1. My programme of work in Yangon
I gave the following:
Lecture ( 1 hour) to the first year Yangon Univ law undergrads on Private Law as part of their Intro to Law course. Some tutors also attended.
Lecture (1 hour) to the second year Yangon Univ law undergrads on Contract (‘Some differences between Myanmar contract law and English contract law’) as part of their Contract course. Some tutors also attended.
Three two–hour (or 90 mins) classes on Contract for Yangon Univ post-grads and lecturers/tutors: Formation (esp offer and acceptance); Remedies for breach of contract; Frustration. These were designed to be interactive and had four aims: (i) To understand the relevant rules and principles of the (Anglo-Myanmar) law of contract; (ii) To apply the rules and principles of the (Anglo-Myanmar) law of contract to fact situations; (iii) To examine in detail some of the leading English cases including reading short extracts from a few of the judgments; (iv) At the end of each class, to discuss/answer a ‘problem’ question from an Oxford exam on the law of contract.
Masterclass on Tort Law and the Teaching of Tort Law (90 mins) to Yangon Univ undergrads, postgrads, tutors/lecturers/professors.
Lecture (50 mins) to the Dagon Univ law undergrads and postgrads on Contract (‘Some differences between Myanmar contract law and English contract law’). Some tutors and lecturers also attended.
Lecture (90 mins) to the East Yangon Univ law undergrads and postgrads on Contract (‘Some differences between Myanmar contract law and in English contract law’). Some tutors and lecturers and the two Professors also attended.
(2) Practitioners’ Seminar
On the Thursday evening, I ran a 90 mins seminar at the British Council Library in central Yangon on The Law of Contract in Myanmar. This was attended by 25-30 lawyers. I talked for about 50 minutes and then we had a discussion.
(3) Formal Meetings
I had a meeting on the first day with two Pro-Rectors of Yangon Univ.
On the Wednesday lunchtime, I had an interesting and informative meeting with the Chief Justice of the Yangon High Court and five of his fellow High Court judges. At my request, I was then shown by the administrators, the judges’ law library (more or less non-existent) and observed civil cases in the court for about 30 mins (very interesting, not least the use of ‘clacketty’ extremely loud typewriters to keep the record of what was being said; and the white/yellow or pink caps worn by the advocates instead of wigs).
In line with the three aspects of our Oxford Univ-Yangon programme, I shall divide what follows according to research on Myanmar law, teaching, and library provision.
(1) Research on Myanmar law
In my view, the major revelation of the trip was how fascinating and practically important is the question, ‘What is the law of contract in Myanmar?’ Many have tended to assume that it is all laid down in the Myanmar Contract Act 1872 or in other statutes such as the Sale of Goods Act 1930 (which is virtually identical to the English Sale of Goods Act 1893). But the question that arises is, what happens where the 1872 Act (or another statute) does not cover the situation? In trying to answer this, I found it helpful to consider what the possible differences are between English contract law and Myanmar contract law. A few of these differences can be found simply by looking at the 1872 Act which is modelled on English contract law at the time but with some tweaks (eg past consideration is good consideration, as is part payment of a debt; and it is probable that there is no privity of contract doctrine). However, other differences reflect gaps in the 1872 Act or developments in English law since that date. So eg what is the Myanmar law of contract on implied terms, interpretation, innominate terms, aspects of remedies etc? In other words, where does one look beyond the 1872 Act? This is the question that I was asking throughout my trip: to the academics, to the judges of the Yangon High Court, and to the practitioners at my British Council seminar. This is of great practical importance because those now entering into commercial contracts in Myanmar want to know what their law of contract is (albeit that it appears that they are inclined to include choice of law clauses designating English law). The answers that I was given included:
(i) The English cases/common law will be applied where there is nothing in the 1872 Act. This may be thought to make sense given that the 1872 Act was a codification of English law at the time.
(ii) The Indian cases will be applied both in interpreting the 1872 Act and where there are gaps. This may be thought to make sense given that the 1872 Act is identical to the Indian Contract Act 1872 (subject to a few minor amendments in the illustrations).
(iii) Any decisions on contract of the Myanmar Supreme Court: but it was not clear whether any of these exist. Since the 1960s the decisions have been essentially/entirely written in Burmese so I could not check this.
(iv) The Yangon judges said that, where there was no existing law, they applied the common law according to the principles of ‘good conscience, equity (or equality) and justice’. (One of the judges added ‘common sense’ to this list). I asked where those principles came from. The interpreters told me that that statement is in the Burma Act s 13(1). There was also a linked issue as to how far precedent applies in Myanmar.
Subsequent research indicates that this idea of ‘good conscience, equity and justice’ is also well-known in India; and that in practice is has been used to provide a basis for the development of the common law, predominantly following English case law, where there is no statute or other binding law.
When I asked the practitioners whether there is any book on Contract Law in Myanmar, they were not aware of any except one written in Burmese. Another emailed me to say that he found useful an old edition of the leading Indian textbook on Contract.
Similar but distinct questions arise about the law of tort in Myanamar. Without any Act at all on tort (with the exception of the Fatal Accidents Act) there appears to be uncertainty as to what the law is or where to find it. The answers given to my question ‘What is the law of tort in Myanmar?’ mirrored those given above on contract although Indian cases were not mentioned in this context. An added point of great interest is that it appeared that most people I spoke to did not think of the tort of negligence as particularly important: indeed it was not entirely clear to me that it exists as a general tort in Myanmar. Trespass to the person and defamation were what they immediately thought of as torts. This of course reflects the position in England prior to 1932. When I posed a standard example of someone being injured by another’s fault in driving a car, they suggested that, even if that were a tort (they were not sure) people would not sue for that because:
(i) Religious beliefs tended to suggest that that was simply bad luck in line with Buddhist teachings. (ii) It was also clear that to sue would be expensive (even if one could rely on the rule of law in the courts).
It was also stressed by several academics that they saw these sorts of issues as more concerned with criminal than civil law.
My overall conclusion was that the research that we have started on Myanmar contract law is more important and interesting than I had ever envisaged (and that the same could be said of tort law). None of the other many initiatives in Myanmar seem to be focussing on private law perhaps because human rights and public law are driving the major concerns. I believe that the writing of a book on Myanmar Contract law would be invaluable.
I was given a very warm welcome at Yangon universities and even more so (if that were possible) at Dagon and East Yangon universities. They all kept on saying how they really appreciated what we are doing. In Dagon I was told by the tutor looking after me that our lectures were so ‘precious’. Although the teaching rooms at Yangon and East Yangon are primitive (wooden benches for the students and shutters open to let in air which also lets in noise) I enjoyed the teaching. The students (who are mainly girls and note that the tutors are all female bar one man at Yangon Uni) listened very attentively and did attempt to answer questions. They could I think see what I was trying to do in the contract problem classes. But there are major difficulties. The biggest of all is the language. I had prepared extensive seminar sheets for the Contract classes referring to the 1872 Act and English law; and for my lectures they had full versions of what I was saying. Those handouts were essential. Without some text to look at, they would not have managed at all. They particularly seemed to enjoy the examples I gave them usually involving my entering into a contract with one of them to buy his shirt, have them sing for me, walk to the Strand Hotel, marry me etc. So there was a lot of laughter and smiles. But I have to say that it was very different to any university teaching I have done before.
There is much to be said for providing videos of a course of lectures. These could be made here in Oxford and sent across to Myanmar. These could then be played over the course of a term and perhaps then the person who provided the lectures could go in person to Yangon to give an interactive revision class. Although one would lose the interactive teaching during the course, the advantage of lecture videos is that (i) they can be played over and over, and stopped – and translated in class - until the language is understood; (ii) they can be played to hundreds (indeed thousands) of students rather than just a few; (iii) the tutors themselves would learn from, and could prepare in advance using, the videos. Although such lecture videos would be very hard work to prepare (I am not talking about one-off ‘show’ lectures) I think we should give this idea further serious consideration.
(3) Library provision/services
I greatly admired the hard work that Ruth Bird has put in to this aspect of our programme. One of the two library rooms in the department is quite pleasant to work in with two long tables and new chairs (all voluntarily donated by some organisation or other). That room has books that have been catalogued in the glass book cases. Even in the age of electronic resources, any law department needs a law library even if a small one (I should interject here to say that the internet was unstable during my week in the department). So I think library provision should undoubtedly remain an aim of our programme. But there are problems. First, the language difficulties referred to above mean that the students can make only limited use of many of the books and this will continue to remain a problem for many years to come. Secondly, without an employed librarian things cannot really progress and it appears that there is no realistic chance of such a person in the near future. I suggested that students could perhaps run the library but there is a risk of theft so that ideally one does need a proper librarian. There is also the question of shelving but, even if that can be overcome and all the remaining books can be catalogued and put out, it would appear that the lack of a librarian will continue to be a stumbling block.
I had wondered whether it might be better to refocus our efforts on the main university library. However, one visit there convinced me that we are doing the right thing to focus on the department. The main library’s law collection is kept down below in the stacks, so that every law book has to be ordered up from the stacks, and the collection is in any event very limited.
3. Thanks etc
Finally I would like to thank Andrew McLeod for his hard work in making the trip run so smoothly and especially in sorting out the meeting with the Yangon judges and in arranging the practitioners’ seminar. It was good to hear Kevin MacKenzie, head of the British Council in Yangon, speak publicly (in introducing me) of the Oxford Univ-Yangon Univ Law Programme as being the most proactive of the many university initiatives in Myanmar.
March 3, 2015