Introduction:
This paper intends to provide useful information in order to assist in understanding the benefits of arbitration in commercial dispute resolutions in Afghanistan. The aim is whether to resolve commercial disputes through mediation, arbitration or litigation. The advantages of arbitration are discussed providing details on factors such as the procedure, partiality and risk of corruption, expertise of the arbitrators, costs and involvement of the parties on the duration and procedure in the course of proceedings.
Commercial Dispute Resolution:
It is very common among disputant parties to consider court for their commercial dispute resolutions. Court calendars in Kabul and major provinces are behind and the case backlog is a serious depression (1). The high number of new cases add greatly to the burden of the courts and new laws passed will increase the congestion of cases.
Similar to other fields of studies that have fundamentally evolved (2), humanities and social sciences along other fields have indeed seen vital changes and phenomenal growth in many countries including Afghanistan. Alternative Dispute Resolution mechanism is rapidly taking dispute resolution clauses in commercial contracts over court settlement of disputes (litigation). Alternative Dispute Resolution is also known as ‘ADR’; methods by which legal conflicts and disputes are resolved privately and other than through litigation in the public courts, usually through one of two forms: mediation or arbitration (3). Jirga and Shura have been common as an informal dispute resolution for several centuries in Afghanistan (4). They are very close to mediation but is not very formalized and is unregulated. On the other hand, mediation is a form of ADR in which the parties themselves are part of the decision-making mechanism and the neutral third party’s involvement is of a facilitative nature.
Parties are either encouraged to go to mediation or agree to have mediation in their dispute resolution clause in the contracts. It is important for parties to have a dispute resolution clause in their contracts stating the means of dispute resolution…
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