Practising on the Moon: Globalization and Legal Consciousness of Foreign Corporate Lawyers in Myanmar, Arm Tungnirun

In addition to state intervention, another external force that has strongly influenced the development of Asian legal professions in the early twenty- first century is globalization, especially the rise of the global market for legal services.

“Whatever contract you are drafting, you have to think that, OK, I am now doing a project on the moon. There is no law.” This is how Patrick, a Westerner, described practising corporate law in Myanmar. It is a bit strange then that, throughout my interview with him, he talked a lot about law. What did he mean exactly when he said there is no law in Myanmar? Do other expatriates who are practising corporate law in Myanmar agree with him?

Patrick is now among a large group of expatriates - from both Western countries as well as neighbouring Asian ones - who came into Myanmar after the opening-up of the economy in 2011 and marketed themselves as “local legal advisers” for foreign investors or domestic enterprises doing business with these investors. When Myanmar opened its doors in 2011 after five decades of economic isolation, foreign investors flowed into the country to take advan­tage of opportunities to build from scratch power plants, roads, railways, telecommunication infrastructures, oil refineries, and a modern financial system.

Strictly speaking, 2011 was not the first time Myanmar had been exposed to the arrival of foreign lawyers and law firms. There had been a brief period when a similar process happened during the early 1990s, albeit to a far lesser

243 degree compared to the opening-up of the economy in 2011. Because of democratic protests and widespread economic discontent, in July 1988, the military government ended socialist policies. By November 1988, a new investment law was passed. Myanmar's attractive factors for foreign investment were there - rich natural resources and an inexpensive labour force. But, with a failed democratic election in 1990 following by the house arrest of Aung San Suu Kyi, human rights advocates effectively campaigned to shame foreign investors and governments from doing businesses with Myanmar. The US imposed sanctions on all new investments in 1997 and followed with even harsher sanctions in 2003. The EU also imposed major restrictions. There was a brief optimistic period during the early 1990s (prior to the US sanctions in 1997) when foreign investors came in to explore investment opportunities in Myanmar.

There were a handful of foreign law firms at the time. When the sanctions were imposed in 1997, most of these firms and their lawyers left the country. Only three to four foreign law firms remained, each with one or two foreign lawyers and one or two native lawyers assisting them. The foreign lawyers often flew in and out, dividing their time between the Yangon office and another office in a neighbouring country. When I asked whether there was work to do, Dan, a foreign lawyer who was in Myanmar during this period, explained that some foreign companies were grandfathered in.

Since 2011, the number of foreign law firms in Myanmar has grown exponentially - perhaps at a rate unprecedented in world history - from a couple to more than 30 within four years. There is a variety in types of law firms: a small number of global firms with offices worldwide, firms focused solely on Myanmar or the region established by expatriates, and firms from neighbouring countries. Corresponding to this variety of firms, the “new­comers” - foreign lawyers who have come into the country after 2011 - are very diverse, consisting of Western lawyers as well as Asian lawyers from neighbouring countries such as Singapore, Thailand, the Philippines, Japan, China, and India.

Foreign law firms employ both foreign and native lawyers. Whereas native lawyers might play a major role in foreign firms in other countries, at this stage of development in Myanmar, foreign lawyers play the leading and dominant role in the firms I studied. The size of the firms is relatively small - ranging from an average of less than ro to 30 lawyers in a couple of big firms. [...]

Old hands choose to join and assimilate into the local community of native lawyers while the newcomers choose to create their new, separate community. Social changes associated with economic globalization explain this difference. During the closed period prior to 20rr, there were extremely few old hands. They also lacked social and economic capital due to the strict control of the military regime and the closed nature of the economy. Understandably, their best strategy was to join the community of local lawyers and to share the legal consciousness associated with that community, which placed an emphasis on local law and practices.

By contrast, since the country's exposure to the global economy in 20rr, the number of foreign law firms and lawyers has grown exponentially within a short period, forming a critical mass sufficient to create their own separate community. They have also gained more prestige and power as they are connected to global capital that is in high demand from the new reformist government. Hence, they have formed their own community with a shared sense of legal superiority, representing what they perceive as more advanced legal systems and international business norms. They have also connected their identity with a larger community of international corporate lawyers outside of Myanmar. With their own community and legal consciousness, they have also begun to contest and shape the legal consciousness of the emerging community of corporate lawyers in Myanmar, which includes both themselves and native lawyers working in their firms.

In addition to the changes associated with the exposure to the global economy, another factor that might help explain the difference between the two groups is that their narratives correspond to the ways they wish to market themselves to clients. The old hands emphasize local law and practices because doing so fits with their comparative advantage of having practised in the country for a long period of time. In contrast, the newcomers lack experi­ence and knowledge of local law. By portraying Myanmar as a country in which there is not much law and insisting that native lawyers do not know much law anyway, they justify their value. In turn, they also embark on a project of advocating for legal changes to transform Myanmar's legal system to adhere more to international standards that will benefit them and their clients

in the long run.

However, it is important to emphasize that the legal consciousness of the old hands in Myanmar is a product of their having practised in the closed period, rather than merely a product of the length of time of their practice. The finding of this study is not only that the old hands emphasize local law and practices, but also that they are more passive compared to the newcomers who actively promote the importation of foreign business law and norms. Newcomers are able to assume this more active role because the changes associated with Myanmar's economic globalization enable them to form their own separate community and legal consciousness. One might very well find that the old hands in any country, with their years of experience, will similarly emphasize localized expertise. For example, in his paper on China, Sida Liu also found that corporate lawyers with extensive experience there tend to emphasize expertise that is highly adaptive to the local Chinese context. It is true that perhaps the newcomers in Myanmar, after accumulating years of experience, may slowly shift to a greater engagement with the Myanmar's legal context. However, it is important to keep in mind that this very context will increasingly converge more with international norms. This will take place because of the newcomers' disdain for traditional norms and practices in this early stage of the country's development.