Conflict of Laws—State Practice in Afghanistan

The Constitution of the Islamic Republic of Afghanistan 2004, Article 41(1) does not permit foreigners to have immovable property in Afghanistan. English version is available at: http://​www.​embassyofafghani​stan.​org/​page/​constitution, accessed on 3 March 2016.

Carol Wang, ‘Rule of Law in Afghanistan: Enabling a Constitutional Framework for Local Accountability’ (2014) 55(1) HIJ 217.

Abdul Satar Sirat, ‘The Modern Legal System of Afghanistan An Introduction to the Study of Comparative Law’ (1968) 16(4) AJCL 563.

Afghanistan 2004 Constitution (n1) Official Gazette, Issue No 818, 2004, Art. 130. Dari version is available at: http://​moj.​gov.​af/​content/​files/​Pages/​OfficialGazetteI​ndex_​D-header.​htm http://​icoic.​gov.​af/​fa/​page/​992, accessed 3 April 2016.

Abdul Aziz Mohammad Kamal, Al-Taqnin Fi Zoo Al-Qaza Wa Al-Feqa (1st volume, Egypt 1980) 132 (Arabic text).

Afghanistan Commercial Code, Official Gazette, Issue No 89, 1955, Art. 2 Dari version is available at: http://​moj.​gov.​af/​content/​files/​Pages/​OfficialGazetteI​ndex_​D-header.​htm, accessed on 4 April 2016.

Afghanistan Law on Organization and Jurisdiction of Judiciary Branch LOJJB. Official Gazette, Issue No. 1109, 2013. The purpose and scope of this law is to regulate the organization, structure, duties and responsibilities of Afghanistan Judiciary branch. Dari text available at: http://​moj.​gov.​af/​content/​files/​Pages/​OfficialGazetteI​ndex_​Dheader.​htm, accessed on 10 March 2016.

In the legal system of Afghanistan based on Art. (61) of LOJJB there are special courts that are dealing with special cases and issues—family court, dealing with family issues, commercial courts which are dealing with commercial issues, civil courts which are dealing with civil issues such as land and Juvenile Court.

The purpose and aim of this law is to manage the affairs related to the organization of the judiciary, duties and powers of the Supreme Court, Primary and Appeal Courts and judges of the Islamic Republic of Afghanistan. Official Gazette, Issue No 1109, 2013. Art. 1.

LOJJB (n 8) Art. 3.

Afghanistan Civil Procedure Code, Official Gazette, Issue No 722, 1990. The purpose and scope of the Civil Procedure Code is related to the proceedings in civil cases and judgments in the courts of the Republic of Afghanistan. See also Official Gazette, issue No 722, 1992, Art. 1.

Afghanistan Commercial Procedure 1955, The purpose and scope of the Commercial Procedure Code is to regulate and resolve all those disputes that arise with commercial transactions is the duty of three courts (primary, secondary and supreme court) and is subject to the provisions of this law.

LOJJB (n 8) Art. 31.

(n 12) Art. 95 (Dari text).

Ibid., Art. 81.

It was enacted in 1355/1977. It has 2416 Articles with regards to civil issues. Dari text is available at: http://​moj.​gov.​af/​content/​files/​Pages/​OfficialGazetteI​ndex_​D-header.​htm, accessed 12 January 2016.

Afghanistan Civil Code, Official Gazette, Issue No 353, 1355/1977, Art. 51 (Dari text).

(n 13) Art. 7.

Nezamuddin Abdulah, (n 7) 68.

“Against people, who do not have legal residence in Afghanistan, lawsuit will be filed in a court that it has jurisdiction over the place of their residence. If their residence is unknown, the claim shall be filed with the court that has jurisdiction over the defendants’ property, sureties or disputed property otherwise the claim shall be filed with Primary Commercial Court of Kabul”. According to this Article the domestic court authority and jurisdiction has been determined based on the three criteria: the first one is “legal residents” the second criteria is “the place and location of a defendant property” and finally the Primary Commercial Court of Kabul. This hierarchy is applicable merely concerning to commercial disputes. Article 10 of Afghanistan Commercial Procedure Code, Official Gazette, Issue No 1–4, 1334/1955, Non official translation.

(n 12) Art. 6.

A Legal Residence is a place that a person willingly chooses for his/her permanent residence. Commercial Procedure Code, (n 13) Art. 7.

Ibid.

http://​www.​hcch.​net/​index_​en.​php?​act=​states.​nonmember, accessed on 13 January 2016.

Article 4 explains the scope and application of the law as follows: (1) the provisions of this law are applicable on the following issues, unless the agreement stipulated otherwise: 1—agreements that have been concluded between Afghan citizen inside of Afghanistan. 2—Agreements that have been concluded between Afghan Citizens and foreign nationals inside of Afghanistan. 3—Agreements that have been concluded between foreign nationals inside of Afghanistan. Generally this law is applicable on commercial contract in the national and international level. Non official translation of the provision.

Afghanistan Law on Commercial Contracts and Selling Property. Official Gazette, Issue No 1150, 2014 Art. 87 Dari version is available at: http://​moj.​gov.​af/​content/​files/​Pages/​OfficialGazetteI​ndex_​D-header.​htm, accessed 28 December 2015.

Ibid., Art. 4.

Nezamuddin Abdulah (n 7) 187.

(n 13) Art. 2.

Nezamudin Abdullah (n 7) 117.

Articles 16–35.

(n 19) Art. 27.

Hague principle of Choice of Law in International Commercial Contracts, 2015. http://​www.​hcch.​net/​index_​en.​php?​act, accessed 12 February, 2016.

Ibid.

Article 32 states: “If there is no provision in the foregoing Articles of this Act with respect to contradiction in laws, rules of private international law shall be applicable.” This Article recognizes the general rules of Private International Law to solve or define a dispute. However, it is not clear how to define the private international law’s rules and who will make decision which rules are counted as an international rules. In addition this Article provides a wider range of authority for a court to solve a civil case that has a foreign element.

Article 35 states: “Provisions of foreign law in cases defined in this Part shall be applied to the extent that they are not repugnant to public order or standards of decency in Afghanistan.” This Article limits the applicability of a foreign law or any other law that have been selected by the parties. A foreign law or a selected law only will be applicable that it is not in contrary to the public order of Afghanistan.

HPCL, 2015 Art. 11. http://​www.​rechtsanwaltskam​mer-duesseldorf.​de/​assets/​Uploads/​Aktuelles/​Rechtswahl.​pdf, accessed 10 May 2016.

Afghan Commercial Code in Articles 51–53 stipulates the domicile issues “Residence is the place where a person is usually reside there, whether it is a permanent resident or a temporary”. Also article 7th of the Law of the Procedure for Getting the Right define the residence as follow: “the local resident according to this law are: 1—the place where a person live there more than one year. 2—The place where a person has a non interim official duty. 3—The place where a person has a commercial and business there. 4—Any other places that the laws have recognized those places as the place of resident of a person”. See the official Gazette issue no 786/2000.

Afghan Civil Procedure Code, (n12) Article 27 states that: (2) In case they do not reside in the same country, the law of the state in which the contract is completed shall be applicable, provided that the parties to the contract have not agreed to application of a specific law, or evidence does not point to the fact that the parties to the contract did not think of application of another law.

Afghan Civil Procedure Code (n 12) Art. 27(3) With respect to contracts on immovable property, the law of the locality of the property is applicable. http://​www.​asianlii.​org/​af/​legis/​laws/​clotroacogn353p1​977010513551015a​650/​, accessed 10 May, 2016.

Article 4 of the law describes the scope of the law as follows: “This Law shall apply to:

1—Any Contract between Afghans domiciled in Afghanistan;

2—Any Contract between an Afghan and a foreign citizen in Afghanistan;

3—Any Contract between foreign citizens in Afghanistan;

4—Any immovable contracts which is located in Afghanistan between Afghan citizens and

4—Any Contract under the provisions of this Law”.

LCCSP. Official Gazette, issue No 1150, 2014. Art. 4.

This law has been enacted pursuant to the provision of Article 75, section 4 of Afghan Constitution to regulate the public procurement of goods, services and coordination of works, both domestic and foreign, for administrations, institutions, and mixed companies. Therefore, according to Article 4 of the law the scope of this law are: The entities, municipalities and other units funded under government budget are required to procure goods, works and services in accordance with the provisions of this Law, except in cases as mentioned below:

Afghanistan Law on the Procurement, Official Gazette, Issue no 1186, 2015, Art. 51. Dari version available at: http://​moj.​gov.​af/​content/​files/​Pages/​OfficialGazetteI​ndex_​D-header.​htm, accessed on 13 February 2016.

Naseh (n 33) 217.

Ibid., 1447.

(n 19) Art. 60.

Ibid.

(n 19) Art. 19.

(n 19) Art. 28.

Ibid., Art. 30.

Garner (n 54) 960.

Supreme Court of Afghanistan, Manual for Marriage Registration and Certificate for Foreign Citizens, Qaza Journal, 1st issue, 2011.

Ibid., Art. 7.

Ibid., Art. 9.

(n 19) Art. 20.

Wali Mohammad Naseh (n 33) 230.

Article 115^t of Afghanistan Civil Code articulates this issue: “The husband shall provide a suitable residence for his wife”. According to this Article a husband must provide a suitable accommodation for his wife.

Ibid., Art. 118.

Abdul Aziz Mohammad Kamal, Al-Taqnin Fi Zoo Al-Qaza W Al-Feqa (1st volume, Egypt 1980) 139 (Arabic text).

(n 19)Art. 135.

Ibid.

Ibid. Art. 16.

Ibid. Art. 20.

Naseh (n 33) 239.

(n 19) Art. 30.

(n 19) Art. 25.

Garner (n 54) 799.

(n 19) Art. 25.

Cheshire and North (n 59) 704.

(n 19) Art. 2103.

Naseh (n 33) 247.

(n 19) Art. 25.

Ibid., Art. 25.

(n 19) Art. 478.

Cheshire and North (n 59) 924.

(n 19) Art. 27.

Afzali and Rahimi, (n 92) 346.

(n 19) Art. 307.

The concept of “document” that has been used in this context embraces a broader meaning that a judgment is also one type of documents.

Afghanistan Civil Procedure Code, Official Gazette, issue No 722, 1990, Art. 307.

(n 12) Art. 308.

Ibid., Art. 162.

Ibid., Art. 32.

(n 19), Art. 991 and 995.

Garner (n 54) 519.

Law of Procedure for Obtaining the Rights Official Gazette, Issue No 786, 1998, Art. 10 (Dari text).

Nezamuddin Abdulah(n 7) 158.

HCCCA, 2005.

HCCCA 2005, Art. 9.

Naseh (n 33) 192.

(n 12), Art. 79, Kabul Primary Court has jurisdiction over all cases that happen in its jurisdiction. As it states: “Civil claims at the trial stage shall be decided by the city, municipal, district or sub-district courts, except in situations where the law provides otherwise”. Moreover, according to Article 81 of Civil Procedure Code, Kabul Primary Court had jurisdiction over the case as it states: “Civil claims are resolved in the defendant’s place of residence. In case the defendant possesses multiple residences, civil claims against him/her are heard in such court in whose jurisdiction the defendant resides while making the claim. In this case as Kabul was the defendant place of resident therefore the Kabul Primary Court referred the case to the supreme court for finding the legal source. could you explain in brief what is the jurisdiction of court in Afghanistan in the context of Kabul Primary court.

Afghanistan Supreme Court, ‘Jurisprudence no 2323/1388/81388,’ Qaza Legal and Judicial Monthly Journal, (2009) 3(4) 32 (Dari text).

Naseh (n 33) 192.

Article 35 of Afghan Civil Code recognizes the public order as a basic element and impediment for the implementation of a foreign law. Article 35 states: “Provisions of the foreign law in cases defined in this part shall be applied to the extent which is not repugnant to public order, or standards of decency in Afghanistan.” Non official translation of Afghan Civil Code.

Afzali and Rahani (n 92) 268, 9 (Persian text).

Naseh (n 33) 190.

Agreement between Government of Afghanistan and Republic Government of Turkey on International Land Transportation, Official Gazette Issue No 985, 2009 (Dari text).

Agreement between Afghanistan and Qatar Kingdom, Official Gazette, Issue no 982, 2009. According to the agreement the judgment of Qatar court will be enforceable in Afghanistan (Dari text).

Afghanistan Law on Procedure of Obtaining the Rights Afghanistan Law on Procedure of Obtaining the Rights, Official Gazette, issue no 786, 1378/1999, Art. 24 (Dari text).

Ibid., Art. 5.

Marie Noelle, Payam Shahrjerdi, Wali Mohammad Naseh et al., Private International Law-Basic Principle s (Vol.1) (IIPEC, Kabul 2012) 249 (Dari text).