Asst. Prof. Dr. Nassif Jasim Mohammed Al-Kur’awi<br />Al-Mustaqbal University – College of Law<br /><br />It is well-established that every legal relationship between individuals consists of three essential elements: the persons, the subject matter, and the cause. When all these elements are national and a dispute arises between the parties—for instance, if an Iraqi man marries an Iraqi woman in their home country, Iraq, and a dispute leads to their divorce—then the legal effects of the marriage are governed by the law of the husband at the time of the divorce, which is Iraqi law. Since the relationship is wholly connected to a single national law, the matter is not considered a conflict of laws.<br /><br />However, when one of the elements of the legal relationship is foreign—for example, if an Iraqi man marries a Lebanese woman in Turkey—the relationship becomes connected to multiple legal systems: Iraqi law due to the husband's nationality, Lebanese law due to the wife's nationality, and Turkish law as the place of contract (marriage). When a dispute arises between the couple, we are faced with a conflict of laws, as multiple legal systems may claim jurisdiction over the matter. This conflict arises due to the international rather than national character of the legal relationship.<br /><br />The essence of this conflict lies in the presence of two or more applicable laws, each of which may govern the legal relationship between the spouses. This necessitates determining the most appropriate law to apply to the relationship, which now involves a foreign element. In addition to the foreign element and the variation in applicable laws, the national legislator must also allow for the application of the relevant foreign law to resolve the issue.<br /><br />Accordingly, we understand the concept of conflict of laws and the conditions that must be met for such a conflict to arise. Once those conditions are met, the national judge assumes the judicial role of resolving the matter that includes a foreign element. This is achieved through the application of referral rules (choice of law rules) as outlined by the Iraqi legislator in Articles 17 to 33 of the Iraqi Civil Code No. 40 of 1951. These are national, neutral, and directive rules designed by the legislator to reflect the national legal identity of the state while also considering prevailing international standards.<br /><br />These referral rules serve a dual purpose: they are indirect rules that guide the judge in determining the appropriate law to apply to the case at hand. They allow the judge to apply foreign law after classifying and defining the nature of the legal relationship. For example, a person’s legal capacity is determined according to the law of their nationality: if the person is Iraqi, Iraqi law applies; if the person is foreign, the foreign law applies.<br /><br />This distinguishes referral rules from substantive rules, which may have national (legislation) or international sources (treaties or international judicial decisions). Substantive rules are unilateral, meaning they provide a direct resolution to the legal issue at hand.<br /><br />It is important to note that matters involving conflicts of laws typically fall into five categories:<br /><br />Personal status issues (e.g., legal capacity, marriage, divorce, alimony, lineage, inheritance, wills),<br /><br />Real property issues (e.g., transactions involving immovable and movable property),<br /><br />Contractual matters,<br /><br />Non-contractual matters (e.g., beneficial and harmful acts), and<br /><br />Formal matters (e.g., the place of formation of a legal act).<br /><br />Therefore, a conflict of laws arises when a legal relationship involves a foreign element or an international dimension, requiring the selection of the most appropriate law to govern that relationship in cases of international legislative jurisdiction.<br /><br />Al-Mustaqbal University — The top university among both public and private universities in Iraq.<br /><br />