Chapter 7 Miscellaneous
- Bilateral or multilateral investment agreement may be concluded: The Government of Nepal may bring into foreign investment by concluding a multilateral or bilateral investment agreement with any foreign friendly country or international institution for the promotion of foreign investment.
- Agreement may be made: (1) In making investment in any industry jointly by a Nepali investor and a foreign investor, a joint agreement concerning foreign investment may be made with respect to that investment, subject to this Act.
(2) The agreement referred to in sub-section (1) shall provide for, inter alia, the terms of joint, distribution of profits earned from the investment and settlement of disputes relating to investment.
- Settlement of disputes: (1) If there arises any dispute between a Nepali investor and a foreign investor in relation to foreign investment, the Department may make it necessary facilitation in order that such a dispute is settled by the concerned parties through mutual discussions or negotiations.
(2) If the dispute cannot be settled through the process referred to in sub-section (1) within a period of forty-five days after the dispute has arisen, and a joint investment or dispute settlement agreement exists between the parties to the dispute for the resolution of such a dispute, the dispute shall be settled in accordance with such an agreement.
(3) The parties shall give information about the settlement of the dispute in accordance with sub-section (2) to the Foreign Investment Approving body not later than fifteen days of its settlement.
Provided, that the parties shall not be bound to give information about on what terms and conditions such a settlement has been made.
(4) If the agreement concluded between the parties in accordance with sub-section (2) has no provision about the settlement of disputes, such a dispute shall be settled by arbitration in accordance with the arbitration law of Nepal.
(5) Any dispute arising in connection with any foreign investment shall be settled by arbitration in accordance with the prevailing Rules or Procedures of the United Nations Commission on International Trade Law (UNCITRAL), unless otherwise agreed upon by the parties to the dispute.
(6) Arbitration to be conducted in accordance with this Section shall be held in Nepal, and substantive law of Nepal relating to arbitration shall apply.
Provided, that with respect to the case referred to in sub- section (2), the provision contained in that sub-section shall apply.
(7) If no agreement was made between the parties on the settlement of dispute prior to the arising of the dispute or if they realise that the agreement, if any made, is inadequate, the concerned parties may make an agreement for the settlement of a dispute even after the dispute has arisen. Information of the agreement so made shall be given to body registering the industry.
(8) Any dispute with respect to the agreement made in accordance with sub-section (7) may also be settled in accordance with this Section.
- Electronic means may be used: The foreign investment approving body may perform functions relating to approval for foreign investment in accordance with this Act and other acts and actions related thereto through recognised electronic means, in accordance with the prevailing law relating to electronic transactions.
- Provisions relating to automatic approval process may be made: (1) The Government of Nepal may, by notification in the Nepal gazette, provide services, such as registration of companies, registration of industries, approval of foreign investments in accordance with this Act and the prevailing law, through the automatic route in order to make the process of foreign investment simple, easy.
(2) Other provisions relating to the automatic route referred to in sub-section (1) and the online system shall be as prescribed.
- Validity period of approval of foreign investment: (1) The approval of foreign investment given by the foreign investment approving body shall remain valid for a period until such investment remains in Nepal.
(2) Notwithstanding anything contained in sub-section (1), such approval shall be deemed to be ipso facto ineffective in the following circumstance:
(a) In the event of failure, except for any reasonable reason, to commence bringing into Nepal of the amount of such foreign investment within two years after the date of the approval of foreign investment,
(b) In the event of transfer of cent percent ownership of an industry with foreign investment to a Nepali investor as a result of the sale of shares in the industry registered with the approval of foreign investment,
(c) In the event of the revocation of its registration as a result of a default on the part of the industry having got approval for foreign investment or the company establishing such an industry.
(3) Other provisions relating to the validity period of the approval of foreign investment shall be as prescribed.
- Terms to be complied with: A foreign investor shall comply with the terms as prescribed, in addition to the terms referred to, in this Act.
- Production may be made upon making contract: (1) Any industry with foreign investment may produce any part of its production or such subsidiary goods or services as required for the industry, except its main production, by a contract with another industry.
(2) Other provisions relating to production upon making contract shall be as prescribed.
- Power of attorney may be given: (1) A person who wishes to make foreign investment in accordance with this Act give a power of attorney to another person to perform any, some or all of the acts, actions required to be performed by that person. All acts, actions performed by the authorised person in accordance with the power of attorney shall be deemed to have been performed by the investor himself or herself.
(2) In order to perform the act in accordance with a power of attorney given in accordance with sub-section (1), such a power of attorney shall be notarized and provided to the foreign investment approving body. The foreign investment approving body may, if it so considers necessary, look at the original of such a power of attorney.
(3) A person who is authorised in accordance with sub-section (1) may not delegate the authority conferred on him or her to another person.
(4) The person who gives a power of attorney may, at any time, withdraw the power of attorney given by him or her. The power of attorney shall become invalid from the date on which the person giving such power of attorney registers the information of such withdrawal of the power of attorney with the foreign investment approving body.
(5) Other provisions relating to the giving of power of attorney shall be as prescribed.
- Delegation of powers: The Board or Department may, as required, delegate some powers out of the powers conferred on it in accordance with this Act or the rules framed under this Act to any body or officer of the Government of Nepal.
- Foreign investment in any industry registered in Province: (1) If foreign investment or transfer of technology is to be made in any industry registered by the Government of a Province in accordance with the prevailing Federal or Provincial law, approval of the Department shall be obtained in accordance with this Act.
(2) The certificate of registration of industry with the Province and recommendation of the Provincial ministry looking after the matters of industry, among other things, shall be submitted in order to obtain the approval in accordance with sub-section (1).
(3) Other provisions relating to foreign investment in an industry registered in a Province shall be as prescribed.
- Application of prevailing law: The matters contained herein shall be governed by this Act and the other matters shall be governed by the prevailing law relating to industrial enterprises and other prevailing law.
- Power to make alteration in the Schedule: The Government of Nepal may, by notification in the Nepal gazette, make necessary alteration in the Schedule.
- Power to make rules: The Government of Nepal may frame necessary rules for the implementation of this Act.
- Power to make and enforce Directives, Procedures or Standards: The Government of Nepal may, without prejudice to this Act and the generality to the Regulation framed under this Act, make and enforce necessary Directives, Procedures or Standards.
- Repeal and saving: (1) The Foreign Investment and Technology Transfer Act, 1992 (2049) is hereby repealed.
(2) The acts and actions performed under the Foreign Investment and Technology Transfer Act, 1992(2049) shall be deemed to have been performed under this Act.