Academic journal article Southern Law Journal

Enhancing Efficiency and Effectiveness of Commereical Courts in Afghanistan

Academic journal article Southern Law Journal

Enhancing Efficiency and Effectiveness of Commereical Courts in Afghanistan

Article excerpt

I. INTRODUCTION

Despite having a specialized commercial court, Afghanistan has been considered very poor in enforcing contracts. World Bank in 2017 Doing Business ranked Afghanistan 180 among 190 countries in enforcing contracts. Countries these days are generally very careful about the enforcement of contracts especially function of the commercial courts and judiciary in general for attracting foreign investment and keeping the economic growth and activity smooth. It was surprising to me that when I was interviewing judges and sharing the idea with anyone I heard the same story "we have a lot of problem with the commercial courts in Afghanistan," still I figured out less attention being paid to the commercial courts. This paper will figure out if commercial courts in Afghanistan are functioning well. If not, what are the problems and what will be the workable solutions for these problems? The paper tries to reach the actors of commercial courts, especially judges through interviews1 to examine the practical proceedings of Afghan commercial courts and their challenges. The problem of Afghan commercial courts regarding case management and court automation is crucial. In both Afghanistan is scored near to zero. In Addition, workload and backlog of cases is serious that is followed by nonprofessional and inadequate personal. Most importantly, commercial courts in Afghanistan suffer from lack of a comprehensive and efficient rule of procedure. All these problems not only undermine access to justice but also create room for corruption and negatively affect the economic activities and growth. Fortunately, experience of reform in other countries suggests the possibility and positive result of reforms. This paper considering the viewpoints of the courts' real actors and the situation of Afghanistan provides specific and practical recommendations for reform in the commercial courts of Afghanistan.

A. Historical Background and Current Structure of Afghan Commercial Courts

Since the late-nineteenth century, a specific mechanism for commercial dispute resolution exist in Afghanistan. During the period of Amir Habibullah Khan (1901-1919) panchat (an elected board of commerce, mostly headed by Hindu minority) was responsible for resolving commercial disputes2. Commercial customs, contracts and documentary evidence were the sources for the board to solve commercial disputes.3 Later in 1931, Faysala-E Monaaziaat-E Tujarati (a commercial dispute tribunal) was set up in Kabul, which was followed several years later by tribunals in Kandahar and Balkh.4 These courts functioned as first instance commercial courts. Based on several king's orders the second appellate review authority was given to the Chamber of Commerce and the final appellate review was with the authority of Ministry of Commerce and later Ministry of National Economy.5 Yet, The Chamber of Commerce and the Ministry of Commerce were lacked the ability and expertise alike the appropriate regulation to adjudicate commercial disputes.6 Therefore, in 1949 a three-tiered commercial court was established under the supervision of the Ministry of Justice that later by the establishment of the independent judiciary transferred to the Supreme Court.7

However, since the enactment of the Commercial Procedure Code in 1965s until now a three-tiered specialized commercial court exist for commercial disputes resolution. Based on the Law on Organization and Jurisdiction of Judiciary Branch at the center of each province, if needed, a primary commercial court and a commercial division within the provincial appellate court, for the intermediate appellate review, is established9. Currently, only in six provinces of the country, Kabul, Herat, Balkh, Kandahar, Kunduz, and Nangarhar, a primary commercial court, which are followed by the commercial divisions of the provincial appellate courts for appellate review, exists. In provinces where commercial courts do not exist the civil division of the provincial primary courts are responsible for solving commercial disputes10. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.