أساليب معالجة القصور التشريعي في قواعد الاختصاص القضائي الدولي

الملخص EN

We have reviewed in this research the legislative shortcomings in the rules of international jurisdiction, where this jurisdiction is initially determined when the case is presented to the court, then this court determines the extent of its jurisdiction in considering the dispute before it, and when jurisdiction is established, the court determines the law applicable to that dispute.

International jurisdiction is: the jurisdiction of the national court in the view of the dispute that is tainted by a foreign element, it is either to prove the jurisdiction of the national court or not to prove the jurisdiction to it, so it gives jurisdiction to foreign courts indirectly, and from here, there are many controls that the Iraqi legislator did not explicitly address Including the voluntary subordination clause, as well as questions of procedure, linkage, and preliminary issues, as well as jurisdiction based on the claimant’s nationality and place of residence, and the defendant is not a departure from the general rule represented in that the plaintiff seeks the defendant in exceptional circumstances such as personal status lawsuits and lawsuits in which the plaintiff is a weak party to the lawsuit.

In the face of this shortcoming and lack of clarity in the treatment, the Iraqi jurisprudence resorted to many solutions, including relying on Article (30) of the Iraqi Civil Code, as well as analogy with the provisions of Article (7) of the Iraqi Foreign Judgment Execution Law, as well as resorting to measuring the rules of international jurisdiction on the rules The internal jurisdiction dealt with by the legislator in the Civil Procedure Code and other solutions.