The importance of the theory of Evidence in presenting the dispute to the judiciary is evident, where the judge has to apply the rules of evidence. If the theory of Evidence is one of the most important and practical theories in the working life at the courts, it is the theory applied by the courts every day at the level of the internal laws. A right whose source can not be proven whether legal or legal fact, is worthless.
It is even more important when examining the issue of evidence in private international law, in particular the question of acceptance of the easiest evidence base, because it is a thorny and complex issue in private international law. The rules of evidence are divided into objective rules and procedural rules. The burden of evidence, the methods of evidence, the strength of the evidence and the extent of its validity. All these things need to be examined to determine the law applicable to them and the extent to which they are covered by the easiest evidence base.
If the law applicable to evidentiary evidence is determined by a traditional attribution rule that may refer to the law of a judge or the law of a foreign State and that the legislation and the views of the jurists link the form of conduct to the evidence, they decide that what applies to the form applies to evidence, The document between the form of conduct and evidence, and this is what the legislator of the UAE and the Iraqi in the aspect of the law applicable to the evidence, this approach is considered a one of the laws of many of the legislation under comparative study, including the Federal Civil Transaction Law in UAE and the Iraqi Civil Code.
And that taking account of the apparent status and stability of financial transactions in the framework of legal relations with a foreign element in general and in the framework of judicial work in particular, requires taking into account the interests of the parties by facilitating the procedures of proof and determining the basis of legal disposition to the country of conclusion, The rules of jurisdiction and all procedural matters are subject to the law of the State in which the proceedings are instituted and proceedings are conducted, including Iraqi legislation.
However, the strange thing in the matter is that the Iraqi legislator cited an exception to this rule with regard to the evidentiary evidence in article (13/1) of the Iraqi Evidence Law No. (107) of 1979 amending, which stated that "....... However The court may apply Iraqi law if the proof of evidence is easier than the evidence required by the foreign law "
Is such an exception, which constitutes a departure from the general rule in all comparative legislation? Or is it to facilitate the contractors in the evidence? Was the UAE legislator successful in drafting the article (19/1) of the Federal Civil Transactions Law No. (5) of 1985, as it did not separate between the subject of international contracts and the provisions of the form therein, and he summarized the two with one rule of conflict, Is this legislative formulation correct? These are points of ideas in the research board that the researcher tries to answer through the research topic.
Al-Sabawi, Dr. Yasser Bassem and Mohammed, Khalil Ibrahim
"The Authority of the Court to Use the Most Practical Evidence in the Private International Law: A comparative study","
Journal Sharia and Law: Vol. 2018
, Article 3.
Available at: https://scholarworks.uaeu.ac.ae/sharia_and_law/vol2018/iss73/3