Deregistration & Winding up
Working in cooperation with local lawyers and corporate service providers, Charltons advises on the winding up and deregistration of business operations of the companies in Myanmar. Our professionals are responsive, outcome-oriented, and understand what action is required to achieve the best possible outcomes for our clients doing business in Myanmar.
We advise on compulsory winding up by the court and voluntary winding up, winding ups which are subject to the supervision of the court, schemes of arrangement, restructuring, reorganisation and rehabilitation.
We advise on risk management, contingency planning, and filing requirements. We also advise on the sale and acquisition of distressed assets.
We advise companies, company members, creditors (petitioners), debtors, liquidators and contributories depending on their needs.
Our insolvency team works closely with local dispute resolution and litigation professionals to provide full and cost effective solutions.
Part V of the Myanmar Companies Law 2017 sets out the methods by which companies may be wound-up. In addition, the new Insolvency Law, which was enacted on February 14, 2020, outlines the transition to a company winding up.
Deregistration & winding up – Myanmar
Part V of the Myanmar Companies Law (2017) (“Companies Law”) sets out the methods by which companies may be wound-up.
According to the Companies Law, a company may be wound up in Myanmar by:
- Compulsory winding up by court;
- Voluntary winding up; or
- A winding up subject to the supervision of the court.
A. Compulsory winding up by court
A company may be wound up by the court in the following circumstances:
(a) if the company has by special resolution resolved that the company be wound up by the court;
(b) if default is made in filing the statutory report or in holding the statutory meeting;
(c) if the company does not commence its business within a year from its incorporation, or suspends its business for a whole year;
(d) if the number of members is reduced below one;
(e) if the company is unable to pay its debts; or
(f) if the court is of opinion that it is just and equitable that the company should be wound up.
A company is deemed to be unable to pay its debts in 3 circumstances:
- if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding 250,000 kyats, has served on the company, by causing the same to be delivered by registered post or otherwise at its registered office, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor;
- if an execution or other process has been issued on a decree or order of any Court in favour of a creditor of the company which is returned unsatisfied in whole or in part; or
- if it is proved to the satisfaction of the court that the company is unable to pay its debts and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company.
One of the main grounds on which a company may be wound up by order of court is where the company is insolvent. A company is deemed to be insolvent when the company is unable to pay all its debts at the time of becoming due and payable as set out in the MCL.
In addition, the new Insolvency Law, which came into effect on 25 March 2020, also applies to the winding up of insolvent companies.
Petition to apply to court for winding up a company
A petition to apply to court for winding up a company is usually made by the company or a creditor (or creditors) or contributory (contributories). In some circumstances, the petition may be made by a contributory (or contributories) or by all or any of those parties, together or separately, or by the Registrar.
An order for winding up shall operate in favour of all creditors and of all contributories of the company as if made on the joint petition of a creditor and of a contributory. The winding up is deemed to commence at the time of the presentation of the petition.
When either a winding up order has been made or a provisional liquidator has been appointed, no other proceedings can be commenced against the company without the leave of the court.
On the making of a winding up order, it is the duty of the company and the petitioner in the winding up proceedings to file a copy of the order with the Registrar within one month of the date that the order is made. The Registrar will then place a notification in the Gazette that such an order has been made.
Statement of the affairs of the company
Where the court has made a winding up order or appointed an official liquidator, the company will provide to the official liquidator a statement as to the affairs of the company verified by an affidavit and containing the following information:
- the assets of the company;
- the debts and liabilities of the company;
- the names, residences and occupations of the creditors, stating separately the amount of secured debts and unsecured debts; and
- the debts due to the company and the names, residences and occupations of the persons from whom they are due and the amount likely to be realised therefrom.
B. Voluntary Winding Up
A company can be wound up voluntarily either by way of a members’ or creditors’ voluntary winding up. Both types of voluntary winding up need to be initiated by special resolution passed by the company’s members at a general meeting.
Members’ Voluntary Winding Up
A members’ voluntary winding up involves the liquidation of a company that is still solvent.
The process is initiated when the company has stopped operating its business and a general meeting of members is held to approve a special resolution to voluntarily wind up the company. Before the members’ meeting is held, the directors of the company must declare by an affidavit that they have made a full inquiry into the affairs of the company and are of the opinion that the company will be able to pay its debts in full within 3 years after the commencement of the winding up. The directors’ declaration must be supported by an auditor’s report and be filed with DICA prior to the notice of general meeting being sent to members.
The members must then pass a special resolution at a general meeting of the company resolving that the company must be wound up voluntarily. Within 10 days of the resolution being passed, the company must publish a notice in the Gazette and a national newspaper that a special resolution has been passed to voluntarily wind up the company.
A liquidator must be appointed to wind up the affairs of the company and file the required notifications with DICA in accordance with the Companies Law. Once a liquidator is appointed, the directors will no longer have any authority to run the company.
Creditors’ Voluntary Winding up
The company may be wound up by a creditors’ voluntary winding up if its directors believe that the company cannot continue to operate due to its liabilities and should be wound up. Unlike a members’ voluntary winding up, a creditors’ winding up is the liquidation of an insolvent company.
Where a company is insolvent, the members of the company must at a general meeting pass a special resolution for the company to be wound up voluntarily.
A meeting of creditors must also be called and held on the same day or the next day. A notice of the creditors’ meeting must be published in the Gazette and a national newspaper. At the creditors’ meeting, the directors must report on the affairs of the company, identify the company’s creditors and each of their estimated claims.
If a special resolution is passed by the members for a voluntary winding up of the company, the company must publish a notice in the Gazette and a national newspaper within 10 days of the resolution being passed.
A liquidator will then be appointed to wind up its affairs and file the required notifications with DICA in accordance with the Companies Law. Once a liquidators is appointed, the directors will no longer have any authority to run the company.
C. Winding up subject to the supervision of the court
When a company has by special resolution resolved to wind up voluntarily, the court may make an order that the voluntary winding up shall continue, but subject to such supervision of the court , and with such liberty for creditors, contributories or others to apply to the court and generally on such terms and conditions as the court thinks just.