The use of international commercial arbitration in least-developed countries : a study with special reference to Afghanistan

Abstract

An increase in international trade and investment gives rise to more cross-border commercial disputes. As there is a need for an effective dispute resolution mechanism, international arbitration has proven to be a preferred option not only to resolve dispute but also to preserve business relations. In Afghanistan, with an increase in foreign investments, international commercial transactions, and flexible economic policies acting as a catalysing force, international commercial disputes that involve Afghanistan are increasingly growing. This has drawn incredible attention from the community on inter¬national arbitration regime of Afghanistan. There are increasing criticisms by the developing and least developed countries towards international commercial arbitration as an alternative means of settlement of trade disputes. It is widely claimed by these countries that international commercial arbitration is designed in a way that favours the economic interest of the developed world. Furthermore, the laws applicable under the disputes i.e., the doctrinal configuration of international law work against the interest of the third world. Despite the fact that least developed countries are still to a smaller scale involved in international investments compared to developed and developing countries, the absence of arbitration centres and skilled arbitrators have placed them in an unfavourable position when they are involved in international commercial transactions specifically in Afghanistan. This research aims to critically analyse: 1) why do the least developed countries need to shift from traditional litigation to International Commercial Arbitration? 2); Does the international commercial arbitration and the present set-up continues to perpetrate conceptual and institutional bias against the least developed countries?; 3) What are the issues, challenges, and the way forward in using International Commercial Arbitration in Afghanistan?; 4) How International Commercial Arbitration is perceived in Islam and what are the methods adopted by it? This research predominantly involves doctrinal and non-doctrinal (empirical) research mythologies. This research finds that the non-advancement of Afghanistan in the area of International Commercial Arbitration poses a serious threat to the foreign and national investors hence this thesis offers pragmatic recommendations.