Dr. Yonis Salahalden
Department of Law
Cihan University - Erbil
The determination of tortious liability within the scope of private international law became a very important issue nowadays, because of the world-wide dissemination of pandemic coronavirus COVID-19. As we know that the legal relations in the private international law are based upon what is called the foreign element. And these types of relations are governed and determined by connecting factors. It is worth-bearing in mind that these type of relations may appear in the context of cross-border implication, that is to say, when foreigners or foreign individuals travel across borders. Some of these individuals may be carrying or suffering from COVID-19 coronavirus. It is difficult, if not impossible for foreigners to cross borders during the wide-spread dissemination or proliferation of pandemics, like COVID-19 coronavirus. But the danger can arise or take place when foreigners inside any state or region participate in disseminating COVID-19 coronavirus negligently, which lead to transfer the contagion or infection of this pandemic to other individuals. In this case both the Iraqi and Kurdistan region courts may qualify this type of accident as a legal relation vitiated with foreign element. The determination of the applicable law governing this case to indemnify or take damages from the wrongdoer, must be classify within the scope of the non-contractual obligations, according the first section of the article (27) of the Iraqi civil law No.40 of 1951. Which provides that (Non-contractual obligations will be governed by the law of the state wherein the act giving rise to the obligation took place). From this text we can conclude that any foreigner carrying or suffering from COVID-19 coronavirus, and negligently disseminated it inside Iraq or Kurdistan region, will be liable tortiously according to the connecting factor included within the first section of the article (27) of the Iraqi civil law No.40 of 1951. Which gives the legislative competence to the law of the state wherein the act giving rise to the obligation takes place, to indemnify that foreigner, or to take damages from him or her. that is to say, the Iraqi civil law, even applied in Kurdistan region. It is also worth-mentioning that the rules of the Iraqi civil law will be applied to measure the amount of damages, and to determine both types of damages, within the extent of the non-contractual obligations. That is to say, the material and moral damages. And the law of the state wherein the act giving rise to the obligation takes place, will also determine the type of the civil liability of the foreigner, whether it be liability for personal acts, objective (strict-liability). It is to be noted that the foreigner's liability may not be restricted to the civil one, but may also extent to the criminal liability, according to the article (368) of the amended Iraqi penal code No111 of 1969, which punishes everyone participated deliberately or intentionally in disseminating a life-threatening dangerous disease, with three years imprisonment. The criminal liability of the foreigner may arise, if he or she committed or perpetrated act of disseminating COVID-19 coronavirus intentionally, as well as his or her civil liability.
