Currently, there is a follow-up of the Norwegian company’s exit from the country in 2021. Arguing that the sales process was done too hasty, Telenor uses the World Bank’s mechanism of “International Centre for Settlement of Investment Disputes” (ICSID) to possibly get financial compensation.

Telenor whose majority owner is the Norwegian government, is a Telecommunication Company belonging to that group of foreign investors to be called ‚high achievers‘ in pre-coup Myanmar, starting its business there in 2014.

After a booked loss of US $ 783 million in the first quarter of 2021 and founding itself  in an awkward position due to the State Administration Council’s  interventions related to Telenor’s  business performance and customers‘ data management, in July 2021, the company decided to leave Myanmar. This decision was accompanied by fierce protests of rights groups. Telenor’s Myanmar business was finally saled in March 2022.

Now, arguing it could not execute a normal sales process due to the country’s instability in that period of time, Telenor seeks financial compensation from the state of Myanmar.

While the Centre for Research on Multinational Corporation (SOMO) stresses “that it is Telenor that should be compensating the Myanmar people it put at risk at sale rather than seeking compensation from the Myanmar people…” (Myanmar Now, 5.4.2024), Telenor decided to to go to court under the Myanmar Singapore Bilateral Investment Treaty.

Cases like this are heard before the ICSID, a World Bank institution dealing with international investment arbitrations.

The framework within Myanmar’s law system for such an up to date-handling of cases between a given host country and a foreign investor was created in the years between 2013 and 2016.

Finally, as the law firm Norton Rose Fulbrigh writes, “on 5 January 2016, Myanmar enacted a modern arbitration regime that regulates the conduct of arbitration and enforcement of arbitral awards.“

But since these new laws are written exclusively in Myanma language, they leave space for some broader interpretation especially towards those concerning „the national interest“.

Interpreting the law only slightly one-sided would be contraproductive to the idea of the ICSID’s “guaranteed neutrality“. Generally, there is a suspicion that domestic courts could display a certain loyalty towards the forum state, a fact counting for all countries engaging the ICSID, counting not only for Myanmar.

The ICSID’s mantra of neutrality is also confirmed by the fact that the litigators have to appear at a third party’s location. The Telenor case against Myanmar for example will take place in Singapore.

So far, Myanmar has stayed silent, while Norway/Telenor and the ICSID have already named lawyers and chairmen for the proceedings.

Who will represent Myanmar?

Meanwhile, the NGO „Justice for Myanmar“ as well as the National Unity Government have both doubted that any delegates of the State Administration Council could be entitled to represent Myanmar in the Telenor case.

A different view comes from Freya Baetens, a professor of the University of Oxford, herself listed at the ICSID-Panel of Arbitrators and Conciliators.

Stating that the military “is allowed to represent Myanmar before the International Court of Justice“ in the genocide case The Gambia filed in 2019 against Myanmar, Ms. Baetens is of the opinion  that “it is unlikely“ that the Singapore-tribunal “would take a different approach“.

Whatever the proceedings and the final outcome will be, the public will not get to know it. What seems strange, is standard in those arbitration cases.

Sources

Frontier Myanmar. 9.2.2022. “Telenor sale challenged over data leak fears”.

Myanmar Now. 5.4.2024. “Telenor seeking payout from Myanmar junta in secret arbitration”.

Fanny Potkin. Poppy McPherson. Reuters. 18.3.2022. “Telenor says sale of Myanmar unit gets final approval from junta”.

Further Reading

Antonio R. Parra. 2020. ISCID: an introduction to the convention and centre. Oxford: Oxford University Press

Richard Happ, Stephan Wilske et al. 2022. ICSID rules and regulations 2022: administrative and financial regulations, institution rules, arbitration rules, conciliation rules. Article-by-article commentary. München: Beck.