<figure><img width="1500" height="1149" src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/20221108121136/636a40019c7e80680e04a5f8jpeg.jpg" alt=""/><figcaption>Illustration: BHANU BHATTARAI</figcaption></figure>The spate of investment treaty arbitrations that have inundated developing countries in recent times has now reached Nepal. At stake is a Rs39.06 billion tax imposed by the Large Taxpayers Office (LTO) on <a href="https://www.nepalitimes.com/opinion/ncell-ruling-opens-a-can-of-worms/" target="_blank" rel="noopener">Ncell</a>, following a decision of the Supreme Court.Ncell subsequently contested the LTO tax assessment, submitting that it is liable to pay only Rs14.5 billion. It also obtained an interlocutory interim stay from the Supreme Court on these grounds.The initiation of investment treaty arbitration by Axiata Investment UK Ltd (Axiata UK) through an intermediate special purpose vehicle not directly investing in Nepal, while challenging the same action before the Supreme Court of Nepal and bypassing other statutory remedies, raises several questions as to the use of investment treaty arbitration and the International Centre for Settlement of Investment Disputes (ICSID).Read also:<a style="background-color: #ffffff; font-size: 15px; letter-spacing: 0.01em;" href="https://www.nepalitimes.com/opinion/ncell-ruling-opens-a-can-of-worms/" target="_blank" rel="noopener">Ncell ruling opens a can of worms</a>, Semanta Dahal<a style="background-color: #ffffff; font-size: 15px; letter-spacing: 0.01em;" href="https://www.nepalitimes.com/here-now/supreme-court-weighs-in-on-ncell-tax-dispute/" target="_blank" rel="noopener">Supreme Court weights in on Ncell tax dispute</a>, Sharad OjhaAxiata UK filed a request for arbitration before the ICSID against the Government of Nepal regarding the capital gains tax levied by Nepal’s tax authorities on the indirect transfer to Axiata UK of an 80% stake in <a href="https://www.nepalitimes.com/here-now/supreme-court-weighs-in-on-ncell-tax-dispute/" target="_blank" rel="noopener">Ncell</a> through the sale of Reynolds Holdings Limited, by the previous foreign investor, TeliaSonera Norway Nepal Holdings AS to Axiata UK.The arbitration was initiated on the basis of the bilateral investment treaty between the governments of Nepal and the UK (UK-Nepal BIT) on 2 March 1993. In parallel, Ncell has also initiated proceedings before the Supreme Court of Nepal challenging the CGT assessment by the tax authorities.In doing so, Ncell and its indirect shareholder Axiata UK have not availed statutory remedies otherwise available under Nepal's law to challenge the assessment. This presents the government with some credible arguments to resist the investment treaty claims.First, it is doubtful whether Axiata UK’s indirect acquisition of Ncell’s shares qualifies as an ‘investment’ in terms of Article 1(a) read with Article 8(1) of the UK-Nepal BIT. Axiata UK’s role in the transaction is limited to its acquisition of Reynolds, which owns 80% of the shares of Ncell.Moreover, Axiata UK is a wholly owned subsidiary of Malaysia-based Axiata Group Berhad. The Government of Nepal could argue that Axiata UK Ltd has no real interest in the transaction and is merely being used as a vehicle to bypass the jurisdictional hurdle of the UK-Nepal BIT.Previous investment treaty arbitrations have found that a mere passive investor, such as a company which conducts no business of its own but merely holds shares in a company incorporated in the host state, will not be able to invoke the jurisdiction under a bilateral investment treaty.It could be argued that Axiata UK is required to exhaust local remedies before resorting to arbitration under the UK-Nepal BIT. The ICSID Convention expressly provides that if a dispute arises, parties may refer the dispute to arbitration if they are unable to resolve it within three months ‘through pursuit of local remedies or otherwise’. By its decision on 6 February, the Supreme Court held that capital gains tax could be levied on the transaction. Thereafter, the capital gains tax was computed by the assessing authority, and this assessment was also challenged by Ncell by way of a writ petition before the Supreme Court on 21 April. Subsequently, Axiata UK submitted its request for arbitration, as announced on 26 April.The sequence of events shows that the decision to invoke arbitration under the UK-Nepal BIT was made immediately pursuant to the calculation of capital gains tax liability, instead of pursuing local remedies to challenge the assessment. The strategy of ignoring statutory remedies and instead relying on constitutional and investment treaty protections appears to have been motivated by the desire to avoid the requirement of depositing one-third of the disputed tax liability as a condition to challenge the assessment under Nepali tax laws.The government can now argue that the invocation of arbitration is against the letter and spirit of the UK-Nepal BIT and the ICSID Convention.Ncell’s present challenge before the Supreme Court is limited to the amount of tax, and Ncell has itself admitted a portion of the liability. It is questionable whether a dispute on the quantum of tax can be referred to arbitration under the UK-Nepal BIT.In matters involving taxation, a claim for expropriation will ordinarily involve showing that the tax liability in question has been imposed as part of a designed and deliberate set of measures to deprive the investor of the value of their investment. Such claims in previous cases have typically involved retrospective legislation where local tax law has been applied in a patently arbitrary and discriminatory manner by the host state. Establishing such a high threshold may be difficult for Axiata UK.The Government of Nepal can now consider all options available, including raising preliminary objections on jurisdiction under Rule 41 of the ICSID Arbitration Rules and Article 41 of the ICSID Convention, at the earliest.Semanta Dahal and Vikas Mahendra are lawyers and partners at Abhinawa Law Chambers (Nepal) and Keystone Partners (India).

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Nepal has strong case on Ncell arbitration

<img width="1050" height="696" src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/20221108101144/636a25c89c7e80680e0439dfjpeg.jpg" alt=""/>The Supreme Court’s verdict on Wednesday requiring the Malaysian company Axiata and Ncell Nepal to pay billions capital gains tax on their purchase of Nepal’s largest private telecom provider Ncell will end a <a href="http://archive.nepalitimes.com/blogs/thebrief/2016/06/03/taxing-time-for-ncell/" target="_blank" rel="noopener">controversy</a> that has dragged on for three years, but is expected to further chill <a href="https://archive.nepalitimes.com/regular-columns/Comment/making-nepal-fdi-friendly,853" target="_blank" rel="noopener">Nepal’s foreign investment climate</a>.A full bench of the apex court headed by Chief Justice Cholendra Shumsher Rana decided after two days of hearings that Reynolds Holdings Ltd was a shell company and the real owner of <a href="http://archive.nepalitimes.com/blogs/thebrief/2016/05/16/the-tax-in-question/" target="_blank" rel="noopener">Ncell</a> was <a href="http://archive.nepalitimes.com/blogs/thebrief/2015/12/21/axiata-buys-80-stake-in-ncell/comment-page-1/" target="_blank" rel="noopener">Axiata</a>, and it was liable to pay the tax along with Ncell Nepal.Justices Rana, Mira Khadka, Bishwambhar Prasad Shrestha, Ananda Mohan Bhattarai and Tanka Bahadur Moktan were deliberating on a public interest litigation writ filed by former secretary and advocate Dwarika Nath Dhungel and six others that Ncell Nepal and Axiata were responsible to pay capital gains tax when they bought the company from the <a href="http://archive.nepalitimes.com/article/interview/Nepal-very,1104" target="_blank" rel="noopener">Swedish-Finnish telecom company TeliaSonera</a> in 2016.When TeliaSonera sold Reynolds Holdings shares in Ncell to Axiata for over $1 billion, Nepal’s Large Tax-payers’ Office had said Reynolds owed the government Rs35 billion in taxes and demanded it pay the amount and fines to a total of Rs61 billion.Ncell Nepal refused to pay that full amount, and transferred only Rs21 billion capital gains tax. After this, the writ was filed, and the Supreme Court on Wednesday also rejected a case filed by Ncell.The case became controversial after two foreign investors traded ownership of a Nepal-based telecom company. Since TeliaSonera has already left Nepal, the Court found that the buyer is liable to pay capital gains tax if the seller did not.Senior advocate Surendra Bhandari says that it is international practice that the seller has to pay capital gains tax on any sale of assets, but says the Supreme Court is right in assessing that the seller was allowed to leave the country without paying tax and to put the onus on the buyer.Wednesday decision now sets a precedent for the buyer to also be responsible for paying capital gains tax. Officials at the Internal Revenue Service say that although the country’s treasury will benefit from the tax payment, there has been no investigation into why the seller was allowed to get away without paying taxes, and fears that the case will have negative repercussions on future investment.Eighty percent of Ncell’s ownership is with Reylonds Holding registered in the British Virgin Islands and 20% with Niraj Govinda Shrestha. Ncell’s main promoter was Reynolds Holding through TeliaSonera’s office in Norway.According to Nepal’s tax laws, TeliaSonera’s sale of Ncell to Axiata had a capital gains tax liability of Rs35 billion. Axiata had written to the Internal Revenue Office before the sale if it was liable to pay capital gains tax in Nepal, but there was no reply from its director at the time, Chudamani Sharma.After that the tax controversy got mired in politics, with various party leaders and former CIAA chief <a href="https://archive.nepalitimes.com/regular-columns/Legalese/parliament-and-court-plays,822" target="_blank" rel="noopener">Lokman Singh Karki</a> vying for underhand deals that would let the guilty go free. Says advocate Bhandari: “The Supreme Court decision seems to be driven by the logic that any buyer should first inquire about the liabilities of the seller before any purchase.”However, other retired revenue officials say it is unfair to blame Axiata, and ask it to pay capital gains tax that should have been paid by TeliaSonera. He says the really guilty party here are the politicians who allowed TeliaSonera to leave without paying taxes, and this will dim Nepal’s investment climate just before an Investment Summit planned for next month, and after <a href="https://www.nepalitimes.com/here-now/to-davos-with-hammer-and-sickle/" target="_blank" rel="noopener">Prime Minister KP Oli’s visit to Davos</a> with the message that <a href="https://www.nepalitimes.com/editorial/crony-communism/" target="_blank" rel="noopener">Nepal was open for business</a>.The Surpeme Court verdict has also exposed a loophole in Nepal’s tax laws that allows shell companies to get away without paying taxes. TeliaSonera had its dividends frozen in Nepal by the Large Tax-payers’ Office, but the Supreme Court allowed the company to repatriate its profits.   According to the <a href="https://www.nepalitimes.com/latest/nepalis-in-tax-havens-swiss-banks-money-laundering/" target="_blank" rel="noopener">Nepal Leaks exposes</a> by the Centre for Investigative Journalism and the International Consortium of Investigative Journalists, Ncell owners had used the company to launder money as foreign direct investment. Ajeya Raj Sumargi, a businessman close to the former Maoist party and Birendra Mahato of the Federal Socialist Forum Nepal and brother of billionaire overseas Nepali Upendra Mahato were implicated in documents leaked through the Panama Papers about tax havens.The verdict this week opens the door for Nepal to tax FDI that is coming in from offshore tax havens.   Read also: <a href="https://archive.nepalitimes.com/regular-columns/Comment/making-nepal-fdi-friendly,853" target="_blank" rel="noopener">Making Nepal FDI friendly,</a> Shyamal K Shrestha<a href="http://archive.nepalitimes.com/news.php?id=962#.XFwMylUzaUk" target="_blank" rel="noopener">Fight for FDI</a>, Ashutosh Tiwari<a href="https://archive.nepalitimes.com/article/from-nepali-press/Ncell-has-complied-to-all-obligations,3047" target="_blank" rel="noopener">"Ncell has obliged to all obligations"</a>

Supreme Court weighs in on Ncell tax dispute

Who is accountable for teacher-student relationships?

Of the nearly 19 million eligible voters in next week’s election in Nepal, an estimated 5 million are abroad and cannot cast their ballots. Many others within Nepal must travel to their home districts, and might decide not to because of the cost.
Flights into Kathmandu these days are full of global Nepalis returning just to vote, but almost as many are leaving for overseas jobs. Most of those coming or going are in the 20-40 age group, and a majority want Nepal to see a change in leadership.
Bangladesh held an election this month in which citizens overseas could vote by mail.&nbsp;
“Bangladesh made maximum use of technology not just for campaigning but also for polling itself. We could have also managed this, so people within Nepal did not have to travel to their home districts to vote,” says Mohna Ansari, former head of Nepal’s National Human Rights Commission who was an election observer in Bangladesh.
A 3-day holiday has been declared so people can travel to their home constituencies to cast ballots. Even if there was not enough time to manage ballots for overseas Nepalis, it could have been done for Nepalis within Nepal.
Former Chief Election Commissioner Bhojraj Pokharel reckons that physical voting in countries with a large Nepali diaspora would have been a logistical nightmare, but in the PR system, using electronic voting machines or paper ballot could have been piloted in some places. It is not possible to manage the entire voting process until we introduce the internet voting system.
“First of all, there needs to be political will to bring the policy and be ready to undertake that level of investment and it is not a one-time cost,” Pokharel says. “A government formed by the GenZ could have atr least issed an ordinance ensuring this right, piloted out-of-country voting where possible, which could have built pressure for the future Parliament and the government. It would have given people hope. It is a lost opportunity.”
All major political parties called for voting rights for global Nepalis in their manifestos, but these very leaders blocked legislation allowing it despite a 2017 Supreme Court ruling out of fear that it would be anti-incumbent.&nbsp;
<h2>Why so late?</h2>
Bangladesh delivered election results in just one day, but the final results of Nepal's last local polls in 2022 including that of Kathmandu constituencies took nearly a month.
Acting Chief Election Commissioner Ram Prasad Bhandari said this week that the results of the First-Past-The-Post (FPTP) ballot counting would “likely” be published within 24 hours of the poll closing at 5PM on 5 March. But many are skeptical.
“I wonder if we lack the capacity or know-how to announce results as quickly as possible,” says Mohna Ansari.
Former Chief Election Commissioner Pokharel says manual ballot paper counting in Nepal is inherently slow because of the large numner of political parties and/or candidates on the ballot, the counting mechanism, the political behaviour of the candidates/parties and some managerial issues during counting.
“Our present policy is to count all the ballot papers at the returning officers' officies, located at the district headquarters. It requires collecting ballot boxes safetly first. This takes time, and there have been cases of ballot boxes being damaged or stolen during transport. In a few highly difficult, geographically remote polling centres, we use a helicopter or transport. But sometimes, accommodating the party and candidates' representatives remains challenging,” explains Pokharel. A solution could be counting ballots at the very booths where they are cast.
Another reason for the delay is simply the number of political parties, and the need for each ballot paper to be examined by booth representatives for consensus. In close races, the smallest difference can lead to tense situations, further delaying results, even though counting centres are protected by metal fencing so there is no disruption.
After this, then it is the turn of Proportional Representation (PR) ballots to be counted. Weeks pass by the time the results of candidates and parties are tallied and verified. But the most common delay is because election officers think ballot counting is a nine-to-five job.&nbsp;
“The efficiency of poll station officers is most important, and they are incentivised for this,” says Ansari, adding that counting can even start within an hour after voting closes.
In remote areas, local resources could be mobilised to make counting quicker, but there is a crisis of trust, adds Ansari.&nbsp;
That could be easily solved with electronic voting which the EC implemented in the 2008 polls but discontinued because political parties felt the machines could be hacked or manipulated.

Nepalis Select Who To Elect

On Saturday, Iran retaliated with missile strikes on Abu Dhabi, Dubai, Bahrain and Qatar, a region where there are an estimated 2 million Nepalis working to send money home. In addition, thousands of Nepalis were preparing to board flights to Kathmandu from West Asian cities this weekend to vote in the 5 March election. Many are said to be stranded at various aviation hubs. A Qatar Airways flight from Doha took off just before the air space was closed, while Air Arabia and Kuwait Airways have diverted or cancelled flights. Nepalis in the West Asian region said things were relatively calm where they were, although some heard loud explosions at about noon local time. In Dubai, some thought they were Ramadan fireworks.&nbsp; In Kuwait, nearly 2,000 Nepalis working in the US military base as security guards and cleaners were evacuated before the strikes. In Bahrain where the US Fifth Fleet naval base is located and which was hit by two Iranian missiles, workers contacted by Nepali Times said the situation was under control and the authorities had told everyone to stay indoors and not use highways. The conflict also coincided with the beginning of Nepal’s trekking and mountaineering season, and tourists were either on their way or planning to leave European and North American cities for Himalayan hikes. Most of them transit through Doha, Dubai or Kuwait and all three airports are closed. Turkish Airlines flights via Istanbul are still operating.  <figure> <img src="https://publisher-publish.s3.eu-central-1.amazonaws.com/pb-nepalitimes/swp/asv65r/media/20260228130212_ab5e132d56da1df6a3fb1b6919648f845a168ad2c51d79f7587fb85a6e913b97.png" data-media-id="editor_0" data-image-id="20260228130212_ab5e132d56da1df6a3fb1b6919648f845a168ad2c51d79f7587fb85a6e913b97" data-rendition-name="original" width="1864" height="826" loading="lazy" alt="Qatar and UAE airspace closed"> <figcaption>Qatar and UAE airspace closed. Credit: Flightradar24</figcaption> </figure>  However, the main impact for the world could be a spike in the price of petroleum products if the strategic Strait of Hormuz is blocked. China relies on Iranian oil for their refineries, and Nepal could be affected indirectly if the economies of its neighbours are hit. Nepal imports all its diesel, petrol, LPG and aviation fuel from India which sources it mainly from the Gulf, and until recently from Russia. Petroleum makes up 25% of the value of all imports, and that is more than Nepal earns from all its exports. Saudi Arabia this year overtook the UAE as the main destination for Nepali workers, with the number now totalling 400,000. There are said to be as many in the UAE, and another 350,000 in Qatar. There are another 100,000 mostly women in Kuwait, and 50,000 each in Oman and Bahrain.  <figure> <img src="https://publisher-publish.s3.eu-central-1.amazonaws.com/pb-nepalitimes/swp/asv65r/media/20260228130220_d24ae633ff84f283835434becdb2f1351f84c415ce87ca34378bd4e2669661b3.jpg" data-media-id="editor_1" data-image-id="20260228130220_d24ae633ff84f283835434becdb2f1351f84c415ce87ca34378bd4e2669661b3" data-rendition-name="original" width="1500" height="1000" loading="lazy" alt="West Asia Iran conflict"> <figcaption>Iran retaliated with missile strikes on Abu Dhabi, Dubai, Bahrain and Qatar on Saturday.</figcaption> </figure>  Nepal receives nearly $11 billion a year in remittances from overseas Nepalis (not counting India) through official channels, although the total is said to be much more. &nbsp;This makes up more than a quarter of Nepal’s GDP equivalent — one of the highest proportions in the world. More than half of the overseas remittances to Nepal comes from its workers in the Gulf, and it is the mainstay of the country’s economy. Nepalis in Saudi Arabia, Qatar and the UAE alone send home more than $3 billion a year, much of that helping support their families back home. An average Nepali worker in the Gulf sends home nearly $2,500 a year, and this is spent mainly for household supplies, children’s education and healthcare. There are also an estimated 7,000 Nepali caregivers and healthcare workers in Israel, and most of them are women. The Nepal Embassy has asked Nepalis in Israel to take caution and move to bomb shelters.

West Asia war and Nepalis

If you did not watch the understated movie उनको स्विटर / (The Woolen Sweater) after it was released in May last year, you missed a major turning point in Nepali cinema. Much-hyped films fall short of expectations, but here is an exquisitely acted and directed production with a strong underlying message of tolerance. What a contrast from formulaic melodramatic Kollywood fare — a love story so simple, cinematography so subtle in capturing the beauty of the monsoon on mountain pastures, and a background folk song accompaniment that evokes the flavour and tenor of multi-ethnic eastern Nepal. Since its release, Unko Sweater received praise in Nepal, but it was in multiplexes across Nepaliphone India where the movie became a rage. Positive reviews spread by word of mouth on social media, where the script, performance and camera work were praised for reflecting a genuine and unsullied rural Nepal. The movie is a layered portrayal of caste, ethnicity, gender and culture with the tender romance between the shy Dharanidhar Kafle (Bipin Karki) and Phool Gurung (Miruna Magar) in which the two, despite being soulmates, have to deal with societal norms and gossip. They do this without rebelling, in their own quiet way. In the first scene in a crowded jeep, people are seen discussing an election. An elderly greying Kafle is headed home, and the rest of the movie has back and forth flashbacks revealing the story of his unspoken affection for Phool. But there is an undercurrent of ethnic rigidity. When Kafle’s brother Dambar elopes with Iksha Limbu, the repercussions are borne by both families. Then Kafle’s uncle is banished for being an outcast.&nbsp; Miruna Magar as Phool, as an ebullient woman, is in contrast to the introverted Kafle, who does not say much but has a melodious singing voice. As the plot thickens, Kafle is shown to be bound by circumstances that pose obstacles to his love for Phool. The storyline delicately shows how life and situations constantly force people to shift direction. Despite underlying differences, the various castes and ethnicities in this fictitious village near the Sikkim border get along because they have to. There is an interdependence between highland farmers and other ethnicities living down the valley that is at the heart of Nepal’s ethnic harmony. Despite taboos about interethnic and intercaste relationships, people still have trust and faith amongst each other. There is no time reference to the story, but it does speak of a nostalgic era decades ago when rural Nepal was not yet connected by roads and phones, when people had no choice but to get along. Things have changed now with outmigration, and education has blurred ethnic lines. A QUIET LOVE Director Nabin Chauhan is not in your face with his message, giving viewers a hint of deep rooted traditional values that still govern society. Each character adds to the storyline, validating the way they behave, pushing the plot forward.&nbsp; There are many emotions that are intricately woven into the plot, and the most prominent, of course, is love. Not the showy, lustful way it is shown in flamboyant formula films, but a quiet bond that does not need words, a silence, a glance and a gesture conveying the universe of love. When Phool asks Kafle what he will do if they cannot be together, he says he will build her a house with a beautiful garden of flowers in the meadows where he herds livestock. He builds it awaiting her return, while Phool knits him a sweater, the symbol of their interwoven love. In screenings of the film in Nepal and India, there has not been a dry eye in the audience. The background score and music by Kobid Bazra and the powerful rendition by Jhuma Limbu of the ‘Kafle’ strike a strong chord. The cinematography by Chintan Rajbhandari does not glamourise Nepal’s rural landscape, it is shown in its raw misty beauty as a constant backdrop. The viewer is uplifted by the notion that love transcends social restrictions and orthodoxies.&nbsp; The ending is left deliberately unfinished, possibly to make way for a sequel which we can only hope will be as compelling as उनको स्विटर. &nbsp;  <figure> <img src="https://publisher-publish.s3.eu-central-1.amazonaws.com/pb-nepalitimes/swp/asv65r/media/20260301060348_42480e8b6934c9a5c518c44c2970748b341bbbf290c2b303b6aa6359d883567b.jpg" data-media-id="editor_0" data-image-id="20260301060348_42480e8b6934c9a5c518c44c2970748b341bbbf290c2b303b6aa6359d883567b" data-rendition-name="original" width="1280" height="560" loading="lazy" alt="Unko Sweater"> </figure>  उनको स्विटर / (The Woolen Sweater) Artmandu Nepal, 2025 Directed by Nabin Chauhan 145 minutes Available now on YouTube <div class="embed-block"><iframe width="560" height="315" src="https://www.youtube.com/embed/lCgtmgiII7M?si=MirwKOwKmxE3jLS6" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share" referrerpolicy="strict-origin-when-cross-origin" allowfullscreen></iframe></div>

axiata

Nepal has strong case on Ncell arbitration

Supreme Court weighs in on Ncell tax dispute

Who is accountable for teacher-student relationships?

Nepalis Select Who To Elect

West Asia war and Nepalis

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