The final Law Update of 2022 is here, and it’s packed full of articles. The double edition features two focus areas, first is a spotlight on Energy and Resources and second we feature a collection of articles on Transport and Logistics. The developments occurring in these sectors in the MENA region are unprecedented and our lawyers cover vast themes for you.
The Energy and Resources focus features topics such as diversifying energy resources, solar PV, mining in the Middle East, renewable energy and green hydrogen. From a transport perspective, we draw attention to the Bahrain metro project, discuss the challenges and remedies associated with the repossession of an aircraft, and there is advice on what to consider should a party vary the terms of a shipping contract.
This edition navigates you through updates from across jurisdictions such as, Oman, Jordan, Saudi Arabia, Egypt, Iraq, Qatar, and the UAE. Each article is timely and provides insights into legal issues and cases that are affecting these sectors across the region.Read the full edition
The claim involved a dispute between our clients and another Iraqi party under a supply contract subject to foreign arbitration valued at over 400 Million USD. According to Article 25(1) of the Iraqi Civil Code No 40 of 1951 (the “Civil Code”), contractual obligations shall be governed by the law of the state wherein lies the domicile of the contracting parties if they have a common domicile; otherwise, the law of the state within which the contracts were concluded will be applied unless the contracting parties agree otherwise or where it would be revealed from the circumstances that another law was intended to be applied.
In our abovementioned case, the Iraqi counterparty sought to refer the matter to Arbitration, to no avail. Furthermore, and notwithstanding the above, the counterparty filed the claim before the Iraqi courts claiming it had jurisdiction to hear the same. This is as Iraqi jurisprudence had previously been unclear as to the limits of Iraqi courts’ jurisdiction in relation to contracts subject to foreign arbitration; the courts at times finding they have jurisdiction to hear the claim on account of the place for executing the contract notwithstanding agreement to the contrary. However, and in accordance with the abovementioned Article 25(1) of the Civil Code, the Court of Cassation finally affirmed our argument that Iraqi courts do not have jurisdiction to hear such claims.
Additionally, it is important to note that in previous cases, the Iraqi courts used to go with the provision of Article 253 of the Civil Procedures Code No. 83 for the year 1969, which states that a dispute may not be heard by the court if the same was subject to an arbitration agreement between the parties. Furthermore, the Article goes on to state that if one of the parties resorted to the court and the other party did not object to that, then the suit may be heard and the arbitration clause shall be deemed as null and void. If, however, there was an objection by the other party, the court shall then decide to postpone he suit until an arbitral award is issued. In our case, the courts set a new precedent in that the courts decided that it had no jurisdiction to see this case as a result of both parties seeking arbitration before the counterpart sought the Iraqi courts.