Abolfazl hedayati mahbob; Mohammad Hassan Asadi
Abstract
In Iranian law and in accordance with Article 14 of the new Criminal Procedure Code, losses resulting from a crime are divided into material, spiritual and possible profits. This Code has made a significant change to some rules on civil liabilities. Having said that, it may be criticized on the ...
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In Iranian law and in accordance with Article 14 of the new Criminal Procedure Code, losses resulting from a crime are divided into material, spiritual and possible profits. This Code has made a significant change to some rules on civil liabilities. Having said that, it may be criticized on the ground that it excludes the compensation caused by crimes leading to mulct (Diyah) and authoritative legal Ta’zir from the full compensation principle without providing a comprehensive definition for spiritual losses and without proposing an accurate definition and example for authoritative legal Ta’zir. Claim for spiritual and possible profits losses leads to authoritative legal Ta’zir. Mulct shall happen in cases in which the sentence is not a financial loss and its compensation is sentenced to be non-financial. The limitation applied by Note2 in Article14 does not include the lost profits in crimes against properties and hence it can be claimed. The authoritative legal Ta’zir instances, based on Narratives, may not include losing possible profits, and in crimes causing retaliation, Haad (punishment by lash), non-authoritative legal Ta’zir of possible profits and spiritual losses, it will be claimed. According to Article14 of new Criminal Procedure Code, the legislator refers to compensation for spiritual losses in a material or other ways.
Mojtaba Asadzadeh; godarz eftekhar jahromi
Abstract
Abstract: Concluding of the arbitration agreement is based on the principle of party autonomy but this principle is restricted by public order. In other words, although the arbitration agreement is mainly based on the private agreement of both parties, it is not correct that the common will of both parties ...
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Abstract: Concluding of the arbitration agreement is based on the principle of party autonomy but this principle is restricted by public order. In other words, although the arbitration agreement is mainly based on the private agreement of both parties, it is not correct that the common will of both parties have an absolute authority to refer any disputes to arbitration. Sometimes the law forbid or restrict the reference of some disputes to arbitration, and the reason for these are based on the basic concept of public order and interest; thus, the settlement of some disputes are merely on the authority of the courts and if the arbitrators proceed to issue an award about such disputes, that award will not be applicable. This article will outline the opinions of Iranian scholars with regard to the effect of public policy on the arbitration agreements as it could help to understand the floating essence of public policy. In addition, this article set forth to analyses the most important cases in relation to arbitrability which are the Art. 139 of the constitution, bankruptcy claims, family disputes, intellectual property claims, securities claims and also labor and employment contracts.
zohre afshar quchani
Abstract
In international trade, there are several financing methods which help exporters and importers for buying and selling goods. Forfaiting is one of these methods. It is a financing method in which forfaiter purchases exporters' deferred receivables based on discounting rate and without recourse ...
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In international trade, there are several financing methods which help exporters and importers for buying and selling goods. Forfaiting is one of these methods. It is a financing method in which forfaiter purchases exporters' deferred receivables based on discounting rate and without recourse payment. Type of document, as an evidence of the payment, has an essential role in this commercial contract, since the nature and performance of forfaiting depend on type of document of receivables. While exporter and forfaiter are parties to the financing contract, it isalso applicable against the debtor, and forfaiter can pursuit importer on due date for the payment claim. Moreover, although forfaiting may be trilateral between forfaiter, exporter and importer in which debtor transfers his debt to financial institutions, in the traditional type of forfaiting, exporter assigns his receivables to the forfaiter. This contract is similar to discounting, negotiation, novation, assignment, selling of debt or the payment claim. It seems that the sale of debt is the most appropriate for this new financing method. If commercial papers are used as evidence of the payment, rules of negotiation will be governed in this contract.
alireza ibrahimy
Abstract
legislators in both countries Afghanistan and Iran have provided that, happening unavoidable external event is a cause for non-responsibility that Force major is one type of the event. Now considering effect of the event on obligator’s responsibility and also natural difference between omission ...
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legislators in both countries Afghanistan and Iran have provided that, happening unavoidable external event is a cause for non-responsibility that Force major is one type of the event. Now considering effect of the event on obligator’s responsibility and also natural difference between omission and positive obligations, we must to answer this, has the difference what effect on the destiny of the obligation and basis of non-responsibility. According to this, this paper by referring library resources and using analytic-description methods tries to specify the answer for the questions. By precise analyzing and general legal rules and jurisprudence, how the effect of the force major on breaking omission obligation is different than positive one and for this reason, the basis of non-responsibility is the removal of obligation and in result, lack of necessary conditions for establishing responsibility in contractual liability. also by happening the force major, the obligation is suspended or the contract is terminated. In this situation, by the basis, the consideration for none-performance of contract is claimable against where it is provided for delay in performance of the contract, if the force major take places.
Ali Taghizadeh; Sajjad Yavari
Abstract
< p >AbstractIn this study, attempts were made to understand the views of the two legal systems of Iran and the European Union on the revocation and feasibility of it in the donation. The purpose of this study, while familiarizing with the draft EU civil law, was to examine the comparative approach ...
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< p >AbstractIn this study, attempts were made to understand the views of the two legal systems of Iran and the European Union on the revocation and feasibility of it in the donation. The purpose of this study, while familiarizing with the draft EU civil law, was to examine the comparative approach of the revocation and the effects of it in two systems. Finally, while suggesting an opinion on the Iranian and European legislature''s approach and its cases, we have achieved the result that, despite the similarity in the target, Due to the acceptance of the principle of the ability to revocation, the Iranian legislators have made exceptions to the impossibility of revocation; While in the EU law, due to adopting a non-revocation approach, the cases of revocation have been established somewhat limited but reasonable including: Ingratitude, Impoverishment and Change of essential circumstances of the time of concluding the contract after the hangover. This comparative approach to the subject has been widespread in the field of action and opinion and, while imparting the minds of the Iranian legislator, can fill some legal vacuum or bring about a reform of the law.Keywords:Revocation, Donation, Donor, Donee, Dcfr.
Amir Eslamitabar; Mahdi Naser
Volume 8, Issue 30 , June 2020, , Pages 9-38
Abstract
< p >< p >The block chain is a decentralized ledger that has the ability to handle all types of financial transactions and data storage of electronic datasets. The study, in a documentary seeks to answer the question of how the block chain implementation plays a role in protecting copyright ...
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< p >< p >The block chain is a decentralized ledger that has the ability to handle all types of financial transactions and data storage of electronic datasets. The study, in a documentary seeks to answer the question of how the block chain implementation plays a role in protecting copyright at the international phase. The key role of this platform in protecting the security, transparency, availability of users, preventing violations of intellectual rights and more and faster support for countries that implement this platform are copyright rights. But the identification of these indicators depends on the conceptualization, the expression of the function, the means of differentiation, and the challenges faced by this context. Due to the widespread use of this platform in the world, the release and publication of a work is a publication, and all countries that include the Berne Convention are required to support this work. Of course, block chain’s implementation is faced with challenges such as security of trade, the coordination of the inside and outside of it, and the lack of rules for the harmonization of licensing contracts, virtual currency validation, metadata storage and invariance, which requires the attention of policymakers in Implementation of this ledger in the legal system.
Seyyed Hosein Safaii; Mohammad Hadi Javaherkalam,
Abstract
In this article, the conditions and effects of the force majeure in the amendments to the French Civil Code adopted in 2016, in order to use the solutions of the French legislature to eliminate the shortcomings of the Iranian legal system have been studied by descriptive-analytical research method. The ...
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In this article, the conditions and effects of the force majeure in the amendments to the French Civil Code adopted in 2016, in order to use the solutions of the French legislature to eliminate the shortcomings of the Iranian legal system have been studied by descriptive-analytical research method. The main question is what are the conditions and characteristics of the force majeure and what is the criterion for distinguishing them, either personal or relative, and what effect does force majeure have on contracts, contractual obligations and contractual liability? A comparative study of Iranian and French law shows that the inevitability (impossibility of eliminating and repelling the accident) and the unpredictability of the accident, with a kind of relative criterion, and also the impossibility of executing the contract, with an objective criterion, are conditions for the realization of force majeure; But the externality of the accident is not an independent condition and refers to the same impossibility of preventing the accident (not being avoidable). Also, contrary to French law, the Iranian legislature did not anticipate the effects of the force majeure on the contract itself and the contractual obligations, and the effect of force majeure on contractual liability was also incompletely stated, which has led to differences between judicial decisions. Therefore, it is suggested that the legislator, in the form of a Civil Act amendment plan, in Article 227 stipulates the conditions for the realization (characteristics and criteria of distinction) of force majeure and in Article 229, the effects of force majeure on the contract and contractual obligations and compensation for non-implementation or Specify the delay in fulfilling the obligation.
Mirghasem Jafarzadeh; Iman Hosseinpour Sharafshad
Abstract
In this research it is shown that attributing a contratio sensu to a description used by the legislator when providing legal rules is much debatable among Islamic Law Schoolars. The same debate seems to exist among Iranian legal writers. The detailed examination of this research does also show the fact ...
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In this research it is shown that attributing a contratio sensu to a description used by the legislator when providing legal rules is much debatable among Islamic Law Schoolars. The same debate seems to exist among Iranian legal writers. The detailed examination of this research does also show the fact that when justifying a contratio sensu for description, some scholars in Sheih Jurisprudence are of the opinion that in order to prove such implied indication for description it should be an exclusive causal link between description used and the express contemplated Legal rule. In contrary to this view, it is suggested by the writers that it would suffice if it is proved that there is definite causal link between the description used and the legal rule provided by express language.Likewise, althohgh the result is chalangeable in the Principles of Sheih Jurisprudence, it can suggsseted by confidence that such Sensu can be attributed to the Iranian Civil Law Lawmakers in most of cases. This view can be justified by various aruments such as the usual intention of the authority using such language to provide legal rules, normal perception of the addressed persons, reasonable meaning of the texts used by the legislator, constant precedents of the reasonable persons, the reasonability of the legislator, the principle of the necessity of generality in providing the legal rules and the usual use of such language in providing legal rules.Based on this suggestion and in order to identify what kind of description could result into a contratio Sensu or not, the description used in law texts, shall be divided into an indicative which has a contratio Sensu or an explanatory which has not. It shall also be divided into a description which is used to describe the subject-matter and the one which describes the legal rule. In the first case it has not a contratio Sensu and in the second one has. Finally, it is also shown that "the description used in the law texts, has in principle a contratio Sensu, unless it is proved to be an explanatory, or subject matter-conditioning or has no causl linkage with the legal rule provide by exress language."
Kheyrollah Hormozi; Masoomeh Keshtkari
Abstract
The subject matter of the claim form is determined by the claims of the parties in the claim form and the defense bills, so the scope of the court in the proceedings will be determined. However, among the elements raised by the parties, there are facts that neither of them has explicitly cited in order ...
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The subject matter of the claim form is determined by the claims of the parties in the claim form and the defense bills, so the scope of the court in the proceedings will be determined. However, among the elements raised by the parties, there are facts that neither of them has explicitly cited in order to benefit from its legal effects. Moreover, the judge was able to legitimately inform them because it arises from the more general claims of the parties or the documents presented in the case file. These are called Adventitious facts. The question is; “Is it possible for the court to deal with these facts?” Examining the various dimensions of the case shows that accepting the judge's ability to identify these facts in order to benefit from them is accompanied by ambiguities. While the judge's ability to identify and benefit from Adventitious facts is not in dispute in France, this paper attempts to address these ambiguities by focusing on French law. It seems that in Iranian legal system- despite of the lack of a comprehensive legal doctrine in this area- traces of Adventitious facts can be seen in the rulings issued by the courts.
Private Law
Mojtaba Eshraghi Arani
Abstract
The simple method of transportation is that the cargo is loaded in port of delivery and unloaded from the same vessel in the port of discharge. However, there are frequent cases that accomplishment of the voyage requires the transfer of cargo to another vessel, whether to the same (sea vessel to ...
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The simple method of transportation is that the cargo is loaded in port of delivery and unloaded from the same vessel in the port of discharge. However, there are frequent cases that accomplishment of the voyage requires the transfer of cargo to another vessel, whether to the same (sea vessel to vessel for instance) or another mode (sea vessel to vehicle, vehicle to aircraft, etc) which is called “transshipment”. Transshipment from a technical viewpoint, is a cargo management operation which along with other methods, including “Ro-Ro carriage” and “Cross-stuffing” leads to less cost in transportation. However, in the legal terms it might be deemed as “deviation” and a fundamental breach of the contract.Transshipment is either predicted by the parties to contract of carriage (bill of lading) or the fortuitous events in the voyage necessitate such operation. This issue is so important that not only in the bill of lading but also in the sale contract and letter of credit is dealt with and one must answer this question that in the case of no agreement on the transshipment, is such operation, in principle, allowed or not? Obviously, this operation brings about delay in the process of carriage and other risks like sea pollution (in the case of oil transfer) which affects the interests of not only the cargo owner but also other merchants including the LC issuing bank and even the state authorities like department of Customs. Therefore, this article is going to scrutinize the legal conditions under which the carrier is authorized to do transshipment in accordance with the international conventions and the particular contractual conditions like “liberty to transship clause”.Moreover, the consequences that such operation brings in terms of the liability and rights of carrier are dealt with in this article. These consequences are analyzed in two parts: when the transshipment is allowed and when it is not allowed. In the latter case, one should see whether the same impacts of deviation under maritime law are applied on trans-shipment so that the contract of carriage is frustrated and the carrier is deprived of invoking to liability exclusions and limitations (based on the international conventions) or some other peculiar consequences must be looked for. On the other hand, this article has analyzed the consequences of allowed transshipment in particular, whether the carrier liability ceases to continue after the transshipment or he is still liable for all damages; moreover, this issue is dealt with that whether the exclusion of liability clause for damages after transshipment is valid or not. Finally, the carrier entitlement to freight after the transshipment is discussed in this article further to the person who is liable for transshipment costs: carrier, shipper or consignee? According to the explanations given in this article, it can be concluded that despite the many risks caused by transshipment or the transfer of cargo from one device to another, this operation is an integral part of transporting goods in Many items have been converted. The advancements of the transportation industry, especially the container revolution, have helped to resolve the concerns of traders about the risks and costs of transshipment, so that the agreement between the buyer and the seller on the possibility of transshipment if the cargo is transported in a container, is recognized by the legislative authorities and the International Chamber of Commerce, a clear example of which can be seen in UCP 600 (Article 20).Not only transshipment is done under the strict control of government authorities to reduce the scope of fraud in relation to export, import and customs regulations, but in the private relations of the parties to the contract of carriage, the principle is that the transshipment is impermissible unless according to the explicit or implicit agreement of the parties or the procedure of the related business is that the transshipment is predictable and within the common intention of the parties, or that due to unforeseen reasons, the completion of the voyage depends on it, which in the latter case, the Iranian Maritime Law (Article 157) not only allows the captain but also obligates him to transfer the cargo by another means.Unauthorized transshipment, although according to the opinion of some jurists, it produces the same effects as "deviation" in maritime law, but the opinion that only considers it a fundamental violation of the contract of carriage and causes the right of termination and compensation for the cargo owner is in accordance and more compatible with the legal rules. In the assumption that the carrier is authorized to carry out these actions, the governing spirit of the international regulations of transportation as well as the Iranian commercial law indicates that the responsibility of the carrier remains after the transshipment, although the exclusion of liability clause for damages after that should also be legitimate under certain conditions.Also, it is concluded in this article that the costs of transporting the cargo by another means of transport due to the termination of the transport contract and according to the rule of the management of third party’s property (which is applicable in fortuitous transshipment) should be charged to the account of the owner of the goods, unless the incident is temporary and the carrier is in line with the execution of the contract has taken it upon himself. The same reasoning will apply to the carrier freight the carrier shall not be deprived of its outstanding freight due to transshipment.
Private Law
Hamid Reza Oloumi Yazdi; Alireza Danesh Ara
Abstract
Recognition and enforcement of arbitral awards by the competent court when the judgment debtor does not comply with the award willingly is the last step in the settlement of a disputes through an agreed arbitration procedure. The recognition of the arbitral award by a court grants the arbitration ...
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Recognition and enforcement of arbitral awards by the competent court when the judgment debtor does not comply with the award willingly is the last step in the settlement of a disputes through an agreed arbitration procedure. The recognition of the arbitral award by a court grants the arbitration awards an enforceability likewise the judgement of a courts. Recognition and enforcement of arbitration awards by the courts upscales such awards to an enforceable and binding level as it’s enforceability has been endorsed by the law. Moreover, when an arbitral award has been recognized by the court, then the outstanding case shall enjoy the status of a res judicata award which bars the parties to the dispute to take the case to the court or the arbitral tribunal again. The recognition of arbitral award has been mainly focused in international arbitration and in international legal literature such New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958) as well as in ICSID Convention for settlement of disputes between foreign investors and sates. However, less attention has been paid to the step of recognition in national arbitration awards, yet it calls for a closer consideration under the national applicable law of the seat of arbitration or the place of its enforcement. The study of judicial precedents in Iran proves that recognition of an arbitral award is likewise a prerequisite for its enforcement. Under Iranian law an arbitral award could be enforced by the court when it does not contradicting the public policy, mandatory rules of law, and the rules of substantial law granting/securing a right. Consequently, when a court order for enforcement of an arbitral award, in fact the court has preliminary recognized its enforceability and its conformity with these three said criteria. In this way, the recognition of a national arbitral award should be considered as a distinguished step in the process of its enforcement. This paper, by looking to the Iranian court precedent, intends to answer to the questions relating to the legal nature and consequences of recognition of a national arbitral award, as well as explaining the procedural rules applicable to this concept, such as the method and form which should be followed for such a request, the legal nature of the court’s decision on this matter, and whether this decision is subject to appeal or not. However, it should be noted that, due to lack of an integrated system for record and publishing of court’s judgments in Iran this research has been confined to the available records.Under Iranian court’s practice and precedent, the recognition of an arbitral award may be requested from the competent court by a “request” from the beneficiary party and it is not necessary to file a “petition” as requested for bringing substantial claims before a court . The court shall deal with such a request as a matter of procedure and not as a matter of substance by checking the procedures followed by the arbitral tribunal. The court may not invite the parties for a hearing session and is not obliged to follow the default rules set out for proceedings in other cases. The decision of the court on the matter of recognition shall be in the form of and “order or decision” by the court, not a judgment, stating the recognition or rejection of the arbitral award. Such a decision may be subject to an appeal like any other decisions of the courts. If the arbitral award has not been recognized by the court, which means in practice the request for its recognition and enforcement has been rejected by the court, the same case cannot be heard by the arbitral tribunal again, but it should be heard by the competent court. However, according to the dominant practice of the courts, the arbitration agreement shall be survived for any other disputes might arise out of the same contract.In the light of judicial policy of Iranian government to pursue people to the out of court settlement of their economic and commercial disputes, in particular by promoting mediation and arbitration, Iranian courts have recently shown more tendency to support and help in recognition and enforcement of national arbitration awards. This approach has been demonstrated in the court decisions and judicial precedent referred to in this paper. In brief, the importance of stage of recognition of an arbitral award should not be broadly interpreted by the courts to jeopardies the said policy, promotion of arbitration and enforceability of the arbitral awards.
Private Law
Badie Fathi
Abstract
Il est possible que deux ou plusieurs affaires connexes devant deux juridictions distinctes et egalement competentes est en train d’etre instruit et en ce cas il exige que ces affaires mettent ensemble, envisagant ces rasions: la réduction des coûts sociaux et économiques, ...
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Il est possible que deux ou plusieurs affaires connexes devant deux juridictions distinctes et egalement competentes est en train d’etre instruit et en ce cas il exige que ces affaires mettent ensemble, envisagant ces rasions: la réduction des coûts sociaux et économiques, de permetre au juge de connaître correctement le problème et de résoudre tous les aspects du litige plus rapidement, la bonne administration de la justice, la prévention des jugements contradictoires et l'intérêt d'une bonne justice de les faire instruire et juger ensemble. Dans ce cas, le demandeur et le défendeur ont le droit et même l'obligation de soulever de Exception de connexité Selon l'article 103 de la loi de procédure civile d'Iran approuvée le 9 avril 2000 après JC. L’exception de connexité peut être soulevée devant les deux juridictions .Les systèmes de procédure civile de l'Iran et de la France sont similaires à cet égard,, mais il existe également des différences : par exemple, si L’exception de connexité est acceptée, les affaires connexes devraient-elles être renvoyées devant le premier tribunal ou le deuxième tribunal ? Il est nécessaire d'avoir un lien entre les affaires dans la procédure civile iranienne et française. Le lien peut être un lien simple,un lien suffisant et un lien complet(l’indivisibilité des pretentions). Il semble qu'un lien simple ne puisse pas de se dessaisir et de renvoyer de l'affaire, mais un lien suffisant et un lien complète peuvent de se dessaisir et de renvoyer de l’affaire. Parce que dans ce cas il existe entre les litiges un lien tel qu'il soit de l'intérêt d'une bonne justice de les faire instruire ou juger ensemble.En Iran L’exception de connexité a caractéristique de l’ordre public Donc Le juge peut, d'office, ordonner la jonction de plusieurs instances pendantes devant lui Mais en France Il résulte des articles 101 et 103 Code de procédure civile que le renvoi pour connexité doit être demandé par les parties. On admet que le juge ne peut relever d’office l’existence d’une connexité entre deux affaires.L’exception de connexité peut être soulevée par l’une des parties, mais aussi par un tiers mis en cause ou intervenant volontairement au litige Et pour raisond'ordre public. Le délai de soulevée L’exception de connexité , contrairement à la règle stipulée à l'article 87 du Code de procédure civile, qui stipule que les exceptions doivent être soulevées avant la fin de la première audience, Elle peut être déposée devant la Cour d'appel et la Cour de cassation. Par consequent le délai pour soulevée L’exception de connexité n'est qu'à la fin de la première audience. En France, il y a toujours eu un scepticisme face aux exceptions à la tradition héritée du droit romain.Parce que les soulevée entraîne des retards dans les procédures et la justice. Selon cette tradition issue de la domination romaine in limine litis, à l'article 74 du Code de procédure civile, il est stipulé que Les exceptions doivent, à peine d'irrecevabilité, être soulevées simultanément et avant toute défense au fond ou fin de non-recevoir. Il en est ainsi alors même que les règles invoquées au soutien de l'exception seraient d'ordre public.La demande de communication de pièces ne constitue pas une cause d'irrecevabilité des exceptions. Les dispositions de l'alinéa premier ne font pas non plus obstacle à l'application des articles 103, 111, 112 et 118. Il est précisé à l'article 103 que L'exception de connexité peut être proposée en tout état de cause, sauf à être écartée si elle a été soulevée tardivement dans une intention dilatoire.Ce qui est dit à l'article 103 » sauf à être écartée si elle a été soulevée tardivement dans une intention dilatoire.«peut être critique est critiquable. , Parce que l'objectif principal L’exception de connexité est la prévention des jugements contradictoires et avec cette déclaration, cet objectif est violé.en France Les recours contre les décisions rendues sur la connexité par les juridictions du premier degré sont formés et jugés comme en matière d'exception d'incompétence.En cas de recours multiples, la décision appartient à la cour d'appel la première saisie qui, si elle fait droit à l'exception, attribue l'affaire à celle des juridictions qui, selon les circonstances, paraît la mieux placée pour en connaître. Mais en Iran Les les decisions Concernant L’exception de connexité ne sont sujettes à aucun recours. Il s’agit d’une faille dans la loi et il est suggéré de la modifier. le fait de ne pas pouvoir porter plainte dans ce domaine est l'un des défauts de la loi sur la procédure civile, et il est suggéré que la loi soit amendée.Lorsque les juridictions saisies ne sont pas de même degré, l'exception de connexité ne peut être soulevée que devant la juridiction du degré inférieur. Bien que cela soit contraire au principe Double degré de jurisdiction. Les tribunaux français ont rarement accepté la connexité international Mais en Iran, selon l’article 971 du Code civil, cela n’est pas acceptable.
Mahdi Zahedi; zahra mahmoodi
Abstract
The relationship between TRIPS Agreement and Convention on Biological Diversity (CBD) is part of a broader relationship, that is, the correlation between Multilateral Environmental Agreements (MEAs) together with the World Trade Organization (WTO).In spite of growing attention to biodiversity and its ...
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The relationship between TRIPS Agreement and Convention on Biological Diversity (CBD) is part of a broader relationship, that is, the correlation between Multilateral Environmental Agreements (MEAs) together with the World Trade Organization (WTO).In spite of growing attention to biodiversity and its importance for human survival, there is a conflict between TRIPS Agreement and CBD. The environmental patents, such as biological and microbiological processes, micro-organisms in the framework of TRIPS, the possibility of environmental patentsand ignoring the rights of countries, which are the origin of genetic resources, are the most conflicting issues. TRIPS, without observing the objectives of the CBD, has authorized patent to inventions using genetic resources. In addition, the registration of some areas, such as biotechnology inventions, is allowed without considering the adverse effects on biodiversity. The continuity of this situation threatsthe world’s biodiversity. In addition to comparingthe controversial matters in these two documents, this article examines the current approach and presentssome solutions by focusing on TRIPS.
Saeid Bighdeli; Ahmad Ekhtiyari
Abstract
Collective loss which in its general sense includes losses suffered by the whole members of a set and in its special sense is the loss incurred on the totality of a set, without it necessarily contains the detriment of the individual members,has today drawn the attention of different countries' law for ...
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Collective loss which in its general sense includes losses suffered by the whole members of a set and in its special sense is the loss incurred on the totality of a set, without it necessarily contains the detriment of the individual members,has today drawn the attention of different countries' law for various reasons. In the meantime, one of the basic questions, is the possibility of its claim by collective legal personality. Despite the importance of this subject and the necessity of determining its legal status, sufficient attention has not been paid to it in domestic laws; and judicial precedent has no specific judgment in this regard. This writing,meanwhile the attempt to study the subject in the accepted framework of rules and regulations governing the law of Iran, has tried to study it in French Law and taken its generalization to Iran's law into accounts. Accordingly, it seems, despite the current differences in the two legal systems in terms of legislation and case law, the law of Iran can also enjoy its present legal potentialities to move toward opening the ways of accepting this claim in its domestic law, as France did.
Sied Mohammad Tabatabaei Neghad
Abstract
Many arguments have been raised to support or reject the idea of unification of law in relation to civil liability. Amongst others, it is claimed that it is impossible to establishment binding principles across different countries. However, in relation to some aspects of tort, the need for unification ...
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Many arguments have been raised to support or reject the idea of unification of law in relation to civil liability. Amongst others, it is claimed that it is impossible to establishment binding principles across different countries. However, in relation to some aspects of tort, the need for unification is necessary due to the process of globalization. Within the European Union, arguments for supporting a unified European civil liability law relate to the emergence of the European Union and an increasingly globalized economy. This issue envisaged in the Treaty of the Union, and the harmonization of tort law is the process of creating common standards across the internal market in relation to tort elements. It is a part of the unified Europe project and a reduction in the significance of national borders. Diversities in national laws may create problem of efficacy in the ever more globalized economy. This article analyzes the importance of harmonization of tort law in the EU, and examines barrier to the harmonization. It concludes that even if this process is of crucial importance, the aim is not to achieve it in all aspects of tort law.
Hamidreza Holumi yazdi; Hamid Derakhshan nia
Abstract
In the current system of global arbitration, the complete independence envisaged for the arbitration. Nevertheless, it does not mean that the arbitration is completely needless of the court. Misunderstanding of the ‘basis’ and ‘limits’ of the court’s intervention or assistance ...
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In the current system of global arbitration, the complete independence envisaged for the arbitration. Nevertheless, it does not mean that the arbitration is completely needless of the court. Misunderstanding of the ‘basis’ and ‘limits’ of the court’s intervention or assistance in the arbitral process will be the most substantial threatening factor in the formation of an independent and efficient arbitration system in Iran. In practice, one factor behind the role of the courts, as supportive or interventionist, is the issue of assigning an arbitrator by the court. The current study shows that the relevant statutes and the judicial cases to the court’s intervention in the process of appointing a judge is imperfect. This article seeks to present an efficient pattern depicting the court’s intervention in the arbitral process based on the division of arbitral process and its various stages. In this regard, arbitration process can be divided into two parts: First, the court’s intervention in the formation and continuation of arbitration tribunal. Second, the court’s intervention in dealing with substantive issues. In the former, the principle is an interventionist role, and the latter is based on non-interventionist role. This is quite contrary to what is deemed as appropriate.
Ali Moghaddam Abrishami; Masoud Mahboub
Abstract
Abstract The role of courts in international arbitration can scarcely be denied. Courts play a crucial role in different stages in international arbitration. Having said that, the extent of courts' intervention in international arbitration has been subject to controversy. National arbitration laws have ...
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Abstract The role of courts in international arbitration can scarcely be denied. Courts play a crucial role in different stages in international arbitration. Having said that, the extent of courts' intervention in international arbitration has been subject to controversy. National arbitration laws have taken different views in this regard. In some countries, courts have a supportive role; however, others have interventionist approach. In Iran, a Comprehensive Draft Bill on Arbitration was recently adopted in order to be presented to the parliament for ratification. It applies to both domestic and international arbitration as a result of making a distinction between international and national arbitration. This article aims to conduct a critical assessment on the Draft Bill by considering modern arbitration rules. It concludes that the Draft Bill is based more on an interventionist approach than the supportive one. Keywords: International arbitration, Arbitration law, Iranian arbitration law, Role of court, Arbitration Draft Bill Keywords: International arbitration, Arbitration law, Iranian arbitration law, Role of court, Arbitration Draft Bill Keywords: International arbitration, Arbitration law, Iranian arbitration law, Role of court, Arbitration Draft Bill Keywords: International arbitration, Arbitration law, Iranian arbitration law, Role of court, Arbitration Draft Bill
Hamed Najafi; mahmoud sadeghi; morteza shahbazinia
Abstract
Vicarious liability is one of the types of responsibilities arising from other's action. In US law, unlike Iranian legal system, there is a general rule upon which whenever under the control persons, commits a copyright infringement and thereby a financial benefit get to the supervisor, the latter, shall ...
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Vicarious liability is one of the types of responsibilities arising from other's action. In US law, unlike Iranian legal system, there is a general rule upon which whenever under the control persons, commits a copyright infringement and thereby a financial benefit get to the supervisor, the latter, shall be subject to the vicarious liability. Undoubtedly, children are among the most prominent examples of persons under the control that this usually occurs by their parents. Furthermore, in Current age, it is possible that many infringements occur by children, especially in the Internet. Parents will generally be subject to the vicarious liability for copyright infringements their children. In US law, has been suggested the probability of parental responsibility for copyright by children based on the general rule of vicarious responsibility, while it seems that the nature of the relationship between parents and children and the bases of suggesting parental liability for children's fault, demands some differences in this regard. Parental responsibility for children's torts in Iranian law, unlike US law, is based on fault and care rather than control and compliance, and this is an advantage of Iranian law.
Mansor Jabbari
Volume 1, Issue 2 , February 2013, , Pages 29-62
Abstract
When passengers or goods do not reach their destination at the agreed time, non-performance of timely transportation contract is executed. Agreed time may explicitly or implicitly listed on the ticket or from advertising of transpors or pubic news to be understood. League of Europe, United States and ...
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When passengers or goods do not reach their destination at the agreed time, non-performance of timely transportation contract is executed. Agreed time may explicitly or implicitly listed on the ticket or from advertising of transpors or pubic news to be understood. League of Europe, United States and Iran has confirmed any rights of passengers as aircraft delays, cancelation of flight or ticket confirmation or additional capacity aircraft. To assimilate some of aviation regulations, Warsaw and Montreal convention have determined liability for damages in international flight. Both of convwntions discussed liability for timely transport flight. This research survived their responsibility attendant delays, cancellation of flights or additional aircraft capacity in European countres, Iran, United States and International law.
Azam Ansari; Mohammad Mahdi Hajian
Abstract
Like a number of international treaties, provisions of WTO Agreements are
subject to ambiguities and problems. Hence, interpretation of WTO provisions is
of great importance to Dispute Settlement Body of World Trade Organization
and international trade lawyers. In this regard, using general principles ...
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Like a number of international treaties, provisions of WTO Agreements are
subject to ambiguities and problems. Hence, interpretation of WTO provisions is
of great importance to Dispute Settlement Body of World Trade Organization
and international trade lawyers. In this regard, using general principles of law
provided, particularly, by Articles 31 and 32 of the Vienna Convention on the
Law of Treaties (VCLT) require special attention. This Article intends to provide
an answer to this question: To what extent are these principles able to affect the
interpretation of WTO provisions. By considering different interpretation
methods, this Article shows that the general principles of law play an undeniable
role in interpreting and understanding the provisions of WTO. Applying these
principles assists the panels and appellate body to discharge their function and
lead to convergence between WTO and other international legal systems. This
approach has been affirmed by WTO Dispute Settlement Body.
Azam Amini
Abstract
The concept of equity has been existed for a long time in all cultures aswell as different fields of knowledge particularly law and morals.Elaborating this concept, legal systems and commentators from differentlegal scholarships have pointed out to some common elements enablingthe maintenance of the ...
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The concept of equity has been existed for a long time in all cultures aswell as different fields of knowledge particularly law and morals.Elaborating this concept, legal systems and commentators from differentlegal scholarships have pointed out to some common elements enablingthe maintenance of the dynamic nature of equity and its various functionsin the field of law, and more accurate identification of its main core aswell as theoretical and practical recognition of equity’s function, bearingin mind its capabilities, in the realization of human society.Some of the issues discussed in this paper include historical developmentof the concept of equity from the very past to its current situation, theconcept of equity in the Islamic law, introducing the most outstandingstudies conducted globally by legal scholars about equity, and assessingdifferent theories expressed in favour of or against the employment of thisconcept in law. Based on these discussions, specific conclusions on theinter-relation of equity and law is presented which I hope would properlybenefit the Iranian legal scholars
mojtaba Eshraghi Arani
Abstract
Financiers usually enjoy various security devices for guarantee of the repayment of the principal and interest, among them one which is very prevalent, in particular in unsecured finance, is “negative pledge covenant”, according to which the borrower promises not to encumber his assets in ...
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Financiers usually enjoy various security devices for guarantee of the repayment of the principal and interest, among them one which is very prevalent, in particular in unsecured finance, is “negative pledge covenant”, according to which the borrower promises not to encumber his assets in favor of any other creditor. This clause purports to protect the financier, who is unsecured, vis-à-vis other creditors of the borrower, who have priority, upon enforcement of his claim out of the borrower's assets. Although this clause, which has various kinds, is basically binding inter partes, in some types, the so-called “affirmative negative pledges” might lead to security interests. The negative pledge clause is popular in corporate finance and not only the validity of this clause, but also its default remedies –in particular against third party creditors who have gained the security interests in borrower’ assets- would be rather illusory under Iranian law. The definition, legal nature, validity and default remedies of negative pledge clause are among the main issues which are examined elaborately in this article with a comparative study of English and Iranian law.
Mohammad Salehi Mazandarani; Farhad Bayat
Volume 2, Issue 6 , February 2015, , Pages 33-61
Abstract
At first glance, the transfer of credit is a legal action taken between a sender and a receiver of credit through which the receiver is obligated to transfer the monetary value of the payment order to the beneficiary in accordance with the instruction received from the transferor. The sender is also ...
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At first glance, the transfer of credit is a legal action taken between a sender and a receiver of credit through which the receiver is obligated to transfer the monetary value of the payment order to the beneficiary in accordance with the instruction received from the transferor. The sender is also obliged to transfer that money, in addition to the cost of transfer, to the other party.Although, on a primary analysis, a credit transfer is more assimilated to a kind of payment instrument that facilitates transfer of money, it might, on a second consideration, seem to be a sort of payment method. A careful scrutiny of this legal institution proves that none of the current traditional contractual forms could properly illustrate the true nature, features and function of this legal entity. This article shows that the nature of this legal entity could well be justified as a non-defined, innominate contract (Aghd-e Gheir-e Moayyan) subject to Article 10 of the Iranian Civil Code. An attempt to accommodate this contract in the form of a defined and specific contract (Adhd-e Moayyan) stems from the traditional view held by certain Islamic jurists who believe in the non-binding nature of non-defined innominate contracts, an idea which has surely no place in the existing Iranian legal system.
Mohammad Taghi Rafie; Amin Taherkhani
Volume 3, Issue 9 , December 2015, , Pages 33-61
Abstract
In international commercial contracts, imposing a time-limit on bringing a legal action through litigation is not only important for the purpose of certainty and protecting parties’ interest, but it is also considered to be essential. Both the Limitation Convention and Uniform Commercial Code (UCC) ...
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In international commercial contracts, imposing a time-limit on bringing a legal action through litigation is not only important for the purpose of certainty and protecting parties’ interest, but it is also considered to be essential. Both the Limitation Convention and Uniform Commercial Code (UCC) establish four year time periods, while DCFR and UNIDROIT 2010 consider three-year time periods. Commencement date of the limitation period plays a significant role in determining this duration. In accordance with provisions of the Convention, the limitation period commences on the date when the claim occurs. In Article 2725 of the UCC, the same criteria are taken into consideration. Hence, in connection with the determination of the commencement date, except in cases where the right to terminate is established, provisions of the UCC are consistent with the Convention. This is why in the UCC, in most cases except for claims arising from fraud, the "discovery rule" to determine the commencement date has been disregarded. By contrast, in UNIDROIT 2010 and DCFR, the "discovery rule" has been applied in all cases. Therefore, except in situations where claims arise from fraud, provisions of the Convention are inconsistent with the two recent instruments.
Jafar Nouri; AbdurRashid Akhundi
Volume 2, Issue 5 , February 2014, , Pages 35-59
Abstract
AbstractIn very simple words, Economic Analysis of Law is an instrumental use of law inorder to bring efficiency. In this regard, many aspects of legal thought andinstitutions may be evaluated according to their role in bringing economicefficiency to the society. In this essay, we will discuss the so-called ...
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AbstractIn very simple words, Economic Analysis of Law is an instrumental use of law inorder to bring efficiency. In this regard, many aspects of legal thought andinstitutions may be evaluated according to their role in bringing economicefficiency to the society. In this essay, we will discuss the so-called Prescriptionas a legal institution. The most important questions which in this essay we aregoing to answer are: Is the economic analysis of prescription the same asevaluating advantages of prescription –which has a profound literature– or it isanother concept? Is prescription an efficient policy to the economists or it iswholly or partly inefficient? By assuming that it is an efficient device, howshould be its start, end, suspension, interruption and resume? This essay isdivided into two topics of discourse: First, we will explain related key concepts.Then, in the last topic of discourse, the economic analysis of prescription as amatter of law will be rendered.
