Iraq / Litigation
Ali Talib FezeaAssociate,Litigation
Most countries provide rights and privileges and impose obligations on its citizens and those who enjoy their nationality that differ from those rights, privileges and obligations granted to residing foreigners. This difference lies in the quality of obligations and rights granted to citizens and foreigners. The rights and obligations imposed on foreigners are usually regulated by internal state laws and bilateral agreements between countries that define an important part of the nature of the foreigners’ relationship with the country in which he/she resides.In this article, we will discuss how the Iraqi legislations deal with foreigners, particularly,in light of the steady progress of Iraq into the global market and its integrationinto the international community.
The legal status of foreigners in Iraq is regulated by the Residence of Aliens Law No. 76 of 2017 (herein referred to as the “Residence Law”). Pursuant to the Residence Law, a foreigner is defined as every natural or legal person who does not enjoy Iraqi nationality.
Pursuant to the Residence Law, a foreign person enjoys the same legal protection granted to a local citizen. He/she has the right to live in safety and not be attacked by any party. He/she has the right to plead and litigate before all Iraqi courts of all kinds and types, whether to defend, claim his personal rights, protect his money in Iraq or his rights arising from a contract concluded in Iraq or executed in Iraq.
He/she has the right to register all intellectual property rights such as trademarks, trade name, industrial models, and patents in Iraq for the purpose of covering them with the protection provided by Iraqi laws.He/she has the right to defend him/herself and to appoint a lawyer. If he/she is unable to do so, the court will appoint a lawyer for him, and the state treasury shall bear the lawyer’s fees.
The applicable Companies Law No. 21 of 1997, as amended, entitles the foreigner the right to be a shareholder in a joint stock company, a joint liability company, or a limited liability company. But, it restricts this ownership to no more than 49% of the total shares ownership in those companies.As for the Foreign Companies Branch Regulations No. 2 of 2017, it allows the foreign legal person (companies) to establish and register a branch in Iraq to practice its commercial activity and with a license from the concerned authorities in accordance with legal and regulatory requirements regarding companies.
He/she has the right to speculate in stocks and bonds, trade them in the financial market, and open investment portfolios as a foreign investor in accordance with the requirements of the Iraq Stock Exchange and the Securities Commission.Among the foreigner’s financial rights are the right to open accounts in all banks, the right to borrow, obtain banking facilities in all its forms, and to transfer profits and funds outside Iraq after paying the taxes and fees owed.
The Labour Law No. 37 of 2015 regulates work and workers’ rights and obligations. When defining the worker, the Labour Law entitles all employees in Iraq the same rights regardless of nationality and/or residence status... Pursuant to the Labour Law it is necessary for the foreign worker to obtain a work permit issued by the competent department before starting any work, and to have a certificate that he is free from communicable and contagious diseases. For the foreign worker, and in the event of the worker’s death, the employer is obligated, at his expense, to transport the body to the worker’s home country.
Pension and Social Security Law No. 39 of 1971, as amended, requires that the foreign worker be registered with the national social security scheme, which includes benefits such as health insurance, services, and work injuries. The employee is not required to be registered with social security if he/she can demonstrate that they are registered with a foreign social security scheme in their home country. When regulating the payment of dues to the worker outside Iraq, the foreigner shall be entitled to his/her financial dues even if he/she has already left Iraq. This matter is further regulated by existing treaties between the relevant countries and international labour agreements which both countries have subscribed to.
The Iraq laws in force have equalized between the Iraqi and other foreigners with regard to the ownership of movable property. A foreigner may own all movable property, such as cars, machinery, equipment, ships, aircraft, and some devices for special uses such as technical devices that are related to some activities such as telecommunications and medicine, without any restrictions on this ownership, whether in terms of amount and quantities or in terms of time periods. Bearing in mind, the process of registering some types of these properties is governed and regulated by laws and regulations that included special requirements foreach type of these properties.With regard to the right to own real estate and due to the importance of real estate, its legal and economic value and its connection to the sovereignty of the county, the foreigner’s freedom to own real estate, to dispose of real estate and other rights has been restricted. Resolution No. 23 for the year 1994 prevents the foreigner from owning real estate.In the past foreigners were permitted to own real estate on the basis of reciprocity in the foreigners country of origin. After 2003 and with the issuance of the amended Investment Law No. 13 of 2006 and in Article 10 of it, the foreign investor’s ownership of real estate was allowed exclusively for the purpose of establishing residential projects. The law gives the foreign the right to own real estate without compensation if it belongs to the state for guarantees and conditions required by the investment law. He/she may purchase it from its owners if it is owned by persons other than the state.
The Residence Law adopted a less cautious policy than the previous laws to facilitate and encourage tourism and investment and in line with the state’s general policy. However, the above law does stipulate specific conditions, like the laws of all countries, for foreigners to enter that cannot be violated. These conditions include the necessity for the foreigner to hold a passport or valid travel documents for a period of no less than six months valid for entry and exit from Iraq, valid entry visa indicated in his passport or travel document with the entry stamp upon his arrival to the Republic of Iraq and the exit stamp upon his departure and confirmation that he/she does not carry any communicable or contagious diseases. As for the entry visa, the entry visa has varied according to the need and their purpose. In 2021, a decision was issued to exempt some citizens of countries from the visa in accordance with the above law, provided that it is granted at the airports as a measure to ease the procedures and encouraging entry of foreigners from the categories specified in the instructions for granting multiple-entry visas No. 2 for the year 2021.
Accordingly and based on the minimum rights, a foreigner in Iraq enjoys the right to life, security, and freedom, not to be deprived of these rights or restricting them only based on the law or a decision issued by a competent judicial authority. He/she also has right to personal privacy, inviolable sanctity, litigation, and the presumption of innocence. The Iraqi law also provides all legal guarantees in judicial procedures at the level of criminal matters in particular, and the expropriation of property is prohibited except for the purposes of public interest and in return for a fair compensation.
For further information,please contact Ali Talib Fezea.
Published in October 2022
