المسائل غير الخاضعة للتحكيم : دراسة مقارنة

Abstract EN

The freedom of the sides of the legal relationships is not absolute to submit the disputes arising between them to arbitration.

Indeed، there are restrictions limit the will and freedom of the sides of the relationship.

There is nothing in front of them except the state judiciary to which they have to recourse when disputes erupt between them.

This is not to minimize arbitration.

This recourse has been widespread currently in the international contracts.

In particular ، it is seldom to find an international contract not involving a condition stipulating recourse to arbitration to settle the disputes resulted from contract.

Arbitration is a superior justice.

The resource of this superiority belongs to that who wants it ، should give up the familiar way to get the justice.

It also lightens the burden placed on the shoulder of the judiciary as to settling a number of disputes in a way that it satisfies the litigants.

This instrument is based on the contractual principle where the legislations adopted this instrument; they did not define its scope.

They have left freedom to the litigants to recourse to the instrument.

Nevertheless ، there is an important matter that should be taken into account.

It is the subject of the dispute that is one of the matters can be settled through arbitration.

States have placed restrictions to safe-guard their interests.

The most apparent restriction is the public order.

That is why every dispute، contradicting the public order ، should be disregarded.

The legislator has connected the eligibility of the arbitration with the public order thought.

The disputes related to the public order should not be arbitrated or conciliated whatever was the kind of the relationship from which the disputer results.

The reason behind this disregard attributes the interest of the legislator to put forward some disputes to the state judiciary to a wisdom the legislator assesses and with specific measures the achievement of the public and private deterrence is guaranteed.

Referring to the amended Iraqi civil pleadings law №.(83) of 1969، it is demonstrated that this law has not defined the issues in which arbitration is permitted.

But ، it has depended on a measure in possibility or non-possibility of the arbitration.

The measure is the susceptibility of the subject to reconciliation.

This is what the article № (704) of the amended Iraqi civil law № (40) of 1951 has demonstrated.

It is noted that this article excluded of reconciliation the issues related to the public order.

The same article excepted the issues related to the personal status or committing of a specific crime except for the financial obligations resulted in personal status or committing one of the crimes.

However، definition of what is regarded as public order is very difficult.

Because this thought is flexible ، comparative and temporary.

The thought of the public order differs with difference of place and time.

What is regarded as the public order may not be like that in another state.

Additionally، what is considered as the public order may not be considered like that in specific time and place in another time and in the same place? That is why doctrine and jurisprudence (al-fiqih and ijtihad) has embarked on adoption new criteria to the susceptibility of the dispute to arbitration; the freedom of dealing with rights، the fiscal imprint of the dispute and exclusive specialization of the public authorities.

This study reached that peremptory legal basics، per se، regulating a specific matter are not enough to say about non-susceptibility of this matter to be settled by arbitration.

Indeed، there should be violation of the public order as to settlement of this matter by arbitration.

The best penalty is invalidity for issue of arbitration decision in a matter in which arbitration is not allowed.

To invalidate the arbitration decision contradicting the principle of not going into the matters in which arbitration is not allowed، measures and principles have been defined whether mentioned in the pleadings laws or in the laws related to arbitration.

Accordingly، arbitration decision is invalidated through the invalidity claim filed before the state in which the arbitration decision is executed