Recognition and Enforcement of Foreign Judgments in Asia
Recognition and Enforcement of Foreign Judgments in Myanmar
Last updated: 1 December 2017
Reporter and translator: Minn Naing Oo, Partner, Allen & Gledhill LLP; Managing Director, Allen & Gledhill (Myanmar) Co Ltd
Once a province of British India, Myanmar's legal system is established on common law principles and pieces of legislation introduced by the British. Upon obtaining its independence in 1948, Burma (as it was then known) retained much of the laws that were then in existence in the form of the Burma Code, which can loosely be described as a codification of the then-prevailing common law at the time. The legal system in Myanmar today has since built upon this heritage and is primarily a common law system, albeit heavily modified, throughout the years, by the various political regimes.
As a common law jurisdiction, and as a matter of principle, a Myanmar court would recognise the choice of law clause in a binding commercial agreement. It is worth noting that while the Myanmar courts will recognise the choice of law and choice of forum clauses in an agreement (and accordingly, this reporter considers that Myanmar courts would refuse to recognise and enforce a foreign judgment if it was rendered in breach of a choice of court agreement), section 28 of the Contract Act (1872) renders void any provision that seeks to restrain a party from enforcing his rights
under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals.
B. ENFORCEMENT OF FOREIGN JUDGMENTS
Myanmar is not party to any bilateral or multilateral agreement or convention on the enforcement of foreign judgments and a person seeking to enforce a foreign judgment would have to rely on the Civil Procedure Code (1908) (CPC),1 and its rather dated and archaic rules and procedures, to do so. However, Myanmar is party to the New York Convention,2 which could make arbitral awards easier to enforce in Myanmar than judgments.
The CPC provides the mechanism for the enforcement of foreign judgments. In particular, section 44A of the CPC provides that where
a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in [Myanmar] as if it had been passed by the District Court. A foreign state would be considered to be a
reciprocating territory for purposes of this section, if so declared by the president of Myanmar by notification in the gazette. As far as this reporter is aware, no foreign state has been so declared a
and this section in the CPC would, practically speaking, therefore not apply with respect to the enforcement of foreign judgments in Myanmar today.
That being said, section 13 of the CPC makes provision for foreign judgments (regardless of whether they are of a court of a reciprocating territory or otherwise) stating that:
[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 under 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 recognize the law of Myanmar 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 a breach of any law in force in Myanmar.
The effect of section 13 of the CPC is that a Myanmar court would, in principle, pass a decree in favour of a plaintiff claiming enforcement of a foreign judgment unless it finds that the judgment is inoperative by reason of one or more of the circumstances specified in section 13 as described above.
This reporter notes that there have not been many instances of foreign judgements being enforced in Myanmar in recent history. As such, the analysis in this report would largely be theoretical and based on common law principles. Of the reported cases reviewed, the majority involved judgments from India. This is to be expected due to the strong political and economic ties that were established during the colonial era. The courts of India and of Myanmar would have, at that time, shared strong similarities as a result of their shared origin. As such, there is little evidence as to how a Myanmar court would analyse a judgment from a jurisdiction that is vastly different (such as a civil law jurisdiction).
C. GENERAL PROCEDURE
A person seeking to enforce a foreign judgment in Myanmar must file a suit in Myanmar, as plaintiff, against the judgment-debtor, as defendant. There is no specific procedure for a suit brought on a foreign judgment and the suit would, as with all other suits, be initiated by presenting a plaint. Such suit must be filed within six years from the date of the foreign judgment in accordance with Article 117 of the First Schedule of the Limitation Act of 1908.
A Myanmar court must, in order to enforce a foreign judgment, have jurisdiction to do so. In general, every court in Myanmar has jurisdiction in granting enforcement of a foreign judgment, subject to certain pecuniary limits of its jurisdiction. In addition to such pecuniary limits,3 the Myanmar courts must have jurisdiction over the defendant or the cause of action as required by section 20 of the CPC. This requires that (a) the judgment-debtor (against whom the judgment is to be enforced) must, at the time of commencement of the suit, be resident, or must have carried on business or personally worked for gain in Myanmar, or (b) the foreign judgment must be obtained based on a cause of action that arose wholly or partly in Myanmar.
The form of plaint for a foreign judgment4 requires the plaintiff to set out a specific amount due from the defendant. This suggests that the Myanmar courts would only enforce monetary judgments, at least from a procedural perspective, and that judgments relating to injunctions, including foreign asset freezing orders and specific performance, would not be enforced. The ruling in the case of K B Walker v Gladys B Walker5 (Walker v Walker) states that:
[I]n order to establish that a final and conclusive judgement had been pronounced, it must be shown that in the court by which it was pronounced it finally, conclusive and for ever established the existence of the debt of which it is sought to make conclusive evidence in [Myanmar] so as to make it res judicata between the parties. [emphasis in original]
As such, only monetary judgments would be enforced and it therefore follows that foreign judgments in rem would not be enforceable in Myanmar. In particular, pursuant to section 16 of the CPC, Myanmar law requires that all cases involving immovable property in Myanmar be instituted domestically in Myanmar.
The case Walker v Walker also underscores the requirement that the case be
res judicata.6 As such, foreign interlocutory judgments or foreign judgments pending the final decision on the merits would not be enforceable.7
The expected length of time to enforce a foreign judgment (ie, for the judgment-creditor to obtain a decree enforcing the foreign judgment) is approximately 12 to 18 months, provided there are no unusual delays and all documents have been properly submitted. However, due to the political and economic circumstances in Myanmar over the last 40 years, foreign judgments are not generally enforced in Myanmar, and the expected length of time may vary. This is also a result of the pace of the judicial system in Myanmar, where one can expect the court processes to take considerable periods of time.
Assuming the Myanmar court in which the plaint to enforce a foreign judgment has been initiated has jurisdiction to enforce the same, the enforceability of such foreign judgment would hinge on no objection being successfully raised pursuant to section 13 of the CPC. This report considers some of the available case law on this section.
D. COURT OF COMPETENT JURISDICTION
A foreign judgment will not be enforced if it is found that the foreign court issuing such judgment is lacking jurisdiction. Whether a foreign court is of competent jurisdiction is a matter to be determined by the Myanmar courts according to the law in Myanmar, and not by the rules of the foreign court. Section 14 of the CPC provides that:
[T]he 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.
As such, and in filing a plaint in the Myanmar courts to enforce a foreign judgment, a certified copy of the foreign judgment must be produced in support of the above-mentioned presumption. The burden is, by virtue of section 14 of the CPC, shifted to the defendant to rebut the presumption that the foreign court has competent jurisdiction.
Case law in Myanmar indicates that a foreign court would have competent jurisdiction where relevant parties had agreed to submit to the same:
- the case of Steel Brothers & Co Ltd v Y A Ganny Sons and Two8 determined that if a foreign court and a Myanmar court are competent to try a suit, it is open to the parties to a contract to agree that disputes in respect thereof should be adjudicated upon by one of them and such agreement is perfectly legal; and
- the case of V A S Arogya Odeyar v VR RM N S Sathappa Chettiar9 determined that if a defendant was served with process by a foreign court and he appeared and contested the suit on merit and also questioned the jurisdiction of the court, such appearance would be considered submission to the jurisdiction of the court. Once the suit is decided on merits, he cannot challenge the decision on the ground of want of jurisdiction.
E. MERITS OF THE CASE
The case of S P S N Kasivisvanathan Chettiar v S S Krishnappa Chettiar10 (Kasivisvanathan v Krishnappa) sets out the general principle that
a court which entertains a suit on a foreign judgement cannot institute an enquiry into the merits of the original action, or the propriety of the decision.11 As such, the Myanmar courts would not examine the substantive merits of the judgment of a foreign court.
This would be the case even if it appears that the courts did not examine the merits closely as exemplified in the ruling in Saraswati v Manikram Balabux Bajaj BLR,12 where it was held that the decision of the High Court of Jaipur was to be deemed to have been given on the merits of the case, notwithstanding that it was disposed of
in a few words. As such, this reporter expects the Myanmar courts to refuse to enforce a foreign judgment due to an error of fact and/or law.
Myanmar case law, however, has resulted in differing conclusions with respect to ex parte rulings, as described below:
The ruling in C Burn v D T Keymer13 (Burn v Keymer) decided that a foreign judgment by a court of competent jurisdiction, even if pronounced ex parte, is binding on a Myanmar court if the defendant, though given an opportunity to appear and defend, declined to do so. However, the foreign judgment must be passed after consideration of the evidence. The digest entry of this case indicates that the defendant had failed to appear at the hearing, notwithstanding having entered an appearance in the matter. In this case, the judge held that
a defendant cannot avoid the application of res judicata by saying that he did not appear at the trial ... and the plaintiff who has an ex parte decree ... cannot be deprived the full benefit of the decree which has obtained by the fact that the defendant did not appear in court to protect his own interest.14
However, the later ruling in A N Abdul Rahiman v J M Mahomed Ali Rowther15 (Rahiman v Rowther) did not uphold a foreign ex parte judgment on the following grounds:
- In this case, the defendant refused to accept service in Yangon of the summons issued by the Singapore court, and subsequently did not appear in the Singapore court or take any action.
- The judge in this case stated that
a decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff's case and therefore, though a judgement passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind cannot be held to be a decision on the merits.
- The ruling was that if a judgment was entered as a matter of course in favour of the plaintiff on the pleadings without the plaintiff being called upon to prove his case, such an ex parte decision passed without evidence is not considered a judgment on the merits within the meaning of section 13(b) of the CPC, and therefore the plaintiff's suit would fail.
As such, what is key is that the foreign judgment, while ex parte, is passed on a consideration of the evidence at hand.
A further point of interest with respect to these two cases is that in Burn v Keymer, the defendant had in fact entered an appearance and thereby submitted to the jurisdiction of the foreign court. In Rahiman v Rowther, however, the defendant had not submitted to the jurisdiction of the foreign court and subsequently did not appear in court or take any action. This may have been another distinguishing factor between how the cases were decided.
Section 13(c) of the CPC enshrines the principle of reciprocity whereby a Myanmar court will not recognise a foreign judgment where, on the face of the proceedings, the foreign court has refused to recognise Myanmar law in cases where it would be applicable. The case of Kasivisvanathan v Krishnappa makes an oblique reference to a ruling laid down by a Bench of the Allahabad High Court that
where a foreign court merely applies its own law of Limitation in respect of a matter before that Court, [it] cannot be said to have refused to recognise the law of India simply because the law of Limitation may be different in the two countries.16 This reporter expects a similar principle would be adopted in Myanmar.
The same section also provides that a foreign judgment would not be enforceable in Myanmar if it appears on the face of the proceedings to be founded on an incorrect view of international law.
G. NATURAL JUSTICE
Section 13(d) of the CPC requires that the foreign court had adhered to what is expected to be universally accepted principles of
natural justice. Unfortunately, this reporter was unable to find case law relating to the application of this section.
Section 13(e) of the CPC provides that a judgment obtained as a result of fraudulent behaviour by one of the parties would not be conclusive for purposes of enforcement in Myanmar. In the absence of case law in Myanmar, it is not clear if section 13(e) is limited to fraud relating to the proceedings resulting in the foreign judgment, or if it would enable a Myanmar court to consider evidence of fraud that was brought before the foreign court and dismissed, thereby rendering such evidence part of the
merits of the case (the substance of which
are not to be examined under Myanmar case law as discussed above).
I. BREACH OF MYANMAR LAW
Section 13(f) of the CPC provides that a judgment would not be conclusive if the claim is founded on a breach of any law in force in Myanmar. It is not clear if this provision would extend to judgments which claim is founded not on a breach of express written legislation in force in Myanmar, but instead on a breach of unwritten policies. This is of particular relevance in Myanmar as there are unwritten policies implemented by the Myanmar authorities that may impact on foreign investments in Myanmar.
ABLI's other Jurisdictional Guides
See ABLI's Jurisdictional Guides for other Asian jurisdictions.