Application of the Principle of Contractual Severability to Foreign Oil Investment Contracts (A Comparative Analytical Study)

Abstract

This study examines the legal problematic of "International Contractual Severability" as a departure from the principle of contract unity within the context of private international legal relations characterized by a plurality of legal systems. The research aims to explore the extent of the parties' autonomy to subject various elements of a single contract to more than one governing law, focusing on oil investment contracts as a practical model due to their economic and sovereign significance.

The research adopts a comparative analytical methodology, examining national legislations (Iraqi, Kurdistan Region, Egyptian, and French) in addition to international conventions, such as the 1980 Rome Convention and the 1965 Washington Convention. The study concludes that while the principle of contractual severability is rooted in "Party Autonomy", it encounters fundamental constraints, namely "Public Policy" (Ordre public) and "Overriding Mandatory Provisions". Furthermore, the research reveals a legislative lacuna in the Iraqi Civil Code regarding explicit provisions for severability, contrary to modern international trends. The study concludes by proposing legislative amendments to Article (25) of the Iraqi Civil Code to ensure alignment with international developments in trade and investment contracts, while recommending the enactment of a specialized law for oil investments in Federal Iraq to address the existing legal deficiency.