CHAPTER I
GENERAL PROVISIONSLegal Base
Article 11. The Afghanistan Centre for Dispute Resolution is organized as body within Afghanistan Chamber of Commerce and Industry (ACCI) to provide dispute resolution services pursuant to Article 8, Paragraph 10 of the Afghanistan Chamber of Commerce and Industries (ACCI) Law.
Objectives
Article 2:The Afghanistan Center for Commercial Dispute Resolution will fulfill its objectives by performing the following activities:
1. Regulating affairs pertaining how to do business, formation, recruitment procedures, appointments and dismissals of members and other matters related to the Center;
2. Provision of services for resolving commercial disputes;
3. Supporting attracting investment and business continuity services through provision of effective, equitable and accountable in relation to commercial disputes in Afghanistan;
4. Providing prompt, professional and transparent alternative dispute resolution to commercial disputes
Article 3– Name, Seat and Language of the Afghanistan Centre for Commercial Dispute Resolution
1. The Afghanistan Centre for Commercial Dispute Resolution or مرکز حل منازعات تجارتی افغانستان (Dari) or دافغانستاندسوداګریزوشخړوحلمرکزد (Pashto) shall be abbreviated as ACDR in English and Markaz in the Dari and Pashto versions of charter.2. ACDR shall establish its seat in Kabul, Afghanistan, at the headquarters of ACCI.
3. ACDR shall have as its official languages Dari, Pashtu, and English.
Article 4– Status of the ACDR and its liabilities
1. ACDR will be an independently managed body within ACCI.2. ACDR’s independence in its management and its operations shall be paramount to its success and sustainability as a reputable dispute resolution service provider in Afghanistan, and making no distinctions between ACCI members and non-members.
3. All decisions and operations regarding the ACDR will be taken solely by the governing bodies of the ACDR, as defined in this Charter.
Financial Affairs
Article 5:
1. ACDR shall not have status as a separate legal entity from ACCI, nor shall it have any property or liabilities separate and distinct from ACCI other than as expressly provided for in this Charter or as designated in any agreement between ACCI and ACDR.2. ACDR shall be entitled to the transparent and accountable use of all revenues that are generated through services it provides and directed grants made to it by third party entities and donors. The activities of ACDR shall be funded by the ACCI through an annual budget only if revenues generated by ACDR services and directed grants by third party entities and donors are insufficient to fund ACDR and costs incurred by ACDR.
3. ACDR shall maintain a bank account with two signatures required for disbursements: 1) signature of the ACDR Executive Director; and 2) signature of the CEO of ACCI.
4. All revenues generated by ACDR from its operations and services shall be deposited into this bank account.
5. Funds in the account shall be dedicated to the ordinary operations of ACDR, provided, however, that during the pendency of any period in which all ACDRs operating costs are funded by an external organization, ACDR shall accumulate and retain the funds deposited into this bank account for use only after expiration of such period of external funding.
Chapter II
HOW TO CONDUCT BUSINESSACDR and Means of Achieving ThemArticle 6:
To promote resolution of commercial or business disputes between national or foreign natural and legal persons and legal entities ACDR shall offer to provide alternative dispute resolution services, including mediation and arbitration, according to the Arbitration and Mediation Law of the Islamic Republic of Afghanistan.1. All activities of ACDR shall be conducted in a manner to preserve the dignity of the parties before it, as well as the interests of the community
2. Services shall be provided consistently with all rules, procedures, and codes of ethics adopted by ACDR.
3. In providing dispute resolution services, no actions of ACDR shall be taken outside of its required role as a neutral and independent third party from the parties to the dispute.4. ACDR shall be an openly- and transparently-managed accountable and neutral body and gain the trust and confidence of adversarial parties or disputants.
Association with Other ADR Providers
Article 7:
1. ACDR shall be entitled to associate with, become a member of, and establish a twinning partner relationship with other providers of alternative dispute resolution services.2. Twinning relationships will be formalized with an agreement signed by the Steering Committee after consultation with and official recommendation by the ACDR Board of Directors.
Chapter 3
Structure, Duties and Authorities
Structure
Article 8
The Center has the following structure:
1.a. The ADCR Steering Committee (SC)
b. The ACDR Board of Directors (BoD)
c. The ACDR Independent Monitoring Committee (IMC)
d. The ACDR International Advisory Board (IAB)
e. The ACDRSecretariat
The SC, BoD, IAB and IMC members are the honorary positions and shall not be paid any remuneration for their services and activities.
Steering Committee (SC)
Article 9
The SC shall serve as the supreme governing body for ACDR, ensuring independent and transparent management of ACDR.1. The SC shall consist of a minimum of seven and a maximum of fifteen natural persons.
2. Members of the SC shall be appointed only as provided in Article 9, Section 3, of this Charter.
3. To preserve independence in management of ACDR, only a maximum of two seats serving on the SC may maintain for ACCI (ACCI Board of Directors Vice Chairman and CEO)
4. In the event the number of members of the SC falls to below seven, the SC shall have the responsibility to take prompt action to secure nomination and appointment of replacement members.
5. ACCI shall identify and/or facilitate the members of the first SC, subsequent SC members will be appointed by the SC. To assist in building a responsive and relevant complexion of the SC, for the formation of the first SC only, ACCI shall seek input from various relevant government bodies, non-governmental organizations, influential community leadership, and even businesses, to suggest or propose persons to serve on the SC. To preserve continuity of management, membership in the SC shall be maintained in terms to be structured so as not to expire all at once, established as follows:
a. Eight members of the first-appointed SC membership shall be appointed for a two-year term, with the consultation of ACCI.
b. Seven members of the first-appointed SC membership shall be appointed for a three-year term, with the consultation of ACCI.
c. If fewer than fifteen members are identified and/or introduced for SC membership of the first SC, one half of the members identified (or the nearest whole number greater than one half) shall be appointed for a two year term, while the remaining members of the first SC membership shall be appointed for a three year term.
6. If a member of the SC is dismissed according to Article 9, Section 3.f, or resigns prior to the expiration of that member’s term, the term for any replacement member shall be the unfinished term that was vacated.
7. No person shall serve more than three consecutive terms on the SC.
Loss of Membership
1. A member of the SC may only be dismissed prior to the term expiration only upon:
i) Final judgment of conviction for a grave crime or any crime involving fraud or deception as an element;
ii) Failure to participate in the most recent three consecutive meetings, as established in the minutes of such meetings;
iii) Upon a vote by two-thirds of the SC to dismiss the member; or
iv) The member becomes ineligible to serve on the SC under the requirements of this Charter.
v. A member of the SC may resign their membership on the SC at any time by providing thirty calendar days written express notice of resignation to the Chairperson of the SC and copied to all other SC members and the CEO of ACCI, as well as to the ACDR Executive Director.Dissolution of the Steering Committee
Article11:
The SC may be dissolved only after failure of the SC to convene more than three consecutive required meetings. Upon dissolution of the SC, the ACCI shall call nominating organizations for replacement members of a new SC.Dissolution of the Steering Committee
Article12:
The SC shall have the following functions and authorities:
1. Appoint four members of the Board of Directors (BoD) according to the terms and conditions established in this Charter.
2. Appoint replacement members of International Advisory Board according to the terms and conditions established in this Charter.
3. Elect, from among themselves, according to the requirements set out in Article 9, Section 7.d, of this Charter, a chairperson of the SC, who shall serve a term of one year with no restrictions on multiple consecutive terms.
4. Review and adopt policy priority statements, strategic planning documents, and sustainability plan proposed by the ACDR Board of Directors.
5. Control policy of ACDR.
6. Adopt Rules of Procedure and Codes of Conduct of the ACDR, as proposed by the ACDR Board of Directors.
7. Review and forward to ACCI annual budget requests of the ACDR;
8. Review the legality of the actions of any body of the ACDR and make recommendations to the ACCI.
9. Approve the reports that shall be sent annually to ACCI on SC activities.
10. All other such actions as are necessary to govern itself and carry out its activities fully and properly.
11. Schedule, organize, and convene all regular meetings of SC, supported by the ACDR Secretariat.
12. Providing expert opinion on amendments or modifications of the law on mediation and arbitration.
Steering Committee (SC) Meetings:
Article 13:
1. The Steering Committee meetings will be held once in every three months
2. A member of the SC will be appointed as the chairperson of the committee for one year.
3. The chairperson will schedule, organize and convene the meetings.
4. All members shall be provided with written notice of a meeting, together with meeting agenda and time and place of the meeting, at least twenty calendar days in advance of the scheduled meeting by the secretariat.
4. Meetings shall ordinarily be conducted at ACDR’s Kabul office; however, members of the SC who are unavoidably located outside of Kabul at the time of the meeting may participate via electronic means, whether audio or video. ACDR’s office shall make such electronic means reasonably available.5. Participation by at least 50 percent + 1 (Fifty Percent Plus One), in person or via electronic means, shall be required for a quorum.
6. All SC decisions made at an SC meeting shall require the positive vote of a regular majority of committee members participating in meeting where the decision is being considered in order to pass.
7. All the decisions made at the SC meeting shall be recorded in form of meeting minutes, signed by the members and the chairperson and kept at the Secretariat.
8. In extraordinary circumstances, decisions may be taken by the SC without the necessity of a meeting. Where a decision is being considered without meeting, it shall require the positive vote of a simple majority of committee membership in order to pass.
9. All members of the SC must be provided with a fair opportunity to consider, discuss, and vote on any proposed decision, unless incapacitated or otherwise unable to vote.
10. An SC member may also propose the convening of a meeting if at least one third of the SC members agree. Such meeting must take place no earlier than 20 calendar days following the time written notice of the meeting request and agenda was first provided to the SC members.
– ACDR Board of Directors (BoD)
Article 14
1. The ACDR Board of Directors shall serve as a managing body for ACDR, ensuring that ACDR develops and maintains long-term objectives and strategic direction as well as maintains in place policies and procedures for operation and provision of professional services as provided in this Charter.2. The ACDR Board of Directors shall consist of seven natural persons and shall be appointed only as provided in this Charter.
3. Membership on the ACDR Board of Directors shall be composed of:
i) Two members nominated by ACCI;
ii) One member nominated by the IAB;
iii) Four members of the SC, as selected by the SC.
4. In the absence of an IAB, the SC shall exercise the IAB’s power of nomination.
5. ACDR Board of Directors shall enter office by appointment of SC following nominations by the respective nominating bodies.
6. The term of membership on the ACDR Board of Directors is two years.
7. If a member of the ACDR Board of Directors is dismissed or resigns prior to the expiration of that member’s term, a replacement member shall be nominated by the respective nominating body for the resigning member, and the term for any replacement member shall be the unfinished term that was vacated.
8. No person shall serve more than three consecutive terms on the ACDR Board of Directors.
9. A member of the ACDR Board of Directors may only be dismissed prior to the term expiration only upon:
i) Final judgment of conviction for a grave crime or any crime involving fraud or deception as an element;
ii) Upon a vote by two-thirds of the SC to dismiss the member; or
iii) Failure to participate in the most recent three consecutive meetings, as established in the minutes of such meetings.
iv) Dismissal as provided for in the immediately preceding sub-section shall be carried out through decision of the SC.
10. Dismissal of a member will be carried out by the Steering Committee
11. A member of the ACDR Board of Directors may resign their position on the board at any time by providing written express notice of resignation to the Chairperson of the BoD, copied to all other members of the ACDR Board of Directors and the CEO of ACCI, as well as the ACDRExecutive Director.
12. Whenever a Board Member has a financial or personal interest in any matter coming before the board of directors, the affected person shall:
a) Fully disclose the nature of the interest and
b) Withdraw from discussion, lobbying, and voting on the matter.
Any transaction or vote involving a potential conflict of interest shall be approved only when a majority of disinterested Board Members determine that it is in the best interest of the ACDR to do so. The minutes of meetings at which such votes are taken shall record such disclosure, abstention and rationale for approval.
Duties & Authorities:
Article 15
The ACDR Board of Directors shall have the following functions and authorities:1. Establish the terms of remuneration, honoraria, and reimbursement of expenses pursuant to rules published from time to time after consultation and coordination with ACCI.
2. Exclusive power to hire and fire the ACDR Director according to the terms and conditions established in this Charter.
3. Support development of, and recommend to the SC, policy priorities, strategic planning, sustainability planning and monitoring and evaluation for ACDR’s short-, medium-, and long-term.
4. Propose Rules of Procedure and Codes of Conduct of the ACDR and adopt a Procedure for Complaints to ACDR;
5. Adopt all tariffs and fee schedules of ACDR, which shall be made publicly available;
6. Selection, according to criteria established by the Steering Committee, and maintenance of a register of mediators and entry of persons and deletion of persons from the register of mediators for violation of the ACDR Mediators Code of Conduct, as determined by the IMC;
7. Review and approval of all annual work plans and operations plans of the ACDR;
8. Review and approval of all communication, awareness, and outreach plans and strategies of ACDR;
9. Review and approval of ACDR’s annual training plan;
10. Review and forward the annual budget of ACDR to SC andACCI;
11. Adoption of Rules of Procedure for the Independent Monitoring Committee to hear and consider complaints related to ACDR activities;
12. Review and make decisions regarding discipline based on recommendations of the Independent Monitoring Committee, as well as on its own initiative, which decisions shall be published on ACDR’s website;
13. Elect, from among themselves, according to the requirements set out in Article 10, Section 6.d, a Chairperson of the ACDR Board of Directors, who shall serve a term of one year with no restrictions on multiple consecutive terms;
14. Make recommendations to the SC regarding twinning relationships and/or associations with other ADR Providers;
15. Report to the SCannually on its activities during the preceding year.
16. All other such actions as are necessary to govern itself and carry out its activities fully and properly.
Duties and Authorities of the Chairperson of the Board of Directors (BoD)
Article 161. The Chairperson of ACDR Board of Directors shall be responsible to:
a. Serve as meeting chairperson of ACDR Board of Directors meetings;
b. Report to the SC as necessary and according to the requirements of Article 10, of this Charter; and
c. Sign all decisions taken by ACDR Board of Directors membership, failing which, decisions taken by the ACDR Board of Directors shall nevertheless have full force and effect.
2. Regular meetings of the ACDR Board of Directors shall be conducted no less often than once every one and a half months, and shall be scheduled and convened by the Chairperson of the ACDR Board of Directors. If the Chairperson is unavailable, the Board of Directors members present shall elect an acting Chairperson for purposes of conducting the meeting.3. All members shall be provided with written notice of a meeting, together with meeting agenda and time and place of the meeting, at least 7 calendar days in advance of the scheduled meeting.
4. Meetings shall ordinarily be conducted at ACDR’s Kabul office; however, members of the ACDR Board of Directors who are unavoidably located outside of Kabul at the time of the meeting may participate via electronic means, whether audio or video. ACDR’s office shall make such electronic means reasonably available.
5. Participation by at least four members, in person or via electronic means, shall be required for a quorum of the meetings of the ACDR Board of Directors.
4. All decisions made at an ACDR Board of Directors meeting shall require the positive vote of a simple majority of board members participating in meeting where the decision is being considered in order to pass.
5. Decisions may be taken by the ACDR Board of Directors without the necessity of a meeting. Where a decision is being considered without meeting, it shall require the positive vote of a regular majority of ACDR Board of Directors membership in order to pass. All members of the Board of Directors must be provided with a fair opportunity to consider, discuss, and vote on any proposed decision, unless incapacitated or otherwise unable to vote.
6. A member of the ACDR Board of Directors may also propose the convening of a meeting if at least one half of the Board of Directors members agree. Such meeting must take place no earlier than 15calendar days following the time written notice of the meeting request and agenda was first provided to the board members.
Independent Monitoring Committee (IMC)
Article 17–
1. The Independent Monitoring Committee (IMC) shall strive to ensure the highest ethical standards of conduct are respected by all parties involved in the operation of the ACDR and the provision of professional services by managing a complaint procedure for ACDR.2. The IMC shall be composed of a minimum of three persons and a maximum of five persons of high professional reputation, and appointed by the SC. Members of the IMC shall be appointed only as provided in Article 11, Section 5, of this Charter. Selection shall be made based on high reputation for integrity and transparency in legal and/or commercial affairs, and one member shall be with an international background.
3. To preserve independence in the ACDR complaint procedure, a person must not have a relationship of employment with ACCI and ACDR in order to be eligible to serve on the IMC.4. IMC members shall not be paid any remuneration for their services, however they may be reimbursed their reasonable expenses incurred solely in the carrying out of activities in furtherance of the requirements of this Charter and only to the extent provided for in any rule on expense reimbursement issued from time to time by the SC and/or the ACDR Board of Directors and coordinated with ACCI issued in advance of each such expense being incurred.
5. All members of the IMC shall be appointed by the SC. The term of membership on the IMC is three years, however, to preserve continuity on the IMC, membership in the IMC shall be maintained in terms to be structured so as not to expire all at once, and established as follows:
a. Two members of the first-appointed IMC membership shall be appointed for a one-year term
b. Two members of the first-appointed IMC membership shall be appointed for a two-year term
c. One member of the first-appointed IMC membership shall be appointed for a three-year term
6. If a member of the IMC is dismissed or resigns prior to the expiration of that member’s term, the term for any replacement member shall be the unfinished term that was vacated.
7. No person shall serve more than two consecutive terms on the IMC.
8. A member of the IMC may only be dismissed prior to the term expiration only upon:
i) Final judgment of conviction for a grave crime or any crime involving fraud or deception as an element;
ii) Failure to participate in the most recent three consecutive meetings, as established in the minutes of such meetings;
iii) Upon a vote by three-fourths of the SC to dismiss the member; or
iv) The member becomes ineligible to serve on the ISC under the requirements of this Charter.
9. Dismissal as provided for in the immediately preceding sub-section shall be carried out through decision of the SC.
10. A member of the IMC may resign their position on the board at any time by providing thirty calendar days written express notice of resignation to the Chairperson of the SC, copied to all other members of the IMC and the CEO of ACCI, as well as the ACDR Executive Director.
Duties & Authorities of the Independent Monitoring Committee (IMC)
Article 18
The IMC shall have the following functions and authorities:1. Addressing all complaints regarding the actions or omissions of ACDR Secretariat, mediators, or any other body of ACDR regarding any business of ACDR, following procedures set out in a Procedure for Complaints as adopted from time to time by the ACDR Board of Directors.
2. Recommendations on any disciplinary actions to be taken shall be addressed to the ACDR Board of Directors for final decision, which shall be published by ACDR.
3. In the event that a complaint involves facts or circumstances that reasonably call into question the impartiality of any members of the IMC, such member shall disclose such facts or circumstances and recues themselves from participating in the complaint at issue in any way.4. Implementation of ACDR’s Mission, Vision, and Values.
5. Conducting regular annual internal audit of ACDR on parameters decided upon in conjunction with the SC and ACDR Board of Directors.
6. The IMC shall meet as needed to fairly consider complaints, but at a minimum of twice per year.
7. Prior to the formation of the first IMC, the powers and authorities of the IMC shall be carried out by the Chairperson of the SC.
International Advisory Board (IAB)
Article 191. The International Advisory Board shall consist of a minimum of seven natural persons who are prominent international figures in ADR, legal, and business fields. Members of the International Advisory Board shall be appointed only as provided in Article 12 of this Charter.
1. Membership on the International Advisory Board members shall be voluntary. Members may be reimbursed their reasonable expenses incurred as allowed by the terms provided in any rule on honoraria and expense reimbursement issued from time to time by the ACDR Board of Directors issued in advance of each such expense being incurred.
2. Membership of the first International Advisory Board shall be appointed by the SC in terms structured so that terms do not all expire at once, following which successive board memberships shall be formed through appointment by the Chairperson of the SC following election by the SC after consultation with ACCI. Following the expiration of initial membership mandates, the term for membership shall be two years.
3. The International Advisory Board will advise the ACDRSC and Board of Directors in informing policies, goals and strategic directions, as well as procedures and codes of conduct, with an emphasis on international investment policy, stability and growth. Specifically, the International Advisory Board will advise the ACDR Board of Directors and Secretariat in communicating with local, regional and international institutions working in the same field for exchanging experiences and visits, conducting cooperation agreements and training to promote the ACDR to an international audience.
4. The International Advisory Board shall be responsible for making recommendations on international policy to the ACDR Board of Directors and the Secretariat. It has the power to nominate one person for membership on the ACDR Board of Directors as provided in this Charter.5. The International Advisory Board will meet a minimum of once every three months during the fiscal year. International Board meetings are to be held during a fixed time as agreed upon by a majority of the International Board. Additional meetings may be commenced at the agreement of a majority of the International Advisory Board.
6. The International Advisory Board may make recommendations regarding, though may not authorize, communications with local, regional and international institutions working in the same field and businesses and other international associations for exchanging experiences and visits, conducting cooperation agreements and training to promote the ACDR to an international audience.
7. The International Advisory Board will elect, from among them, by simple majority vote, a Chairperson, who shall serve a term of one year with no restrictions on multiple consecutive terms.
8. International Board Members may attend; though not participate in voting, at ACDR Board of Directors Meetings.
ACDR Secretariat
Article 12
1. The ACDR Secretariat is consist of a technical staff (paid employees) led by the Executive Director.2. ACDR Secretariat shall support the ACDR Executive Director and shall include, at a minimum, full time positions to fulfill the following functional positions:
– Administrative Officer
– Financial Officer (which may be combined with Administrative Officer functions)
– Case Managers for mediations
– Communications Specialist (which may be combined with other positions on the ACDR Secretariat).3. Additional full time or part time positions may be created and filled from time to time by decision of the ACDR Board of Directors in close coordination with ACCI when such position is reasonably likely to require financing by ACCI.
4. Responsibilities and detailed job descriptions for ACDR Secretariat shall be developed by the ACDR Executive Director in cooperation with ACCI (if the position(s) is/are funded by ACCI), and adopted by the ACDR Board of Directors.
5. ACDR’s Executive Director shall directly supervise and manage the ACDR Secretariat and serve as the national and international representative and spokesman of ACDR. The Executive Director will also serve as the liaison with Afghanistan’s government on behalf of ACDR, in addition to the media and the legal and business communities. The Director will act as the liaison among the various governing bodies of ACDR and ACCI.
6. The ACDR Executive Director shall be appointed by the ACDR Board of Directors. The ACDR Executive Director’s employment shall be at-will, with the ACDR Board of Directors having sole and exclusive authority to discharge the ACDR Executive Director according to the terms and conditions established in this Charter, and any subsequent by laws and upon consultation with ACCI.
Duties & Responsibilities of the Executive Director
Article 21The ACDR Executive Director shall have the following general functions and authorities:
1. Serve as senior management officer of the ACDR, in charge of running the ACDR Secretariat;
2. Serve as chief spokesperson for the ACDR nationally and internationally;
3. Shall be responsible for all fundraising and development activities including the development and implementation of fundraising policies and procedures, subject to approval by the ACDR SC and BoD.
4. Manage and monitor the day-to-day activities of ACDR;
5. Power to hire and fire members of ACDR Secretariat staff, according to the terms and conditions established in this Charter, upon approval by the ACDR Board of Directors.
6. Manage the development of all policies, strategies, work planning, budget planning, operation planning, and communication, outreach, and awareness planning, and training plans and ensure the proper and smooth implementation of such strategies and plans as have been adopted;
7. Report to the Chairperson of the ACDR Board of Directors and ACCI CEO at least once a month according to the requirements of Article 12of this Charter;
8. Manage the meeting processes for each of the ACDR bodies, supported by the ACDR Secretariat, and attending meetings as a non-voting participant, if requested by the relevant body, except where recusal is required due to the nature of any matters discussed in particular meetings; and
9. Serve as a liaison between the ACDR Board of Directors and the International Advisory Board, especially by issuing a report after every ACDR Board of Directors meeting to the International Advisory Board taking care to provide a summary of any arguments or decisions which are made which fall under the scope of International Advisory Board duties, and any other issue which may affect the International Advisory Board in the carrying out of their duties; and
10. Other responsibilities as may be determined from time to time by the ACDR Board of Directors and ACCI, to ensure smooth professional, transparent, and accountable functioning of the ACDR.
Chapter Four
Final ProvisionsModification or Amendment of the Charter
Article 22
Only the SC has the right of modification, amendment and introducing any change in the charter
Logo and slogan of ACDR
Article 23
ACDR has a logo and slogan, which will be approved by the Steering Committee.
Enforcement
Article 23:
This charter is enforced after the approval of the Steering Committee.
Sidebar
Mobile Menu
WE ARE IN CHARGE OF RESOLVING COMMERCIAL DISPUTES
24
Wed, Apr
0
New Articles
