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Official Gazettes 1-4, 1342-43, amended OG# 273 LAW OF COMMERCIAL COURT RULES Table of Contents: Part One General Provisions Chapter One: Introductory Provisions Chapter Two: Jurisdiction Chapter Three: Reasons for Canceling Members of Commercial Courts Chapter Four: Legal Capacity of the Parties Chapter Five: Attorneys of the Parties Chapter Six: Jurisdiction of the Court and the Position of the Parties Chapter Seven: Reconciliation Chapter Eight: Precautionary Measures and Guarantees Chapter Nine: Notice of Summons Chapter Ten: Regulating Sessions Part Two Primary Stage Chapter One: Complaint Lodge in Primary Courts Chapter Two: Preliminary Objections Chapter Three: Objection regarding the Main Subject Chapter Four: Counterclaim Chapter Five: Comprehension of the Case Chapter Six: Testimony of Witnesses Chapter Seven: Experts Chapter Eight: Documents Chapter Nine: Confessions Chapter Ten: Judicial Deputizing Chapter Eleven: Arbitration Chapter Twelve: Evidence Verification and Termination of Investigation Part Three The Appellate Stage Chapter One: Appeal requiring Verdicts and Provisions Chapter Two: Time limit for Appeal Chapter Three: Verification for Appeal Part Four Requirements for Supre me Court Chapter One: Verdicts and Rulings Chapter Two: Time limit for Supreme Court Chapter Three: verification in the Supreme Court Part Five Court manage ment, Legal Documents and Final Report Expenses Chapter One: Final Report Tax Chapter Two: Price of the Commercial Courts’ Official Documents Chapter Three: Documents Legalization and Court Expenses Part One General Provisions Chapter One Introduction Article 1: Resolution of all disputes arising from commercial transactions are subject to the provisions of this law and within the jurisdiction and authority of the three-tiered commercial courts. Article 2: The commercial courts shall not directly resolve a claim unless a claim is properly filed with the court based on the provisions of this law. Article 3: The commercial courts shall resolve all commercial disputes in accordance with the commercial legal principles stated in this law. Article 4: Government institutions or officials may not alter the decisions and rulings of the commercial courts, or restrain the execution of the court’s decisions and rulings unless it is based on the law and ordered by a higher court. Article 5: If a claim filed with a commercial court based on the provisions of this law belongs within the jurisdiction of another commercial court, the commercial court where the claim was originally filed shall issue a decision stating it lacks jurisdiction to hear the claim. Chapter 2 Jurisdiction Article 6: Commercial claims shall be heard and resolved in the commercial court where the defendant resides. If there are several defendants and one plaintiff, or several related disputes, the claim shall be filed with the court where one of the defendants resides. Article 7: Legal residence is defined as a place where a person chooses to reside indefinitely. Article 8: A claim may be filed in the commercial court holding jurisdiction over the place where the contract was created on the condition that the defendant, or defendant’s attorney, resides within that jurisdiction. Article 9: The court holding jurisdiction over the primary case may also resolve any and all counterclaims. Article 10: Real or legal persons not holding legal residence in Afghanistan shall file a claim with a commercial court holding jurisdiction over their place of temporary residence. If their temporary residence is not known, the claim shall be filed with the court that has jurisdiction over the defendant’s property, sureties or the disputed property. Otherwise the claim shall be filed with the Primary Court in Kabul. Article 11: If a real or legal person has agencies in different locations, the claims related to the transactions of one of the agencies shall be filed with the court where the real or legal person or agency resides. Bankruptcy and insolvency claims are exempt from this requirement. Article 12: Claims by a corporation and commercial institution against its members as a result of its member’s transactions, or a member against other members of a commercial institution, shall be filed in the court where the commercial institution and corporation legally reside. Article 13: Claims for compensation based on insurance contracts shall be filed with the courts where the property is located in case the insured property is immovable. If the insured property is movable, the claim shall be filed with the court where the damaged property is situated or where the contract was created. Article 14: If a party to a claim objects to the jurisdiction of the court where the claim is filed, the objection shall be presented prior to the commencement of the proceedings on the claim. If no objection is made as to the jurisdiction of the court, then it is presumed the parties accept the court’s jurisdiction. Article 15: If the issue of jurisdiction arises between the commercial courts over the adjudication of a claim, the Supreme Court shall choose the commercial court holding jurisdiction. Chapter Three Recusal of Members of the Commercial Courts Article 16: A member of the commercial courts may be recused from adjudicating a claim in the following situations: 1- If the claim involves a wife or first or second degree relative of a member; 2- If the executor or attorney in the claim is mother, son, daughter or grandchild. Second degree relatives are defined as ancestors, uncle, brother, sister, nieces and nephews, father-in-law, mother-in-law, brothers-in-law and sisters-in-law; 3- If the member is an executor or attorney to one of the parties to the claim; 4- If the member expressed an opinion on the claim as an expert or a witness. 5- If there is a civil or legal claim between the member and one of the parties in another court or if there is clear evidence of hostilities between the member and claimant. Article 17: A request for recusal shall clearly and explicitly state the reasons for the request. The party seeking the recusal shall present the request to the court at least 48-hours prior to the first hearing on the claim. The written request for a member’s recusal shall be dated, signed, sealed, and impressions of the fingerprints of the requesting party placed on the written request or two witnesses may confirm the written request. Article 18: After the request for a member’s recusal is filed with the court, it shall be recorded and a copy immediately provided to opposing party. If the member finds the reasons for the recusal in accordance with the provisions of the law, the member shall recuse from adjudicating the claim and shall inform the court in writing about the reasons for abstaining from the claim. If the member finds recusal from deciding the claim not to be in accordance with the law, then a judicial panel, without the presence of the party requesting the recusal, shall consider the request in its next session and decide to deny or grant the request for recusal. Article 19: If the membership of the court is rendered incomplete due to a request for the recusal of a member, then a higher court shall deliberate the request and issues a decision. Article 20: If the judicial panel grants the request for recusal then the recused member(s) shall not participate in the adjudication of the claim. Article 21: If the judicial panel does not approve the request for recusal, the party requesting the recusal shall be fined between 1000 to 2000 Afs. Article 22: An appeal shall not be made against the judicial panels’ decision in the Commercial Court of Appeals or the Supreme Court. Chapter Four Legal Capacity of the Parties Article 23: The parties to the claim shall be adults, not legally incapacitated, and have the right to represent themselves. Article 24: If one party claims the other party is legally incapacitated, evidence supporting the claim of incapacity shall be provided to the court. Except in commercial bankruptcy cases, all legal documents shall be processed in the relevant courts. Article 25: Real persons who do not possess the legal capacity as defined in Article 23 and legal persons, including government departments and enterprises in the municipalities, may obtain the status of plaintiff and defendant through their attorney or legal representative. Chapter Five Attorneys for the Parties Article 26: A person who possesses the capacity to file a claim may do so in the commercial court pro se or retain an attorney freely chosen by the person. Legal representatives have the right to file a claim on behalf of their clients. Article 27: The attorney’s area of expertise shall be stated in the attorney’s appearance. An attorney has the authority to prosecute the claim unless the client limits that authority. Article 28: An attorney shall file the original or a copy of the power of attorney letter with the relevant commercial court. The power of attorney letter shall be signed by the competent authorities and filed with the relevant court. Article 29: If a client chooses to dismiss an attorney from the case, or if the lawyer desires to withdraw from the case, both client and attorney shall inform the court and opposing party three days in advance of the next court session. The dismissal and withdrawal shall be filed in the Claim Registry Book of the court. The dismissal of the attorney by the client and the withdrawal of the attorney from the case becomes effective when the judge accepts either the dismissal and/or withdrawal and orders the recording of the dismissal and withdrawal in the Claim Registry Book of the court. Article 30: In case of dismissal of the attorney by the client or withdrawal from the case by the attorney, the court shall advise the client to pursue the claim pro se or to retain a new attorney within a certain period of time permitted by the court. If not, proceedings shall continue until a decision on the claim is reached. Article 31: If an attorney dies during the proceedings or is restricted from proceeding on the case, the client shall retain another attorney or pursue the claim pro se. Article 32: Power of attorney letters drafted outside of Afghanistan are effective only if drafted by a diplomatic mission or consulate and attested by the diplomatic mission or consulate. The attestation of the Ministry of Foreign Affairs of Afghanistan is required in either case. Article 33: Claims involving legal fees between a party and its attorney may be filed in the court where the defendant res ides or in the court where the original claim was filed. Chapter Six Jurisidiction of the Court and Residence of the Parties Article 34: The court shall hear the legal arguments on the claim and defenses to the claim presented by the parties but shall not increase the claim sought or decide on an issue that remains unclear. The court may decrease the remedy sought in the claim based on an investigation of the issues and arguments presented. Article 35: The court shall not request information from the parties that may expose the parties to danger but may require an explanation on the claim and the arguments that are considered to be important. Article 36: All claims are decided in the order they are filed, except in those circumstances where the court orders the immediate resolution of a claim, Chapter Seven Settlement Article 37: The parties to a claim may settle all or portions of their dispute at any stage of the proceedings but prior to the issuance of the court’s decision and order. Article 38: The parties may directly initiate settlement conferences or appoint mediators to settle the claim. In any event, the parties shall submit a written request for mediation to the court. The parties shall introduce the appointed mediators to the court. Article 39: The parties shall express their consent to the acceptance of any mediated settlement stated in Article 38 to the court, except where the mediators are given full authority at the time the claim was filed. Article 40: The court shall only once recommend to the parties to settle the case through mediation. The parties shall mediate within a time period specified by the court. If the parties settle the claim through mediation, the court shall base its decision on the mediated settlement. If an agreement has been reached through a mediator stated in Article 38 then the written mediation agreement shall be filed with the court. The mediation agreement shall possess the signature, seal, and/or fingerprint impressions of the mediators. Article 41: If the parties fail to reach a settlement through mediation, the court shall record the parties’ failure to reach a settlement through mediation in the Claim Registry Book, and officially and timely proceed on the claim and issue its decision. Chapter Eight Precautionary Measures & Security A. Precautionary Measures Article 42: At the request of the parties, the court may rule on the adoption of any necessary measures for the protection of a subject in controversy either prior to or after filing of the claim. Article 43: The court may appoint an official to issue an order for the implementation of a precautionary measure if the court determines that the implementation of a precautionary measure in another venue will reduce expense and time and promote efficiency. Article 44: The order for precautionary measures shall be made to the court upon request. The opposing party shall be immediately summoned and notified that failure to appear will result in a decision made in absentia. In urgent cases or in cases where the right of the plaintiff requires immediate protection, the order for precautionary measures may be issued in the absence of opposing party. Article 45: An order for a precautionary measure for the supervision of moveable and immoveable assets shall be implemented by the executive branch of the government in cases where the supervision requires the use of the police based on information provided by the court, but the implementation of other precautionary measures shall be delegated to a member of the court or officials and/or both. Article 46: The party requesting precautionary measures shall deposit security against possible damages to the opposing party, and/or to a third person, in accordance with Part B of this Chapter. If the party requesting precautionary measures is a government agency or enterprise then separate security is not necessary and only a written commitment to pay for any possible damages shall suffice. The court that received the request for security holds the authority to determine any damages. Article 47: If a party is prepared to provide security for a precautionary measure ordered against that party the precautionary measure may be modified or terminated based on the circumstances. Article 48: Court documents concerning precautionary measures shall be maintained in the claim file. B: Security Deposit Article 49: The commercial courts have the authority to apply security deposits to financial losses suffered by a party or third person and/or court costs. Article 50: A security deposit consists of cash, shares, promissory notes, moveable and/or immoveable assets, or a guarantee from a reliable bank assigned and approved by the court. The designation of a guarantor based on legal documents also has the effect of a security deposit. Article 51: A foreign citizen without legal residence who makes a demand for a security deposit shall also provide security deposit in accordance with Article 50. This article is also applicable to those who immigrate to other countries during the proceedings. Article 52: A demand for a security deposit shall be made at the moment the claim is filed or during the proceedings before the announcement of a final decision by the court. Article 53: Demand for a security deposit may be made prior to the filing of the claim on condition that the claim is supported by an official document. Article 54: If the requesting party does not provide the security within the time period required by the court the request is extinguished. Article 55: The opposing party shall be notified of the court’s order requiring a security deposit, except in those cases where immediate notification is not possible or a delay in the implementation of the court order results in any loss or damage to a party or person. In this case, order for a security deposit is implemented and then notification served. Article 56: If the purpose for the security deposit is extinguished the court shall order the removal of the requirement for a security deposit upon the request of the party or person making the security deposit. Where the court issues an order dismissing the original claim, the requirement for a security deposit is automatically extinguished. Article 57: No appeal shall be filed with the Commercial Court of Appeals or the Supreme Court regarding the court’s grant or denial of security. Article 58: If the plaintiff’s claim is dismissed by the court the opposing party may demand compensation from the plaintiff for any losses incurred as a result of providing security. Article 59: Any disputes concerning the insufficiency and reliability or unreliability of a security shall be resolved by the court where the original claim is filed. Article 60: If the security is identified and its supervision is practical the court may not require other properties for supervision. Article 61: If the security is not identified or it is identified but its supervision is impractical the court may supervise other properties of the parties which are equal in value to the security demanded. Article 62: A guarantor may be one or more persons. If the guarantors are more than one person, the guarantors shall clearly state in the guarantee letter the amount of security each is responsible for. By failing to state the amount of security, the guarantors will be held equally responsible for the entire amount of the required security. Article 63: The following are prohibited from acting as guarantors unless opposing party stipulates: 1. Government and municipality officials; 2. Persons with employment immunity; 3. Attorneys for the parties to the claim Article 64: The party required to provide a guarantor shall present the guarantor to the court or shall provide an official letter of guarantee to the court. The proponent of the official letter of guarantee shall have the burden of proving the financial ability of the guarantor(s) in the court where the security is required. If a reliable bank or commercial company acts as guarantor and the court is familiar with the signature or stamp of the bank or commercial company acting as guarantor then it is not necessary for the representatives of the bank or commercial company to appear before the court or to provide an official letter of guarantee. Article 65: The guarantor appearing before the court is recorded and signed in the Claim Registry Book and the letter of guarantee now holds the status of an official letter of guarantee. Article 66: If immoveable assets are taken under supervision the court shall notify the relevant offices in writing within two days after issuance of the order for security to identify the guarantor’s name, address, and other characteristics, as well as the quantity, type, and specifications of the security under supervision. Article 67: Immoveable assets may be taken into supervision as required by relevant regulations. Article 68: The court may issue an order to seal the assets or transfer the assets to the plaintiff or to a third party as security. Article 69: The court shall order the sealing of commercial offices and immoveable items and properties. The sealing of commercial offices and immoveable items and properties shall be performed by a three-member committee comprised of a member of the court, the court’s secretary, and head of the district sub-office. It is preferable the parties be present at the sealing but if any or all of the parties are absent the sealing continues. Article 70: Local security officials, guards and watchmen are responsible for safekeeping the sealed assets under the court’s supervision. The breaking of these seals without the permission of the court is prohibited. If the seals are broken without the court’s permission, the perpetrator may be punished by the relevant authorities and shall provide compensation for any and all losses incurred as a result. Article 71: Perishable assets are prohibited from supervision. Such assets shall be sold by the three-member committee described in Article 69 and the proceeds of the sale equivalent to the value of the sold asset shall be supervised. Article 72: If moveable and/or immovable assets are supervised and the possibility exists that continued supervision will perish or reduce the value of the asset, either party has the right to request the sale of those assets. However, if one of the parties does not agree to the sale of the assets and accepts the possible loss then the court shall act according to the wishes of the party accepting the loss. In case assets are to be sold, an official of the court shall supervise the sale. The proceeds of the sale shall be held in trust by the court or a reliable bank. Opposing party also has the right to attend and observe the sale of the assets. Article 73: If the party or its guarantor deposits another person’s assets as their own those assets are acceptable to the court as security. The party requesting the security shall not be liable for any losses incurred to the asset under supervision. The assets’ owner may demand compensation for the loss from the person who made the assets their own. Article 74: If the assets or cash to be taken under supervision is in the possession of a third person or the assets or cash to be taken under supervision is the form of a liability a third person owes the party required to provide security, the court shall immediately notify the third person about taking the debt under supervision, obtain a receipt from the third person, and immediately notify the party required to provide security. Article 75: If the third person denies the existence of all or part of the assets or liability the third person shall notify the court that ordered the security about the insufficiency of the assets or liability within two days after being ordered to provide the assets or liability. Otherwise, shall be held responsible for producing the assets or liability. Article 76: If the party ordered to provide the security proves to the court at the time of the court’s order requiring a security that the third person falsely denied the existence of all or part of the assets or refuses to provide the assets, the court shall order the third person to provide the assets or its equivalent value. If it is impossible to obtain the assets from the third person the court shall order the third person to be held in custody until such time the third person produces the assets. Article 77: The party requesting the security shall have the first right to recover the assets under supervision. Chapter Nine Notice and Summons Article 78: If the plaintiff or defendant does not reside in the jurisdiction of the court, they shall select a residence within the jurisdiction of the court in order to effectuate notice and summons. Article 79: The court shall provide notice to the legal representatives of persons legally incapable of filing a claim or defending against a claim. Article 80: Legal persons shall be notified through their legal representative. Article 81: Notice about a claim that arises from dealings with a commercial firm is provided to the individual who manages the affairs of the firm. Article 82: In those cases where an attorney filed a claim on behalf of a client notice shall be served on the attorney. Article 83: If a person refuses to accept service of notice, the court shall again serve notice to the person through a process server who shall display the notice to the person refusing service in the presence of two residents of the area. If the person continues to refuse service of notice, the process server shall obtain the signatures of two residents of the area and return the notice to the court. In this case, the court shall issue an arrest warrant authorizing the police to arrest the person refusing notice. Article 84: Service of process in a foreign country is served through the authorities of that country by the Ministry of Foreign Affairs of Afghanistan. Article 85: If a person’s residence is not known they shall be served through publication. Article 86: The relevant court shall issue an order to provide notice through publication with stated reasons for the order in the following manner: a. Published notices posted on the court’s bulletin board until expiration. b. Notice published in the Official Gazette, as long as an official gazette is established, or notice is published in other gazettes selected by the court in its jurisdiction. Article 87: The publication shall contain the names and complete addresses of the parties to the claim, subject-matter of the claim, place of publication, and if the publication contains a summons, the place, date and time of the summons is required. Article 88: If a party pays the expenses for the publication through radio then notice is published through the radio. However, this publication shall be for informational purposes only. Publications holding legal status are only those mentioned in Article 86. Article 89: Persons, apart from plaintiff and defendant, who reside outside the jurisdiction of the court in Afghanistan, shall be served with notice by the court hearing the claim through the court holding jurisdiction over their residence. In necessary cases, the court has the authority to dispatch notice via a telegram the above-mentioned persons at the expense and consent of the party benefiting from service of notice. Article 90: A copy of the notice shall be filed with the court and served on the persons to be notified. Article 91: Notice shall contain the following information: a. Full name and complete address of the person(s) to be notified; b. Clearly stating the reasons for the summons; c. Date and time of the summons; d. Name and address of the court requiring their appearance; e. The signatures of the President of the Court and Secretary of the Court with the court’s stamp affixed. Article 92: The person summoned to the court must appear in person or send their legal representative on the date and time stated on the summons. If there is a reasonable excuse for failing to appear on the date and time summoned, the court must be informed 24 hours prior to the date and time stated on the summons. If the court determines it is necessary to summon the person and not the legal representative then shall be explicitly stated in the summons. Article 93: If the court summons a person residing outside the jurisdiction of that court, the court may obtain that person’s statements through that person’s legal representative. Chapter Ten Administration of Proceedings Article 94: The commercial court is open to the public. Article 95: The supervision of the administration, the disciplinary affairs, and the management of proceedings in accordance with the law are one of the duties of the President of the Court. The President of the Court shall provide the parties the opportunity to express their views, prevent inappropriate statements, and expel those who obstruct the proceedings. If anyone obstructs the proceedings, they shall face disciplinary action. No appeal can be filed against the disciplinary action in the Commercial Court of Appeals or the Supreme Court. Article 96: The parties to the claim, or their attorneys, shall present two copies of the claim and/or their defenses to the claim to the court. The secretary of the president of the court shall record the claim in the Claim Registry Book in accordance with the orders of the President of the Court. If a party to the claim has many claimants, a copy shall be made available to all the parties. Article 97: The Secretary of the Court shall collect all relevant documents to the claim, such as expert testimony, witness statements, and record them in the Claim Registry Book. Article 98: The parties to the claim, or their attorneys, may inspect the Claim Registry Book under the supervision of the Secretary of the Court upon the permission of the President of the Court. Article 99: The court shall select the time period for plaintiff and defendant to answer the claim but shall not exceed one month. Article 100: The court shall select the time period for plaintiff and defendant to answer. The court may increase or decrease the time period to answer after hearing the parties’ arguments. Article 101: The time period stated in Articles 99 and 100 commences after issuance of the court’s notice for time extension. Article 102: If the person provided a time extension resides outside the jurisdiction of the court, an additional day is added to the time period for each 12 miles of travel. Article 103: The court shall provide plaintiffs and defendants who do not possess residence in Afghanistan between one to four months to answer. This period shall commence from the date of the last publication of the notice in the press and radio in accordance with Articles 86 and 88. Article 104: If there are several plaintiffs and defendants to a claim, the longest time period provided to one party applies equally to all parties. Part Two Primary Stage Chapter One Filing of Claims in the Primary Court Article 105: A claim is considered filed once the required fees are submitted and the court issues an order to commence proceedings on the claim. Article 106: A claim shall be filed on a paper selected for official usage or a 2 Af stamp ticket pasted on the application. Article 107: The application for the filing of a claim must contain the following information: 1. Plaintiff’s complete details, including; a. The plaintiff’s full name and father’s name; b. Plaintiff’s Tazkira (national ID) number and date; c. Plaintiff’s full address; d. Plaintiff’s profession; 2. The defendant or defendants’ complete details, including full name and address; 3. Specification of the disputed property; 4. Date of the claim application; 5. Subject-matter of the claim. Article 108: The plaintiff shall provide the court, along with the claim application, attested copies of all relevant documents that plaintiff intends to rely on in the claim. If the court finds it necessary, the original documents may be presented on the order of the court or on the request of the defendant. Article 109: If a claim is filed in the court by an attorney for a party then the power of attorney shall also be attached. Article 110: When a claim is filed by the plaintiff the Secretary of the Court shall immediately record the claim, details of the parties, application date, and documents attached to the claim in the Claim Registry Book of the court and provide a receipt to the plaintiff. Article 111: If the application for a claim is not prepared in accordance with Articles 105, 106 and 107 the Secretary of the Court shall inform the President of the Court about the application’s deficiencies within five days of the filing of the application and return it to the plaintiff on the orders of the President of the Court to correct the deficiencies. Article 112: The plaintiff may withdraw its claim at any time with the permission of the court. The court shall deny the withdrawal if the court believes it is inappropriate but the court shall order the plaintiff’s claim withdrawn or require plaintiff to a provide a release letter to defendant. If permission for withdrawal is granted the plaintiff shall pay all losses assessed by the court at request of the defendant. The fee for withdrawing a claim is the same as the fee for releasing defendant. Article 113: After the claim is filed, the plaintiff cannot expand the claim without the consent of the defendant. Chapter Two Primary Objections Article 114: The primary objections are as follows: 1. Objections to the court’s lack of jurisdiction to hear the claim; 2. Objections about the legal inability or incapacity of the plaintiff to file a claim; 3. Objections to the irrelevancy of the claim to the defendant; 4. Objections that a decision in the claim has been previously issued by the court between the parties or their successors; 5. An objection that the claim’s filing time period has expired. 6. An objection that the claim is filed in another relevant commercial court that will resolve the claim; 7. An objection that the claim is relevant to another claim which is filed in another commercial court and that it should proceed. Article 115: If the objections stated in Article 114 (1), (2), (3), (4), (5) are proven, the court shall dismiss the claim. Article 116: If the objections stated in Article 114 (6), (7) are proven, the court shall avoid adjudication of the claim and transfer the claim to the relevant court within 10 days of its order avoiding adjudication except if one of the parties to the claim files an appeal in accordance with Article 117. Article 117: Any party to the claim may file an appeal within 20 days after the Primary Court issues its decision. If one of the parties is not satisfied with the Commercial Court of Appeals’ decision, an appeal may be made to the Supreme Court within 10 days of the Commercial Court of Appeals’ decision. Article 118: If the objections in Article 114 are not presented prior to commencement of the proceedings on the claim, the objections may not be heard. Article 119: The defendant’s primary objections over the subject-matter of the claim shall be presented to the plaintiff within the time period specified in Chapter Three, and plaintiff’s answer is due within the stated time period. Chapter Three Objections to Subject-Matter Article 120: If the plaintiff or plaintiff’s attorney does not present primary objections, the plaintiff shall prepare its answers in two copies along with all related documents and present them to the court within 15 days of the service of notice, or during the time period specified by the court which could be more than 15 days. The Secretary of the Court shall record one copy in the Claim Registry Book and the other copy is provided to opposing party in return for a receipt with the court’s stamp placed on the presented documents. The contents of the documents are recorded in the Claim Registry Book. The originals are returned to the owner for a receipt in order to present it to the court when necessary. Article 121: In the Primary Commercial Court the parties may exchange claims and defenses maximum of three times. Chapter Four Counterclaim Article 122: The defendant has the right to file a counterclaim against the plaintiff. This counterclaim shall arise from the same transaction as the original claim and a decision in this regard may affect the original claim. Article 123: counterclaim should include new claim against plaintiff in addition to defense Article 124: The counterclaim shall be filed through a separate application. Article 125: If the claim of the defendant is not a counterclaim the court shall adjudicate the claim separately, and if the adjudication of this claim is not within its authority, the court shall state this fact in its order. Article 126: The claims and defenses in the counterclaim shall proceed in accordance with Article 120. Article 127: If the plaintiff withdraws the original claim pursuant to Article 112, the defendant’s counterclaim may proceed in accordance with the provisions of this law. Chapter Five Adjudication of the Claim Article 128: The court may summon the parties and/or their attorneys at any stage of the proceedings and hear their legal arguments on the claim in the presence of the parties. The court shall encourage the parties to settle the claim in accordance with Article 40. Article 129: After the plaintiff and defendant exchange claims and defenses in accordance with Article 121, if the court determines that sufficient arguments on the claims were exchanged it is able to issue a decision. The court shall notify the parties about the completion of the proceedings on the claim. If the exchange of the claims and defenses are considered insufficient, the court shall summon the parties to court in order to provide additional explanations where necessary. Article 130: The court has 10 days to summon the parties to court. In case the distance of the travel by the parties to the court, the court may extend this time period according to the provisions of this law. In extraordinary cases the court may sua sponte extend the period for summons or on the request of one of the parties. Chapter Six Witness Testimony Article 131: The parties to the claim shall provide their witness lists at the time of filing the claim, if any, including complete detail(s), name(s), addresses and number of witnesses. The parties shall not have the right to provide additional witnesses during the proceedings. The court may select and summon some or all of the witnesses to court on a specified date. The court may sua sponte identify and summon one or more witnesses as necessary. Article 132: If a witness resides in the jurisdiction of another court, the court adjudicating the claim shall request the court in whose jurisdiction the witness resides to listen and record the witness’ testimony on the basis of judicial deputyship, and officially provide the requesting court of the information sought. Article 133: A witness shall meet the following conditions: a. Not be mentally incapacitated; b. Not be less than 18 years of age; c. Not be interdicted; d. Not commit any crimes prior to providing testimony; e. Not be a spouse, first or second degree relative, servant or master and not rely on the party for its livelihood; f. Not have reasonable enmity with the party or person against whom the testimony is offered; g. Not have a civil case in a court against the party or person against whom the testimony is offered. Article 134: Any party to the claim may seek the rejection of a witness based on Article 133(e), (f), and (g). Article 135: The party seeking the rejection of a witness shall file a request and state the reasons for the rejection prior to the witness providing testimony. If the court grants the request, the court may not hear the witness. Article 136: The court shall listen to each witness individually where there are several witnesses. Article 137: The witnesses must state their full names, addresses and shall state the facts to the best of their knowledge and belief. Article 138: The President of the Court shall inform the witnesses about the punishment for perjury prior to providing testimony. Article 139: The witness shall provide a handwritten statement, signed and recorded in the Claim Registry Book. If the witness is illiterate the testimony shall be recorded by the Secretary of Court in the Claim Registry Book followed by the witness’s fingerprint impression and/or stamp witnessed by two other persons. Article 140: The court shall determine the value and effectiveness of a witness’s testimony in assisting in the resolution of the claim. If a party presents documentary evidence in support of its claim, the opposing party may not rely solely on witness testimony and must provide documentary support in its defense. Article 141: The parties to the claim shall not commend or condemn the testimony of a witness on the stand. If any party does so, despite a warning by the President of the Court, then the party shall be removed from the court. Article 142: If the witness does not know Pashto or Dari languages the testimony shall be obtained through an interpreter. Article 143: At least two witnesses are required in order for the commercial court to resolve the claim. Chapter Seven Experts Article 144: If the adjudication of a claim depends upon the testimony of expert witnesses, the court may request a party or the parties to provide for an expert witness or may sua sponte order an expert’s opinion. The court’s order shall clearly state the issue on which the expert’s opinion is required and also the time period for the expert to appear in court and provide the opinion. Article 145: When the parties to the claim agree upon the appointment of expert witnesses, the expert witnesses shall be appointed by the court. The expert may be one or more persons. Article 146: Expert witnesses shall have experience in the relevant fields. Expert witnesses appointed by the court in accordance with Article 145 should also fulfill the conditions stated in Article 133, Chapter on Witnesses. Article 147: No person shall be forced against their will to testify as an expert witness. Article 148: After hearing the parties’ arguments, the court may select those questions necessary to be asked of the expert witnesses. The parties shall have the right to be present at the time the expert testifies. Article 149: If no decision has been made regarding the fee for the expert witness the court shall fix the fee considering the circumstance and magnitude of the subject-matter and the experts’ time and efforts. Article 150: The fee for the expert witness shall be paid by the party requiring the expert. If the expert witness is required by both parties, or if the court sua sponte appoints an expert witness, the fee shall be paid equally by both parties. In either case, the court shall state the expert witness fee prior to the expert providing testimony. Article 151: The expert witnesses shall review the subject-matter on which they will provide testimony, appear in court on the designated date and time, and provide a report of the results of the review within the time specified by the court’s order. Article 152: The court may request the experts to provide an explanation and/or completion of those points which are believed by the court to be defective and ambiguous in the expert’s report. The expert testimony shall be recorded in the Claim Registry Book and signed by the expert. Article 153: The court may investigate the testimony of the experts in camera, or, where necessary, the court may investigate the testimony of the experts in the presence of the parties. Article 154: Adoption of an experts’ testimony is made on the basis of majority vote and considered as presumptions in commercial claims. Article 155: If the court rejects the experts’ testimony, it may sua sponte appoint additional experts in accordance with the provisions of this Chapter. Chapter Eight Documents Article 156: If the commercial courts provide a basis for proving a claim, the claim may not be proved by any other means. Article 157: Issues proven by prior written agreements of the parties do not require further proof on the condition that the parties’ agreement is not contradictory to the law. Article 158: In accordance with the provisions of this law concerning forgery documents in support of a claim shall be authenticated. Where a claim is supported by documentary evidence the defense shall also be supported by documentary evidence. Article 159: A witness may be produced in the following situations: a. In cases where fire or accident occurs and obtaining written evidence is either impossible or extremely difficult; b. In cases where the parties are in a situation where customs and traditions do not require a document to be prepared; c. In cases of deception and duress. Article 160: A witness may be able to prove a claim where there are acceptable reasons for the damage to a document due to unforeseen events, duress, or loss. Article 161: Documents prepared by official authorities holding legal powers are presumed authenticated until proven otherwise. However, if the court is in doubt as to the authenticity of a document, then a copy shall be obtained from the official authorities who have issued the document. If there are doubts as to the authenticity of a document the court may order a formal and direct authentication from the official authorities. Article 162: Those documents prepared outside of Afghanistan are valid only if prepared in accordance with the provisions of Article 32 and authenticated. Article 163: Unofficial documents approved by the court are considered official. Article 164: Phrases or words located outside the lines or over the lines or on margins of the text body, are invalid unless these parts are separately signed off by the person providing the document and/or authenticated in court. Article 165: Documents prepared by a creditor concerning the full or partial payment on a debt are considered valid only if the creditor acknowledges the authenticity of the document. Article 166: Unofficial documents used in the business community are valid in the commercial courts. Article 167: Telegrams are valid in commercial courts unless proved invalid by the original. The original telegram signed by the sender is valid unless the opposing party proves the telegram is forged. Article 168: In accordance with the Commercial Law, the validity of the contents of commercial offices are considered classified. Article 169: A party’s original document may be produced by the court if it is in the possession of official authorities and the party relying on it is unable to present it. The expenses for producing the document to the court are on the person relying on the document. Article 170: The party offering a document in a foreign language shall present a authenticated translation to the court. If the opposing party or the court is not satisfied with the translation quality then the court may order the translation of the document with costs borne by the party offering the document. Article 171: The plaintiff shall provide an authenticated copy of the following documents upon the order of the court: a. Documents relied upon in the claim; b. Documents and telegrams which are relevant to the claim. Article 172: The court may subpoena original or authenticated copies of the accounts of commercial offices. Article 173: If the opposing party relies on the documents in court, the proponent of the documents may not withdraw the document or request the court to not consider the documents. Article 174: The investigation of commercial books and accounts are to be conducted during a court session. If the investigation of the books and accounts are outside the jurisdiction of the court then the issue shall be investigated by a judicial representative. Article 175: The court may investigate documents through the use of experts. Article 176: If the document is not relevant, then a party may object. The objection shall occur when the document is provided. Article 177: If the proponent of the document, in consultation with opposing party, rejects the document, the court shall not rely on the document in deciding the claim. If the proponent of the document not does reject the document, the document is effective in the claim, and the court may then decide the claim using the document. Article 178: If the court finds that a document is relevant to the party seeking its rejection, that party shall be fined Afs 1000-2000. On the request of the opposing party, the court may order the party proposing the rejection of the document to pay for any losses incurred. Article 179: A claim of forgery may be made at any stage of the proceedings and recorded in the Claim Registry Book. Article 180: A claim of forgery by the plaintiff shall be communicated to the opposing party. The opposing party shall reply in writing within ten days stating that it will withdraw the document or continue the case. The stipulation of opposing party is a condition to the withdrawal of a document. Article 181: The withdrawal of a document is not proof it is a forgery. Article 182: If the proponent of the document withdraws or fails to reply by the required date, the court, in accordance with Article 171, shall not consider the document in the legal arguments. If the proponent of the document stands behind the document then the Secretary of the Court shall within three days inform the party who is claiming the document is forged to present its written statements to the court within ten days in pursuance of the forgery claim. Article 183: After receiving the written statements on the forgery claim and the court finds the adjudication of the forgery claim falls within the original claim, then it may order an investigation into the forgery claim. The Secretary of the Court shall communicate this decision to investigate within three days of the court’s decision to the parties and inform the proponent of the document in writing about the forgery claim and require the proponent to respond within ten days to the court. After receiving the response, the Secretary of the Court shall inform the parties of the date set for adjudication on the forgery claim. Article 184: The proponent of the document shall provide the original document to the court and receive a receipt. The proponent shall inform the court about its decision to continue the use of the document alleged as forged. The document shall be reviewed by the President of the Court and other members, and maintained by the court. Article 185: If the party claiming forgery fails to present evidence to the court within the time period specified by the court the claim of forgery is extinguished. If the proponent of the document fails to reply to the claim of forgery made by opposing party, the court shall appoint a date for adjudication on the forgery claim. Article 186: The court shall consider Articles 159 and 160 in adjudicating the forgery claim and shall also consider Articles 189-196 when dealing with other documents alleged to be forged. In case the court finds convincing reasons it shall find the document forged. If the court finds the document to be a forgery, then the document shall be removed from the list of proofs. Article 187: If the court does not find the document to be a forgery, then the party claiming forgery shall be fined Afs 500-3000 and upon request by the other party may be required to pay any losses incurred. Article 188: Documents and writings used in the forgery claim are returned to the proponent of the document in exchange for a receipt, or to the source providing the documents pursuant to Articles 187 and 199. Article 189: No official or employee of the commercial courts has the right to provide to anyone the duplicates of those documents that are claimed as forged, unless the President of the relevant court grants permission in writing on the document itself and stating on the document there is a claim of forgery pending on this document. Article 190: If a claim of forgery is proved in the commercial court the accused and accomplices are transferred to the relevant authorities for criminal prosecution. Article 191: The reliability of a document in a forgery claim is adjudicated as follows: a. Consistency in writings, signatures, stamp and fingerprints from the erasing, scratching point of view; b. Conformity of the controversial document’s writings and signatures with a similar document whose authenticity is reliable with the court; c. Investigation of witnesses and others whose information could assist in determining whether the document is forged or authentic; d. Comparing the substance of the controversial document with other documents and proofs found to be credible with the court. The comparison of the document should be done with such others documents already credible with the court and/or to the opposing party. Article 192: The court shall summon and hear witnesses who have signed the document or those persons who have witnessed the drafting or stamping of the document in question, and those persons whose knowledge and information may provide clarification. Article 193: Documents agreed upon by both parties shall be taken as basis for the comparison of the controversial documents’ writings, signatures and stamp. If the parties are not in agreement then the following writings shall be taken as a basis for the court’s comparative review: a. Writings, signatures, stamps and fingerprint impressions in official documents; b. Those writings, signatures, stamps or fingerprint impressions or signatures, stamps or fingerprint impressions on the papers relevant to the claim made to the court; c. The writings or signatures of officials, individuals, or workers of national institutions; d. The writings, signatures, stamps and fingerprint impressions of authenticated documents. Article 194: If the writings, signatures, stamps and fingerprint impressions on a document are attributed to a person who is still alive, then that person shall be summoned to the court to provide a handwriting sample. Article 195: If those documents and writings accepted as a basis for the court’s review are with a government agencies or national institutions, those agencies and institution or shall abide by the relevant orders of the court to present those documents. However, those papers and writings are to be returned to the same office after resolution of the claim. Article 196: If the said documents and writings are outside the jurisdiction of the court the investigation shall be performed by judicial representation. Article 197: In accordance with the provisions of this law, if necessary, the court shall provide the document to experts in order to scrutinize the writings, signatures, stamps, and/or fingerprint impressions. Article 198: Scratchings discovered on a document are recorded in the Claim Registry Book and signed by the proponent of the document. If the proponent of the document refuses to sign, this event shall be recorded in the Claim Registry Book and the document shall be treated in accordance with this law. Article 199: If the court finds the document forged, the court shall write this finding at the bottom of the document and cancel the document with a special stamp of the President of the Court. Chapter Nine Admission Article 200: An admission is considered evidence against the person making it. Article 201: If the admission takes place during court proceedings or in one of the documents presented to the court, then it considered a valid admission made to the court. If the admission is made outside the court then it is invalid unless it can is proved in accordance with the provisions of this law. Article 202: Admissions, like all other statements, shall be recorded by the Secretary of the Court in the Claim Registry Book and signed by the person making the admission. Article 203: According to the provisions of this law the admission of an attorney is valid as an admission against the client on condition that such authority is vested upon the attorney by the client in the written power of attorney. Chapter Ten Judicial Representation Article 204: In cases where it is necessary to hear arguments, listen to the witnesses and experts, or to take other legal actions outside the jurisdiction of the court adjudicating the claim, that court has the power to delegate authority to another court with jurisdiction by forwarding the claim and submitting an attested copy of the file. Article 205: In those cases where it is necessary to carry out investigations outside of Afghanistan, the court where the claim was filed, on the basis of international agreement or international laws, may delegate authority to a court in the country where the investigation is to occur and an attested copy of the authority shall be submitted to the relevant commercial court of Afghanistan. Article 206: Commercial courts in Afghanistan shall accept the request of courts outside of Afghanistan to hear witnesses or conduct investigation concerning commercial disputes on the basis of international agreements or international law. Article 207: The process of the adjudication of a claim by judicial representation is subject to the laws of that country where the adjudication takes place. Chapter Eleven Arbitration Article 208: Persons with the legal capacity to file a claim with the commercial court may seek the consultation of one or more persons for a resolution of the dispute prior to filing with the court or, if already filed, then prior to the court’s decision. Article 209: The parties may include the use of arbitration as a term in the original contract or in a separate agreement in case a dispute arises. Article 210 If the parties specify the arbitrator(s) in their contract or agreement the following information is necessary in the contract or agreement: a. The parties clearly state their full names and the full names of the arbitrator(s); b. The parties clearly state the disputes to be resolved through arbitration. Article 211: If the original contract or separate agreement does not identify the arbitrator(s) they may do so consequently. However, if the parties fail to reach an agreement on the arbitrator(s), then the court shall determine the arbitrator(s). Article 212: If the original contract or a separate agreement appoints more than one arbitrator but the exact number or names of the arbitrators are not stated, the parties each shall appoint one arbitrator and together appoint the third arbitrator. If the parties are unable to appoint the third arbitrator within one week the court shall appoint the third arbitrator. Article 213: The court shall appoint the arbitrators in the following situations: a. If the parties agreed to one arbitrator based on their contract but failed to identify the arbitrator; b. If the arbitrator of one party either resigns or dies or loses the ability to arbitrate and the party fails to appoint a replacement within ten days of the resignation, death, or incapability of the arbitrator; c. In all cases, in accordance with the original contract or separate agreement, the parties are required to appoint arbitrators but one of the parties fails to appoint an arbitrator within ten days after receiving information the about appointment of arb itrators made by opposing party. Article 214: In cases where the court is required to appoint the arbitrator(s), in accordance with the provisions of this law, the court shall assign twice the number of arbitrators required and then appoint the required number of arbitrators by drawing a lottery from amongst them. Article 215: The arbitrator(s) shall arbitrate the claim within the time specified in the original contract or a separate agreement. If the time period has not been mentioned in the original contract or separate agreement then the arbitrator(s) shall decide within two months after written acceptance to arbitrate. Article 216: The court shall not appoint the following persons as arbitrators unless the parties agree: a. A person who has an interest in the claim; b. A person who has first degree blood or marriage relationship with one of the parties to the claim; c. A person is a party’s attorney or supervises a party’s affairs or a party to the claim supervises one of the arbitrator’s affairs or one of the arbitrators supervises one of the parties’ affairs; d. A person who is an heir to one of the parties to the claim; e. The heads and members of the three-tiered commercial court system and government officials whose constituents include one or more of the parties to the claim. Article 217: The arbitrator appointed by the court in accordance with Article 123 (2), (3) is exempt from the provisions of Article 216. Article 218: The appointed arbitrators shall not resign unless they have a reasonable excuse such as travel or sickness, among other reasons. Article 219: If the appointed arbitrators do not vote in the specified time period, they shall lose the authority to arbitrate and the parties shall agree on the appointment of new arbitrators. Article 220: The parties shall present those documents to the arbitrators in their possession. The appointed arbitrators may pose necessary questions. Article 221: If the parties provide a written request for the removal of an arbitrator then the arbitration is dissolved. Article 222: If one of the parties to the claim dies then that party’s legal heir may appoint another arbitrator instead of the one that had been appointed by the deceased party. Article 223: The arbitrator’s vote should be decisive and supported by legal reasons. Article 224: In case of multiple arbitrators their votes are counted on the basis of majority. Article 225: After receiving the arbitration decision, the Secretary of the Court shall take the original arbitration decision to the President of the Court and members of the court and record it in the Claim Registry Book. If the court finds the arbitration decision is in accordance with the provisions of this law, the court will consider it as final and decide in accordance with the arbitration decision. The court’s decision is provided to the parties, and the original arbitration decision shall be maintained in the court file. Article 226: Arbitration decision is invalid in the following situations: a. If the arbitration decision is against the laws of the country; b. If the arbitration does not resolve the main legal issue or a decision is made on issues not subject of the arbitration; c. If the arbitration decision is issued after the expiration of the time period for the arbitration; d. If the arbitration decision conflicts with the contents of those official documents recorded in the commercial court. Article 227: If the arbitration decision resolves any issues other than the main issue the arbitration is rendered invalid. Article 228: The arbitrators’ fee is equally shared by the parties unless stated otherwise in the original contract or separate agreement. Article 229: Issues concerning bankruptcy and liquidation shall not be referred for arbitration. Article 230: The following issues shall be addressed in the arbitration decision: a. Clarification of the disputed issue(s); b. The decision of the arbitrators and expenses and court fees to; c. The date of the arbitration decision and the signatures and addresses of the arbitrators. Chapter Twelve Adjudication on the Evidence and Completion of Investigation Article 231: The burden of proof is on the party claiming a right or condition. Article 232: Proving a claim shall be based on evidence mentioned in this law. The following are evidence used in proving a claim and listed in priority: a. Admission; b. Documentary evidence; c. Witness testimony. Article 233: In adjudicating a claim a commercial court use commercial customs and traditions as evidence in accordance with the provisions of this law. Article 234: The court investigates only evidence presented by the parties and may not order a party to show specific form of evidence. During the proceedings on the claim, the court may find it necessary to investigate and clarify witness testimony and other evidence but the court may not suggest the use of certain evidence to the parties. Article 235: Investigation of the evidence takes place during the proceedings on the claim. If, at the time of adjudication, the presence of the parties, or one party or other persons, is considered necessary for the investigation and clarification of the claim then the court shall summon that party, parties, or person(s) to court. Article 236: All documents presented to the court by the parties shall be recorded in the Claim Registry Book after the court reviews them. The originals are returned to the owners against a receipt. Article 237: After hearing the arguments presented by the parties, the court shall declare an end to the investigations and appoint a date and time fo r the announcement of the court’s decision. The decision is recorded in the Claim Registry Book and announced to the parties. Article 238: Within 20 days after announcing the completion of the investigation the court shall issue its decision and deliver it to the parties. Article 239: The court’s order shall include the following information: a. Names and full details of the parties to the claim and their attorneys; b. Date of the order; c. Name of the court issuing the order; d. Names of the President of the Court and its members listed at the bottom of the order; e. The subject and type of claim and the parties’ requests to the court; f. A summary of both parties’ arguments and evidence, including documentary evidence; g. Legal arguments the court relied upon in issuing its order; h. Assignment of payment of the court’s forms fee and other expenses. Article 240: The court’s order shall be clear and decisive. Article 241: The court’s opinion, which is adopted in secret, shall take the form of an order after it is signed by the members of the court and shall be announced to the parties in open court. Article 242: The court’s opinion is taken by consensus or majority vote. The President of the Court first polls the members’ opinion and then provides its opinion at the conclusion. Article 243: The President of the Court also has one vote. Article 244: The court’s order, along with the proceedings recorded in the Claim Registry Book, shall be duly recorded by the Secretary of the Court within 20 days after announcement of the order and the Secretary of the Court shall prepare the same number of orders as there are parties to the claim. After the order is signed by the President of the Court and members, and appointed fees are obtained, the order is returned to the parties ag ainst a receipt. Article 245: The announcement of the order occurs in accordance with standards stated in the Chapter on Notice and Summons in this law. Article 246: If one of the parties or their attorneys fails to appear at a specific court hearing without a reasonable excuse, or appears but fails to respond to the court’s questions, whether or not their objections or defenses have been recorded in the Claim Registry Book, the court, on the request of the opposing party, shall assign a time period between 2-4 months for the non-appearing party to present themselves before the court. This notice to appear shall be announced on the radio and a local newspaper. If the party fails to appear in court within the time period stated in the notice, the court shall announce its order in the absence of the non-appearing party on the basis of legal documents and materials presented to it by the opposing party. Part Three Appeal to the Court of Appeals Chapter One Orders and Rulings on Appeal Article 247: Any order issued by a Primary Commercial Court is subject to appeal unless stated otherwise in this law. Article 248: The following orders of the Primary Courts may not be appealed; a. Orders of the Primary Court where the judgment is less than Afs. 2000; b. Orders based on admissions made in the presence of the court; c. Order announced on the basis of settlement or arbitration in accordance with the provisions of this law. Article 249: No ruling may be appealed alone unless the order contains a judicial ruling over the subject-matter of the claim, except in the following circumstances: a. A ruling to not hear a claim due to lack of jurisdiction of the court or the expiration of a time period; b. Ruling on the legal incapacity of one of the parties to the claim; c. A ruling that rejects the request for the dismissal of one of the Primary Court’s members. Article 250: Appellant shall present the original or a copy of the original decision or ruling of the Primary Court to the Commercial Court of Appeals. Chapter Two Time Period for Filing an Appeal Article 251: The time period for filing an appeal against the Primary Court’s order is two months from the date of the issuance of the decision or ruling. Article 252: Persons present at the time of the court’s announcement are recorded and signed in the Claim Registry Book. For those persons not present at the time of the court’s announcement they shall be notified in accordance with Articles 87, 88 and 89 of this law. Article 253: If the appeal is filed after the expiration of the time period stated in Article 251, the Court of Appeals shall state their decision to not hear the appeal in writing. Chapter Three Proceedings on Appeal Article 254: The parties shall file a request appeal. This request shall be presented by the plaintiff or defendant, or their attorneys, directly to the Commercial Court of Appeals located in Kabul. Article 255: The Secretary of the Commercial Court of Appeals shall record the contents of the application for appeal at the time it is filed. The Commercial Secretary of the Court of Appeals shall provide the requesting party a receipt stating the requesting party’s name, opposing party’s name, and the date the request for appeal was received. The Secretary of the Commercial Court of Appeals shall write the filing date on all the documents relevant to the application for appeal. This date is considered the beginning of the appeal. Article 256: The following information shall be included in the application for appeal: a. Full name and address of the appellant; b. Opposing party’s full name and address; c. Full names and addresses of attorneys; d. Summary of the order against which the appeal is filed; e. Date of the Primary Court’s order or ruling against which the appeal is filed; f. Name of the Primary Court issuing the order; g. A description of the issues on appeal, the amount of the disputed property, and other particularities; h. Statement of objections to the Primary Court’s decision. Article 257: The following documents along with the application for appeal shall be filed in the Court of Appeals: a. The power of attorney showing the appellant retained an attorney; b. A copy of those documents appellant relies upon; c. The original or copy of the original Primary Court’s order or ruling against which the appeal is filed. Article 258: The application for appeal, along with the attached documents, is presented to a session of the Commercial Court of Appeals in the order received. If the court finds the appeal to lack merits then the court shall deny the request for appeal. If the court finds the case presents merits, the application and attached documents are recorded in the Claim Registry Book along with the parties’ and their attorney signature, or stamp and or fingerprint impressions, Article 259: After the application for appeal and attached documents are recorded in the Claim Registry Book, the contents of the Claim Registry Book are presented to the opposing party in the presence of the Secretary of the Court in order to help prepare opposing party prepare in defense. The opposing party may obtain a copy of the application for appeal and attached documents from the Claim Registry Book, in accordance with this Article. Article 260: The opposing party or its attorney shall record their objections within 10 days after examining the application for appeal and documents attached in the Claim Registry Book under the supervision of the Secretary of the Court of Appeals and place a signature or stamp and fingerprint impression. Article 261: After recording defenses’ objections and documents in the Claim Registry Book, the date and time for the adjudication of the appeal shall be assigned and both parties shall be notified by the court to appear on a specified date and time. The parties shall provide their signatures indicating receipt of the court’s notice. Article 262: New claim(s) not raised in the Primary Court shall not be heard on appeal. Compensation for lease, rent or other losses incurred by the appellant from the time of the order of the original claim shall not be considered as new claims. Article 263: All procedural rules observed in the Primary Court, in accordance with the provisions of this law, shall also be observed in the Court of Appeals but only in those cases where the law provides special and clear rules. Article 264: If the Primary Court order is in conformity with the law as a result of review by the Court of Appeals the Primary Court’s decision is confirmed. The Court of Appeals may issue its own decision in cases where the Primary Court’s decision is not in conformity with the law. The authority of the Court of Appeals applies in those situations where the Primary Court’s order is silent concerning an aspect of the claim or if new evidence is presented to the Court of Appeals. Article 265: If the Court of Appeals, at the time of adjudication of the appeal, does not find any mistakes except errors in numbers, or those numbers are not stated in the original decision, the Court shall correct the errors and issue a decision confirming the original order. Article 266: At the conclusion of the appeal in accordance with the provisions of this Chapter, where the issues are clear and ready for ruling and there is no need for further investigations, the Court of Appeals shall announce the conclusion of the investigation period and assign a date and time for the announcement of its order. This shall be recorded in the Claim Registry Book. The Court shall require the parties to appear on the designated date and time and the notice shall be provided within 10 days from the date the conclusion of the investigation is announced. Article 267: The opinion, order, and/or ruling of the Court of Appeals shall be based on Articles 239 - 245 of this law. Part Four Appeal to the Supreme Court Chapter One Orders and Rulings on Appeal Article 268: Any orders of the Commercial Court of Appeals may be appealed to the Supreme Court unless otherwise stated in law. Article 269: The following orders shall not be appealed to the Supreme Court: a. Orders of the Court of Appeals concerning money less than Afs. 4000; b. Orders of the Court of Appeals made on the basis of admissions; c. Orders that depend on one or more arbitrators and the decisions of the arbitrators are considered final and in accordance with the Chapter on Arbitration. Article 270: No rulings may be appealed to the Court of Appeals unless otherwise stated in this law. Article 271: Only the following rulings may be appealed to the Supreme Court: a. Rulings issued by the Court of Appeals based on lack of jurisdiction; b. Rulings issued by the Court of Appeals based on the legal incapacity of one of the parties to the claim; c. Rulings issued by the Court of Appeals in cases of rejection or non- hearing of a claim; d. A ruling that rejects the request for the dismissal of one of the Commercial Court of Appeals’ members. Article 272: Appellant shall present the original or a copy of the original decision or ruling of the Primary Commercial Court and Commercial Court of Appeals to the Supreme Court. Article 273: The appellant shall not submit additional new documents or evidence to the Supreme Court. Chapter Two Time Period for Appeal to the Supreme Court Article 274: : The time period for filing an appeal against the Commercial Court of Appeals’ order or ruling is one month from the date of the issuance of the order or ruling. Upon expiration of the one month period of time in no cases may an appeal be filed to the Supreme Court. Article 275: The announcement of a decision shall be in accordance with Article 253 of this law. Article 276: The appeal and its adjudication shall be in accordance with Articles 254 – 259, where it is not contradictory to the provisions of this Chapter. Chapter Three Adjudication of the Appeal Article 277: The Supreme Court Commercial Division may summon the parties where necessary or adjudicate the appeal in their absence. Article 278: If the parties to the claim are summoned the Supreme Court may ask necessary questions. The questions of the court, which are to be asked once, and the answers of the parties shall be recorded in the Claim Registry Book and signed by the responding party. Article 279: The adjudication procedure, the announcement of the completion of the investigation, the adoption of opinions, announcement of the order, and the submission of the decision letters of the Supreme Court shall be subject to the provisions of this law concerning the Primary Commercial Court and the Commercial Court of Appeals. Article 280: The objective of the appeal to the Supreme Court is to determine whether the orders and rulings of the Primary Court and Court of Appeals against which the appeal is filed are in accordance with the provisions of this law. If the orders and rulings of the Primary Court and Court of Appeals are in accordance with the provisions of the law, the Supreme Court shall confirm them. If the orders and rulings of the Primary Court and Court of Appeals are contrary to each other, then the Supreme Court shall confirm that order and ruling that is in accordance with the law, and the case is closed. Article 281: The Supreme Court shall amend those decisions and/or rulings of the Court of Appeals and orders its correction in the following situations: a. If the orders and/or rulings are contrary to the laws the commercial courts are required to apply; b. If the Court of Appeals incorrectly interpreted the terms of the contract between the parties to the claim; c. If there is a contradiction or inconsistency between the orders or rulings of the Court of Appeals on an identical issue; d. If evidence of a party is rejected without clear legal reasons. Article 282: Any decision and ruling of the Supreme Court Commercial Division shall be final. Article 283: The orders and/or rulings against which an appeal is filed may be repealed based on Article 281, even if the appellant has not cited the authority of Article 281. Article 284: If the Supreme Court Commercial Division repeals an order or ruling on the basis of Article 281, the claim is remanded to the Court of Appeals for correction of its order or ruling. The revised order or ruling of the Court of Appeals may be appealed. If the Commercial Court of Appeals stands on its former order or ruling and rejects the reasoning of the Supreme Court, the Supreme Court shall review its order or ruling and provide its order on the merits of the claim. Article 285: If the Supreme Court issues an order concerning the jurisdiction of a court to adjudicate a claim, the case shall be remanded to the relevant court for adjudication. Part Five Fees for Decision Letter, Price of Official Documents, and the Expenses of the Commercial Courts Chapter One Fee for Decision Letters Article 286: The fees for decisions letters issued by the commercial courts shall be based on the value of the award as follows: a. In the decision letters issued by the Primary Commercial Court, 8% of the value of the award is provided by the losing party as a fee for the decision letter; b. In the decision letters issued by the Commercial Court of Appeals, 16% of the value of the award is provided by the losing party as a fee for the decision letter; c. In the decision letters issued by the Supreme Court Commercial Division 22% of the value of the award is provided by the losing party as a fee for the decision letter. Article 287: If the plaintiff’s claim in the Primary Court is more than the value of the award and part of this value is proved in court, according to Article 286(a), the fee shall be determined based on the award and not the claim. The losing party pays 8% of the value of the award as fee for the decision letter and the winning party shall pays 1% of the remaining amount not proved as a fee for failing to prove the entire claim. If the plaintiff could not prove its claim plaintiff shall pay 1% of the value of the claim as a fee for failing to prove the claim. Article 288: If the order of the Primary Court is confirmed by the Court of Appeals then no other fee shall be charged except the price of the Afs. 50 stamp provided at the time of filing the claim. In case the Court of Appeals partially confirms the Primary Court order, that part of the award confirmed by the Court of Appeals shall not be subject to any fee. However, the party shall pay 1% of the value of the award decreased by the Court of Appeals as a fee for failing to prove that part of the claim. If the Court of Appeals repeals the entire award made by the Primary Court and issues a new order, the party losing on appeal shall pay 1% of the value of the Primary Court award as a fee for failing to prove the claim and in addition shall pay 16% of the value of the Court of Appeals’ new award. Article 289: Article 288 shall be applied by the Supreme Court in its review of the orders of the Court of Appeals in accordance with Article 286(c). Article 290: If the claims are resolved at any level of the commercial courts through settlement or arbitration, the parties shall pay jointly 8% of the settlement or arbitration amount to the Primary Court, 16% to the Court of Appeals, and 22% to the Supreme Court , and also 1% of the deducted amount, if any, as a fee for failing to prove the claim. If the parties reach a different agreement concerning the fees and other expenses the court shall abide by the parties’ agreement. Chapter Two Fee for Documents in the Commercial Courts Article 291: Any party, including real or legal persons, filing a claim in the commercial courts shall present the claim on Afs.2 formal application form, and, if not available, on a white paper with a Afs.2 ticket attached, to the relevant court. Article 292: Any party, including real or legal persons, filing a claim in a commercial court shall present to the court, along with the claim application a stamp ticket of Afs.50 prior to commencement of judicial proceedings, in accordance with the provisions of this law. Article 293: The fee for every document prepared in the commercial court, including decision letters, pleas, receipts, admission letters, agreements, and power of attorneys, is Afs.20. Article 294: The fee for those documents prepared in the commercial courts is as follows: a. Plea letter is 2% of the registered amount; b. Waiver letter is 3% of the registered amount; c. Lease letter of movable assets is 3% of the registered amount. d. Admission letter is 3% of the registered amount. e. Receipt letter is 3% of the registered amount. f. Agreement letter is 0.5% in the registered amount. g. No further fees may be imposed, except Afs. 20 as value of the deed, on all commercial power of attorneys and those admission letters that does not contain monetary value. Article 295: The fees for documents stated in Article 294 will be paid by the party who is relying on the document. Only waiver and receipt letters are exempted from this requirement and the document price is shared by the parties. If the parties agree upon a different method of payment for the documents, the fees will then be calculated according to the parties’ agreement. Chapter Three Attestation Fee and the Court’s Expenses Article 296: The attestation fee is charged on two kinds of attestations: a. Confirmation of the original with the copy; b. With other confirmations. Article 297: The attestation fee of the duplicate with the original in a commercial court is Afs.20 per page. Twenty-five words equals one line and 15 lines equals one page. If there is a line break, it is counted as a complete page. Article 298: The attestation of other documents issued by the commercial court is Afs.20 without considering the number of lines. Article 299: The court’s expenses are as follow: a. The expenses for the adoption of precautionary and security measures; b. The expenses of experts; c. The expenses of bringing the witnesses; d. The expenses of announcement and notification; e. Legal fees of the defense attorney and/or legal advisor. Article 300: If the parties to the claim require expert testimony and certain security and precautionary measures they shall present their request to the court along with the formal application and Afs.25 stamp. Article 301: If a party to the claim s requests a measure and the court grants the request, then the party shall pay the costs of the measure to the court prior to commencement of the proceedings. If the party fails to timely pay the costs to the court prior to commencement of the proceedings then it is assumed the party has relinquished the request. Article 302: If the court imposes a measure that is necessary for reaching a decision in the claim without consulting the parties then the parties shall pay the costs of the measure taken by the court. Article 303: The party that pays the costs in accordance with the provisions of this Chapter and the court decides in that party’s favor then the court shall order the losing party to pay attorney or legal advisor’s fees at the request of the winning party. Part Six Structure of the Commercial Court Chapter One The Primary Court Article 304: A Commercial Primary Court to resolve commercial disputes shall be located in all the provincial capitals and high governments of the state. Article 305: The presidents of the commercial courts and members are nominated and appointed in accordance with the principles of appointment, promotion and retirement of civil servants. Article 306: The number of judicial boards in a Primary Court located in the provincial capitals and high government, shall be three persons, including the President of the Court. Article 307: The President of the Commercial Court in the capital Kabul is grade one; presidents of the commercial courts in the provincial capitals is grade two, and presidents of the commercial courts in the high governments is grade three. Article 308: The grades of the members of the commercial courts are as follow: a. The members of the Commercial Primary Court in Kabul are grade one. b. The members of the Commercial Primary Courts in the provinces are grade two. Article 309: A Correspondence Officer is assigned to each Primary Court and performs the duties of a secretary and does not hold judicial powers, is grade three in the Commercial Primary Court of Kabul and grade four in the Commercial Primary Court in the provinces. The administrative clerks, typists and the staff of the Primary Courts are selected in compliance with the budget of the Ministry of Justice. Chapter Two The Court of Appeals Article 310: There shall be a Commercial Court of Appeals in Kabul in accordance with the provisions of this law which reviews the decisions and rulings of the Primary Courts. The Ministry of Justice holds authority to establish other Primary Courts in other parts of the country. Article 311: The judicial board of the Commercial Court of Appeals is composed of three persons, including the President of the Court, and appointed in accordance with Article 305 of this law. Their grades are as follow: a. The President of the Commercial Court of Appeals is grade one. b. The members of the Commercial Court of Appeals are grade two. Article 312: A Correspondence Officer is assigned to the Commercial Court of Appeals and performs the duties of a secretary as well and does not hold judicial power is grade three. The administrative clerks, typists and the staff in the Commercial Court of Appeals are selected in compliance with the budget of the Ministry of Justice. Chapter Three The Commercial Court of Appeals Article 313: The Commercial Court of Appeals in Kabul is established in accordance with the provisions of this law in order to accomplish those responsibilities required by the Court. Article 314: The judicial board of the Commercial Court of Appeals is comprised of three persons appointed in accordance with Article 305 of this law, and their grade are as follows: a. The President of the Commercial Court of Appeals is grade one. b. The members of the Commercial Court of Appeals are grade two. Article 315: Article 312 of this law is also applicable to the Supreme Court Commercial Division. Chapter Four Miscellaneous Provisions Article 316: The Commercial Court of Appeals is independent in the performance of its duties and protected from interferences. Only its budget and organizational structure is controlled by the Ministry of Justice. Article 317: When appointing the President and members of the Commercial Courts of Appeals, it is necessary to review the appointee’s educational credentials and professional experiences. The Ministry of Justice shall consider the organization of the commercial courts in developing its budget, provide all necessary facilities, and take measures for ensuring the performance and facilitation of its duties. Article 318: The security officials of Kabul and the provinces shall implement the decisions of the commercial courts in compliance with this law. Article 319: Where necessary, the three-tiered commercial courts may utilize experts, experienced businessmen, and professional experiences of the chamber of commerce to provide the evidence, proof, and/or clarification of commercial traditions and customs. Article 320: The court shall not provide decision letters to the parties unless it receives the decision fee and stamp where it will cancel the ticket in the relevant book. Article 321: The stamps pasted on the court’s record book shall be cancelled by imposing a cancel stamp on the face of the ticket. Article 322: A party in the commercial court may withdraw the claim at any level of the proceedings, including the Primary Court, the Commercial Court of Appeals or the Supreme Court. No fee shall be charged as long as the claim has not been filed, proceedings have not started, and the case has not been registered in the Claim Registry Book. The case shall be removed from the court’s docket and closed. If the proceedings have commenced and the case is recorded in the Claim Registry Book then, according to the provisions of this law, the party that withdrew the claim shall pay the assigned fee for failing to prove the claim, and the court shall issue a decision letter in this regard. If the defendant counterclaimed against the plaintiff or a third party has entered a claim, then the withdrawal of the claim is conditioned on the agreement of the defendant and/or the third party. Article 323: The Ministry of Justice shall include the Offices of Documents & Trademarks Registration and the offices of Bankruptcy & Liquidation in the commercial courts’ budget in accordance with the by-laws of Bankruptcy & Liquidation relevant to the Primary Courts. Article 324: This law shall become effective two months after its publication in the Official Gazette.
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