Mohammad Hadi Mirshmsi; Maryam Farzi
Abstract
Research is considered to be one of the elements for development in all countries. Policymakers strive to improve and increase it in terms of quality and quantity. They also aim to manage results of researches. For this reason, governments, directly and indirectly, attempt to carry out researches and ...
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Research is considered to be one of the elements for development in all countries. Policymakers strive to improve and increase it in terms of quality and quantity. They also aim to manage results of researches. For this reason, governments, directly and indirectly, attempt to carry out researches and resolve society needs in some fields in which private sectors cannot or are not interested in investing and being active. Publicly funded research in developing countries is more common and most researches are carried out by public funds. Ownership and the method of utilization of research results are main issues in this area. These issues are important not only due to intellectual property, creators and innovators’ rights, but also due to the management of rights for the best economic result for the benefit of societies. This issue has been discussed in some countries since several decades ago and the Bayh-Dole Act has been the first and the most important Act that is related to intellectual property in publicly funded research. Many countries have regarded the Bayh-Dole Act as a model for adopting their legislation. This article discusses features of the Bayh-Dole. By examining Iranian law in this context, it also proposes the points which should be considered by Iran as a developing country
Reza Shokoohizadeh; Asghar Arabiyan
Abstract
Taking into account the fact that in Iranian and French law, formal defects of petition can be recoverable; the appellant is interested in regarding the cause of nullity as formal one. Conversely, the defendant is interested in considering the cause of nullity as non-formal to render the reject of petition, ...
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Taking into account the fact that in Iranian and French law, formal defects of petition can be recoverable; the appellant is interested in regarding the cause of nullity as formal one. Conversely, the defendant is interested in considering the cause of nullity as non-formal to render the reject of petition, immediately by the court. Tendency of jurisprudence toward each of these conflicting interests may disorder the balance of Civil Procedure. But hesitancy of jurisprudence in determining the cases of formal nullity is more dangerous than excessive resort to each solution. This hesitancy resulted in non-predictability of the cases in Iranian Jurisprudence. Reject of appeal by the court, without possibility of correction of defects, encourage the debtor to refuse from the compromise with creditor. This Article is an attempt to distinction of formal defects of petition from substantive defects and cases of non-acceptance of litigation. On the other hand, in each case, some suggestions have been rendered. But the fist aim of this Article is to clarify the divergent tendencies in Iranian Jurisprudence in respect of the subject matter of this Article.
Homayoun Mafi; Mohammad Hosien Taghipoor
Abstract
In EU and American law, the principle of autonomy has been recognized. For the purpose of unification, Rome 1 Regulation allows parties to choose the law that has no link to the contract. By contrast, in American law, the selected law is required to have a basic or reasonable relationship with the contract. ...
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In EU and American law, the principle of autonomy has been recognized. For the purpose of unification, Rome 1 Regulation allows parties to choose the law that has no link to the contract. By contrast, in American law, the selected law is required to have a basic or reasonable relationship with the contract. According to Rome 1 Regulation, the chosen law does not affect the application of overriding mandatory provisions of the law of the forum and the law of the performance of the contract. In American law, the chosen law should not be in conflict with public policy of the forum and a fundamental policy of a state which has, substantially, greater interest than the chosen state in relation to the determination of a particular issue. This article examines the positions of European Union and American law regarding the determination of applicable law
HABIB RAHIMI; saeede alizade
Abstract
Severe fluctuations in prices can cause a distortion of the balance of considerations, particularly in long-term contracts, such as construction contracts. One way to reasonably reduce the risk of unforeseen costs due to price fluctuations in raw materials and manpower is to design a contract price adjustment ...
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Severe fluctuations in prices can cause a distortion of the balance of considerations, particularly in long-term contracts, such as construction contracts. One way to reasonably reduce the risk of unforeseen costs due to price fluctuations in raw materials and manpower is to design a contract price adjustment system. Since Iranian law is substantially influenced by the state economy, large-scale economic activities are carried out directly by the state. In general contracts, based on Article 23 of the Program and Budget Act, the general terms of contracts are the basis for drafting governmental contracts of which the standard model is FIDIC contracts. In general contracts in Iran, the government, as a regulatory body, has a direct involvement in the implementation of this type of contracts. Hence, the analysis of the nature and basis of moderation in the general terms of contract is subject to controversy. This article strives to examine the nature and basis of the moderation clause in general terms of the contract and to compare it with FIDIC contracts.
Ali Tahmasebi
Abstract
In order to avoid making conflicting judgements, and to reduce multiplicity of actions and judicial costs, some institutions such as ancillary and related claims have been considered in Iranian law. Nonetheless cross-claim does not exist, that is, whenever there are two or more plaintiffs or defendants, ...
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In order to avoid making conflicting judgements, and to reduce multiplicity of actions and judicial costs, some institutions such as ancillary and related claims have been considered in Iranian law. Nonetheless cross-claim does not exist, that is, whenever there are two or more plaintiffs or defendants, one plaintiff can litigate against co-plaintiff and one defendant can file a lawsuit against co-defendant. Various institutions have been adopted in U.S Federal Rules of Civil Procedure for joinder of claims and permissive or compulsory joinder of parties. Therefore, the drafters have endeavored, by getting away from common law and based on equity, to prevent multiplicity of cases among parties and adjudicating different aspects of same or common issues of law and fact together. One of these mechanisms is cross-claim by witch whenever there are more than one plaintiffs or defendants in action, one plaintiff is able to litigate against the other and a defendant can start a case against co-defendant on the understanding that there is a logical relation between original and cross claims. This article examines the possibility of using this institution in Iranian Law.
Homayun Mafi; Mehdi Fallah
Volume 3, Issue 9 , December 2015, , Pages 149-170
Abstract
One of the most widely used independent bank obligations in international trade law is a demand bank guarantee. This is always exposed to the risk of unfair demand, because it is payable on demand. It means that the beneficiary calls and receives guaranteed fund despite of full performance of the underlying ...
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One of the most widely used independent bank obligations in international trade law is a demand bank guarantee. This is always exposed to the risk of unfair demand, because it is payable on demand. It means that the beneficiary calls and receives guaranteed fund despite of full performance of the underlying contract by principal. In fact, documentary characteristics and the principle of independence provide an opportunity for the beneficiary to affect the exceptional and secondary function of bank guarantee as a result of an unfair demand. The question posed is how unfair demand can be prevented. By examining rules and regulation governing international trade and the draft bill on commercial law approved in 1391, it would seem that among possible solutions, such as the requirement of presenting a court judgment or an arbitral tribunal award and a statement by the beneficiary or principal indicating points in which the applicant is in breach of its obligations, the assumption of nonperformance of the contract, in the event of demand by the beneficiary, is the most appropriate solution.
Gholam Nabi Fayzi Chekab; Ebrahim Taghizadeh; Azizollah Fahimi; Khodadad Khodadadi Dashtaki
Volume 3, Issue 11 , June 2015, , Pages 149-178
Abstract
These days, because of high costs for carrying out fundamental projects,foreign financing plays a fundamental role in economic development ofdeveloping countries, including Iran. A financier is seeking for a secureenvironment for investment in order to be able to secure its capital and to makea profit. ...
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These days, because of high costs for carrying out fundamental projects,foreign financing plays a fundamental role in economic development ofdeveloping countries, including Iran. A financier is seeking for a secureenvironment for investment in order to be able to secure its capital and to makea profit. For this purpose, the host State needs to provide a suitable environmentfrom legal, moral and economic perspectives as well as in terms of security. Inthis regard, the role of the host State in providing stability and predictability,relating to economic, legal and political issues, is of particular significance.Financing barriers are not the same in all host states. This article deals withthese barriers in Iranian law. It also considers different methods for foreignfinancing
Mahmood Jalali; Masumeh Shakoori
Volume 1, Issue 3 , March 2013, , Pages 151-177
Abstract
To protect contracts, eliminate International trade barriers and regulatenew forms of trade relations, states have long strived to minimize differencesin their legal systems as to provide more desirable legal protection forinternational economic activities. Despite the fact that these unified codesare ...
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To protect contracts, eliminate International trade barriers and regulatenew forms of trade relations, states have long strived to minimize differencesin their legal systems as to provide more desirable legal protection forinternational economic activities. Despite the fact that these unified codesare transnational and are thus considered non-binding in nature, contractingparties may agree to give them a binding force if so desired. Transnationalcodes mainly come in to force after national constitutional ratificationrequirements including those of Iran are satisfied otherwise theirenforceability may only be assumed to the extent where they have nocontradiction with internal laws (subject to Articles 10,975 and 986 of theIran’s Civil Code). Optional set of rules may bear different legal results andprovide a range of options for states to choose from. Governmental and nongovernmental organizations are both active players in formulation of unifiedcodes in form of international conventions or alternatively model principlesand legal guides which have helped expediting their ratification process. Informulating the same, with inspiration from International trade customs,either they have merged rules from various legal regimes or have takeninitiatives to work out totally new model codes. This article will review jointinterests of states in minimizing obstacles in ratification and execution ofsuch set of rule
azam ansari; Mohammad Mahdi Hagian
Volume 2, Issue 7 , March 2015, , Pages 157-180
Abstract
The disciplines of dispute settlement understanding (DSU) in the World Trade Organization have set out the framework of proceedings in WTO's dispute settlement system. Although WTO's dispute settlement understanding has limited the panels and the appellate body to settle the members' disputes ...
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The disciplines of dispute settlement understanding (DSU) in the World Trade Organization have set out the framework of proceedings in WTO's dispute settlement system. Although WTO's dispute settlement understanding has limited the panels and the appellate body to settle the members' disputes under the covered agreements, they have, in some cases, encountered with issues that have not been mentioned under the dispute settlement understanding and the covered agreements. In such cases, the panels and appellate body, mostly, resort to the general principles of law. Nevertheless, in this context, an important question is posed: What is the legal basis for using the general principles of law by WTO's dispute settlement body? By considering provisions of dispute settlement understanding and relevant case law, this article shows that on the basis of inherent jurisdiction, the panels and the appellate body can use the general principles of law for the purpose of resolving the procedural issues.
Hassan MOHSENI; Behnam GHAFARI; Nafisseh SHOSHINASSAB
Volume 1, Issue 1 , February 2013, , Pages 157-182
Abstract
The inefficiency of civil procedure rules, the producers’ high profit andlow value damages suffered by consumers has made legal systems findsome solutions so that justice would be performed at the best. Class actionscivil procedure is a common way first anticipated in USA legal system andhas overwhelmed ...
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The inefficiency of civil procedure rules, the producers’ high profit andlow value damages suffered by consumers has made legal systems findsome solutions so that justice would be performed at the best. Class actionscivil procedure is a common way first anticipated in USA legal system andhas overwhelmed all European countries as well as many developing ones.Iran has no appropriate solution to settle class actions despite gettinginvolved the same problems. In this research we comparatively study classactions and also investigate current situation of Iran laws and finally weconclude that current laws should be reviewed
Abstract
Connecting Factor of Habitual Residence at EU and Iranian Conflicting Rules In EU Law, habitual residence is an important connecting factor in relation to conflict of forums and conflict of laws, particularly in personal matters. EU rules and regulation, which are enforceable directly and without a need ...
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Connecting Factor of Habitual Residence at EU and Iranian Conflicting Rules In EU Law, habitual residence is an important connecting factor in relation to conflict of forums and conflict of laws, particularly in personal matters. EU rules and regulation, which are enforceable directly and without a need for approval of domestic bodies, regularly consider this connecting factor and replace traditional connecting factors such as domicile in Common Law and nationality in Civil Law countries. The recognition of the objective factor of residence, the domicile, increases predictability in international relationship. At same time, a close relationship between persons and applicable law provides flexibility regarding conflict of law rules, and unlike the criterion of nationality, it prevents absolute application of rules of a specific country . Moreover, by applying the habitual residence factor, courts are often referred to material rules of Lex Fori and therefore, they are not concerned with problems of proving foreign law.
sam mohammadi; Hiva abdolkarimi
Abstract
Right of rescission is one of the main topics of contract law in Islamicjurisprudence as well as in Iranian Law. Jurists and lawyers havedevoted part of their books to this topic. The issue discussed in this areais the scope of right of rescission, called " necessary contracts" by juristsand legal scholars. ...
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Right of rescission is one of the main topics of contract law in Islamicjurisprudence as well as in Iranian Law. Jurists and lawyers havedevoted part of their books to this topic. The issue discussed in this areais the scope of right of rescission, called " necessary contracts" by juristsand legal scholars. In other words, legal acts lacking the description"contract" and "necessary" are exempted from being subject to the rightof rescission. Although supporters of this opinion have put forwardreasons to justify it and it is seemingly logical, a careful look at reasonsgiven, criticisms , principles of right of rescission, rules of contract lawand principles of interpretation proves the opposite view and not thefamous one. This article examines famous and opposite opinions byconducting a critical analysis.
kheyrollah Hormozi
Volume 2, Issue 6 , February 2015, , Pages 161-193
Abstract
The purpose of adopting rules and regulation for the determination of courts’ jurisdiction is to categorize duties of courts on the basis of subject-matter of disputes, crime and so on. In civil procedure rules, jurisdiction is normally divided into subjective-matter, territorial and value jurisdictions. ...
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The purpose of adopting rules and regulation for the determination of courts’ jurisdiction is to categorize duties of courts on the basis of subject-matter of disputes, crime and so on. In civil procedure rules, jurisdiction is normally divided into subjective-matter, territorial and value jurisdictions. There are situations in which courts are given competence, for specific purposes, to deal with a dispute, even though they do not have the above-mentioned jurisdictions. This is called prorogation jurisdiction. This article aims to examine jurisdictional rules and prorogation jurisdiction cases
Mahdi Narimanpour; Mohammad Bahrami Khoshkar; Mohsen Esmaili
Abstract
"Voidness" is a status on which no legal effect is exercised according to the law. Although this status is contrary to the rule in Islamic law, it has significant examples in Islamic law. An examination in jurisprudential and legal books shows that scholars of jurisprudence and law have tried to reduce ...
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"Voidness" is a status on which no legal effect is exercised according to the law. Although this status is contrary to the rule in Islamic law, it has significant examples in Islamic law. An examination in jurisprudential and legal books shows that scholars of jurisprudence and law have tried to reduce the scope of this legal status and reduce its examples by creating institutions such as withdrawal of the contract, the principle of correctness and the theory of spiritual commonality. In this regard, according to the examples of correction of void contracts in Islamic law, we can reach a comprehensive and complete theory called "correction of void contracts", which on the one hand compared to similar comprehensive institutions and on the other hand It has far fewer problems than such institutions. Correction of a void contract means that a void contract is corrected by removing the invalid causes or changing and transforming the annulled elements of the contract.In this research, we intend to examine the aspects of this theory and to assess its validity in the balance of jurisprudence and law. The result shows that there is no serious problem in correcting a void contract from a jurisprudential and legal point of view, and this legal act can be considered as one of the legal theories along with other institutions limiting the scope of voidness.
Javad Kashani; Tohid Gholizadeh
Abstract
Following the enactment No. 104089 adopted by Cabinet Ministers of Iran on November 2, 2015 regarding general provisions and the structure of upstream oil and gas contracts model, new Iranian Petroleum Contracts Model (IPC) was presented at Tehran Summit on 28-29 November 2015. Based upon new contract ...
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Following the enactment No. 104089 adopted by Cabinet Ministers of Iran on November 2, 2015 regarding general provisions and the structure of upstream oil and gas contracts model, new Iranian Petroleum Contracts Model (IPC) was presented at Tehran Summit on 28-29 November 2015. Based upon new contract model, the contractor will be in charge of execution of exploration, appraisal, development and production operations over contract area for a period of more than twenty years. As a result, it is possible that a common petroleum field or structure exists between two or more contract areas. In this case, if appropriate legal and contractual mechanisms did not deal with this issue, it would lead to serious physical and economic waste of resources, which could put the national interests in danger. Fortunately, the draftsmen of the IPC were aware of this danger and addressed this issue in the IPC. However, this article shows that the related clauses are subject to numerous ambiguities. By conducting a comparative analysis of legal sources of several countries, this article proposes some solutions in order for the IPC to deal with situations where there is a common petroleum field or structure between two or more contract areas.
ali pirmoradi
Abstract
The approach of World Trade Organisation towards energy has been subject of many debates. One of the important issues is whether member States are obliged to free the energy transportation via pipeline or not. Logically, the mentioned freedom is conceivable in two forms, i.e. third party access and capacity ...
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The approach of World Trade Organisation towards energy has been subject of many debates. One of the important issues is whether member States are obliged to free the energy transportation via pipeline or not. Logically, the mentioned freedom is conceivable in two forms, i.e. third party access and capacity establishment. Amongst the main documents of WTO no explicit regulation in this regard can be found. However, bearing in mind the generality of article 5 of GATT, one can deduct the obligation of member States to free both mentioned forms. Yet, in light of principles of interpretation of international documents, international law principles, case law and legal doctrine, the principle of freedom is interpreted and delimited in that it shall not oppose with sovereignty of members on their territories. Moreover, schedules of specific obligations of member States regarding services show the tendency towards freedom of both forms as paramount on services of pipeline in WTO.
International Political Economy
mahmood bagheri; Saeed Rahmani; yasamin afsharifard
Abstract
With the emergence of the age of explosion of information and communication, all aspects of human life were affected by this. In such a way that the use of technology has become one of the inseparable parts of today's world. With the expansion of global trade, the need for advanced systems for monetary ...
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With the emergence of the age of explosion of information and communication, all aspects of human life were affected by this. In such a way that the use of technology has become one of the inseparable parts of today's world. With the expansion of global trade, the need for advanced systems for monetary and financial exchanges was felt more. With the remarkable progress of information and communication technology, banking networks have decided to facilitate and develop their calls and orders regarding financial transactions by creating infrastructures based on information and communication technology. In this, financial messenger systems have been of special importance, because in fact, these systems are the main infrastructure of establishing communication between domestic and international banks. Also, these systems are used for large financial transactions such as issuing letters of credit and guarantees. The most famous international example of these systems is the SWIFT network, which is the most extensive financial messaging network where almost all banks in the world are in contact with each other through the infrastructure and language of this network. Due to the unique features that SWIFT has compared to other financial transfer networks and methods, it can be said that the monopoly of financial messaging networks is in the hands of this financial messaging network. This means that returning to bilateral methods or creating a parallel platform is impractical and uneconomical. On the other hand, in different systems, governments regulate regulations based on various motives, such as limiting the economic power of a company, securing the interests of a particular company, or even for political exploitation. One of the ways to achieve this goal, the public institutions regulating the sectoral regulations, in order to provide safe and continuous public services to the citizens, protect the rights of consumers and investors, and also use the order as much as possible in the way of the interaction of the players of the markets in question. The distinctive feature of the recognition of sector regulations should be considered as the monopoly of these regulations in the market and the constituent sectors. Therefore, it is considered the main inspection of non-competitive markets that the government enters this sector with the title of "regulator". That is, the government intervenes by using the policy of economic regulation and in the form of sectoral regulatory institutions, in order to, on the one hand, support the consumers by bringing the performance closer to the optimal conditions, and on the other hand, prevent the spread of inefficiency and economic anomalies. In this case, the purpose of sector regulatory institutions and economic regulation systems is to regulate the activities of natural monopolies, especially public benefit industries and services, to protect the interests of consumers and improve efficiency. Thus, by creating economic regulation systems, the government tries to simulate a competitive market in a way, and by imposing regulatory regulations, it forces the relevant monopolies to act like a competitive market. Natural monopoly and the creation of a banking messaging unit network for financial exchanges and transfers have led to a sharp reduction in transaction costs for banks. In other words, with the advancement of technology and the provision of suitable infrastructure for the communication and connection of all banks to each other, the creation of a platform and a single communication language made the use of traditional methods such as telex and two-by-two communication of each bank with the other bank eliminated. However, due to the fact that the control and supervision of SWIFT is in the hands of a minority of the member countries, this company has abused this position based on its economic interests and its influential members and can, based on unilateral contractual conditions, target the members of the minority. Deprived of their services this minority practically has no substitute. On the one hand, since the existence of a natural monopoly in a product and service excludes it from the supervision and control of the regulations of competition law, and since SWIFT, as a system that provides banking services, is a natural monopoly, and the creation of other networks for Financial transactions for banks have no relative advantage, so it seems that this monopoly network should be monitored and controlled through sectorial regulations. With regard to the above, this research by explaining the special features of banking financial messenger networks, emphasizing and relying on SWIFT features and the similarities of these features with natural monopoly industries; It is looking for a solution to set regulations to control and monitor this financial messenger network. First, by examining the structure and legal nature of SWIFT, it has acquainted with the mechanism of this financial messenger network and its relationship with banks, and by examining the role of information technology in creating a natural monopoly for monopoly networks and systems; it has to know the advantages and disadvantages of such a monopoly.
Mohammad Rasool Ahangaran; Seyed Mohsen Razavi Asl
Abstract
The administrative authorities deal with the mistakes and dispute in Registration of Documents and Estate, namely, the supervisory boards and the Supreme Council, including administrative courts that play an essential and important role in the outcome of the records. In this research , the current status ...
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The administrative authorities deal with the mistakes and dispute in Registration of Documents and Estate, namely, the supervisory boards and the Supreme Council, including administrative courts that play an essential and important role in the outcome of the records. In this research , the current status of these references has been investigated and the reasons their inefficiencies are: Prolongation Checking the Files Send, Ignoring the principles of independence and impartiality, Disregard of producer tools and control tools in Impartiality in the said discretion ago, Lack of access to court for reasons such as lack of attention to the principle of the right to be heard, Has been analyzed and Finally, the necessity of reviewing the jurisdiction and scope of these authorities has been concluded the most important of these is the establishment of a Supervisory Board in all Registry Units, The creation of a new authority known as the Provincial Supreme Council of Document Records in the Provincial Document Records's General Offices and delegating the current powers of the Supreme Council of Document Record to the This Council and expanding the jurisdiction and duties of the Supreme Council of Document Records established by the State Register of Property and Documents.
Alireza Hasani; Amir masoud Fatemian; Ashkan Ashtian
Abstract
The supervisory board subject to Article 6 of the Real Estate Registration Law, as the authority for dealing with all disputes and registration errors, lacks the guarantees of a fair hearing, and the implementation of the current method is an insistence on inadequacies that do not contribute to the judicial ...
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The supervisory board subject to Article 6 of the Real Estate Registration Law, as the authority for dealing with all disputes and registration errors, lacks the guarantees of a fair hearing, and the implementation of the current method is an insistence on inadequacies that do not contribute to the judicial situation of the country and the policy of decriminalization. . It is possible to take a step towards speeding up and facilitating the proceedings with minor reforms such as the expansion of delegation of authority, the formation of numerous and specialized branches, the revision of executive regulations and registration directives, but inadequacies such as the weakness of this quasi-judicial authority's entry into the nature Registration disputes and referral to judicial authorities (in cases where there is a threat of violation of acquired rights of individuals) are still standing. The first question of the article is why the supervisory board should deal with the errors and discrepancies in the registration. And in this regard, what are the justifications for the need for quasi-judicial authorities to enter into the nature of disputes? Secondly, assuming that the supervisory board (with its current status) does not have the ability to deal substantively with errors and registration disputes, what reforms and tools should be provided to the boards for the development of alternative dispute resolution methods?
Heidar Piri
Abstract
Argument is live of law, explaining the correct way of legal reasoning is of great importance in deducting legal judgment. Sometimes, it is practically useful to prove a proposition indirectly rather than directly. Ad Absurdum Argument is a special mode of indirect proof by contradiction that seeks to ...
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Argument is live of law, explaining the correct way of legal reasoning is of great importance in deducting legal judgment. Sometimes, it is practically useful to prove a proposition indirectly rather than directly. Ad Absurdum Argument is a special mode of indirect proof by contradiction that seeks to establish a contention by deriving an absurdity from its denial.In legal theory, the ad absurdum argumentation is normally analyzed as a kind of logical reasoning. Reductio ad Absurdum is one of the main functions of reason in deducting various legal issues. According to historians, the origin of ad absurdum argumentation and its application in scientific controversies can be traced back to antiquity, i.e., the era of the Megarians and the Elias[1]. In fact, the use of argumentation ad absurdum as a valid form of reasoning comes from the ancient Greek mathematics and the expression "hê eis to adunaton apagôgê", meaning reduction to the impossible[2] or absurdity, and can be found in Aristotle. In the new logic, this argument is considered as a special form of reduction to the impossible. This is an indirect method of proof that requires the assumption of the contradiction of what one wants to prove (self-contradiction) and then deducing logical implications from this assumption that are inconsistent with each other.In contemporary literature regarding legal reasoning, two different types of ad absurdum argument have been recognized: the strictly logical form which rise to the introduction of proof by contradiction and the pragmatic. An example of the first ad absurdum argument can be judicial argument based on which it is absurd to accept that someone may be in a state of intoxication without having actually imbibed alcohol. Although someone who has drunk alcohol does not necessarily become intoxicated, it is meaningless to say that a person who is in a state of intoxication has not imbibed alcohol, because it is impossible that the intoxication state is not caused by drinking alcohol. The pragmatic type of ad absurdum argumentation is based on demonstrating that a given stance or interpretation, although in logical terms imaginable, is for some reason undesirable or unacceptable. An example of pragmatic version of ad absurdum argument is where a tribunal finds that, in a specific procedural situation, it is absurd to demand that a copy of a submission be delivered to the person that sent it. Although delivery in this situation is of course logically and physically possible, based on the common-sense principle, interpreting the law in this way would be absurd.Purposes and Research Question(s)The aim of this article is to analysis the nature, basses and structure of ad absurdum argument which have been used in the declaratory reasons of the courts. For this purpose, the questions which raises are that, what is the position of ad absurdum in inferring various legal issues? If we recognize ad absurdum arguments in law as a technique to help lawyers to reach their purpose, in what ways can it correctly be deployed in legal reasoning? And to what extent has this form of legal argumentation been used in legal documents and jurisprudence? In order to answer these questions, in this article, first it has been tried to explain how to use reductio ad absurdum in legal reasoning. Second, a set of brief instructions have been formulated in order to help lawyers and judges for justifying their pleadings or the basis of their decisions in such arguments. The main point of this effort is to state the basic and fundamental rules of interpretation, which can be derived from the structure of the ad absurdum argument and its main assumptions. By explaining such rules of ad absurdum argumentation, one can understand the normative importance of ad absurdum argumentation, i.e, the requirements that stem from this argument and the conditions to which a person can rely on as a stable and sturdy basis for legal decisions.MethodologyThe article has been performed based on the descriptive and analytical research method. The necessary data has been collected by library method.ConclusionBy following various opinions, it seems to be an inevitable conclusion that ad absurdum argument deals with interpretive and hermeneutic arguments that generally prevent logical errors and may be used only in specific cases. In addition, lawyers may use this form of reasoning to justify their decisions, because this argument enables them to avoid conflict between norms and conflict between results and consequences of applicability of these norms. The context in which reduction ad absurdum is used is a controversial argumentation regarding the proper interpretation of a legal document. The speaker analyzes his interpretation in the light of an alternative (second clause) which seems implausible. Therefore, the ad absurdum argument is always a comparative argument that has two core grounds, i.e., the traditional and ontological. The above analyzes lead us to the conclusion that the ontological basis of ad absurdum argument may replace the traditional ground based on the assumption of a rational legislator. This is primarily supported by the fact that the ground proposed have more internal consistency and provide similar benefits, such as the elimination of contradictions between norms and contradictions among their results. The ad absurdum argumentation grounds of universal rationality concept, allows us to use a more objective criterion to evaluate the level of absurdity than the traditional grounds based on personal rationality. Therefore, applying and controlling the ad absurdum argument is easier, and the risk of using discretionary power will be reduced as well.The analysis above shows that there is an essential common ground between the ad absurdum argumentation and the assumption of the rational legislator. The principal basis of these two forms of argumentation can be found in the principle of reasonableness and rationality which intend to supply a normative standard for legal reasoning. The rational legislator and ad absurdum argumentation are both normative structures that require the interpreter to fix the meaning of a norm in a sense that is rational and reasonable. What is clear is that the interpreter is responsible for the rationality of the law and not the rational legislator. In fact, an interpreter (a judge or lawyer) cannot determine what is reasonable without determining what is absurd, for these predicates are correlatives in the sense that whenever one is present, the other will be absent.
Mehdi Piri Damgh; Mohammad Hossein Erfanmanesh; Seyed Mohammad Tabatabaei Nejad
Abstract
In cases regarding investment, the first duty of an arbitrator is to consider whether the action by a State hosting property of a foreign investor, is in breach of its international agreement-based obligations or not. The duties of the host state are usually broad in wording which makes it difficult ...
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In cases regarding investment, the first duty of an arbitrator is to consider whether the action by a State hosting property of a foreign investor, is in breach of its international agreement-based obligations or not. The duties of the host state are usually broad in wording which makes it difficult for arbitrators to investigate and settle such cases. In this line, the approach that is taken to assess a breach of state's obligation with regards to the protection of foreign investors to a great extent is similar with the methods employed in other legal cases. The aim of this article is to examine and analyze the effectiveness of such methods in order to test their applicability in international investment arbitration. Since the measures taken by host state are considered as the administration of its sovereignty against a foreign investor and the decision of the international investment arbitration, this article concludes that the legal regime for international investment arbitration calls for particular elements that brings about a distinct regulating regime as well as the application of special standards of review.
Private Law
Majid Banaeioskoei; yosef Fazlijomir
Abstract
Formalism in law has generally been manifested in three positions that are completely different from each other. The first type of formalism is formalism in the realm of legal rule, which is used from the topics of Law philosophy and the concept of validity of legal rule based on formal criteria, regardless ...
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Formalism in law has generally been manifested in three positions that are completely different from each other. The first type of formalism is formalism in the realm of legal rule, which is used from the topics of Law philosophy and the concept of validity of legal rule based on formal criteria, regardless of its efficiency and content evaluation. In other words, the legal rule that has gone through the necessary formalities is respected, even if it is not efficient, or it has ignored the fundamentals and basic factors of law such as: economy, culture, and the like. Another type of formalism is in the realm of legal reasoning and is considered one of the topics of law logic and is used to emphasize the wording and form of expressions, even in conflict or at least, ignoring the spirit of the law. In this way, legal reasoning is actually reduced to formal logic or mathematical logic. Its function is to require the courts to understand the text of the legal article and make logical inferences from the legal article, for this reason, it is sometimes called mechanical legal theory. The third type of formalism is dedicated to the realm of legal acts. This type of formalism, which is the subject of this research, can be presented in interaction with the will of individuals, which to the concept of the requirement of certain exclusive and binding forms in legal acts and the regulation and issuance of documents, and the lack of freedom in the form of legal acts in creating, transferring and the guarantee of commercial documents is contrary to the originality of consent or even the principle of freedom of expression of will.Commercial documents in a special sense in terms of the role they have in the economic relations of individuals, especially merchants, follow certain systems and have certain characteristics. But the most basic feature of these documents is their formality. In the sense that the existence of intention and declaration in the creation, transfer, guarantee, and even payment of commercial documents although necessary, is not sufficient, but the observance and application of the form is relevant and has consequences on it. In fact, the legal form is dependent on the will and is understood in interaction with it and it is: "an external and tangible element that discovers, completes, proves, supports or directs the inner will or replaces it." which is relevant in the realm of legal actions, on this basis, if the will is assumed to mean the creation, change, transfer or cancellation of a right or legal status, the discussion of the form in legal events will not be relevant, because the form in legal events is an empirical manifestation in their sensible face. Although this form can be effective in law, this form of influence has a philosophical basis and cannot be called a legal form. Special attention and special credit to the form in commercial documents are often the initiatives of merchants and have evolved throughout history and have been approved by the legislator, jurisprudence and legal doctrine in international conventions and different countries. Contrary to other branches of private law, including contract law, and the validity of the principle of the sovereignty of the will as an indisputable principle and a symbol of the growth and maturity of private law, basically, formalism causes slowness and sometimes complexity in the contractual and economic relations of individuals, especially merchants, while, considering the philosophy of the separation of commercial documents and also the basis of creating these documents, the appreciation of formalism in this branch of private law is based on speed, ease and reliability in commercial relations. On the same basis, the idea of replacing the commercial document with a banknote as a container of money (not money itself) is one of the important reasons and foundations for the creation and use of commercial documents, which has a close relationship with the general economic order, with the explanation that money is a form of credit resulting from the power and authority of the government, which may be poured into any format, whether it is a banknote, a credit card, a check, or digital currency. Therefore, commercial documents are not based on the basis of replacing that credit essence (money), but on the basis of being recognized as a container of money and a substitute for banknotes, which is the most obvious example of a container of money. This article tried, different from the researches, to analyze the concept and ratio of formalism interaction with will and its foundations in commercial documents.
Mohammad Soltani
Volume 3, Issue 9 , December 2015, , Pages 63-100
Zohreh Nikfarjam
Volume 1, Issue 3 , March 2013, , Pages 151-177
Abstract
Where required elements of liability are established, the agent for theinjurious action shall be held liable. Nonetheless, the injurious agent may notalways be the wrongdoer; in other words there may be other causes whichmay contribute in infliction of damages. Proof of an external force may severthe ...
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Where required elements of liability are established, the agent for theinjurious action shall be held liable. Nonetheless, the injurious agent may notalways be the wrongdoer; in other words there may be other causes whichmay contribute in infliction of damages. Proof of an external force may severthe chain of causation and thereby free the defendant from attribution of anyfault. The foremost example of external force is the “Force Majeure”,prescribed either expressly or otherwise in some Laws of Iran. ForceMajeure may contribute in damages in two ways: It is either the sole causeof the damage or one among several others.Either way, its existence shall considerably affect the liability regime.The grounds on which Force Majeure is based in Islamic jurisprudence areprinciples such as “Prohibition of damages” [La Zarar], “Prohibition ofhardship”[Osr va Haraj] and “Limited-liability of trustees”[Estiman]
elham soleiman dehkordi; Seyed Mansour Mirsaedi
Abstract
Financial Information has an important role in economic growth and development of trade competition system. It is considered in different sciences such as economics, accounting and so on. Nevertheless , one of the important challenges in this regard is the recognition of financial Information, ...
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Financial Information has an important role in economic growth and development of trade competition system. It is considered in different sciences such as economics, accounting and so on. Nevertheless , one of the important challenges in this regard is the recognition of financial Information, because by exploring this concept and its significance, the legislator can foresee civil and criminal arrangements for protecting this information. In relation to the meaning of this information, there are four possibilities. According to the first possibility, financial information is solely one of the instances of trade secret and is concerned with intellectual property law. According to the second possibility, financial information is the information in which any misuse leads to commercial and property loss. According to the third possibility, information that affects three constituent of expense, revenue and investor’s rights, is financial. According to the fourth possibility, information that has financial value is considered to be financial information. Among these possibilities, the fourth possibility is compatible with legal logic, because financial Information conforms with all of the criteria for being property.
