القانون الواجب التطبيق على الفسخ الجزئي في عقود التجارة الدولية ( دراسة مقارنة )

The law applicable to partial termination of international trade contracts ( A Comparative Study )

And yet, this study attempts, by presenting the two previous theories, to answer several questions, including, if the majority of Arab and foreign laws stipulate subjecting the contract to the law chosen by the parties, is this freedom granted to these parties absolute freedom or is it restricted? Then what is the applicable law in the absence of an agreement of the parties? Has the Iraqi legislator succeeded in applying the law of the common domicile of the contracting parties or the law of the country of conclusion in the absence of an agreement of the contracting parties?
As for the second theory, it is the objective theory, which rejected the principle of merging the chosen law into the contract, with what it entails from escaping the power of the law. A rule of conflict of laws in the judge’s country, which leads to the contract being subject to jus cogens rules in the chosen law, and then the adoption of this theory or that leads to different results whose effects are reflected in particular on the extent of the will’s ability to exclude peremptory provisions in the chosen law.
The answer came within this study through the position of jurisprudence, the judiciary and legislation, both internal and international. Then this study concluded that there are specific criteria for the will to choose the applicable law in the international contract, and that these criteria were scattered in the research and its folds, and according to the case.
The issue of the law applicable to contractual obligations is one of the issues that has sparked a fiery jurisprudential debate, as the jurisprudential conflict raged on it crystallized through two opposing theories. The first theory is the personal theory, while the second is the objective theory. Sanctifying the individual’s will to contract and recognizing the contracting parties’ right not only to conclude the contract and to specify its various conditions,Rather, they choose the law that they see as more expressive of their common interests to organize the contract concluded between them, which entails that the chosen law is integrated into the contract and its provisions relegate to the status of contractual conditions that the contracting parties can agree on what contradicts them, even if they are of a peremptory nature. Which ultimately leads to the contract remaining at large without a law governing it, which means removing it from the scope of conflict of laws