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Brian Alexander L’03 on the State of Legal Practice in Myanmar

December 01, 2020

The following is adapted from a discussion Bryan Alexander L’03 held with current Penn Law students on Tuesday, December 1, 2020. This conversation occurred prior to the military seizure of control on 1 February, which initiated a year-long state of emergency.

How did you end up in Myanmar? Tell us about your journey.

I was working at Greenberg Traurig–we were doing bond and derivative transactional work, creating mortgage-backed securities for Fannie Mae and Freddie Mac. At the time of the financial crisis, all the work dried up. I had some money saved up, so I took 18 months and traveled throughout Southeast Asia and South Asia.

I traveled around Myanmar for over a month before the US formally re-opened communications with the government there. Hillary Clinton might have visited three or four months after I was in the country. At that time, they were making a change and wanted to engage the government again.

I enjoyed it. The people were very friendly. I traveled all different parts of the country [from] the busy city of Yangon through the rural countryside. So, I came back there to work and live.

How did you navigate that process, getting your first position and subsequent professional transitions as an Expat working in Myanmar?

Five to eight years ago, there weren’t many people recruiting for jobs in Myanmar. There wasn’t much engagement on LinkedIn or other things you’d be familiar with in the US to locate a position for foreign attorneys. So, I wrote to some attorneys at Greenberg and contacted one of the law firms they suggested, submitted my resume, and I ended up with a job in Myanmar. Once you’re here, it’s much easier to transition to other roles.

I think that Myanmar businesspeople have seen the need to engage with more ASEAN businesses and international businesses and have somebody with English drafting skills and experience that can help negotiate contracts. A small pool of jobs is available, both in-house and with law firms. Most lower-level associates stay two or three years and then go back to their home country. Once you’re entrenched in the market and people know your name, it’s much easier to consider other positions and find one that fits you.

How does civil unrest impact the people of Myanmar?

Some terrible things have happened in Rakhine state. That’s part of a larger issue in the country. We’ve been in a continuous civil war since the 1950s, with much conflict on the borders of the country. Myanmar people don’t particularly travel to Rakhine state or even the border with Chin State where a lot of this occurs. Travel is very difficult. The military still has a heavy influence.

They have to be accommodating to set up a federal system where each of the states have a level of autonomy. General Aung San’s plan was to have a federal system to make sure everybody was happy. That’s a whole lot of work from a legal perspective. It’s going to take a lot of counseling about different federal systems to evaluate what best meets the needs of the Myanmar people. In general, people are supportive. But some ethnic groups have been sold this story before and getting everybody to the table is more difficult. How much power the central government is willing to cede to the states is also an issue.

What can you tell us about the rule of law and legal practice in Myanmar?

Myanmar was under a military junta for a long time. Before that, it was a socialist government that the military also controlled after the British left. The rule of law was semi non-existent for a lengthy period. There’s been a shortage of case law on commercial law subjects since the 1960s. When litigating disputes, you end up with an interesting scenario where there aren’t any court rulings, so giving legal advice is effectively giving your best guess. There’s a level of uncertainty in providing legal advice that is a little disconcerting.

In a civil law system, you would have a Department, a Ministry who would come in, pass all kinds of rules, and have notices to flesh out that law instead of a common law system where judges would be. Myanmar’s government lacks the resources to promulgate all of these rules. So you end up with a law that has no teeth.

Part of the problem is that they’re getting advice from people in civil law countries. There’s this gap between what it means to come from a common law country in a civil law country. Every law now has its own Commission that makes determinations about that law. But the challenge is finding the people to be on the Commission and determining how often the Commission meets. It’s still not clear. If I had an issue under the competition law, how would I contact the Commission and bring a challenge to it?

In terms of the overall nature of practice in Myanmar, there are about 40 foreign law firms, from one or two people to 10 or 15. There are Japanese, Singaporean, and American firms. Baker McKenzie is here. In many nearby countries (such as Cambodia) you can’t have a foreign practice without a locally barred attorney who is also a partner in that practice. But in Myanmar, they’re focused more on trial law. For the kind of corporate transactional type work, they’re very hands-off, and interestingly, the bar association is not very active. There’s not much oversight. Some people who were disbarred in their home countries come here to work.

What about the legal education and training system has proven challenging for you?

Myanmar culture is similar to almost all other Southeast Asian cultures in that you show deference to your elders. That makes education a unidirectional system where the teacher tells you things, and you dutifully note them and don’t ask questions to get follow-up information or show interest.

There’s a hierarchy of positions. Monk is the highest and then Sarar (teacher). It’s positive that teachers and the teaching profession are held in high regard.

But when you combine it with difficulty asking authority figures or elders questions, it’s problematic. It might not be difficult in the social sciences, but it is in law, where one of the essential ways you learn is through the Socratic method: having a question, responding, asking follow-up questions, and asking why, which is the key question for a lawyer.

A lawyer should always be asking why and digging deeper to understand the real issues. It’s difficult to get people to ask the question why. You have to know how you can explain to people that it’s okay to ask “why” particularly in the case of legal education.

In terms of improving the rule of law and legal practice, it’s a long game. It’s about making a more robust, well-rounded legal education. It doesn’t help that you can cite every section of the Companies Act if you don’t understand what those sections mean. I can say, “What’s Section 220 of the criminal code?” And somebody will recite it. But when I say, “Explain to me what that means and how it works.” I get “I don’t know, we just talked about it once and never had further engagement with it.”

I basically have to train people from scratch, explain certain aspects of the law, challenge them to be more outgoing, and think more creatively about how to find a positive solution.

Are there Developments in Legal Scholarship in Myanmar?

There is an interest in building the rule of law in Myanmar, reestablishing courts, and passing new legislation.

There’s not much legal scholarship that goes on in Myanmar. However, some Oxford professors come every couple of years. They work with the local professors, producing a book in English and Burmese, such as the Contracts Act or something they find interesting.

The Yangon University Law Library has a tremendous amount of books in English. But while the English language penetration, especially among younger people, is better than you might imagine, they don’t feel entirely comfortable reading an English law book. So even if I’m discussing material drafted originally in English and then translated to Myanmar to be passed by the legislature, they’ll always want both copies. They understand it in English, but they want to read it in their own language. And when they have both, I get much better engagement and answers. So, there are unfortunately many books that have been donated just collecting dust because people don’t feel comfortable enough with their English to use them.

Another thing that I’ve been working on with a Columbia grad is starting Law Reviews. There are no Law Reviews here. Law Reviews are opportunities for students to ask questions, write, have other people look at their conclusions, and hopefully publish it so the wider legal community and judiciary can see it.

You can also see generational changes. While older litigation attorneys tend to be 50/50 men and women, the younger lawyers I’m hiring are 90 percent female. I interviewed for a position three or four months ago, and there was one man and nine women. I think women are finding an area where they can make a difference.

How can a U.S. Law Student get Involved?

There would be interest from law students in Myanmar to engage with law students in America. Or for recent graduates to work with younger Myanmar attorneys, show them how things are done in America, and help them grow. Even if you don’t have much experience and you’re fresh out of school, you can still have a big impact.

When I first arrived, a SIM card cost $1,000, and almost nobody had access to a cell phone. Now, 70 percent of the population has a smartphone. It’s easy to talk to people. Everybody’s familiar with Zoom and they love Viber and video chats.