Unit 1

Prakriti MALLA
PhD, Private International Law
 Glossory
• lex loci solutionis: the law of the place where the contract is to be
• performed;
• lex loci celebrationis: the law of the place where the marriage was
• celebrated;
• lex loci delicti: the law of the place where the tort was committed;
• lex domicilii: the law of the place where a person is domiciled;
• lex patriae: the law of the nationality;
• lex situs: the law of the place where the property is situated;
• lex fori: the law of the forum, that is, the internal law of the court
in which a case is tried.
 Nomenclature
• The expression ‘private international law’ is
thought to have been first employed by
Joseph Story (1779–1845) Commentaries on
the Conflict of Laws (1834). (Civil Law System)
• However, at the end of the 19th century, the
influential jurist AV Dicey11 chose the title
• ‘conflict of laws’ for his treatise upon the
subject. (Common Law System)
Commentary in relation to its Nomenclature

• conflict of laws- title itself is misleading in that the

entire object of the subject is to promote harmony
rather than conflict between the different legal
systems of the world.
• private international law, is open to criticism in that
it can lead to confusion with public international
law and does not properly reflect the fact that the
subject embraces the difficulties that arise when
one State includes more than one jurisdiction
 Meaning
• The conflict of laws is concerned with all of the civil and
commercial law involving foreign involvement . (It is not
concerned with criminal, constitutional or administrative cases.)
• It covers the law of obligations, contract and tort, and the law of
property both immovable and movable, whether a question of title
arises inter vivos or by way of succession. It is concerned also with
family law, including marriage and divorce, and guardianship and
the relations of parent and child.
• Private international law is concerned with the legal relations
between private individuals and corporations, though also with
the relations between states and governments so far as their
relationships with other entities are governed by municipal law,
an example being a government which contracts with individuals
and corporations by raising a loan from them.
 What is Private International Law/What is
Not
What is it What it is not
Civil, Matrimonial, Commercial, Tort, Criminal Matter, Constitutional Matter,
Contractual Sovereign Matter, tax
Individual relationship Relationship between States
Foreign Element Domestic Relationships
 Foreign Element
• Muluki Civil Code , Sec 692: A case is said to
have foreign element when one of the party in
dispute is foreignner, subject matter of the
disputes related to foreign terrritory or the
object involved in the disputes is located in
foreign territory.
• Dell Computer Corporation v Union Des
Consommateurs ( foreign element should be
introduced organically)
 Nature
• Part of Municipal law
• Content may vary from country to country
• not codified in a systematic way at the supranational or
international level.
• some international treaties have unified particular areas
of substantive and conflicts law with respect to the
participating states.
• When a treaty provides uniform rules of substantive law
—as does the United Nations Convention on Contracts for
the International Sale of Goods (1980)—it may displace
national law, rendering the rules of conflicts law obsolete.
• In contrast, when an international treaty unifies conflicts
law, substantive differences between national laws
continue to exist, but the uniform rules provide a way to
bridge them.
• the number of states participating in them is relatively
small, and the interpretation and application of
international treaties remain matters for the courts of the
individual participating states. 
• A notable exception was the Convention on the Law
Applicable to Contractual Obligations (1980), commonly
known as the Rome Convention, which applied in the
member states of the European Union (EU) and whose
interpretation lay within the scope of the 
European Court of Justice upon reference from national
courts.
• Projects for the unification or harmonization of laws on a
wider (in some cases worldwide) basis have been
pursued since the middle of the 19th century. Efforts by
the Dutch jurist Tobias Michael Carel Asser proved
successful in 1893 with the founding of the 
Hague Conference on Private International Law in this
regard so as The International Institute for the
Unification of Private Law (Unidroit), established in Rome
in 1926, sponsors projects for the unification of
substantive law. Unidroit Principles of International
Commercial Contracts (2004).
 Rationale
• Even, if foreign element is involved, Why should
the country not simply apply its own law to the
determination of the case before it, without
regard to the foreign connections it might have,
and have done with it?
a review of the case law in England in the last 100
years indicates that the subject is grounded in
either a desire to do justice between the parties
or considerations of comity and reciprocity.
• Cheshire and North (Private International Law,
12th edn, p 39) put it in the following terms:
• There is no sacred principle that pervades all
decisions but, when the circumstances indicate
that the internal law of a foreign country will
provide a solution more just, more convenient and
more in accord with the expectations of the parties
than the internal law of England, the English judge
does not hesitate to give effect to the foreign rules.
• it can be said that English law engages in the conflict process
because it would be unjust to treat an international case as a
domestic one and apply to it the rules of domestic law, in
disregard of other legal systems which are clearly connected to
the case and may have a proper interest in its solution.
• In general, the term ‘comity’ can be interpreted as ‘courtesy’
and the doctrine was relied upon both by both Huber (1636–
94)25 and Joseph Story (1779–1845). There are many
references to the doctrine in the case law; however, comity
pertains to the relations between sovereigns and is not
appropriate as a justification where a judge is determining the
private rights of parties.
• Comity is a recognition which one nation extends within
its own territory to the legislative, executive, or judicial
acts of another. It is not a rule of law, but one of practice,
covenience, and expediency. Although more than mere
courtesy and accommodation, comity does not achieve
the focus of an imperative or obligation. Rather, it is a
nation’s expression of understanding which demonstrates
due regard both to international duty and convenience
and to the rights of persons protected by its own laws.
• Hilton v Guyot ( Comity was affirmed but recognition was
denied based on reciprocity).
 Objectives
• In this globalized world, It may be harsh that a right under one system is not
accepted under another or that a remedy, available in one system, is not
available or, if available, is worth less under another, or that there are limping
marriages where the parties are regarded as married by one system of law but
not by another. But, without uniformity in domestic systems, such results are
inevitable. The task of the conflict of laws is to minimise such discrepancy.
• to eliminate any conflict between two or more systems of law (including
English law) which have competing claims to govern the issue which is before
the court,
• to produce uniformity to ensure that wherever a case was brought the same
result would follow.
• But, although the subject is often called private international law, it remains
centre on domestic legal systems, whose differences prevent uniform results.
• To provide predictability and stability in private issues.
 Limitations
• On the assumption that private international
law is part of domestic law and that, in certain
circumstances, justice will require recourse to
foreign law, the question arises as to whether
any limits exist.
• The general response is that there will be
circumstances where the public policy of the
lex fori prevents the application of Private
INERNATIONAL law.
• In other words, will the English court enforce a contract
for prostitution, albeit valid by its proper law?Will it
enforce a contract for slavery, although valid in the lex loci
solutionis? Scarman J observed in In the Estate of Fuld (No
3) (1968):
• An English court will refuse to apply a law which outrages
its sense of justice or decency. But, before it exercises such
power, it must consider the relevant foreign law as a
whole.
• This doctrine is clearly necessary in the context of conflict
of laws, but its boundaries cannot be easily defined.
 Difference between Public and Private
International Law
• On the basis of Definition/ Subject
Public Private

Regulates sovereign relationship between Regulates relationship between

States ,IO individuals and private companies
• On the of Subject matter
Public Private

diplomatic issues, human right issues, Civil, commercial, contractual, tort,

international criminal law issues, commercial arbitrations, matrimonial
border issues, and all other sovereign
issues
• On the basis of consent
Public International Law Private International law

Consent of the states is basis of public It is the act of parliament

intl law
• On the basis of Source
Public International Law Private International law

sources of public international law
are normally said
to have been set out in Art 38(1)
International Treaties
Customary International law
General Principles recognized by
Civilized States
Judicial Decisions and Publication
of Highly Qualified Person
Its sources are the same as those
of any other branch of
municipal law, which is to say that
English private international law is
derived from legislation and
decisions of English courts.
• On the basis of who interpret
Public Private International

It is administered through the Its ultimately domestic court interpret

International Court of Justice, other private international law
international courts and arbitral
tribunals, international organisations
and foreign offices, although, as part of
a state’s municipal or domestic
law, it is also applied by that state’s
courts
• On the basis of applicability

Public Private

Uniform content for all its parties Content may vary from country to
country
• On the basis of objectives
Public International Private

World order, peace Stability to personal status and

promotion of cross border
movements of good, services and
other commercial transaction by
harmonizing the laws of different
nations

Justice to parties
Public PRIVATE
It has its own normative content to settle It lacks its own normative content to
disputes settle a disputes rather it provides rules
on the issue of jurisdiction, choice of law
and recognition and enforcement of
judgment based on which disputes can be
settled.
History of Private International
Law
• For public international law to develop, there
would need to be a number of distinct
sovereign entities and this cannot properly be
claimed to exist until the development of city-
States in post 14th century Italy.
• For private international law to evolve, it
would be necessary to identify a number of
conflicting territorial laws.
 Early Histroy
• In the Greek cities of the Hellenic period, there were
special courts for cases involving foreigners ; in the
Roman republic, after the archaic recuperatores, the
praetor peregrinus is the outstanding instance of this
type. In addition, arbitration of international disputes
was not unknown to both Greece and Rome.
• This, for example, was the practice of Rome in the
administration of the provinces; the native laws were
recognized even in the courts of the provincial
governor.
• However, these institutions fail to indicate that the cardinal principle
of conflicts law-the application of foreign law to foreign cases-was
accepted in antiquity. That’s why they are to be regarded rather
merely as precursors that mark an advanced stage in the
amelioration of relations among different political groups.
• The available evidence indicates that the refinement in the
administration of justice appeared only with the renaissance of legal
studies in the Middle Ages, at a time when commerce, cutting
across the complex maze of personal laws and emergent territorial
jurisdictions, frequently produced situations in which the parties,
and sometimes the court as well, each had a different law. The
growing development of trading communities in Milan, Padua and
Florence raised the question as to which law should regulate
commerce- one of the prominent question of Private International
law.
• It was towards 1200 that four celebrated "doctores"of Bologna, had the
genius to propose that, in such cases, the judge, in his discretion, should
apply the more effective and more useful law. The rapid acceptance of the
fruitful idea that a court should discriminate according to the nature of the
case in the application of law to a foreigner is illustrated, among other
things, by the provisions incorporated in 1262 in the Siete Partidas of
Castille, formally recognizing the conception.
• It involved a breach with two ideas, seemingly exclusive in prior legal
thinking: namely, that law is personal, and that each court applies its own
law. In addition to the two primitive notions, the following have been
stressed as critical elements in choice of law:
1. statutory intent,
2. agreement of the parties,
3. territorial sovereignty,
4. location of legal relations, and
5. eclectic positivism
Statutory Intent ( Statutory theory)
• The jurists in the medieval Italian and French
universities.
• Bartolus, the greatest of the medieval jurists,
deals with the topic in a classic commentary.
• According to Bartolus, the statutes were
divided into 2 heads depending upon the
object of law, these were namely Statuta
Personalia and Statuta Realia
.
a. Statutes concerning persons (Statuta Personalia)- It dealt with people and
applied to persons domiciled within a territory. The statutes of that
particular territory applied to such domiciled persons even when they went
to other territories.
b. Statutes concerning things (Statuta Realia)- It dealt with things and was
mainly territorial in nature.
• c. Mixed Statutes (Statuta Mixta)- Bartolus however, created a third subhead
for the statutes. This dealt with acts rather than persons or things. For
example, formations of contracts or agreements would fall under this sub-
head. These applied to all acts done in the territory enacting such statutes,
even when litigation with respect to such acts was done in another
jurisdiction
Criticism: practically applying the theory, it showcases various practical
problems that do not appear in theory. For instance, in a case where a
person A might want to transfer his property to his son B. In such a scenario,
it becomes tough to deduce whether it shall fall under personalia or realia.
 TERRITORIAL SOVEREIGNTY
• The theory that a properly governed state is invested
with the absolute and perpetual power of sovereignty,
announced by Bodin in 1576.
• Most immediately, the doctrine of sovereignty inspired
the formulation by Grotius in 1625 of a corresponding
basis for the modern system of international law.
• Shortly after the publication of Bodin's epochal work, a
significant extension of the territorial principle was
proposed by d'Ar- gentre, Du Moulin's chief critic and
the principal figure in the so-called French school.
 Territoriality Theory
• Ulric Huber, to draw the logical conclusion in
conflicts law from the doctrine of sovereignty
in the last quarter of the seventeenth century,
included a brief monograph on the subject,
entitled De Conflictu Legum, in which the
implications of sovereignty for conflicts law
are epitomized in three axioms.
(a) that the laws of each State have absolute force
but only within its territory;
(b) that all persons whether permanently or
temporarily within the territory are bound by the
laws of the State; and
(c) by reasons of comity, the laws of another State
which have been applied within its frontiers maintain
their force everywhere, so long as no prejudice
results to the subjects of the sovereign by whom
recognition is sought
 INTERNATIONAL THEORY
• Savigny’s historical approach was detailed in his eight volume magnu
opus entitled System des heutigen römischen Rechts, or “System of
Modern Roman Law,” published in the 1840s.
• In his treatise on private international law, Savigny developed a new
approach to classifying legal disputes for purposes of choice of law in the
hopes of providing a uniform set of rules that could easily be applied in
courts around the globe when they were confronted with private disputes
with an international element.
• Under Savigny’s approach to private international law, a judge should look
for the “local seat” of the dispute, which today might be the equivalent of
looking for the geographic location most closely connected to the dispute.
To find the “local seat” of the legal relationship, Savigny classified disputes
and identified various factors that might connect them to a particular legal
system.
 Savigny classified disputes and identified factors that
might connect them to a particular legal system.

• The domicile of a person connected with the legal relation. This is

generally controlling as respects capacity, succession, and family
relations.
• The location of a thing to which the legal relation refers. This is
determinative for rights in things, excepting questions of capacity
and procedure.
• The location of a legal transaction which has occurred or is to
occur. This controls obligations arising out of contracts, but not
questions of capacity or delicts.
• The location of the court which has to decide a law suit. This is
con- trolling for matters relating to procedure, as distinguished
from substantive law.
 Failure of the Savingy Theory
• Savigny hoped that this dispassionate and scientific approach would deter forum
shopping and allow for the more effective and uniform disposition of private legal
disputes.
• As such, Savigny looked for common principles that emanated from the practice
of national courts, and not from a theory imposed from above by theorists or
legislatures.
• Despite the technical appeal and widespread acceptance of Savigny’s approach in
finding the locus of a particular dispute, Savigny’s vision of a common set of
international choice of law norms to be applied at the national level largely failed
to materialize in the 20th  Century.  Instead, choice of law rules in international
disputes (the traditional understanding of private international law) have
developed in most instances into a matrix of national laws applied at the local
level.   Competing policy preferences of domestic lawmakers, along with the
realities of judicial decision-making at the local level, have often stood in the way
of developing an international legal regime for conflicts of laws.
 Is Savingy Theory Reviving?
• The 21st  century, however, promises a resurgence of Savigny’s
goals for a universal set of choice of law rules to be applied in
domestic courts.  To date, Savigny’s goal of harmonized rules on
choice of law has succeeded in large part in Europe through
conventions and regulations at the EU level.
• More importantly, on the practical level, the Hague Conference
on Private International Law (HCCH) has been working to
develop a convention that would allow for the recognition and
enforcement of choice of law clauses in international business
contracts.  While this would be a small step towards Savigny’s
vision of universal rules governing choice of law, it is at least a
step in the right direction
 Theory of Acquired Right
• The theory of vested or acquired rights originated with the Dutch jurist
Huber, but it was elaborated in the early twentieth century by common
lawyers; by Dicey in England and by Beale in the USA.
• A judge cannot directly recognise or sanction foreign laws nor can he
directly enforce foreign judgments, for it is his own territorial law which
must exclusively govern all cases that require his decision. The
administration of private international law, however, raises no
exception to the principle of territoriality, for what the judge does is to
protect rights that have already been acquired by a claimant under a
foreign law or a foreign judgment. Extra-territorial effect is thus given,
not to the foreign law itself, but merely to the rights that it has created.
• The theory as advocated by Beale is open to a difficulty of a different
nature. He insisted that the municipal law of the country under which a
right has been acquired must be followed to the exclusion of its choice
of law rules.
 Criticism
• to protect a right is to give effect to the legal system to which it owes
its origin, for a right is not a self-evident fact, but a conclusion of law.
• The defect here is that in a common law jurisdiction the choice-of-law
rules can operate in such a manner that a person might be adjudged
to have a certain right under a foreign law but the court giving
judgement may in fact grant a right that is not valid under the same
foreign law.
• The logic of the vested rights theory requires that the court of the
forum shall apply not merely the domestic rules but also the choice of
law rules of the legal system under which the right is said to have been
acquired.
• The theory of vested rights is analytically defective and is inadequate
as an explanation of the pattern of rules of private international law.
 Local law Theory
• This was expounded by Walter Wheeler Cook, who differed from earlier jurists with
regard to the value of so-called fundamental principles.
• His method, congenial to English lawyers, was to derive the governing rules, not from
the logical reasoning of philosophers and jurists, but by observing what the courts have
actually done in dealing with cases involving private international law issues.
• The gist of the local law theory as formulated by Cook is that the court of the forum
recognises and enforces a local right, ie one created by its own law. This court applies its
own rules to the total exclusion of all foreign rules. But, since it is confronted with a
foreign-element case, it does not necessarily apply the rule of the forum that would
govern an analogous case purely domestic in character. For reasons of social expedience
and practical convenience, it takes into account the laws of the foreign country in
question. It creates its own local right, but fashions it as nearly as possible on the law of
the country in which the decisive facts have occurred.
• Criticism : affords no basis for the systematic development of private international law.
 THEORY OF JUSTICE
• The Theory of Justice was developed by Dr
Graveson with the only basis of delivering true
justice. Ideally Dr Graveson also believes that
his theory is not a straight jacket rule for every
case possible, but his main aim is to deliver
pure justice keeping in mind precedents,
having good conscience and equity.
• According to him private international law has a
threefold premise, namely- sociological, ethical and
legal. Sociologically, it calls for a need fair
treatment of private transactions of individuals
internationally. Ethically, it speaks about the desire
of English courts to do justice by looking at the
training and traditions of jurors, judges and lawyers
in their day to day delivering of justice. Lastly,
legally, it rests on the terms of oaths of the judges.
Basics of PIL/ Scope of Private/Functions
of Private International law
1. Jurisdiction
2. Choice of Law(Characterization of the issues,
Connecting factor, Application of Foreign Law
3. Recognition and Enforcement of Foreign
Judgement
Nepalese Position on Private
International Law
 Beginning of the Nepalese Private
International Law ( Formal Sense)
• Whereas the Europe has history of centuries of private
international law, Nepal has hardly 7 decades of history in
Private International Law.
• The first recorded case of Private International law in
Nepal dates back to (2020 B.S) and the first statutory
provisions dealing with the multifaceted aspects of private
international law dates back to 2017.
• 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.
 Some Significant Development
• 2020 B.S - Minadevi V Shatashamsher J.B.R J.B.R [N.K.P 2029 B.S]
decision No 688 [SC].
Issue: claim of partition share, for herself and her son, on her husband’s
movable and immovable property situated in India and 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.
Criticism: failed to make differentiation between different rules of private
international law that one can apply in dealing with the issue of movable
and immovable property separately.
 2022 B.S: Tung Sumser JBRv Indian Airline Corporation [N.K.P 2024 B.S] ,
decision No 389[ SC], dissecting opinion of Justice Prakash Bdr Kc.

• 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.
• Decision: The Court reached its verdict without considering any
rule of private international law
• 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.
• Prakash Bdr K.C comprehensively discussed the
history, development, scope and the principle of
Private International Law in general.
• Considered Nepal to be following mixed rule- rule
of domicile and rule of nationality while choosing
connecting factor.
• Recognised Public Policy exception as limitation to
application of Private International law
 Umadevi Sundari V Basanta Kuwarwa
[ N.K.P 2029],Decision No 708 [SC]

• In the case of Uma Sundari Devi the Court

reiterated its holding in Minadevi stating that
in the absence of any agreement between the
countries, the issue of immovable property
should be decided according to the law of the
country where the property is situated (Nepal,
thus subscribes to the principle of lex situs in
disputes related to immovable property).
 Afterwards Multiparty Democracy
• But after 2047 B.S Nepal adopted liberalized
economic policies and consequently opened
its market for foreigners.
• With this number of disputes involving foreign
elements beyond India emerged out.
Maria Victoria v Kami Sherpa [ N.K.P 2067], decision no. 8505 [SC].

• Fact : Maria Victoria, married to a Nepalese citizen, filed a polygamy

complaint against her husband. 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.
• Court held: took foreign divorce decree in judicial notice and held
revocation of visa as legal but as the partition case was going on on
district court, suspended revocation of visa unless the court award final
decision in partition case taking into account her due process right.
• Draws the attention of the government to make appropriate laws in
Nepal on the recognition of foreign judgments.
• Sabina Pandey v Puskarraj Pandey [ NKP 2068 B.S] decision no. 8572
[SC]
Decision
• Issue of competency of Foreign Court(she did not have domicile in the
USA neither she has ever submitted herself to jurisdiction of US Court,
so USA court lack the jurisdiction to decide matter hence declared USA
court to be incompetent)
• 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.) ( This reasoning is upheld only by the
division bench, full bench did not upheld this reasoning)
• Issue of Recognition and Enforcement of Foreign Judgment
Since the case was not decided by the court of competent jurisdiction,
Sabina Pandey was denied from access to Justice, and public policy
concern was there in the case, supreme court of Nepal refused
recognition of foreign judgment.
• Suman Panta v Immigration Department and others [6th Kartik
2074 BS] decision no 9921 NKP 2074 [Supreme Court of Nepal].
• The applicant was a Nepali national who belonged to the LGBTI
community. When she went to USA for her study, she got married
to US National Lessi Louis in 2015. Later, when Lessi Louis applied
for a non- tourist visa in Nepal based on her marital relation with
an applicant, the Immigration department unnecessarily delayed
deciding on the matter. Hence the writ was filed. The court held
the Constitution of Nepal ensure equality for all. It prevents
discrimination on the ground of sexual orientation. If any foreigner
claimed to have concluded marriage to Nepali citizen and
submitted the required document thereof, and the same assertion
has also been accepted by Nepali national, who happens to be
spouse, in the visa application form; such foreigner shall be
entitled to get a non-tourist visa without any distinction based on
sex.
 Hanil Engineeneering &Construction Co.Ltd v Appelate Court Patan [N.K.P 2075]
decision no. 10138 [SC].

In 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) . 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.
• Statutory Provisions
 Muluki Dewani Samhita 2017, Part VI
• The chapter begins with the scope of application
clause—it mentions that the chapter would be
applicable to issues of private law involving
foreigners, foreign objects or any act carried out in a
foreign country. (collectively referred as foreign
element) (Sec 692)
• It specifies rules relating to jurisdiction, choice of law,
and recognition and enforcement of foreign
judgment. The chapter made a detailed explanation
of the provisions regarding choice of law.
 Jurisdiction
• Nationality, Residence ( 716,717,718, 719)
 Choice of Law
• Sec 693-705, 707,708,709, 710 (first part),
711-713, 715
 Recognition and Enforcement
• Sec 706, 710( Second half)
 Other general clause
• Conflict (Supremacy of Intl law, Sec 720)
• Residual Rule( Sec 714, 721)
• Limitation clause (Sec 721, Public Order Exception)

• Other provisions
• Chapter on Intercountry Adoption
• Section 20 and 21 of MulukiDewani Procedure Code
 Observation on the Provision of Code

• Several Ambiguities exists in the provisions

• No provision regarding the choice of law in
cross border divorce cases
• Commentary is very much required. In the
absence of commentary, it is very difficult to
find out the scope of some provision for
example sec 698.
 Section 34 of Arbitration Act 1999
As per the Act, the grounds for recognition and enforcement of the foreign arbitral
award are as follows
a. the arbitrator should be appointed, and an award should be made according to the
laws and procedure mentioned in the agreement.
b. the parties should be notified about the arbitration proceedings in time.
c. the decision should be taken according to the conditions mentioned in the
agreement or upon confining only to the subject matters referred to the arbitrator.
d. the decision should be final and binding on the parties according to the laws of the
country where the decision has been taken.
e. the laws of the country of the petitioner or the laws of the country where
arbitration proceedings have been conducted should not contain a provision under
which arbitration award taken in Nepal cannot be implemented.
f. the application for the implementation of the award should be filed within 90 days
from the date of the award.
 Mutual Legal Assistance Act 2014
• As per Section 37 of the Act, the district court of Nepal
shall enforce the foreign judgments related to a civil
case in the following conditions.
• a. competent court with appropriate jurisdiction has
made such judgement
• b. such judgement is capable of being enforced in the
concerned country,
• c. such judgement has become final and is not capable
of being reviewed pursuant to the law of the
concerned country
• Notwithstanding anything contained , a judgment made by the court of a foreign country
shall not be recognized and enforced in Nepal if:
• (a) such judgment has been obtained by deception or fraud from the procedural perspective,
• (b) a case was filed in a court of Nepal prior to its being filed in a foreign court between the
same parties, over the same fact, and for the same purpose as the parties, fact and purpose
being involved in such judgment and is sub judice in the court of Nepal,
• (c) judgment has already been made by the court of Nepal in the case mentioned in clause
(b),
• d) in the case mentioned in clause (b), judgment has been made by a court of another
country and such judgment has already been recognized and enforced in or is in the process
of being enforced in Nepal,
• (e) adequate opportunity has not been given to any party to fairly represent himself or
herself in such judgment,
• (f) such judgment has been made in defiance of the regular procedures required for the trial
of a case,
• (g) enforcement of such judgment would be contrary to public ord
• Sec 4 : Conditions of not exchanging mutual legal assistance:
Notwithstanding anything contained in Section 3, mutual legal
assistance shall not be extended if-
(a) in relation to a matter of civil nature, the judicial proceedings
involve the amount in controversy of less than one hundred
thousand rupees,
(b) in relation to a matter of criminal matter, the offence is
punishable by imprisonment for less than one year or a fine of
less than fifty thousand rupees,
(c) the extension of mutual legal assistance as requested by a
foreign state undermines or results in the undermining of the
public order (odre public) or sovereignty of Nepal
• Sec 5. Matters of mutual legal assistance:
Mutual legal assistance may be provided
between Nepal and a foreign state in the
following matters related with judicial
proceedings:
………………enforcing judgments.
Problems with Mutual Legal Assistance Act

• As the term civil cases has not been defined it is

doubtful if the provision can be invoked to
recognise foreign matrimonial judgment, judgment
related to tort matters. The scope of Sec 37 is not
much clear. In the light of Sec 4 , it feels this
provision covers only to the issue of recognition of
monetary judgment but the expression
notwithstanding anything contained in this Act
suggest it other way around. Hence, the scope of
Sec 37 is ambigious.
Problem of PIL in Context of Nepal

Very less discussed and more misunderstood

 Recent Trends
• Mutilaterisation of Private International Law from Domestic Law
• Development of Fourth wings of private International law I,e the
legal cooperation
• Euro centrism to Inclusivity
• Gender Dimension
• Multidisciplinary
• Challenges posed by Digitalisation (issue of crypto currency,
Bitcoins, Block Chain Technology)
• Revival of HCCH Conventions so as to make is timely
• Codification in the new areas- Surrogacy issue, direct jurisdiction