The Jurisdiction of the Syrian Courts

In accordance with the Civil Procedure Code provided for in Law 1/2016, the Syrian courts assume jurisdiction over a dispute where a nexus between a litigant and Syria can be established, such as where a Syrian national is either the claimant or the defendant. If the claimant or defendant is a foreign party resident in Syria, the Syrian courts will be seized of the matter. They also possess jurisdiction whenever Syrian law is applicable to the merits of the dispute at hand, or whenever a contract is concluded or executed in Syria, where a marriage is officiated in Syria, when the matter pertains to movable and immovable property located in Syria, or if the dispute is related to an event that occurred in Syria. In lawsuits where the Syrian courts do not possess such jurisdiction, they may however issue judgments if the defendant explicitly or implicitly submits to their authority.

The General Assembly of the Court of Cassation held in Court Judgment No. 27/1972 that it is not permissible to exclude the competence of the Syrian judiciary according to the rules of Syrian law since the jurisdiction of the national courts is a matter of the public policy of the state. It further stated that a Syrian national cannot relinquish the authority of the Syrian courts to hear a case. In other words, Syrians cannot opt for the jurisdiction of foreign courts in their relations with foreign nationals when the Syrian courts are competent to adjudicate the dispute. Furthermore, the judges reasoned that if there is no objection by the defendant to the jurisdiction of the Syrian courts, then the said courts will be competent to hear the lawsuit.

As per the aforementioned conditions stipulated for in the Civil Procedure Code, which were reinforced by Court Judgment No. 27/1972, foreign courts should cautiously refrain from adjudicating lawsuits where a direct connection to Syria exists as their judgments will face resistance if they are intended to be recognized and enforced in Syria. Any jurisdiction clauses in contracts that purport to grant competence to foreign courts on subject matter relating to Syria are likely to be ignored by the Syrian courts if the case is brought to their attention. Otherwise, foreign court judgments may be executed in Syria as long as they do not conflict with any of the mandatory provisions set out in the Civil Procedure Code.

If a lawsuit is filed against a non-Syrian individual or company in a foreign court on a matter substantially unrelated to Syria and it is adjudicated accordingly, the judgment creditor may attempt to enforce the said foreign court judgment in a Syrian court if the judgment debtor’s only connection to Syria is that they own assets located in the country. A Syrian court may consequently issue an attachment order over the said movable and immovable assets of the judgment debtor.

Foreign court judgments are enforceable in Syria if a judicial treaty has been concluded between Syria and the country in question, or if Syria is a signatory to a judicial convention with other member states, or if the laws in the country of origin provide similar enforcement guarantees to Syrian court judgments in line with the principle of reciprocity. With respect to court judgments emanating from other Arab countries, Syria is a party to the Riyadh Convention of 1983, and therefore recognizes and enforces them accordingly.

In the absence of a judicial treaty or the lack of a convention, the protocol for reciprocity is outlined in the Civil Procedure Code. Foreign judgments may be enforced in proceedings brought before the Court of First Instance as long as the following conditions are met: the foreign court had jurisdiction over the lawsuit in question and issued its judgment in accordance with the laws of the country of origin; the parties to the dispute were afforded their legal rights in court; the foreign judgment does not conflict with any Syrian judgments; the foreign judgment does not contravene the public policy of the Syrian state, which may have a wide meaning to satisfy and therefore render enforcement unpredictable; and the judgment rendered has attained the status of res judicata and is therefore final, conclusive and enforceable in its country of origin.

Although the Syrian courts may declare themselves competent to act over a dispute contrary to the intentions of the parties involved who may have preferred an alternative judiciary, the latter still retain some latitude to subject their contract and any disputes that may arise to the governing law of a foreign jurisdiction. Such a position is mandated by the Civil Code provided for in Legislative Decree 84/1949. Accordingly, a contract shall be subject to the law of the country where the contracting parties are resident. If they reside in different countries, then the law of the country where the contract was agreed shall be applied. Nevertheless, these rules may be deviated from if the parties consent to have their contract governed by the substantive law of another jurisdiction, or if it is clear from the circumstances that a foreign law should be applied.

Where they are deemed to be the appropriate forum, the Syrian courts will generally adjudicate contracts that have elected to be governed by a foreign law according to the wishes of the parties. Furthermore, testimony from experts with knowledge of the chosen foreign law will be requested in the form of regular evidence to advise as to its application. The submission of any such evidence and its treatment by the Syrian courts is considered in accordance with the Evidence Law 359/1947.

The Syrian courts will construe the terms of a contract in line with the designated foreign law unless they contradict mandatory provisions of Syrian law or the public policy of the state. Such compulsory provisions may be expressly provided for by law or derived from case law as established by court judgments over the decades. A rich collection of jurisprudence exists, which has been developed by the courts to interpret various provisions of statutory law, especially the binding precedents set by the General Assembly of the Court of Cassation. Where such a conflict exists between the position of Syrian law and the foreign law in question, Syrian law shall prevail.

Parties desiring to avoid resorting to the Syrian court system in the event a dispute arises have the option of excluding litigation by opting for arbitration in accordance with Law 4/2008. Arbitration is an exceptional, private and confidential method to resolve disputes away from court litigation. It is based on the concept of party autonomy whereby the concerned parties are free to structure the dispute resolution process in a flexible way without adhering to the rigid procedures of the courts. The awards issued by the respective arbitral tribunals are ratified by the Court of Appeal and enforced by the Execution Court, so a degree of judicial supervision does nevertheless exist. However, arbitral awards may only be set aside by the courts on the grounds of predetermined procedural irregularities, not the merits of the case.

The parties in question must however expressly consent to arbitration in writing given that it is an exceptional form of dispute resolution that entails contracting parties waiving their inherent right to court litigation. With respect to companies, only the authorized signatory can validate an arbitration clause or agreement, or otherwise it will be rendered null and void, thereby reverting to court litigation if a dispute arises.

The General Assembly of the Court of Cassation further held in Court Judgment No. 27/1972 that the rules excluding the competence of foreign courts to adjudicate disputes where the Syrian courts possess original jurisdiction only apply to cases before the ordinary judiciary. Such rules, the judges commented, do not apply with respect to arbitrations, especially international ones where the seat of arbitration is a jurisdiction other than Syria and includes the appointment of foreign arbitrators. The recognition by Syrian courts of foreign arbitral awards that have a nexus to Syria was not found to constitute a violation of state sovereignty, which is a part of the public policy of the state.

It should be noted that not all disputes are arbitrable and therefore, the Syrian courts may override an invalid arbitration clause where necessary. Disputes pertaining to family matters but excluding financial arrangements, civil status, nationality, bankruptcy, registered commercial agencies, employment, rental agreements, foreclosure orders and certain designated real estate transactions, and any subject that touches on the public policy of the state are generally heard by the courts, not arbitral tribunals. The existing jurisprudence does not therefore support the proposition that the competence of the courts to hear disputes touching on these subject matters can be excluded by an arbitration clause.

Moreover, the General Assembly of the Court of Cassation decided in Court Judgment No. 2/1983 that the public policy of the state holds that certain domains are within the exclusive competence and jurisdiction of the Syrian judiciary. Real estate claims and those pertaining to the possession of property were not necessarily considered to be part of the public policy of the state. The public policy of the state does however regard civil status and bankruptcy cases as falling within the exclusive purview of the Syrian judiciary.

Where arbitration is permitted, the parties can opt for either domestic or international arbitration. Domestic arbitration comes into play where Syria is designated as the seat of arbitration and any such disputes are adjudicated in accordance with the Arbitration Law 4/2008. International arbitrations where Syria is not the seat of arbitration but rather a foreign country is may also be utilized in disputes with a nexus to Syria. Since Syria is a signatory to the New York Convention of 1958 and the Riyadh Convention of 1983, the Syrian courts are expected to recognize and enforce foreign arbitral awards unless they conflict with the public policy of the state, which as mentioned has a wide meaning. Accordingly, a foreign arbitral award may be denied enforcement on the grounds that it deals with an issue deemed to be the prerogative of the Syrian courts to adjudicate as per public policy.

Lawsuits between public entities on the one hand, whether regulatory authorities or public sector establishments, and private contractors pursuant to contracts agreed to between the respective parties fall under the purview of the Council of State Administrative Court. The Council of State, whose governing legislation was recently revamped by Law 32/2019, is an independent judicial organ that only hears cases involving the state.

Litigation of public contract disputes is regulated by Article 66(a) of the Public Procurement Law 51/2004. However, arbitration is also an option if provided for in an agreement pursuant to Article 66(b). Under such circumstances, an arbitral tribunal would be appointed and conduct proceedings in accordance with the Council of State Rules. As such, the Council of State may provide services akin to an arbitration centre. In contracts involving a state entity and a foreign contractor, the respective minister under whose authority the agreement falls may grant their consent for arbitration to be conducted other than in line with the Council of State Rules as permitted by Article 66(c). Therefore, arbitral proceedings of this nature may be heard under the supervision of private or foreign arbitral centres while adhering to their rules. Law 32/2019 also includes a new provision that such arbitral awards may only be challenged before the Supreme Administrative Court pursuant to predetermined procedural irregularities similar to those stipulated for in the Arbitration Law, and no longer on the merits of the case.

The two competitors that any domestic judiciary faces are either foreign courts or arbitral tribunals. The key points to bear in mind when contemplating the jurisdiction of the Syrian courts is that they will consider themselves competent to adjudicate a dispute that has a nexus to Syria and/ or is not arbitrable as outlined above irrespective of the contrary wishes of the parties. If a matter is directly connected to Syria and arbitrable at the same time, then the seat of arbitration may be outside of Syria as long as no public policy objections exist. The Civil Procedure Code, the Arbitration Law, the Council of State Administrative Law, the Public Procurement Law and other applicable legislation, in addition to Court Judgment No. 27/1972 and Court Judgment No. 2/1983 issued by the General Assembly of the Court of Cassation, draw the lines around the prerogatives that the Syrian courts enjoy. Nevertheless, as dictated by the Civil Code and the Evidence Law, the parties retain the right to subject their contracts to the substantive laws of another country, whose conditions are expected to be upheld by the Syrian judiciary unless doing so would contradict mandatory provisions of Syrian law or the public policy of the state.