The Role of the Will in Determining International Jurisdiction of Bahraini Courts: A Comparative Analytical Study
Individuals in internal relations can choose the territorially competent court to consider their dispute, so they choose the court of the plaintiff’s domicile, for example, instead of the court of the defendant’s domicile, or the court of the place of execution of the contract instead of the court of the place where it was concluded, and this is a logical consequence of not considering the rules of local jurisdiction from the public order. Can individuals also exercise this option in international private relations, and grant jurisdiction to the courts of a specific country, knowing that their agreement here will have more serious consequences, because it may lead to the total exclusion of national jurisdiction in favor of a foreign judiciary?
Since the judiciary, as a public utility, is one of the acts of sovereignty that falls within the exclusive jurisdiction of the state, which is uniquely organizing and setting its rulings, the principle is that individuals do not recognize any ability to interfere in determining the jurisdiction of state courts, whether by granting them or robbing them of this jurisdiction. Borders reveal that the will of the individuals has begun to be concerned with determining the judicial body that will look into their dispute through the so-called jurisdiction clause, in a way that guarantees the realization of their interests and the conduct of their transactions, and also leads to avoiding cases of denial of justice, when no court agrees to consider the dispute, in addition to The agreement of the individuals will avoid filing the same lawsuit before the courts of more than one country with all the problems that this raises, including the issuance of contradictory rulings in one case, and the determination of the court that must give up its jurisdiction in the event of a judicial referral.
However, on the other hand, is the will of individuals alone in determining the jurisdiction or lack of jurisdiction of the courts of a country? Or is such an agreement bound to take in to account some considerations and conditions?
The Bahraini legislator has indeed adopted the judicial jurisdiction officer based on the voluntary submission to the jurisdiction of Bahraini courts when the latter does not have any jurisdiction according to their jurisdiction rules. However, this officer, in our opinion, raises many questions about its conditions and scope of application, in addition to the absence of the Bahraini legislator dealing with the role of will in stripping the established international jurisdiction of the Bahraini courts.
From here, the importance of raising this issue comes to investigate how the voluntary submission officer is applied to Bahraini courts and to find out whether the will of individuals is sufficient to compel these courts to investigate the dispute without any restrictions or conditions on the one hand, and whether individuals can agree to deny Bahraini jurisdiction despite proven evidence. Under the rules of international jurisdiction on the other hand.
These questions are of great importance considering the absence of any study on the subject in Bahraini private international law and light of the continuing division around them in comparative jurisprudence and Egyptian and French jurisprudence.
El-Masry, Mohammed Walied
"The Role of the Will in Determining International Jurisdiction of Bahraini Courts: A Comparative Analytical Study,"
UAEU Law Journal: Vol. 2022:
92, Article 3.
Available at: https://scholarworks.uaeu.ac.ae/sharia_and_law/vol2022/iss92/3