القانون الواجب التطبيق على العمليات المصرفية الإلكترونية

المدرس الدكتور سوسن صافي صالح

doi:10.64184/ajlps.V2.I3.Y2025.P266-301.131

Authors

Lecturer .D. Sawsan Safi Salih Head of the Law Department / Al-Amal University College Author

DOI:

https://doi.org/10.64184/ajlps.V2.I3.Y2025.P266-301.131

Keywords:

Electronic banking operations, conflict of laws, jurisdiction, international contracts, legal attribution.

Abstract

This research examines the legal framework governing both traditional and electronic banking operations, with a focus on determining the applicable law in the event of a legal dispute between parties involved in the banking sector.The significance of this study arises from the increasing legal challenges facing banking operations due to their rapid development and global expansion, raising the issue of conflict of laws among different jurisdictions. The main problem lies in determining the applicable law for banking transactions, especially in the absence of a unified international legal framework. We discuss the historical evolution of banking operations, from traditional transactions relying on physical branches to electronic transactions based on digital technology. Additionally, the study addresses the concept of electronic banking operations and their characteristics, such as their cross-border nature, ease of use, fast execution, and the flexibility of the legal systems governing them. The research further explores the legal rules that determine the applicable law for international banking operations. The first section discusses the role of "contractual choice of law," allowing parties to freely select the applicable law, either explicitly or implicitly. The second section covers the "objective determination of the applicable law," where the applicable law is assigned based on supplementary legal principles such as the law of the contract's place of conclusion or the domicile of the parties. The study concludes that banking operations are inherently international, necessitating the development of unified rules to regulate conflicts of laws. It recommends that parties pre-agree on the applicable law in banking contracts to ensure transactional stability and minimize disputes.

References

First: Legal Books:

1 Ibrahim Ahmed Ibrahim, The Method of Attribution in the Balance, Dar Al-Nahda Al-Arabiya, Egypt, 2008.

2 Ibrahim Ahmed Ibrahim, Private International Law, Conflict of Laws, Dar Al-Nahda Al-Arabiya, Cairo, Egypt, 2009.

3 Ahmed Bouras, Electronic Banking Operations, Journal of Human Sciences, Mohamed Khedir University of Biskra, Issue 11, 2007, University Center, Oum El Bouaghi, Algeria.

4 Ahmed Abdel Karim Salama, Qualitative Private International Law, Dar Al Nahda Al Arabiya, First Edition, 2000.

5 Ahmed Abdel Karim Salama, The Science of the Rule of Conflict and Choice between Islamic Laws: Principles and Methodology, Dar Al Nahda Al Arabiya, Egypt, 2009.

6 Ahmed Abdel Karim Salama, International Contract Law, International Contract Negotiations, The Law of Will and Its Crisis, Dar Al Nahda Al Arabiya, Cairo, Egypt, 2012.

7 Bilal Abdel Muttalib Badawi, Electronic Banking, Dar Al Nahda Al Arabiya, Egypt, 2004.

8 Jamal Mahmoud Al Kurdi, The Applicable Law in Arbitration Claims, Dar Al Nahda Al Arabiya, Cairo, Egypt, 2000.

9 Reda Al Sayed Abdel Hamid, The Banking System and Banking Operations, Dar Al Nahda Al Arabiya, Cairo, Egypt, 2006.

10 Reda Metwally Wahdan, The Legal System of Electronic Contracts and Liability for Electronic Attacks, Dar Al Fikr Wal Qanun, Mansoura, Egypt, 2008.

11 Sherif Mohamed Ghannam, Protecting Trademarks on the Internet in Relation to the Electronic Address, Dar Al Nahda Al Arabiya, Cairo, Egypt. 2015.

12 Saleh Al-Manzlawi, The Law Governing International Trade Contracts, Dar Al-Jami'a Al-Jadida, Alexandria, Egypt, 2006.

13 Adel Abu Hashima Mahmoud Houta, The Law Governing Counterguarantee Contracts, Maaref Establishment, Alexandria, Egypt, 2007.

14 Abdel Fattah Suleiman, Judicial Principles in Banking, no place of publication, 2017.

15 Abdo Ghosoub, Lessons in Private International Law, University Foundation for Studies for Publishing and Distribution, 2008.

16 Okasha Abdel Aal and Sami Badie Mansour, Private International Law, University House, Beirut, Lebanon, 2002.

17 Okasha Abdel Aal and Sami Badie Mansour, Private International Law, University House, Beirut, Lebanon, 2002.

18 Okasha Abdel Aal, International Banking Operations Law: A Study of the Law Governing Banking Operations of an International Nature, University Press House, Alexandria, Egypt, 2004.

19 Okasha Mohamed Abdel Aal, International Commercial Law: Banking Operations, New University Press House, Alexandria, Egypt, 2012.

20 Okasha Mohamed Abdel Aal, Conflict of Laws: A Comparative Study, University Press House, Egypt, 2002.

21 Awni Mohamed Al-Fakhri, The Rome Convention of 1980 on the Law Governing Contractual Obligations, no publisher, Baghdad, Iraq.

22 Fawzi Muhammad Sami, International Commercial Arbitration, Second Edition, Dar Al Thaqafa for Publishing and Distribution, Amman, Jordan, 1992.

23 Mahmoud Al Kilani, Commercial and Banking Encyclopedia, Volume Four, Banking Operations: A Comparative Study, Dar Al Thaqafa, Amman, Jordan, 2009.

24 Mahmoud Muhammad Yaqout, The Freedom of Contracting Parties to Choose the Law of an International Contract: Between Theory and Practice, Maaref Establishment, Alexandria, Egypt, 2000.

25 Mustafa Kamal Taha and Wael Anwar Bundak, Electronic Commercial Papers and Modern Electronic Payment Messages, Dar Al Fikr Al Jami'i, Alexandria, Egypt, 2010.

26 Nahed Fathi Al Hamwi, Electronic Commercial Papers, Dar Al Thaqafa, Amman, Jordan, 2009.

27 Nabil Subaih, Banking Operations of an International Character, Dar Al Nahda Al Arabiya, Egypt, 2002.

28 Nour Abbas Al Aboudi, Distinctive Performance and Its Impact on the Assignment Process, Al Sanhouri Library, Beirut, Lebanon, 2016.

29 Hisham Sadiq, The Law Governing International Commercial Contracts, Maaref Establishment, Alexandria 1995.

30 Hesham Ali Sadek, The Law Governing International Trade Contracts, Dar Al Fikr Al Jami'i, Alexandria, Egypt, 2001.

31 Youssef Masadawi, Electronic Banks, Dar Al Nahda Al Arabiya, Egypt, 2018.

Second: Research and Journals:

1 Ibrahim Ahmed Ibrahim, "The Legal Framework for E-Commerce," a paper published in the Arab Arbitration Journal, Issue 7, 2009.

2 Ahmed Abdel Karim Salama, "The Internet and Private International Law: Separation or Convergence," a paper presented at the Conference on Law, Computers, and the Internet, Faculty of Sharia and Law, United Arab Emirates University, May 12-13, 2000.

3 Ahmed Abdel Karim Salama, "The Liberalization of International Trade and Its Effects on the Public Legal System of International Contracts," a paper published in the Journal of Legal and Economic Research, Faculty of Law, Mansoura, Egypt, 1996.

4 Gamal Morsi Badr, "Legal Conditioning in Conflicts of Laws in Terms of Location," a paper presented at the Fifth Conference of Arab Lawyers, Beirut, Arab Services Center.

5 Ezzat Mohamed Ali El-Beheiry, "The Law Governing Electronic Transactions," a paper presented at the Conference on Electronic Banking between Sharia and Law, Volume 4.

Third: University Theses and Dissertations:

1 Hamoudi Nasser, "The Legal System of the International Electronic Sales Contract Concluded via the Internet," PhD thesis, Faculty of Law, Boukhalfa, Mouloud Mammeri University, Tizi Ouzou, 2009.

2 Saleh Jad Abdel Rahman El Manzlawi, "The Legal System of E-Commerce within the Framework of Private International Law," PhD thesis, Mansoura University, Faculty of Law, Egypt, 2005.

3 Mohamed Saeed Ahmed Ismail, "Methods of Legal Protection of E-Commerce Transactions: A Comparative Study," Master's thesis, Faculty of Law, Ain Shams University, 2005.

Fourth: International laws and agreements:

1 The 1980 Rome Convention on the Law Governing Contractual Obligations.

2 Iraqi Civil Code No. 40 of 1951, as amended.

Fifth: Judicial Decisions:

1 Decision No. 364 of the Federal Court of Cassation, Extended Panel, issued on March 31, 1987.