دور الارادة في تحديد الاختصاص القضائي الدولي واثارها : دراسة مقارنة == The Role Of Will In Determining International Judicial Competence Comparative Study
Author name:
علياء احمد مبارك الزوبعي
Supervisor name:
نواف حازم خالد
General topic:
Law
Specific topic:
Private International Law
Degree:
Master
University:
University of Al Mosul - Collage Of Law - Department Of Private Law
Language:
Arabic
University location:
Mosul
Key words:
- الارادة
- الاختصاص القضائي الدولي
First pages:
13T1542 - p.pdf
Abstract:
يعد الخضوع الارادي احد الضوابط المهمة في فقه القانون الدولي الخاص والتي ينعقد على اساسه اختصاص المحكمة للنظر في النزاع، ويمكن ان يكون الاتفاق على الخضوع لمحكمة معينة صريحا سواء اكان سابقا على قيام النزاع ام لاحقا له، او ضمنيا ويكون بالخضوع المادي لاح | Voluntary submission is one of the self - evident rules in the private international Law. On which depends the competence of the court in order to deal with the conflict. The agreement of submission might be explicit or implicit. It is explicit for certain court before or after the conflict. It is also implicit when it is physical submission to one of the two parties or both of them in front of one of the courts. This submission is of double nature, in this case it will take legal proceedings of law of will because it is a contract. There might be previous agreement about voluntary submission. As for the effects of submission, they concern the law of the judge because they are related to the process. Giving will a role in determining judicial competence has nothing to do with the relation between judicial competence and public order. But it is based on the existence of a general theory of giving up the competence, i.e., the judge has the right to give up his competence within certain conditions whenever these conditions are met the court has the right to give up the conflict and this indicates to the court which will settle the dispute. It is important to add that the Islamic Law and the international conventions acknowledge this right in spite of the differences which exist among them. It is obvious that Brussels convention of 1968 and the Declaration of Brussels of 2001 concerning foreign judgments give the two conflicting parties the right of choosing the court of one of the contracting countries. Mention must be made of Hague convention because it is thoroughly about voluntary submission. Two effects will result out of voluntary submission. The first one is positive which leads to a convention of enlargement of the competence of the court. This means that the court settles the conflict which are not its own competence but they have all the required conditions. The second one is negative because the concerned court will be deprived of its competence. The agreement of voluntary submission concerns the person to whom the right or the debt has been transferred except the contracts of transport because the consignee is absent. It is possible that his submission is to a court which never guarantees the required legal protection. As a result of the development in the field of commercial operations and because of use of modern electronic means of communications, it gives the will the ability of an agreement electronically in order to choose certain court concerned with the conflict. Because of these developments the electronic agreement has the same value of the ordinary written agreement. This submission has an effect on applicable law as a result of the freedom of the countries for the adaptation of conflicts and applying all the rules which are compatible with its legal system. This is due to the fact that the concept of public order is quite different from one country to another and therefore we find a difference in the final settlement of the dispute.
