Dr. Yonis Salahalden
Department of Law
Cihan University - Erbil
The wide-spread dissemination of pandemic coronavirus COVID-19 at the beginning of the year 2020, dictated the necessity of resorting to the procedures of the electronic arbitration, rather than depending upon the usual procedures of adjudication of justice made by courts of law. It should be noted that the electronic arbitration is somewhat a new legal terminology used widely, as one of the legal consequences of the era of globalization, as well as the latest development in information technology, and the concomitant development in the instantaneous means of communications, and the use of the specialized internet websites to present both the legal and arbitrational advice to help parties of a civil or commercial conflict solve their conflict as soon as possible, by electronic means other than judicial proceedings. This new terminology is also referred to as the "Cyber-arbitration", "Arbitration via cyberspace" or "online-arbitration". It is also worth-referring that the commercial law jurisprudence adopted two attitudes towards the possibility of resorting to electronic arbitration to solve transactional conflicts taking place between contracting parties. The first juristic opinion or concept is also called the wide concept of using the electronic arbitration. In accordance with this concept, the arbitrational procedures may be made electronically, likewise those procedures of traditional arbitration. It has also been claimed that electronic arbitration does not make any difference from the traditional one, in that the arbitrators apply the same arbitrational procedures to achieve the purpose, that is to say, to issue an arbitrational award ending the dispute between both the conflicting parties. The only difference between these two types of arbitration is the means by which the arbitration is made. The traditional arbitration is implemented by the material presence of the parties and arbitrators in the same time at the same place, by using paper documents and files. Whereas the procedures of the electronic arbitration are made electronically, without using the preceding means. Furthermore, this concept does not entail the conclusion of civil and commercial contracts via electronic means equally. The second juristic opinion or concept is referred to as the narrow concept of using the electronic arbitration. According to this concept the arbitration can not be recognized as an electronic arbitration, unless civil and commercial transactions and contracts are also concluded via electronic means equally. After indicating these two juristic concepts, we can put forward the following question: can the electronic arbitration be easily applied in conformity with the texts of the Iraqi laws?. To begin with, we shall reinforce our answer with the texts of three Iraqi laws: the first is the law of civil proceedings No.83 of 1969, the second is the civil law No.40 of 1951. The third is the law of electronic signature and electronic transactions No. 78 of 2012. In keeping with the article (251) of the law of civil proceedings, the arbitration is the contract aimed at achieving dispute resolution of civil and commercial conflicts outside the courts of law. This article provides that (the agreement of arbitration is permissible in certain disputes. This agreement is also allowed in all the disputes arising from the execution of a certain contract). We can conclude from the literal formulation of this article that the arbitration is a contract to be made, irrespective of the means by which this contract is concluded, whether it be traditional or electronic. The Iraqi civil law also determines the time and place of the contract between absent persons, according the article (87), which provides that (1-save express or implied agreement or a legal provision otherwise, contracting between absent persons will be deemed to have taken place in the place where and at the time when the offeror becomes aware of the acceptance. 2-it will be assumed that the offeror had become aware of the acceptance, in the place and at the time of his or her arrival thereto). Finally, the first article (VII) of the law of electronic signature and electronic transactions No. 78 of 2012. Determines the electronic means by which electronic transactions are to be made generally, and the contract of the arbitration in particular. It provides that (electronic means: are devices, equipment or tools electrical, magnetic, optical, electromagnetic, or any other similar means used in the creation and processing of information, sharing and storage). The section (XI) of the same article defines the electronic contract as an (offer link issued from one of the contractors to the acceptance of the other on the face of proving its impact on the subject-matter of the contract, and by electronic means
The first section of the article (18) allowed both the offer and acceptance to be expressed and linked together by electronic means, and provides that (offer and acceptance of the contract may be made by electronic means). We can conclude from all these three laws that the electronic arbitration is permissible in line with the text of various Iraqi laws. And the afore-said wide concept is more preferable than the narrow concept of the electronic arbitration. We recommend also that the procedures of the electronic arbitration be encouraged to minimize traditional procedures of arbitration, and overcome the bad consequences of pandemic coronavirus COVID-19.
