Covid-19 Pandemic and its Impact on the Provisions  of Procedural Laws: A Comparative Study

Prof. Yasser B. D. Sabawi
Professor of Evidence and Civil Procedure – College of Law – University of Mosul – Iraq

Abstract:

It is known that the term pandemic is a term adopted by the World Health Organization to describe the novel Covid-19 epidemic. Within the framework of procedural laws – the basic principle in a lawsuit is to proceed normally, according to the procedural approach drawn by the Civil Procedure Law in order to conclude it with an issued ruling. However, the lawsuit may not proceed in this normal state due to what may be described as a pandemic. If this incident is independent from the will of the opponent and is not expected and cannot be avoided, and would make initiating the procedural action impossible, it will then be considered an alien cause.
On this basis, if all the previous conditions are met due to Covid-19 pandemic, two types of effects will result in relation to the civil case. The first effect is a direct effect and it is divided into two stages. It either occurs during the consideration of a civil lawsuit, such as the death of one of the litigants, the loss of the capacity to litigate, or the loss of the status of a mandated litigant. Consequently, it will lead to halting the proceeding of the lawsuit and invalidating the measures taken during the suspension period. The other direct effect occurs after the death of the convicted person after the issuance of the civil suit ruling and informing him of it; according to the type of ruling and its status.
The second effect is an indirect effect, and it appears in two areas. The first is related to civil law, and it is the absence of tort liability for any party of the procedural association responsible for carrying out procedural work. The second is apparent in the law of evidence and appears to facilitate the burden of proof required by the opponent, in terms of the type of evidence. The loss of the written evidence (official or regular) due to the Covid-19 pandemic entails the possibility of proving the relevant right in question by all means of evidence including personal and legal evidence, instead of the written evidence.
For the purpose of adequately addressing this concept, the research was divided into three sections. The first section deals with the legal adaptation of the pandemic (Covid-19) and its legal rooting in the framework of procedural laws. The second section touches upon the definition of the pandemic (Covid-19). The third section deals with the effects of the pandemic on procedural laws.
The research concludes a number of results, the most prominent of which was that the pandemic (Covid-19) is a form of alien cause, whether called a misfortune, divine calamity, an unforeseen circumstances, or a force majeure; it would still be an alien cause. It also concludes a set of recommendations for the Iraqi legislator and the comparative legislator under study, to include a general text that constitutes the general rule in procedural laws, to be general and comprehensive so that it accommodates the idea of ​​an alien cause in all its forms and types, whether it is misfortune, divine calamity, a sudden event, a force majeure, a third party act, or wrongdoing, and that this text be mentioned in the section of the general theory of the civil procedure law, because the latter is considered the general reference for all procedural laws.

Keywords: pandemic, alien cause, emergency, evidence, causal relationship.

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