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Myanmar? Where's Myanmar?

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Discussions on the EU-Myanmar Agreement: Where is the openness?

Civic groups say that an EU-Myanmar based security treaty for investments leaves the European Union lack of openness and puts the administration in a position to pay damages that it cannot possibly pay. With Myanmar and the European Union on the verge of concluding an IPA, national and international groups in civic societies have criticized the lack of openness in the trial.

Last months European Parliament Intergovernmental Panel on Commerce deferred a meeting in connection with the Rakhine country economic downturn for an indefinite period, which is likely to conclude talks on the IPA, which was initiated by the U Thein Sein administration in 2014. This deferral, which did not change the negotiating state, was made public on 14 September, the date on which the European Parliament sentenced the military operations initiated by the Tatmadaw in Rakhine at the end of August following the raids by the Arakan Rohingya Salvation Army.

One of the groups that criticized the international commission of lawyers in Geneva for its lack of openness. Myanmar Court's judicial adviser, Sean Bain, said openness is crucial to negotiating investments that could have an impact on people' s right to privacy and the state. It is not the only one expressing concern about the negotiation.

In the past months, 14 national and non-governmental groups, among them the Transnational Institute, Paung Ku, KESAN and the EU-ASEAN FTA Action Plan, published a negotiation-critical work. The EU/Myanmar Investment Protection Treaty is myth and risking that after three years and five round tables the people and parliamentarians of Myanmar and Europe do not know what is in the text of the treaty, as all negotiation was confidential.

"According to the report, the only efforts to create openness were to inform civic organizations of the results of the negotiations, which were preannounced with only a few days' advance notification and only alarmed the Rangoon NGO's". U Thant Sin Lwin, Assistant General Manager of the Directorate of Investment and Corporate Administration, said the proposal would be presented to the general assembly and also discussed in it.

The IPA was prepared in cooperation with the General Prosecutor's Office of the Union and other authorities and the Central Bank of Myanmar, he added. In Myanmar, a spokesman for the European Union mission said Myanmar had already signed ten IPAs and that the IPA with the EU was "by far the most open process".

"He said, "The speed of the talks was intentionally slow to allow the necessary preparation and discussion on both sides. "Both in Europe and Myanmar there has been a consultative process with civic society," they added. Asked about the scope of the consultations with Myanmar's companies, whether a official hearing with the general public should be held, how long the general public should examine and discuss the proposed treaty and whether the treaty requires the official consent of the Myanmar legislature, the spokesman pointed out all issues to DICA.

This document warned that "the IPA could have a significant adverse impact on Myanmar's democracy, humanitarian law and lasting international order by taking the necessary political leeway to use investments for sustained growth and peace". "So, if Myanmar's talks are continued in the present situation, this obligation is called into doubt.

Although the talks could come to an end, there was still room for "urgently needed, wide-ranging open discussion between members of parliament and civic circles in order to fill the remaining gaps in democracy created by the IPA negotiations". He said Myanmar "should not be under pressure to early adopt an IPA with far-reaching substantial protection measures for investors and a resolution of disputes between investors and states".

"Myanmar has no pressing need to conclude an agreement such as the one the EU has suggested, which will only help to restrict the political scope of the country's expansion, which is urgently needed to make Myanmar's transformation to a more inclusive, just and sustained growth a success," he said.

Myanmar Investment Commission Assistant General Manager U Than Aung Kyaw argued in defense of the IPA and said it was written in accordance with Myanmar's law and regulation. People will not do that and there is even more fear among migrants. I would like to say that this IPA was brokered in order not to violate any of our country's current legislation, such as the Myanmar Investment Law," said Than Aung Kyaw.

A spokesman for the EU mission said that there was nothing in the IPA that would restrict the Myanmar government's regulatory capacity, in particular the lawmaking. "All the IPA wants to do is to ensure that there is no specific discriminatory treatment of EU investment in these legislation or its implementation, that EU investment is fair and that it is adequately remunerated even in the event of forfeiture.

Civic groups, however, say their concern is partially due to the experience of other nations that have subscribed to the IPA with the EU. He said there are many instances of overseas investment contesting legislation and rules adopted by electoral regimes because they pose a risk to their outcomes. A number of these have resulted in legislation to tighten control of contamination and strengthen employment opportunities.

"He said that the investment court system may take important political rulings away from electoral government and away from the judicial system and present them to an arbitral tribunal internationally. Mrs Pietje Vervest of the Programme for Transnational Institute's Programme for Transnational Equality said that the system was a possibility because it only permitted the submission of cases by the investor.

Government or local authorities could not assert any rights against them. "It has been used by a number of institutional and governmental institutions to fight new legislation, often in the general interest, such as healthcare, environment or work. A spokesman for the EU delegations said that the system of investment courts, also known as investor-state dispute settlement, was an "instrument that would be used as a last resort if the protective measures were not observed".

It was necessary to draw in investments from Europe's enterprises, in particular small and medium-sized enterprises, which would otherwise be deterred by regulatory or commercial risk. Economics expert U Khin Maung Nyo said few Myanmar corporations are large enough to make investments in EU member states, so Myanmar should not have an IPA with the group.

But he conceded that the EU wanted an EU guaranty for protecting investments and that the signature of the IPA would help to increase EU-investments. "This is not considered unilateral and we know that the IPA provides coverage in accordance with the applicable legislation in Myanmar," said Dr. Soe Tun, Chairman of the Myanmar Automobile Manufacturers and Distributors Association.

Ma Doi Ra, Paung Ku's Senor Programme Co-ordinator, and Ko Saw Alex Htoo from Karen Environmental and Social Action Network (KESAN) traveled to Brussels in June to debate the IPA with Members of the European Parliament. "cWe have learnt that the EU itself still has no openness and the parliamentarians we meet were not well aware of every step in the IPA negotiations with Myanmar,³d said Doi Ra.

Said she was wondering why the US administration was in such a hurry to subscribe to the IPA and why it did not intend to exercise greater oversight over overseas investment instead of giving them what it described as "privileged opportunities". The Myanmar Alliance for Transparency and Accountability is one of 14 groups that have issued the strategy document, and U Ye Lin Myint, the Myanmar Alliance's country co-ordinator, shares her concern.

Myint said the IPA could make it difficult to overhaul old legislation and policy as Myanmar continues its move towards true democratisation. Candidates who have concluded capital expenditure contracts are subject to litigation if they suggest new rules that could have an impact on investors' outcomes. "Myanmar will be particularly vulnerable to legal action as it is still developing its legal framework," it says.

By 2012, an investor court was issuing the highest price in the story against a federal goverment when it ordered Ecuador to contribute $2. 3 billion to the Occidental group. A further worry about the proposal for an IPA has, however, been resolved by a judgment of the European Court of Justice. On 16 May, it decided that the EU-Singapore Free Trade Agreement's rules on protecting investments must be approved by each of the 28 EU Member States.

"That is good for Myanmar; it can use this period not to hurry to ratify the treaty, but to abide by the right kind of democracy. Myanmar MPs should be seriously concerned about the effects of capital expenditure safeguards on Myanmar's budget," she said. He called on Myanmar's Pyidaungsu Hluttaw to establish a useful dialog with Myanmar's CSOs on the IPA.

MEPs have been emboldened to find out why governments such as Ecuador, India, Indonesia and South Africa have terminated agreements onward.

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