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Modernising Iraq : a vision for a comprehensive petroleum arbitration regime in Iraq

Al-Bidery, Sinan Abdulhamza (2014) Modernising Iraq : a vision for a comprehensive petroleum arbitration regime in Iraq. PhD thesis, Prifysgol Bangor University.

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Abstract

This PhD research is concerned with the legal system for the settlement of petroleum disputes according to Iraqi law. It deals with international commercial arbitration as a means of resolving such disputes under Iraqi law, since Iraq does not have an adequate legal system for resolving disputes arising from petroleum agreements. It has not yet enacted specific legislation regulating or governing international commercial arbitration in general, and petroleum arbitration in particular. It is still dependent on the Code of Civil Procedure of 1969, which does not suffice to attract international investment. In addition, Iraq has not yet ratified or signed the leading international conventions concerning arbitration, such as the New York Convention of 1958 or the International Center for Settlement of Investment Disputes (ICSID). The thesis of this PhD is that Iraq needs special rules for the arbitration of petroleum disputes. These rules should achieve the balance between the needs of Iraq in its transitional period and foreign investors’ interests. The promulgation of a petroleum arbitration laws is an important legal guarantee which can attract international petroleum companies to Iraq. Both referencing and black- letter analysis methodology is followed in this thesis. The referancing approach consists of referance to the laws of selected developing countries, especially China and the United Arab Emirates, which have experience and expertise in investment and arbitration. The black- letter analysis approach is also deployed to analyse Iraqi attitudes towards arbitration, the legal nature of petroleum agreements and the challenges facing Iraq causing reluctant and hesitation in developing a comprehensive petroleum arbitration regime. This study tests, and finds it convincing that petroleum agreements are, indeed a special kind of investment agreement. The subject matter of this agreement is of exceptional monetary value and belongs to the Iraqi people. Article 111 of the Iraqi Constitutional of 2005 provides that “Oil and Gas are owned by all the people of Iraq in all regions and governorates”.1 Therefore, these agreements should be treated differently by subjecting them to a specialised arbitration regime rather than ordinary international commercial arbitration. The author’s vision, set out in this work, is that Iraq should promulgate petroleum arbitration laws and develop a specialised system to support this. These laws would lend weight to the application of Iraqi national law, and make the country more attractive for foreign investment. An independent petroleum arbitration centre should be established along the lines of Dubai’s International Arbitration Center and the Chinese International Economic and Trade Arbitration Commission. Its awards should be considered as final and enforced in the same manner as domestic awards. 1 Iraqi Constitution of 2005 publishes in Official Gazette issue 4012 of 28 May 2005. An English Language translation of the 2005 Constitution is available at <http://investpromo.gov.iq/policies-and-laws/ > accessed on 10 April 2014.

Item Type: Thesis (PhD)
Subjects: Degree Thesis
Departments: College of Business, Law, Education and Social Sciences > School of Law
Degree Thesis
Date Deposited: 28 Aug 2015 10:19
Last Modified: 15 Aug 2016 15:15
URI: http://e.bangor.ac.uk/id/eprint/4782
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