The Union Attorney General’s Office is formed under the Constitution, 2008 and the Attorney General of the Union Law, 2010. The Union Attorney General’s Office is responsible for giving legal advice to Union level Organizations on international conventions, regional or bilateral agreements under sub-section 2(k) of section 12 and on memoranda of understanding, records of discussion and local and foreign investment agreements under sub-section (l) of section 12 of the Attorney General of the Union Law. In order to do these tasks, the Legal Advice Department of the Union Attorney General’s Office is formed.
The Legal Advice Department is formed with the following divisions under rule 42 of the Attorney General of the Union Rules:
(a) International Law and ASEAN Legal Affairs Division;
(b) Commercial Contracts Division;
(c) Miscellaneous Legal Advice Division.
International Law and ASEAN Legal Affairs Division
Under rule 42(a) of the Attorney General of the Union Rules, the International Law and ASEAN Legal Affairs Division is formed as Division (4) of Department 2.
Types of Agreement to give Legal Advice
Under rule 43 of the Attorney General of the Union Rules, the International Law and ASEAN Legal Affairs Division vets and gives legal advice on the following agreements as requested by Union Level Organizations and Region or State Advocate General’s Offices:
(a) International Conventions and Regional or Bilateral Agreements;
(b) Host country Agreements of International Organizations in Myanmar;
(c) Agreements on Human Rights;
(d) Agreements on Demarcation and Border Area Management;
(e) Agreements on Bilateral Aviation, Navigation and Transportation;
(f) Agreements on Environmental Conservation;
(g) Agreements on Prevention and Elimination of Narcotic Drugs;
(h) Agreements on Technical and Financial Aid from International Organizations;
(i) Agreements on Grants by a Non-governmental Organization from a foreign country;
(j) Bilateral Agreements on Trade, Investment, Science and Technology, Culture and other cooperation;
(k) Non-commercial Agreements, Memoranda of Understanding, Records of Discussion, Memoranda of Agreement, Agreements on supply projects and other agreements;
(l) Agreements on the amendment, addition, extension and suspension of the agreements in sub-rules (a) to (k).
Giving legal advice on the entry to international and regional agreements
When legal advice is requested on the entry to international and regional agreements, the International Law and ASEAN Legal Affairs Division vets such agreement based on the following facts under rule 44 of the Attorney General of the Union Rules:
(a) contents of international law such as contracting parties, conception of a treaty, kinds of treaties, procedure, interpretation, characteristic of a treaty, dissolution of a treaty, null and void treaties, expiration, renewal, reconfirmation and reintegration of treaties and relevant sectors;
(b) the date on which the treaty enter into force if Myanmar enters into a treaty;
(c) means of reservation, ratification, deposition and declaration of a treaty;
(d) means of implementation of a treaty and means of denunciation from a treaty;
(e) dispute settlement mechanisms.
Main facts in Vetting Agreements
Under rule 45 of the Attorney General of the Union Rules, the International Law and ASEAN Legal Affairs Division vets the agreements mainly based on the following facts:
(a) whether the sovereignty of Myanmar may be affected by entering into an agreement;
(b) whether the provisions of an agreement are contrary to the Constitution and existing laws;
(c) whether it is beneficial to the State and its people by entering into an agreement;
(d) whether it is necessary to amend existing laws of the State or to enact a new law by entering into an agreement;
(e) whether the State may have administrative responsibilities by entering into an agreement;
(f) whether it will impose financial burden on the State;
(g) whether it is based on the equality of the two States;
(h) whether it leads to a friendship and mutual cooperation of the two States;
(i) whether the technical assistance given to Myanmar is conditional;
(j) whether the State may have other obligations by entering into an agreement;
(k) whether it is necessary to obtain the approval of the Pyidaungsu Hluttaw before entering into an agreement.
In vetting international and regional agreements under rule 45 of and in giving legal advice under rule 43 of the Attorney General of the Union Rules, the International Law and ASEAN Legal Affairs Division:
(a) points out the facts that may affect the State to the relevant government departments and organizations;
(b) gives advice with reference to the findings from the legal point of view, the facts that need to be amended, added or deleted and facts that should be reviewed or taken into consideration by the relevant government departments and organizations;
(c) requests copies of the agreements which have been concluded from the relevant government departments and organizations and keeps a record of them;
(d) records the findings after checking whether the relevant government departments and organizations have done agreements in accordance with the legal advice of the Union Attorney General’s Office and whether the facts have been amended according to the exigency of the work, and notifying the relevant government departments and organizations about such findings, if required.
Other duties
Under rule 47 of the Attorney General of the Union Rules, the International Law and ASEAN Legal Affairs Division undertakes the following international and regional legal affairs when requested by the President, Union Government, Union Level Organizations, Region or State Governments and when assigned by the Attorney General of the Union:
(a) attending international meeting, and discussing on behalf of the State reading papers and participating in legal scrubbing process as an expert;
(b) discussing the subject matter on behalf of the State in drafting and negotiating international or regional agreements;
(c) advising the President and union level organizations, discussing the matters and appearing in the cases in which the State is responsible for giving arguments at the International Court of Justice and International Arbitral Tribunal;
(d) discussing State level reports on international, regional or bilateral agreements in which the State is a party, from the legal point of view and advising Union Level organisations which are responsible for preparing the reports on behalf of the State;
(e) coordinating with other departments concerning international legal affairs;
(f) providing legal assistance to the President and union level organizations concerning international legal affairs which are undertaken by the Union Attorney General’s Office;
(g) attending pre-negotiation meetings to conclude international and regional agreements;
(h) supporting the Attorney General of the Union, the Deputy Attorney General, Directors General, and law officers assigned by them in undertaking international and regional legal affairs that is a special duty for them.
Under rule 49 (b) of the Attorney General of the Union Rules, the Commercial Contracts Division vets and gives legal advice on commercial contracts when requested by the relevant government departments and organizations. These contracts are:
(a) Joint Venture Agreement;
(b) Memoranda of Association and Articles of Association;
(c) Lease Agreements;
(d) Build, Operate, and Transfer Contracts;
(e) Supply Contracts;
(f) Loan Agreements;
(g) Production Sharing Contracts;
(h) Memoranda of Understanding;
(i) Consultancy Agreements;
(j) Sales Contracts;
(k) Construction Agreements;
(l) Tender Documents;
(m) Other Commercial Contracts.
The following facts are based in vetting these commercial contracts:
(a) whether they conform with the Myanmar Investment Law;
(b) whether they conform with the Myanmar Companies Act and the Special Company Act, 1950 if it is the formation of joint-venture company;
(c) whether terms and conditions in a contract conform with
– the State-owned Enterprise Law
– the Transfer of Property Act;
– the Registration Act,
– the Myanmar Stamp Act,
– the Contract Act,
– Restriction on the Transfer of Immoveable Property Law and
– the Myanmar Mines Law;
(d) whether they conform with orders and directives issued by the Union Government, the Myanmar Investment Commission and the relevant Ministries;
(e) whether the provisions of the dispute settlement mechanism and governing law of an agreement conform with the legal system of Myanmar and whether they should be accepted as an exception for the exigency of the work;
(f) whether unfair conditions and unsuitable stipulations are included;
(g) whether the following essential legal clauses in a contract are included:
(i) governing law;
(ii) settlement of dispute or arbitration;
(iii) force majeure;
(iv) effective date;
(v) modification;
(vi) termination;
(h) whether they conform with incoterms in transactions;
(i) whether the following facts are included if it is a contract which needs an assessment to operate a business within the State:
(i) Environmental Impact Assessment – EIA;
(ii) Social Impact Assessment – SIA;
(iii) Health Impact Assessment – HIA;
(iv) Cultural Heritage Impact Assessment – CHIA;
(v) Corporate Social Responsibility CSR;
After vetting the contracts, this division gives legal advice as follows:
(a) points out the facts that may affect the State to the relevant government departments and organizations;
(b) gives advice with reference to the findings from the legal point of view, the facts that need to be amended, added or deleted and facts that should be reviewed or taken into consideration by the relevant government departments and organizations;
(c) requests copies of the agreements which have been concluded from the relevant government departments and organizations and keeps a record of them;
(d) records the findings after checking whether the relevant government departments and organizations have done agreements in accordance with the legal advice of the Union Attorney General’s Office and whether the facts have been amended according to the exigency of the work, and notifying the relevant government departments and organizations about such findings, if required.
In vetting commercial contracts, final draft of the contract between the department and company is vetted by this division and it represents on behalf of the respective government departments and give necessary legal advice. The division vets the contracts whether the benefit of the relevant department may be affected and whether the facts in a contract are fair for the other parties.
Miscellaneous Legal Advice Division
The Miscellaneous Legal Advice Division performs the following duties:
– vetting and giving legal advice on the matters not concerning pre-trial legal advice under the provisions of section 12 (c) of the Attorney General of the Union Law and rules 53, 54, 55, 56, 57 and 58;
– vetting and giving legal advice on the matters requested by the President of the Union, the Speaker of the Pyidaungsu Hluttaw, the Speaker of the Pyithu Hluttaw or of the Amyothar Hluttaw, any Union level organization, any Union Ministry or Union Territory Administrative Body in accordance with rule 53(a) of the Attorney General of the Union Rules;
– vetting and giving legal advice on the matters requested by the Region or State Advocate General’s Office under rule 53(b) of the Attorney General of the Union Rules.