(iv)at least one member;
(v)subject to sub-section (vi), at least one director who must be ordinarily resident in the Union;
(vi)if the company is a public company, at least three directors, at least one of whom must be ordinarily resident in the Union; and
(vii)a registered office address in the Union.
(b)A company may appoint a company secretary and have a common seal.
5. Capacity and powers of companies
(a)A company:
(i)will be a legal entity in its own right separate from its members having full rights, powers, and privileges and continuing in existence until it is removed from the Register; and
(ii)subject to this Law and any other law, has both within and outside the Union full legal capacity to carry on any business or activity, do any act, or enter into any transaction, including the power to:
(A)issue shares, debentures or securities which convert into shares in the company;
(B)grant options to subscribe for shares or debentures in the company;
(C)grant a security interest over any of its property; and
(D)distribute any of the company’s property among the members, in kind or otherwise, and
(b)The constitution of a company may contain a provision relating to the capacity, rights, powers, or privileges of the company only if the capacity of the company or those rights, powers, and privileges are restricted.
(c)A company may act as a holding company of another company and incorporate and hold shares in any number of subsidiaries.
Division 4: Incorporations and registrations under this Law
6. Mode of incorporating a company
(a)Any person or persons may apply to the Registrar to incorporate and register a company under this Law:
(i)a company having the liability of its members limited by the constitution to the amount, if any, unpaid on the shares respectively held by them (in this Law termed a company limited by shares);
(ii)a company having the liability of its members limited by the constitution to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (in this Law termed a company limited by guarantee); or
(iii)a company not having any limit on the liability of its members (in this Law termed an unlimited company).
(b)The application to the Registrar for the registration of a company under this Law must be made in the prescribed form and must state:
(i) the proposed name of the company;
(ii)the proposed type of company;
(iii)the full name, father’s name, occupation and address of each applicant;
(iv)the full name, father’s name, occupation, date of birth, gender, nationality and address of every director and any secretary of the proposed company;
(v)that each individual named as a director or secretary of the proposed company has given their written consent to act as a director or secretary of the proposed company;
(vi)the address of the registered office of the proposed company, which in the absence of any other notice will be taken to be the address for service of documents to the proposed company;
(vii)the address of the company’s principal place of business if different to the registered office; and
(viii)in the case of a private, public or unlimited company:
(A)the full name, father’s name, occupation, and address of every member of the proposed company;
(B)that each member of the proposed company has given their written consent to be a member and subscribe for the shares to be allotted to them;
(C)the number and class of shares to be issued to each member;
(D)the currency in which the company’s share capital is to be denominated;
(E)the amount (if any) each member agrees to pay for each share;
(F)whether these shares will be fully paid on registration;
(G)whether the proposed company has an ultimate holding company;
(H)whether the proposed company will, on incorporation, be a foreign company; and
(ix)in the case of a company limited by guarantee:
(A)the full name, father’s name, occupation and address of every member of the proposed company;
(B)that each member of the proposed company has given their written consent to be a member;
(C)the proposed amount of the guarantee that each member agrees to provide; and
(D)if the company is to have a share capital:
(I)the number and class of shares to be issued;
(II)the currency in which the company’s share capital is to be denominated;
(III)the amount (if any) each member agrees to pay for each share; and
(IV)whether these shares will be fully paid on registration.
(c)An application for registration must:
(i) be signed by each applicant;
(ii)include a declaration by each applicant that all matters stated in the application are true and correct; and
(iii)where the company proposes to use a constitution which differs in any substantive way from the prescribed form of constitution, be accompanied by a copy of the proposed company’s constitution certified by at least one applicant, otherwise a statement that the company proposes to use the prescribed form of constitution.
(d)The prescribed fee must be paid to the Registrar when filing the application.
(e)Duplicate originals of the application and all documents accompanying it must be kept by the applicants together with the originals of the consents referred to in sub-sections (b)(v), (viii) and (ix). On incorporation, these should be passed to the company and then maintained with the company’s records.
7.The penalty for an applicant making a false declaration in an application under section 6 shall be a fine of 2,500,000 kyats.
8. Registration
(a)When the Registrar receives a completed application which upon any necessary examination meets the requirements of this Law, the Registrar must:
(i)register the application; and
(ii)issue a certificate of incorporation which states:
(A)the company’s name;
(B)the company’s type;
(C)that the company is incorporated and registered as a company under this Law;
(D)the date of registration; and
(E)any other matters that may be prescribed.
(b)The Registrar must keep a record of the registration.
(c)The Registrar may not require the submission of any other documents in connection with the registration other than those referred to in sections 6(b) and (c) or save as may be prescribed by the Union Minister.
9. Effect of registration
From the date of registration mentioned in the certificate of incorporation, the members named in the application shall become members of the company having a separate legal personality and the name contained in the certificate of incorporation. Without limiting section 5 or any other provision of this Law, the company will be capable forthwith of exercising all the functions of an incorporated company, and have perpetual succession.
10.Conclusiveness of certificate of incorporation
A certificate of incorporation given by the Registrar under section 8 shall be conclusive evidence that all the requirements of this Law in respect of registration have been complied with, and that from the date of incorporation stated in the certificate the company is incorporated and duly registered under this Law.
Division 5: Company constitution
11. Requirement for and effect of the constitution
(a)Each company will have a constitution the effect of which is to bind, in accordance with its terms, the company and the members thereof to the same extent as if they respectively had been signed by each member and contained a covenant on the part of each member, the member’s heirs, and legal representatives, to observe all the provisions of the constitution, subject to the provisions of this Law.
(b)The company, the board, each director and each member of the company will have the rights, powers, duties and obligations set out in this Law except to the extent that they are modified, in accordance with this Law, by the constitution.
(c)Each of the members of the company named in the application for incorporation and each subsequent member shall be deemed to be bound by the constitution.
(d)All money payable by any member to the company under the constitution shall be a debt due from the member to the company.
12.Contents of a constitution
(a)The constitution may contain the matters contemplated in this Law for inclusion and such other matters that the company wishes to include, provided that at all times the constitution has no effect to the extent that it is inconsistent with this Law.
(b)The constitution may be based on the prescribed form of constitution.
(c)At the election of the members, the constitution may set out the objects of the company.
(d)The constitution must state that the registered office of the company will be situated in the Union.
(e)Subject to sub-section 12(f), the Memorandum of Association, any Articles of Association and any other constituent document of an existing company shall take effect as the constitution of such company following the commencement of this Law, provided
that at all times the constitution has no effect to the extent that it is inconsistent with this Law.
(f)The objects expressed in the former Memorandum of Association of an existing company will (unless removed by the members voting to amend the constitution in accordance with the requirements of this Law) continue to apply until the end of the transition period. The objects will be deemed to have been removed after this time unless a notice in the prescribed form confirming the passing of a special resolution to maintain them is filed with the Registrar. This sub-section is without prejudice to section 29.
13. Additional requirements for constitutions of limited companies
The constitution of a company limited by shares shall state:
(a)the name of the company, with “Limited” or “Ltd” as the last word in its name if it is a private company and “Public Limited Company” or “PLC” if it is a public company;
(b)that the liability of the members is limited;
(c)the classes of shares which the company proposes to issue and the currency denomination of such shares; and
(d)that the initial subscribers for shares in the company and any subsequent subscriber shall take at least one share.
14. Additional requirements for the constitutions of a company limited by guarantee
(a)The constitution of a company limited by guarantee shall state:
(i)the name of the company, with “Limited by Guarantee” or “Ltd Gty” as the last words in its name;
(ii)that the liability of the members is limited by the amount of the guarantee; and
(iii)that each member undertakes to contribute to the assets of the company in the event of its being wound up while he is a member, or within one year afterwards, for payment of the debts and liabilities of the company contracted before he ceases to be a member, and of the costs, charges and expenses of winding up, and for adjustment of the rights of the contributories among themselves, such amounts as may be required not exceeding a specified amount.
(b)If the company is to have a share capital:
(i)the constitution shall also state the classes of shares which the company proposes to issue and the currency denomination of such shares; and
(ii)a subscriber of the constitution shall take at least one share.
(c)In the case of a company limited by guarantee and not having a share capital, and registered after the commencement of the previous law, every provision in the constitution or in any resolution of the company purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member shall be void.
15.Additional requirements for the constitution of an unlimited company
The constitution of an unlimited company shall state:
(a)the name of the company (with “Unlimited” as the last word in its name);
(b)that the liability of members is unlimited;
(c)the classes of shares which the company proposes to issue and the currency denomination of such shares; and
(d)that initial subscribers for shares in the company and any subsequent subscriber shall take at least one share.
16. Format of constitution
The constitution of a company:
(a)must be prepared in Myanmar language; and
(b)may also be prepared in English language (in addition to Myanmar language); and
(c)must be divided into paragraphs numbered consecutively.
17. Alteration of constitution
Subject to the provisions of this Law, and to any additional conditions contained in its constitution, a company may, by special resolution, alter or add to the provisions of its constitution, and any alteration or addition so made shall be as valid as if originally contained in the constitution, and be subject in like manner to alteration by special resolution.
18. Procedure on approval of the alteration
(a)Notice in the prescribed form together with a copy of the constitution as altered, shall, within 28 days from the date of the passing of the special resolution to amend it, be filed by the company with the Registrar, and he shall register the same and the certificate shall be conclusive evidence that all the requirements of this Law with respect to the alteration have been complied with, and thenceforth the constitution so altered shall be the constitution of the company.
(b)The Court may by order at any time extend the time for the filing of documents with the Registrar under this section for such period as the Court thinks proper.
19.Effect of failure to register the alteration within 28 days
No such alteration of the constitution shall have any effect until registration thereof has been duly effected in accordance with the provisions of section 18.
20. Effect of alteration of constitution
(a)Notwithstanding anything in the constitution of a company, no member of the company shall be bound by an alteration made in the constitution after the date on which he became a member if and so far as the alteration requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made, or in any way increases his liability as at that date to contribute to the share capital of, or otherwise to pay money to, the company.
(b)This section shall not apply in any case where the member agrees in writing either before or after the alteration is made to be bound thereby.
21.Copies of constitution to be given to members
Every company shall send to every member, at his request and within 14 days thereof, on payment of such reasonable sum as the company may specify not to exceed such amount as may be prescribed, a copy of the constitution.
22.If a company makes default in complying with the requirements of section 21, it shall be liable for each offence to a fine of 100,000 kyats.
23.Alteration of constitution to be noted in every copy
Where an alteration is made to the constitution of a company, every copy of the constitution issued after the date of the alteration shall be in accordance with the alteration.
24.If, where an alteration has been made to the constitution of a company, the company at any time after the date of the alteration issues any copies of the constitution which are not in accordance with the alteration, it shall be liable to a fine of 100,000 kyats for each copy so issued, and every director or other officer of the company who is knowingly and wilfully in default shall be liable to the same penalty.
Division 6: Company names
25.Name of company and change of name
(a)A company shall not be registered by a name identical with that by which a body corporate in existence is already registered, or so nearly resembling that name as to be calculated to deceive or otherwise likely to mislead or cause confusion, except where the body corporate in existence is in the course of being dissolved and signifies its consent to the Registrar.
(b)If a company, through inadvertence or otherwise, is, without such consent as aforesaid, registered by a name identical with that by which a body corporate in existence is previously registered, or so nearly resembling it as to be calculated to deceive or otherwise likely to mislead or cause confusion, the first-mentioned body corporate may, with the sanction of the Registrar, change its name.
(c)Except with the previous consent in writing of the Union Minister no company shall be registered by a name which-
(i)contains any of the following words, namely, “National Government”, “State”, “Central Bank”, “Union Government”, “President”, “Ministry” or any word which suggests or is calculated to suggest the patronage of the Government of Myanmar or of any Ministry, Department, Office or Agency thereof; or
(ii)contains the word “Municipal”, or any word which suggests or is calculated to suggest connection with any state, regional, municipality or other local authority or with any society or body incorporated by applicable law:
(d)Any company may, by special resolution and subject to compliance with this Law and the filing of notice in the prescribed form with the Registrar, change its name. The company must make the filing within 28 days of the special resolution being passed.
(e)Where a company changes its name, the Registrar shall, provided that the new name is available and does not breach this Law or any other law, enter the new name on the Register in place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case. On the issue of such a certificate, the change of name shall take effect.
(f)No such alteration of the name shall have any operation until registration thereof has been duly effected in accordance with the provisions of sub-sections (d) and (e), and if such registration is not effected within 28 days after the passing of the special resolution such alteration shall be absolutely null and void.
(g)The change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company; and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.
26. Direction to change name
(a)If the Registrar believes on reasonable grounds that a company should not have been registered under the name it was registered under, the Registrar may serve written notice on the company to change its name by a date specified in the notice, being a date not less than 60 days after the date on which the notice is served.
(b)If the company does not change its name within the period specified in the notice, the Registrar may enter on the Register a new name for the company selected by the Registrar, being a name under which the company may be registered under this Part.
(c)If the Registrar registers a new name under sub-section (b), the Registrar must issue a certificate of incorporation for the company recording the new name of the company, and the registration of the new name shall have effect as if the name of the company had been changed under section 25.
27. Use of a company name
A company must ensure that its name is clearly stated in:
(a)every written communication sent by, or on behalf of, the company; and
(b)every document issued or signed by, or on behalf of, the company that evidences or creates a legal obligation of the company.
Division 7: Company dealings
28. Validity of Actions
(a)Without limiting any provision of this Law, no act of a company and no transfer of property to or by a company is invalid merely because the company did not have the capacity, the right, or the power to do the act or to transfer or take a transfer of the property.
(b)The fact that an act may not be considered in the best interests of a company does not affect the capacity of the company to do the act.
29. Contracts and execution of documents
(a)Subject to any law that requires a particular procedure to be complied with in relation to a contract, a company’s power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the company’s express or implied authority and on behalf of the company. The power may be exercised without using a common seal.
(b)A company may execute a document without using a common seal if the document is signed by:
(i)if the company has only 1 director – that director;
(ii)2 directors of the company; or
(iii)a director and a company secretary of the company.
(c)A company with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by:
(i)if the company has only 1 director – that director;
(ii)2 directors of the company; or
(iii)a director and a company secretary of the company.
(d)A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with sub-section (b) or (c).
(e)This section does not limit the ways in which a company may execute a document (including a deed), including as may be provided elsewhere in this Law.
30. Dealings between a company and other persons
(a)A person is entitled to make the assumptions in section 31 in relation to dealings with a company. The company or any guarantor of the company is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.
(b)A person is entitled to make the assumptions in section 31 in relation to dealings with another person who has, or purports to have, acquired title to property from a company. The company and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.
(c)The assumptions may be made even if a director, officer or agent of the company acts fraudulently, or forges a document, in connection with the dealings.
(d)A person is not entitled to make an assumption in section 31 if at the time of the dealings they knew or suspected that:
(i) the assumption was incorrect;
(ii)a director, officer or agent acted fraudulently;
(iii)the relevant document was a forgery; or
(iv)the relevant matter was contrary to an applicable law.
31. Assumptions that may be made by persons dealing with companies
(a)A person may assume that the company’s constitution has been complied with.
(b)A person may assume that anyone who appears from information on the Register to be a director or a secretary of the company:
(i) has been duly appointed; and
(ii)has authority to exercise the powers and perform the duties customarily exercised or performed by a director or secretary (as applicable).
(c)A person may assume that anyone who is held out by the company to be any other officer or an agent of the company:
(i) has been duly appointed; and
(ii)has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent.
(d)A person may assume that anyone held out by the company as a director, or other officer, secretary or agent of the company with authority to exercise a power which a director or other officer, secretary or agent of a company does not customarily have authority to exercise, does have authority to exercise that power.
(e)A person may assume that the directors, other officers, secretaries and agents of the company properly perform their duties to the company.
(f)A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with sub-section 29(b).
(g)A person may assume that a document has been duly executed by the company if:
(i)the company’s common seal appears to have been fixed to the document in accordance with sub-section 29(c); and
(ii)the fixing of the common seal appears to have been witnessed in accordance with that sub-section.
(h)A person may assume that a director, other officer, secretary or agent of the company who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a true copy.
Division 8: Activities prior to registration
32.Pre-incorporation expenses
The expenses properly incurred before registration in promoting and setting up a company may not be paid out of the company’s assets unless they are ratified or validated in the manner set out in this Division.
33.Pre-incorporation contracts
(a)In this section and in sections 34 to 36, the term pre-incorporation contract means:
(i) a contract purporting to be made by a company before its incorporation; or
(ii)a contract made by a person on behalf of a company before and in contemplation of its incorporation.
(b)A pre-incorporation contract may be ratified by the company within any period specified in the contract, or if no period is specified, then within a reasonable time after the incorporation of the company.
(c)A contract that is ratified is as valid and enforceable as if the company had been a party to the contract when it was made.
(d)A pre-incorporation contract may be ratified by a company by the directors passing a resolution to this effect or otherwise in the same manner as a contract may be entered into on behalf of a company under section 29.
(e)If a pre-incorporation contract has not been ratified by a company, or validated by the court under section 35, the company may not enforce it or take the benefit of it.
34.Implied warranty in pre-incorporation contracts
(a)Subject to any express provision in the pre-incorporation contract, there is an implied warranty by the person who purports to make a pre-incorporation contract:
(i)that the company will be incorporated within any period specified in the contract, or if no period is specified, then within a reasonable time after the making of the contract; and
(ii)that the company will ratify the contract within any period specified in the contract, or if no period is specified, then within a reasonable time after the incorporation of the company.
(b)The amount of damages recoverable in an action for breach of a warranty implied by sub-section (a) is the same as the amount of damages that would be recoverable in an action against the company for damages for breach by the company of the unperformed obligations under the contract if the contract had been ratified and cancelled.
(c)If, after its incorporation, a company enters into a contract in the same terms as, or in substitution for, a pre-incorporation contract (not being a contract ratified by the company under section 33), the liability of a person under sub-section (a) (including any liability under an order made by the court for the payment of damages) is discharged.
35. Failure to ratify
(a)A party to a pre-incorporation contract that has not been ratified by the company after its incorporation may apply to the court for an order:
(i)directing the company to return property, whether real or personal, acquired under the contract to that party;
(ii)for any other relief in favour of that party relating to that property or the contract; or
(iii)validating the contract whether in whole or in part.
(b)The court may, if it considers it just and equitable to do so, make any order or grant any relief it thinks fit and may do so whether or not an order has been made under sub-section 34(b).
36.Breach of pre-incorporation contract
In proceedings against a company for breach of a pre-incorporation contract which has been ratified by the company, the court may, on the application of the company, any other party to the proceedings, or of its own motion, make such order for the payment of damages or other relief as the court considers just and equitable, in addition to or in substitution for any order which may be made against the company, against a person by whom the contract was made.
Division 9: Other corporations authorised to register under this Law
Corporations formed under other laws in force in the Union
37. Corporations capable of being registered
(a)With the exceptions and subject to the provisions contained in this Division, any corporation formed under any other applicable law in force at any time in the Union may register under this Law as an unlimited company, or as a company limited by shares, or as a company limited by guarantee; and the registration shall not be invalid by reason that it has taken place with a view to the company being wound up.
(b)All corporations formed under the Special Company Act 1950 or any Companies Acts in force prior to the previous law which are in existence upon the commencement of this Law shall be registered under this Law as companies limited by shares, pursuant to this Law and subject to any requirements as may be prescribed.
(c)Sections 37, 38 and 39 do not apply to overseas corporations.
38. Addition of “Limited” to name
When a corporation is registered in pursuance of this Law with limited liability, the words “Limited” or “Public Limited Company” or equivalent applicable terms set out in Division 6 shall form and be registered as part of its name.
39. Certificate of registration of existing corporations
On compliance with the requirements of this Division and the applicable requirements of this Law with respect to registration, and on payment of the prescribed application fee, the Registrar shall register the corporation under this Law and, thereupon the corporation shall be taken to be registered and incorporated under this Law, and shall have perpetual succession and, if it elects, a common seal.
Not for profit Business Associations
40.Limits on associations
Without limiting, and subject to, any other applicable law:
(a)No association shall be formed under this Law for the purpose of carrying on any other business that has for its object the acquisition of gain by the association, or by the individual members thereof.
(b)Every member of an association carrying on business in contravention of this section shall be personally liable for all liabilities incurred in such business.
41.Any person who is a member of an association formed in contravention of section 40 shall be punishable with fine of 150,000 kyats.
42.Power to register not for profit associations established for commerce and similar purposes
(a)Where it is proved to the satisfaction of the Registrar that an association capable of being formed as a limited company has been or is about to be formed for promoting commerce, or any other economic development object, and applies or intends to apply its profits (if any) or other income in promoting its objects, and to prohibit the payment of any dividend to its members, the Registrar may register by licence the association as a corporation under this Law with limited liability, with the addition of the word “Incorporated” to its name, and the association may be registered accordingly.
(b)A licence by the Registrar under this section may be granted subject to such regulations and on such conditions as the Registrar thinks fit, and those conditions and regulations shall be binding on the association, and shall, if the Registrar so directs, be inserted in the constitution of the association.
(c)The association shall on registration enjoy all the privileges of limited companies, and be subject to all their obligations, except those of using the word “Limited” as any part of its name.
(d)A licence under this section may at any time be revoked by the Registrar, and upon revocation the Registrar shall remove the association from the register, and the association shall cease to enjoy the exemptions and privileges granted by this section, provided that before a licence is so revoked, the Registrar shall give to the association reasonable notice in writing, being not less than 28 days, of that intention, and shall afford the association during this notice period an opportunity of submitting a representation in opposition to the revocation.
(e)The Registrar may:
(i)vary the licence by making it subject to such conditions and regulations as the Registrar thinks fit, in lieu of, or in addition to, the conditions and regulations, if any, to which the licence may formerly subject, or
(ii)issue a new licence in lieu of the licence formerly granted.
(f)The Union Minister may give a direction to the Registrar in respect of the variation or issue of a licence or the exercise of the Registrar’s discretion under sub-section (e).
(g)This section applies without limiting, and subject to, any other applicable law.
Registration of overseas corporations
43.When an overseas corporation may carry on business in the Union
(a)An overseas corporation or any other body corporate must not carry on business in the Union unless it is registered under this Division.
(b)An overseas corporation or other body corporate is not deemed to carry on business in the Union merely because in the Union it:
(i)is or becomes a party to a legal proceeding or settles a legal proceeding or a claim or dispute;
(ii)holds meetings of its directors or shareholders or carries on other activities concerning the management of its internal affairs;
(iii)maintains a bank account;
(iv)effects a sale of property through an independent contractor;
(v)solicits or procures an order that becomes a binding contract only if the order is accepted outside the Union;
(vi)lends money, creates evidence of a debt or creates a charge on property;
(vii)secures or collects any of its debts or enforces its rights in relation to securities relating to those debts; or
(viii)invests its funds or holds property.
(c)The Registrar may issue further guidelines from time to time regarding the matter of whether an overseas corporation or other body corporate is carrying on business in the Union, provided such guidelines are not inconsistent with this section.
(d)The Union Minister may also prescribe, whether on the application of any person or of the Union Minister’s own motion, whether or not a body corporate, or a class of bodies corporate in the same circumstances, will be taken to be carrying on business in the Union.
44. Name of the overseas corporation
(a)An overseas corporation shall not be registered if it has a name identical to that of a body corporate in existence that is already registered, or so nearly resembling that name as to be calculated to deceive or otherwise likely to mislead or cause confusion, except where the body corporate in existence is in the course of being dissolved and signifies its consent to the Registrar. The overseas corporation may also include its country of incorporation or some other distinguishing word or phrase in its name to avoid such potential confusion.
(b)An overseas corporation that changes its name must file with the Registrar a notice in the prescribed form of the change of name within 28 days of the change of name. The provisions of sub-section (a) apply to a registration of a change of name with all necessary changes and, subject to compliance with this Law, the Registrar will register the change of name.
(c)The Registrar may direct an overseas corporation to change the name under which it is registered if necessary to ensure compliance with this Law and the overseas corporation must comply with such direction by doing all that is necessary to change its registered name within two months of receiving the Registrar’s direction.
45. If an overseas corporation fails to comply with any part of section 44, it and every director and the authorised officer will be liable to a fine of 150,000 kyats.
46. Validity of transactions
A failure by an overseas corporation to comply with sections 43 or 44 does not affect the validity or enforceability of any transaction entered into by the overseas corporation.
47. Application for registration
(a)An application for registration of an overseas corporation under this Part must be delivered to the Registrar and must be:
(i) in the prescribed form; and
(ii)signed by or on behalf of the overseas corporation.
(b)Without limiting sub-section (a), the application must:
(i) state the name of the overseas corporation;
(ii)state the full names, date of birth, gender, nationalities and residential addresses of the directors and any secretary of the overseas corporation at the date of the application;
(iii)state that the overseas corporation has appointed an authorised officer, and provide the full name, date of birth and residential address of the authorised officer appointed by the overseas corporation (who will be authorised to accept service of documents in the Union of documents on behalf of the overseas corporation);
(iv)state that the person named as the authorised officer has given their written consent to act as authorised officer the overseas corporation;
(v)the full address of the registered office in the Union of the overseas corporation;
(vi)state the full address of the place of business in the Union of the overseas corporation (if it is different to the registered office) or, if the overseas corporation has more than one place of business in the Union, the full address of the principal place of business in the Union of the overseas corporation;
(vii)state the full address of its registered office or principal place of business in its place of origin;
(viii)include a declaration by the overseas corporation that all matters stated in the application are true and correct; and
(ix)have attached evidence of incorporation of the overseas corporation and a copy of the instrument constituting or defining the constitution of the corporation, and, if not in Myanmar language, a Myanmar language translation of such documents and a summary statement in the English languageduly certified by a director in that behalf shall be filed.
(c)The prescribed fee must be paid to the Registrar when filing the application.
(d)Duplicate originals of the application and all documents accompanying, together with the original of the consent referred to in sub-sections (b)(iv), must be kept by the authorised officer and maintained with the overseas corporation’s records.
48.The penalty for the overseas corporation making a false declaration in an application under section 47 shall be a fine of 5,000,000 kyats.
49. Registration of overseas corporation
(a)When the Registrar receives a completed application which meets the requirements of this Law for the registration of an overseas corporation, the Registrar must register the application in a section of the Register maintained for this Division and issue a certificate of registration which states:
(i)the corporation’s name;
(ii)that the corporation is registered as an overseas corporation under this Law;
(iii)the date of registration; and
(iv)any other matters that may be prescribed.
(b)The Registrar must keep a record of the registration.
(c)Unless the Registrar forms the view on reasonable grounds that additional documentation is needed to establish the good standing of the overseas corporation, the Registrar may not require the submission of any other documents in connection with the Registration other than those referred to in or required under section 47 or save as may be prescribed by the Union Minister.
50. Use of name by overseas corporation
Every overseas corporation that carries on business in the Union must ensure that its full name, and the name of the country where it was incorporated:
(a)are clearly stated in written communications sent by, or on behalf of, the corporation;
(b)are clearly stated in documents issued or signed by, or on behalf of, the company that evidence or create a legal obligation of the corporation; and
(c)are prominently displayed at the registered office and principal place of business of the overseas corporation in Myanmar.
51.Alteration of details
An overseas corporation that carries on business in the Union must ensure that, within 28 days of the change or alteration notice in the prescribed form is given to the Registrar of:
(a)an alteration to the instrument constituting or defining the constitution of the overseas corporation;
(b)a change in the directors or in the names or residential addresses of the directors of the overseas corporation;
(c)a change in the address of the registered office or principal place of business of the overseas corporation overseas;
(d)a change in the address of the registered office or principal place of business of the overseas corporation in the Union. Notice of the proposed change must be given prior to the company effecting the change in the address of its registered office or principal place of business; and
(e)a change in the authorised officer or the address of the authorised officer or the appointment or change in details of any other person authorised to accept service of documents in the Union on behalf of the overseas corporation. Notice of this change must be made within 7 days.
52. If an overseas corporation fails to comply with section 51, it and every director and the authorised officer will be liable to a fine of 250,000 kyats.
53. Annual filings by overseas corporation
(a)Every overseas corporation conducting business in the Union shall file with the Registrar:
(i)within 28 days of the end of its financial year, an annual return in the prescribed form; and
(ii)at least once each calendar year and at intervals of no more than 15 months:
(A)a balance sheet made up to the end of its last financial year;
(B)a copy of its cash flow statement for its last financial year; and
(C)a copy of its profit and loss statement for its last financial year;
in such form and containing such particulars and including copies of such documents as the corporation is required to prepare by the law in its place of origin.
(b)The Registrar may require the company to prepare and file any of the financial statements referred to in sub-section (a) in respect of its business in the Union if the corporation is not required under a law in its place of origin to file the statements referred to in sub-section (a). Such statements will be prepared in such form as the corporation would have been required to prepare if it was incorporated as a public company under this Law, or in such form as may otherwise be prescribed. In exercising its discretion under this sub-section the Registrar may consider whether the overseas corporation’s business in the Union would qualify it as a small company.
(c)The Registrar may require any financial statements filed under this section to be audited. In exercising its discretion under this sub-section the Registrar may consider whether the overseas corporation’s business in the Union would qualify it as a small company.
54. If an overseas corporation fails to comply with any requirements of section 53, it and every director and the authorised officer will be liable to a fine of 250,000 kyats in respect of each breach.
55.Overseas corporation ceasing to carry on business in the Union
(a)Within 21 days after ceasing to carry on business in the Union, an overseas corporation must file a notice in the prescribed form stating that it has so ceased, and, subject to being
satisfied of compliance with other applicable laws, the Registrar will remove the overseas corporation’s name from the register.
(b)Where the Registrar reasonably believes that an overseas corporation does not carry on business in the Union, it may send to the overseas corporation a notice to that effect and stating that, if no answer showing cause to the contrary is received within 28 days from the date of the notice, a notice will be published in the Gazette with a view to striking the overseas corporation’s name off the register.
(c)Unless the Registrar receives, within 28 days after the date of the notice, an answer to the effect that the overseas corporation is still carrying on business in the Union, it may publish in the Gazette, and send to the overseas corporation a further notice that, at the end of 3 months after the date of the notice, the overseas corporation’s name will, unless cause to the contrary is shown, be struck off the register.
(d)At the end of the period specified in a notice sent under sub-section (c), the Registrar may, unless cause to the contrary has been shown, remove the overseas corporation’s name off the Register and must publish in the Gazette notice of the removal.
(e)The Registrar must remove an overseas corporation from the Register after receipt of a notice given by an official liquidator in accordance with the provisions of Part V or an applicable law.
(f)Where an overseas corporation commences to be wound up, or is dissolved or deregistered, in its place of origin:
(i)the authorised officer must, within the period of 28 days after that day file notice of that fact in the prescribed form and, when a liquidator is appointed, notice of the appointment; and
(ii)the Court must, on application by the person who is the liquidator for the overseas corporation’s place of origin, or by the Registrar, appoint a liquidator of the overseas corporation in the Union.
(g)Where the Registrar receives notice from an authorised officer of an overseas corporation that the overseas corporation has been dissolved or deregistered, the Registrar must remove the overseas corporation’s name from the register.
(h)A liquidator of an overseas corporation who is appointed by the Court:
(i)must, before any distribution of the overseas corporation’s property is made, by advertisement in a daily newspaper circulating generally in the Union, invite all creditors to make their claims against the overseas corporation within a reasonable time before the distribution; and
(ii)must not, without obtaining an order of the Court, pay out a creditor of the overseas corporation to the exclusion of another creditor of the overseas corporation; and
(iii)must, unless the Court otherwise orders, recover and realise the property of the overseas corporation in the Union and must pay the net amount so recovered and realised to the liquidator of the overseas corporation for its place of origin.
(i)Where an overseas corporation has been wound up so far as its property in the Union is concerned and there is no liquidator for its place of origin, the liquidator may apply to the Court for directions about the disposal of the net amount recovered under sub-section (g).
56.Service of documents on overseas corporations registered under this Law
(a)A document may be served on an overseas corporation by leaving it at, or by sending it by post to:
(i)its registered office in the Union; or
(ii)the address of its authorised officer,
in each case, as notified in accordance with this Law.
(b)Without limiting the operation of sub-section (a), if 2 or more directors of the overseas corporation reside in the Union, a document may be served on the overseas corporation by delivering a copy of the document personally to at least 2 of those directors.
(c)Where a liquidator of an overseas corporation has been appointed, a document may be served on the overseas corporation by leaving it at, or by sending it by post to, the last address of the office of the liquidator notice of which has been lodged.
(d)Nothing in this section affects the power of the Court to authorise a document to be served on an overseas corporation in any other manner provided by an applicable law.
Division 10: Change of company type
57. Changing of company type
(a)A company may change to a company of a different type as provided in this section by passing a special resolution resolving to change type and complying with this Division.
(b)The following changes may be made subject to compliance with this Division:
(i) a private company may change to a public company;
(ii)a public company may change to a private company;
(iii)a company limited by guarantee may change to a public or a private company limited by shares; and
(iv)an unlimited company may change to a public or a private company.
58. Applying for a change of type
(a)A company must file with the Registrar an application in the prescribed form to change its company type which includes the following statements:
(i)a statement confirming that the special resolution that resolves to change the type of the company, specifying the new type and the company’s new name (if a change of name is made) has been duly passed;
(ii)a statement confirming that the special resolution that resolves to amend the company’s constitution (if any) has been duly passed and a copy of the amended
constitution (where the company proposes to use a constitution which differs in any substantive way from the prescribed form of constitution);
(iii)a statement which updates any other changes arising in connection with the change of company type to the particulars of the company which are maintained on the Register by the Registrar; and
(iv)for a company limited by guarantee changing to a private or a public company:
(A)a statement confirming that in the directors’ opinion the company’s creditors are not likely to be materially prejudiced by the change of type and that sets out their reasons for that opinion; and
(B)if the company limited by guarantee did not have a share capital, a statement confirming that special resolution approving the issue of shares has been duly passed and a statement containing the information required by section 6(b)(viii).
(b)The company must give notice in the Gazette and by publication in a daily newspaper circulating generally in the Union that it has filed an application with the Registrar to alter the details of the company’s registration to change the company type.
(c)The notice issued by the company under sub-section (b) must also state that the Registrar will, if it is satisfied that the application complies with sub-section (a), alter the details of the company’s registration 28 days after the notice has been published in the Gazette unless an order by the Court prevents it from doing so.
(d)Subject to an order made by the Court within that 28 day period, after the 28 day period has passed the Registrar must alter the details of the company’s registration to change the company type if it is satisfied that the application complies with sub-section (a).
(e)A change of company type under this section takes effect when the Registrar alters the details of the company’s registration to change in company type and the Registrar must give the company a new certificate of registration after it alters the details of the company in the register. The company’s name is the name specified in the certificate of registration issued under this section.
59. Effect of change of type
(a)A change of type does not:
(i) create a new legal entity;
(ii)affect the company’s existing property, rights or obligations (except as against the members of the company in their capacity as members); or
(iii)render defective any legal proceedings by or against the company or its members.
(b)On the change of type of a company from a company limited by guarantee to a company limited by shares:
(i)the liability of each member and past member as a guarantor on the winding up of the company is extinguished;
(ii)the members whose membership arose solely from the giving or the agreement to give the guarantee cease to be members of the company (however they will continue to be members of the company if they are issued with shares in the company upon the change of company type); and
(iii)if shares are to be issued to a person as specified in the list of members required to be included in the statement required under sub-section 58(a)(iv)(B):
(A)the shares are taken to be issued to that person; and
(B)the person is taken to have consented to be a member of the company; and
(C)the person becomes a member of the company.
.jpg)
.jpg)