NEPAL Law and Practice Contributed by: Purna Man Shakya, Prakrit Shrestha and Dechen Gurung, Reliance Law Firm
or procedural law are supported by the involvement of Nepal-qualified counsel.
a Nepali court would apply in domestic litigation. This freedom is always subject to the overriding require - ment in Section 22 (1) that each party be given an equal and adequate opportunity to present its case (see 7.3 Powers and Duties of Arbitrators ). A depar - ture from that requirement can found a due-process A tribunal seated in Nepal has no direct coercive power over non-parties. Section 21 (1)(a) allows the tribunal to direct the parties themselves to appear, produce documents and give statements, but this power runs only against the parties to the arbitration (see 7.3 Powers and Duties of Arbitrators ). objection at the set-aside stage. 8.3 Powers of Compulsion Where compulsion of evidence from a party or a non- party is required, Section 23 allows the arbitrator, on its own motion or a party’s request, to seek the assis - tance of the District Court (see 6.2 Role of Courts ). The District Court will then examine the evidence in question “according to the prevailing law”, effectively using the court’s own coercive powers to compel testimony or production the tribunal cannot compel directly. This mechanism is available regardless of whether the person concerned is a party or a third party. In prac - tice, it is most often invoked to secure the attendance or co-operation of non-parties who are not otherwise obliged to co-operate with the tribunal. Nepali arbitration is presumptively confidential. Sec - tion 19 requires that hearings be held in camera unless the parties agree otherwise (see 7.2 Proce- dural Steps ). Section 42 (4) reinforces this at the award stage: the arbitrator must deposit the complete case file with the District Court once proceedings conclude but is prohibited from giving a copy of the award or related documents to anyone other than the parties without their approval. Confidentiality thus extends to the 9. Confidentiality 9.1 Extent of Confidentiality
8. Evidence 8.1 Collection and Submission of Evidence Evidence is submitted principally in written form at the pleading stage. Section 14 (1) of Arbitration Act requires the claimant to file its claim together with all supporting documents and evidence, and to identify any witnesses by name and address; the burden is on the party relying on a witness to produce that witness at the hearing. Section 14 (6) requires each party to supply copies of any document it submits to the other party, ensuring basic disclosure between the parties. There is no general documentary discovery obliga - tion of the kind familiar from common-law litigation, no formal doctrine of privilege codified in the Act and no default requirement for cross-examination. Tribu - nals in practice nonetheless permit examination and cross-examination of witnesses and experts, under their general procedural discretion (Section 17 (1)) and their power to record witness statements and appoint experts (Section 21 (1)(b) and (c)) (see 7.3 Powers and Duties of Arbitrators ). Tribunals seated in Nepal commonly adapt their evi - dentiary approach to the parties’ expectations. In international cases, they frequently look to instru - ments such as the IBA Rules on the Taking of Evi - dence for guidance, notwithstanding that those rules have no formal status under Nepali law. 8.2 Rules of Evidence The Arbitration Act does not import the Evidence Act, 2031 (1974), which applies to proceedings before the ordinary courts, or its rules on admissibility, compe - tence of witnesses or standard of proof. Section 17 (1) of the Arbitration Act instead leaves procedure, including the treatment of evidence, to the parties’ agreement and, failing agreement, to the tribunal’s own discretion exercised in consultation with the par - ties. Arbitral tribunals are accordingly free to adopt a more flexible and less technical approach to evidence than
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