Nepalese Judiciary in the development of Private International.pptx

Role of Nepalese judiciary in PIL.

1. Nepalese Judiciary in the development of Private International Law Aabritti Paudyal B.A.Llb , 8 th Semester Section A Roll No : 1

2. Private international law is a relatively less developed in the context of Nepal. There is no specific legislation or any act governing private international law. But the judiciary of Nepal has witnessed a number of cases regarding recognition of foreign judgments, mainly concerning matrimonial and corporate issues. There are few scattered law relating to private international law . The first recorded case of Private International law in Nepal dates back to  (2020 B.S) Minadevi V Shatashamsher J.B.R J.B.R [N.K.P 2029 B.S] decision No 688 [SC ]. The last few years have seen important developments in private international law in Nepal, although more significantly in the area of recognition of foreign judgment.

3. Minadevi Rana , Binod Shamsher J.B.R et al. v. Shanta Shamsher J.B.R (NKP 2029, D.N. 688) The plaintiff had filed a property suit where a part of the claimed property was immovable property situated in India. The Supreme Court explained that movable assets like shares, fixed deposits, debentures, etc. are to be considered as immovable assets if they have been created on the basis of foreign laws and lie in the foreign land and transaction has been done in such foreign country. The supreme court held that it did not have jurisdiction to decide and enforce judgement over such property situated in foreign country for reasons of non-enforceability of its decision. The court however decided on issues concerning the property situated within Nepal. Courts finding : 1. In Private International Law, Lex Situs Rule confer jurisdiction to the court of the country where property is situated. 2. Court shouldn’t assume jurisdiction in a case where it is unlikely to have competency to enforce its judgment except in case of personal obligation emerged out in the course of partition .

4. Tung Sumser JBRv Indian Airline Corporation [N.K.P 2024 B.S] , decision No 389[ SC], Issue : Following an accident of an aircraft belonging to Indian Airlines Corporation, which resulted in the death of all the passengers, Tung Sumsher , the grandfather of the children who travelled on the aircraft filed a suit against Indian Airlines claiming compensation for the loss of their lives. The Corporation was registered in India pursuant to Indian law. The aircraft in question was flying within Nepal. The compensation was claimed as per Indian Air Act since there was no relevant legal provision under Nepalese law . Decision : The Court reached its verdict without considering any rule of private international law and held that the Indian law and the Warsaw Convention referred to in the Indian law were not applicable in the cases brought before the court of Nepal. However, Justice Prakash Bahadur KC , in his separate opinion recognized the case as one involving foreign element and thus of private international law. He opined that the courts of a country might apply law of another country to decide cases involving conflict of law situation. The importance of this opinion is derived as being the pioneering statement on the subject of private international law and thus of precedent value.

5. Umadevi Sundari V Basanta Kuwarwa [ N.K.P 2029],Decision No 708 [SC] In this case, the court reiterated its holding in Minadevi . It held that in the absence of any agreement between the countries, the issue of immovable property should be decided according to the law of country where the property is situated. If a person's immovable property lies in other foreign states then, except in the cases where treaty has been signed between states regarding such matter, the laws of the land where such immovable property is located will be applicable. Nepal , thus subscribes to the principle of lex situs in disputes related to immovable property.

6. Maria Victoria v Kami Sherpa [ N.K.P 2067], decision no. 8505 [SC ]. Issue: A Spanish national, Maria Victoria, married to a Nepalese citizen, filed a polygamy complaint against her husband. She claimed that her husband Mr. Kami Sherpa married a Nepali woman while he was still married to her. Mr. Sherpa however claimed that they had already been divorced in Spain according to Spanish law. The court had to decide if the divorce case in Spain would be recognized in Nepal or not . The defendants, apart from the claim of divorce, also denied the allegation of having married another woman. Since polygamy is a criminal offence in Nepal, the prosecutors’ failure to prove the alleged marriage beyond a reasonable doubt led to the defendant’s acquittal. The court did not address the issue of recognition of foreign judgment . Few years later, Maria filed a writ petition before the Supreme Court of Nepal against the Immigration Department for cancelling her spouse Visa. Apparently, she had filed a case in the District court claiming her share in her husband’s property according to Nepalese matrimonial law. Her husband submitted an application to the Immigration Department to have her Spouse Visa cancelled on account of the fact that they have already been divorced hence Maria no longer being entitled to the Spouse Visa. Decision: stated that even though there is no law in Nepal regarding the enforcement of foreign judgment, the judgment rendered by an independent judiciary of a sovereign nation (Spain) should be taken in judicial notice by the court of Nepal and held revocation of visa as legal However , in light of principles of fair trial and due process, the Court issued an order to the Immigration Department to grant her a Visa till the property case she filed to the District Court has been decided. The Court also shed light on the necessity to have a clear rule defining the status of judgments by courts of a country and said that it draws the attention of the government to make appropriate laws in Nepal on the recognition of foreign judgments.

7. Sabina Pandey v Puskarraj Pandey [ NKP 2068 B.S] decision no. 8572 [SC] Issue of Jurisdiction (she did not have domicile in the USA neither she has ever submitted herself to jurisdiction of US Court.) Issue of Choice of Law (the decision of divorce granted by US Court in the name of Nepali national and domicile on the ground other than that of prescribed in Nepalese legal system is not entitled to get recognition and enforcement.) Issue of Recognition and Enforcement of Foreign Judgment   . lack of jurisdiction, denial of fair trial and due process, and public policy .

8. Principles established in this case: The foreign judgments that are not against the public policy should be implemented on the basis of reciprocity and comity. The question regarding whether the U.S court recognized fair process and due trial cannot be raised in this court. Expensive Court Proceedings, Unfamiliar Procedure and the Proceedings unable to allow effective representation and presentation of witness evidence to defend the claim in a case against him/her cannot be considered as a fair trial and such judgment cannot be recognized. Since the states are interdependent in this era of globalization and Nepal can also not be isolated from it, the judgment given by a country by exercising jurisdiction over matters like contractual, matrimonial, investment dispute should be recognized and implemented by another country. Supreme Court has issued a directive to the government to enact necessary legislation and Mutual Legal Assistance Act 2070 is the outcome of this case.

9. Suman Panta v Immigration Department and others [6th Kartik 2074 BS] decision no 9921 NKP 2074 [Supreme Court of Nepal].  Suman Panta and Leslie Luin Melnik had done court marriage at Sacramento County in Sacramento, California, United States. Even after the request, the Immigration Department of Nepal orally denied non-tourist visa to Leslie and did not provide any written information nor took any decision with this regard. The court in this case recognized the same-sex marriage concluded in America between Suman Panta and Leslie Luin Melnik , an American citizen.   The court held that a foreign national claiming to be married to a Nepali citizen who produces marriage registration certificate and so claimed spouse if identifies such foreigner as his/her legally married spouse then the department should not deny non-tourist visa to such foreigner who is married to a Nepali citizen. Such foreigner shall be entitled to get a non-tourist visa without any distinction based on sex . Right to equality, privacy invoked.

10. Hanil Engineeneering &Construction Co.Ltd v Appelate Court Patan [N.K.P 2075] decision no. 10138 [SC]. In the year 2017 another case was filed where the matter of contention in toto was recognition and enforcement of foreign arbitral award. In this case there was construction contract between Nepali Company, Koneko Pvt Ltd and South Korean Company, Hanil Engineering . Nepali company was not able to complete the construction work within the stipulated time on behalf of Korean company; as a result Government of Nepal confiscated all the money of performance bond that the Korean Company has deposited as guarantee. Hence Korean company requested Korean Commercial Arbitration Board to form arbitration panel to decide the matter. Accordingly Korean Arbitral Board decided matter in favor of Korean company and held Nepali company liable to pay compensation of US Dollar 1,758,578 . Afterwards decision , Korean company filed an application for the enforcement of foreign arbitral award in Appellate court as per the provision of Arbitration Act 1999 of Nepal. But appellate court rejected the enforcement on the ground provided in sec 34 (2) (a) (b) 37 . Dissatisfied with decision of Appellate court appellate challenged the decision in Supreme Court. Supreme Court denied recognition on the ground that Korean commercial arbitration board decided the matter without both parties amicably decided to refer matter to arbitration and without fulfilling the principle of natural justice . Hence court denied recognition citing ground provided under sec 34(2)(a)(b) of Arbitration Act. Unlike the earlier cases, things were more clear because the provision of laws on recognition and enforcement of foreign arbitral award were codified and the grounds for denying recognition were well noted down.

11. Conclusion Even though Private international law is  a relatively less developed domain in   Nepal, the last few years have seen important developments in private international law in Nepal, more significantly in the area of recognition of foreign judgment . T here is still lacuna in the existing legal provision regarding the issues involving foreign legal system. In the lack of clear and precise legal provision in regard to private international law Supreme Court of Nepal is playing its role in filling the gap.