Hamid Azizi Morad Pour
Volume 1, Issue 1 , February 2013, , Pages 130-156
Abstract
Article 30of the Trips agreement is relating to the exceptions andlimitation of patent holders. Protection of the holders is thepredominant approach in the Trips agreement meanwhile the maingoal of the Intellectual property rights is to balance the private right ofholders and the interest of societies ...
Read More
Article 30of the Trips agreement is relating to the exceptions andlimitation of patent holders. Protection of the holders is thepredominant approach in the Trips agreement meanwhile the maingoal of the Intellectual property rights is to balance the private right ofholders and the interest of societies .one of the main mechanism thatprovided in the Trips to achieve the mentioned goal is use theexceptions which provided in the Article 30but the ambiguous in thisArticle cause the different interpretation between Developed anddeveloping countries. The jurisprudence of dispute settlement body ofthe WTO could not to remove the said ambiguous regarding thedelimitation of private and public interest in the patent system anddespite the dispute settlement body decision regarding the exceptionof the IP holder the contracting state of Trips have differentinterpretation
Abbas Kazemi Najafabadi
Abstract
The determination of time and place of transfer of ownership is one of the most challenging issues in international oil contracts. In oil contracts, on the one hand, the host State usually chooses its own national law as the applicable law, but on the other hand, foreign companies are usually affected ...
Read More
The determination of time and place of transfer of ownership is one of the most challenging issues in international oil contracts. In oil contracts, on the one hand, the host State usually chooses its own national law as the applicable law, but on the other hand, foreign companies are usually affected by Common Law due to history of oil contracts. In Common Law, the transfer of ownership depends on mutual agreement, but in Iranian law, the transfer of ownership depends on legislation and it may be different based on type of contract. Most oil-rich countries consider Common Law solution based on consensus, however, in Iranian legal system, there is a need for a statute which does not currently exist as a result of repealing the previous petroleum Act. Therefore, it should be noted that in the current legal state, the determination of time and place of transfer of ownership in oil contracts, particularly in production sharing and concession contracts, is void and ineffective.
Amir Sadeghi Neshat; Hadi Mashhadi
Volume 8, Issue 30 , June 2020, , Pages 131-151
Abstract
< p >Rotterdam Rules by expanding the jurisdiction and arbitration scope, took an important step towards the unified application of international rules governing the Carriage of Goods by Sea. At the same time, the extended scope of competent authority in this Convention to hear a case by different ...
Read More
< p >Rotterdam Rules by expanding the jurisdiction and arbitration scope, took an important step towards the unified application of international rules governing the Carriage of Goods by Sea. At the same time, the extended scope of competent authority in this Convention to hear a case by different and numerous authorities would bring divergent interpretations while they are still valid interpretations of international rules. Therefore it may defeat the main purpose of codification of international conventions supported in Rotterdam Rules. In this regard, the interpretation of international rules by national authorities gains the utmost importance in unification of international rules. The question is that whether national authorities in the judicial process are obligated to apply the rules codified in international conventions? Or when parties to a dispute have expressed their mutual consent on the applicability of a specific rule, can national authorities disregard international rules or can they set aside the agreement of the parties to a dispute? It seems that the prior development of domestic law is crucial to unified application on international rules governing the Carriage of Goods by Sea and this is possible only through interpretation of international conventions in its own framework.
Homayoun Mafi; Mohammad Farzanegan
Abstract
One of the governing principles to bank guarantee contracts is theindependent principle. The logical and important result of this principle isthat the obligations mentioned in the bank guarantee are autonomousfrom the basic contract and the bank considering its independentobligation against the interested ...
Read More
One of the governing principles to bank guarantee contracts is theindependent principle. The logical and important result of this principle isthat the obligations mentioned in the bank guarantee are autonomousfrom the basic contract and the bank considering its independentobligation against the interested party is obliged to pay the guaranteeunconditionally. This article considers doctrine views and case lawregarding the concept and scope of the independent principle. It alsoexamines the compatibility of possible exceptions to this principle, suchas fraud, with Iranian law by addressing this question: In the event of anexception, will the court be able, irrespective of the contractual nature ofindependent principle, to issue an interim order of payment prohibitionand /or attach the sum of guarantee with relief security?
Ali Moghadam Abrishami; hamed zamami
Abstract
Arbitration is the most common method for resolving international investment disputes. The significant development of transparency in investment arbitration has led this notion to play a crucial role in the field of third party participation. The issue of third party participation in international investment ...
Read More
Arbitration is the most common method for resolving international investment disputes. The significant development of transparency in investment arbitration has led this notion to play a crucial role in the field of third party participation. The issue of third party participation in international investment arbitration is subject to controversy and different interpretations. This is a controversial area among national arbitration laws. Rules of different arbitration institutions have also taken different views as to whether third party can participate in international arbitration. ICSID Arbitration Rules, as amended in 2006, and UNCITRAL Transparency Rules 2013 have considered new trends and perspectives in this regard. A number of ICSID tribunals have also adhered to this trend by considering a modern approach. This Article aims to examine these Rules and related case law in the light of third party participation and concludes that there is a tendency towards the recognition of third party participation in investor-State arbitration in order to meet jurisdictional objectives and to bring transparency.
Hassan Mohseni
Volume 2, Issue 6 , February 2015, , Pages 139-159
Abstract
AbstractProcedural acts may be invalid because of formal or substantive Irregularity. There is a distinction between invalidity of instruments owning to formal irregularity and invalidity of documents due to essential defect; a distinction that affects nature, its plea time and subsequent regularization ...
Read More
AbstractProcedural acts may be invalid because of formal or substantive Irregularity. There is a distinction between invalidity of instruments owning to formal irregularity and invalidity of documents due to essential defect; a distinction that affects nature, its plea time and subsequent regularization of document. In French law, formal invalidity must be expressly provided for in Law, except where it is a case of a failure to comply with an important formality or public policy. However, plea of invalidity based on failure to comply with substantive rules relating to written pleadings shall be admissible without being necessary for the party to raise and prove any prejudice to him even in situations where the invalidity does not arise under express provisions. In Iranian law, there is no such distinction; there are rather conflicts of opinions on some cases for which Iranian law has not adopted any regulation. The issue of enforcement in Iranian procedural law needs to be revised and developed.
Gholam Nabi Fayzi Chakab; Mehrafrouz Kalantar Hormozi
Abstract
Attribution of data message, defined as appointing data message to the originator, which is a portion of the security provision of electronic communication transactions has widely attracted attention of Electronic Commerce Act 1382, UNCITRAL Model Law on Electronic Commerce, United Nations Convention ...
Read More
Attribution of data message, defined as appointing data message to the originator, which is a portion of the security provision of electronic communication transactions has widely attracted attention of Electronic Commerce Act 1382, UNCITRAL Model Law on Electronic Commerce, United Nations Convention on the Use of Electronic Communications in Internet Contracts 2005 and many other similar ones. From the articles 18 to 21, Iran's Electronic Commerce Act, which are inspired by the article 13 of UNCITRAL Model law on Electronic Commerce, clarify the content of attribution of data message in several cases, Act works on attribution of data message subject and only determines criteria for distinguishing the conditions of attribution of data message from the originator, for instance, according to the article 19 of Iran’s act, despite of not sending the data message by originator, and also the principle of non-attribution of data message, it is attributed to the originator, and in this path, it benefits from concepts that there are some ambiguities about them. In this regard, it has used concepts that either there are some ambiguities about their exact concept or their application. In this research, attempts have been made to analyze the articles 18 to 21 of Electronic Commerce Act of Iran and also obviating ambiguities of them.
Zahra Mahmudi; Mahdi Montazar; Hamid reza Adabi; Eisa Kheiri
Abstract
The degree of corporate insolvency varies significantly between enterprises. However, a formal classification of these insolvency degree is missing. Additionally, the appropriateness of available proceedings with different degrees of bankruptcy is still a matter of active debate. In this ...
Read More
The degree of corporate insolvency varies significantly between enterprises. However, a formal classification of these insolvency degree is missing. Additionally, the appropriateness of available proceedings with different degrees of bankruptcy is still a matter of active debate. In this article, we first introduce three distinct stages of insolvency, namely the third degree (likely), the second degree (final), and the first degree (critical). We then perform a comparative analysis of Iranian and French law to study the extent to which judicial interventions match the introduced degrees of corporate insolvency. Iranian law provides a wide range of procedures for third-degree insolvency, including ″trade insolvency″ ″immediate settlement″, ″temporary control″, ″halt prevention″, ″production support″, and ″preventive scheme of arrangement. ″ French law, on the other hand, provides mechanisms for ″alert″, ″ad hoc representative″, ″compromise arrangement″, ″conciliation″, and ″safeguard proceedings." In the second degree case, both countries offer proceedings for ″scheme of arrangement″ and ″reorganization planning; ″ however, their logic and executive processes differ. Finally, for the first-degree insolvency, both countries ultimately end in liquidation proceedings.
International Law
Fereshteh Banafi
Abstract
Artificial intelligence is the ability of a computer system to solve problems and perform tasks that would otherwise require human intelligence. Artificial intelligence technologies have evolved for decades. Today, many countries are going to develop artificial intelligence in their military programs. ...
Read More
Artificial intelligence is the ability of a computer system to solve problems and perform tasks that would otherwise require human intelligence. Artificial intelligence technologies have evolved for decades. Today, many countries are going to develop artificial intelligence in their military programs. Using artificial intelligence for the military purpose will cause many human rights challenges, especially in the area of privacy which is regarded as a fundamental right in a conflict. This privacy extends to cyberspace, to ensure informational privacy and protection of data. Therefore, this research descriptively analyzes the legal and political arrangements and gaps in international humanitarian law and international human rights to protect the privacy in military artificial intelligence between the parties in a conflict and concludes that despite the shortcomings of international humanitarian law and international human rights law, resisting national security to protect informational privacy and delegate the definition of international human rights frameworks in the field of artificial intelligence as part of the authority of private companies besides formal and informal legislation can fill gaps in the rules governing the use of artificial intelligence in a conflict.It should be noted that in recent years, the human rights community has been busy with digital rights, and especially with the effects of artificial intelligence technology, and there has been increasing attention to the relationship between international human rights laws and standards governing military artificial intelligence.With regard to the use of artificial intelligence, one cannot ignore the danger of constant tension between the purpose and nature of artificial intelligence on the one hand and its use for ethical decision-making in military matters, even with the presence of human control. It should be noted that the advantages of using artificial intelligence in the military field have great potentialities, but it may also create several challenges. For example, Artificial Intelligent technologies can facilitate autonomous operations, lead to more informed military decision-making, and increase the speed and scale of military operations. However, it may be unpredictable or vulnerable in some ways. Therefore, in addition to the benefits of artificial intelligence in military industries and lowering the cost of the physical presence of the them, threats caused by the use of artificial intelligence, especially in fully autonomous weapons, and the violation of informational privacy and the establishment of a system of responsibility and accountability for filling legal loopholes caused by the use of artificial intelligence is very necessary.In this regard, the first possible danger from a military environment under the supervision of artificial intelligence in case of the silence of humanitarian and international human rights rules, data contamination and as a result the loss of digital, physical, political and community security and the distortion of the fundamental right to human dignity. The competition of countries in the use of artificial intelligence to upset the balance of power in the world community has created an increasing concern about the fall of rights and ethics. In this regard, suggestions can be made to amend the rules of international human rights in order to regulate the regulations of military artificial intelligence during the conflict. First, it is a violation of national security for information privacy. The mere fact that a national action is taken to protect national security cannot be a document of violation of fundamental human rights laws by a country. Second, international human rights standards in the field of artificial intelligence should be included in the statutes of private companies. Empowering employees as part of the authority of companies is one of the things that can limit the use of artificial intelligence outside the framework of human rights. And, the promotion of the rules of international humanitarian law whether formally or informally.Informal legislation includes common understandings based on non-binding resolutions and declarations, guidelines and regulations of uniform professional conduct, the practices of industries, domestic laws and policies, civil society reports and political policies, and international and transnational dialogues. Also, redefining and amending official human rights treaties by international institutions can cover digital rights under the rules of international human rights and humanitarian rights. Despite this, although data protection and information privacy regimes are not applicable due to the exclusion of national security of countries, but by establishing informal norms and legislation in international humanitarian law, it is possible to help include the ethics of artificial intelligence in the contemporary laws of war. It is a key factor in human control, which is necessary to comply with international humanitarian law and to satisfy ethical concerns, as a basis for internationally agreed limits on independence in weapons systems. This research has tried to provide a strategy upon which helping the international community to strengthen the rules of humanitarian law and international human rights against the threats caused by the use of artificial intelligence in the military context in the field of violation of the right to informational privacy and accountability of those who violates it.
Private Law
ali pourrezaei; Ali Gharib; Hasan Pashazadeh
Abstract
Today, one of the main players in the economy are companies. These entities are dependent on real persons to play their role, and these persons (directors) act as a member of the company's body. The importance of the company board of directors is that it can be called the executive branch of the company ...
Read More
Today, one of the main players in the economy are companies. These entities are dependent on real persons to play their role, and these persons (directors) act as a member of the company's body. The importance of the company board of directors is that it can be called the executive branch of the company or the strategic government of the company. The management of the company's affairs according to the law and after that according to the will of the shareholders, has been entrusted to this organ, and following the assumption of this duty by the director, duties and powers as well as benefits have been defined for them according to the law, which are necessary for exercising the powers of the directors.Rulemaking in the field of duties and powers of directors in various legal systems is foreseen to achieve a goal that is in line with the goal of establishing the company. In fact, the purpose of establishing a company is to bring together multiple economic players with conflicting interests in order to achieve the common goal of making profit, and since the management of this group is entrusted to directors, the management goal must be determined and be available the necessary tools to achieve this common goal to them. Determining the general duties of directors through regulation is to determine the direction and create transparency for directors.PURPOSEIn this research, the main question is what policies the legislator pursues from regulation in this subject? And how did the Iranian and English legislators act in this regard? Also, this article tries to answer the above questions by descriptive-analytical method and comparative study of Iranian and English law.METHODOLOGYIn this research, a descriptive-analytical method with a comparative view has been used; In this way, first the general duties of directors are explained in in English and Iranian law, and then, with legal reasoning methods, The goals of establishing rules related to the general duties of directors in Iranian law are analyzed and examined.FINDINGSIn English law, the legislator has assigned a role beyond that of a trustee in the field of duties of managers. Therefore, it has predicted duties for the managers in order to achieve the three goals of "preventing conflict of interest", "protecting the company's interests" and "improving the company's status or improving the company's position".The first risk that arises in the relationship between the company and the directors is the misuse of their position in controlling the financial resources of the company, including property, reserves and credit. Therefore, considering the director as a trustee in the internal relations of the company and applying the guarantee of violation executions from this position can be very effective in solving the conflict-of-interest problem. This goal is provided by foreseeing the duty of avoiding the situation of conflict of interest and disclosing the acquisition of interest. One of the shortcomings of the legislation in this field in Iranian law is the failure to require managers to disclose the acquisition of profit. Of course, Article 129 of the legal bill to amend a part of the Commercial Law of 1968 in the transactions of the director with the company, foresees such a task for the board of directors, not the beneficiary director.The purpose of protecting the interests of the company is that the directors, by exercising the necessary care and caution, avoid losses to the company and the loss of its property, financial resources and reserves. This goal is achieved through various tasks. These duties include exercising independent votes or Duty exercise independent judgment, and Duty to act within powers. In Iranian law, by accepting the fiduciary duty for managers, we must accept that the goal of protecting the interests of the company is fulfilled to some extent.In the new law of British companies (2006), the legislator sought an approach to solve the problem of companies in advancing their goals. In this regard, the task of promoting the success of the company was predicted. The task of promoting the success of the company creates requirements for the director beyond the observance of trust, the non-compliance of which creates responsibility for the manager. In other words, the fiduciary duty creates a negative obligation for the director, but the duty to promote the success of the company creates a positive obligation. Positive commitment means improving the company's current situation.It can be inferred from the general duties of managers in English law that the goal of the legislator is to deal with the stagnation of companies and to oblige directors to make changes in their affairs, but this is not inferred from the total regulations governing the laws of Iranian companies.CONCLUSIONLike the English legislator in setting the general duties of directors, the Iranian legislator must pursue the three goals of "resolving the conflict of interest", "preserving the existing interests of the company" and "promoting the position of the company". The first two goals can be achieved despite the shortcomings of the directors' fiduciary duty, but the third goal is not achieved with this duty; because the duty of fiduciary is to maintain the current situation and its promotion needs to be regulated. In English law, the achievement of this goal is pursued with the task of "promoting the success of the company", but in Iranian law, the legislator has not paid attention to policy-making in this subject.Therefore, in amending the existing regulations, attention should be paid to the policy of promoting the company's position and existing status, and rules should be made in the field of general duties of managers according to Iran's legal system.
Majid Aziziyani
Abstract
Option of condition, the subject of Article 399 of Civil Law is in the cases that for each of the purchaser or customer or both of them or third person is given authority of termination of transaction in the determined term and if this condition is being without term, based on Article 401 ...
Read More
Option of condition, the subject of Article 399 of Civil Law is in the cases that for each of the purchaser or customer or both of them or third person is given authority of termination of transaction in the determined term and if this condition is being without term, based on Article 401 of Civil Law, its execution guaranty is invalidity of condition and contract. In some of the contracts , it is inserted that if this contract after agreeing and signing to any reason, each of the parties cancel the contract, an amount as loss is paid, regard validity of authenticity or voiding of such condition between Doctrine and jurisprudence, there is subjective of belief and procedure that in this case, it seems unlimited option of condition has not been determined but, it has been mentioned and if cancellation to any reason, this rate of loss is obtained by the parties and the mentioning to the termination is limited to legal options or contractual option. Also, in the cases that the parties make the contract of option of conditions for their life period or third person, there is disagreement and Civil law hasn’t made an explicit sentence in this regard that in this paper, additional to analysis of viewpoint of opponents and supporters, the preferred opinion will be discussed proportional to legal and jurisprudential principles and judgmental procedure.
International Trading
Majid Raza Arabahmadi; Mohammad Karimi
Abstract
Today, international arbitration is considered as one of the most efficient methods of resolving disputes in foreign trade, which is considered a more efficient option for managing foreign trade disputes in many ways compared to national courts. In relation to the investigation of the nature of international ...
Read More
Today, international arbitration is considered as one of the most efficient methods of resolving disputes in foreign trade, which is considered a more efficient option for managing foreign trade disputes in many ways compared to national courts. In relation to the investigation of the nature of international commercial arbitration, several theories have been proposed, one of the most important and certainly the most challenging of them is the theory of arbitration independence. In this research, we will examine many aspects of this theory and how it works in foreign trade. Different arbitral legal theories have different views on the autonomy of arbitration, with which they usually refer to its independence from national legal orders. Based on autonomous theory, the arbitrator is not forced to consider specific parochial requirements of each State’s public policy, but he only must consider the main rules which are arising out of the international community. Arbitration is actually an institution whose main purpose is to serve the community of international businessmen, for this reason, it should not be used to promote the interests or fairness of the national governments related to arbitration, regardless of the country of the seat of arbitration or the country where the arbitration award is executed. Based on this point of view, any intervention of national courts that is against the assumed will of the contracting parties will actually reduce the efficiency of the arbitration institution in foreign trade, because practically, by choosing an arbitration institution, individuals want to free themselves from the constraints of national laws and not be under the rule of any specific national legal system. Proponents of autonomous theory, believe that the involvement of courts and national laws in the process of international commercial arbitration reduces the usefulness of the arbitration institution, because on the one hand, national laws do not have the ability to properly manage disputes in international trade and on the other hand, the intervention of the national court can make the arbitration process slow and complicated and therefore ineffective and finally, it will reduce the usefulness of the arbitration institution for the merchants. According to this view which has been approved by some national legal systems such as French law, basically international arbitration has a transnational nature and for this reason, the arbitration award issued in a case is not related to any national legal order and in fact has an international character. According to this view today, we are witnessing a new arbitration system in the international arbitration community which shows a new private order, above any national legal system that instead of relying on customs and national norms it is evolving based on the transnational principles and rules of international arbitration. In the view of supporters of independence theory, this is the new approach that will only help to ensure the efficiency of arbitration in foreign trade. Because this approach is completely based on the principle of independence and sovereignty of the contracting party's will in international commercial arbitration which emphasizes the spontaneous and non-governmental nature of arbitration in accordance with transnational conditions of international business in foreign trade, on the basis of which the origin of arbitration rules and regulations is independent of all national legal systems, and in fact, it is the arbitration agreement that is of primary importance in the arbitration process, not the law of the seat of arbitration. The material presented in this research shows that, not only theoretically but also practically, national courts in different countries in line with the common practice in foreign trade tend to acknowledge the independent nature of international commercial arbitration. For this reason, today, along with the national legal systems, we are witnessing a new legal system called the legal system of arbitration, whose principles and rules are based on the principles and procedure of international arbitration beyond referring to any specific legal system of a country. This new legal order with its self-regulation feature emphasizes the non-national nature of arbitration in foreign trade and as it will be analyzed in this research, it brings important results which in practice cause the arbitration institution to be more efficient for the international business community and it will also cause the maintenance and promotion of the advantages of arbitration as an effective dispute resolution method for businessmen as private actors in cross-border trade.
Mohammad Soltani
Volume 2, Issue 5 , February 2014, , Pages 123-148
Abstract
AbstractIndependent bank guarantee has been utilized since decades ago and isextensively common in internal relations. Independent bank guarantee, unlikeletter of credit, has a guarantee nature. therefore, in most cases, it would beexpired without any demand for payment. However, when the beneficiarydecides ...
Read More
AbstractIndependent bank guarantee has been utilized since decades ago and isextensively common in internal relations. Independent bank guarantee, unlikeletter of credit, has a guarantee nature. therefore, in most cases, it would beexpired without any demand for payment. However, when the beneficiarydecides to demand for the payment, the effects of the guarantee will be appearedmore considerably. When there is a legal demand for the payment, the bankshould pay the amount of the document. Understanding the rules governing thelegal demand will lead the bank to avoid the payment, in cases where therequirements are not met. Also, it would enable the beneficiary to protect hisrights through a legal demand. The present essay deals with details of a legaldemand according to Iranian and French law, and with regard to internationaluniform rules on this matter.
Ali Roohizadeh
Abstract
A problem that could be posed regarding patent license contract is the effect of patent invalidation in case of lack of novelty and inventive step. Under article 18 of Patents, Industrial Designs and Trademarks Act, the effect of patent invalidation on the basis of lack of novelty and inventive step ...
Read More
A problem that could be posed regarding patent license contract is the effect of patent invalidation in case of lack of novelty and inventive step. Under article 18 of Patents, Industrial Designs and Trademarks Act, the effect of patent invalidation on the basis of lack of novelty and inventive step is from registration, that is, there was no patent. It can be said that since the use of voided invention was free for all, the contract is invalid for the lack of consideration and hence, licensee can be restituted the paid royalties although he benefited from license advantages. However, it should be noted that licensee that calculated license cost in final price and benefited from real monopoly, by restitution of paid royalties, enriches in non- agreed trade which is an example of akle-bel-batel. Also, it can reduce inventors motive to register their inventions and also delay the challenge of the invalidity of improper patent in a court and its invalidation. From comparative law perspective, licensee who had benefited from license advantages, cannot ask restitution of paid royalties and it is recommended to be considered in the said Act amendment.
RASOL MALAKOTTI; Parviz Savarayi
Abstract
in the cyber space tow group players are acting. one of them are internet intermediates such as internet service provider and site mangers and data producer also second group of them are users that are end consumers of internet service. the resource of making tort in the cyber space is same with others ...
Read More
in the cyber space tow group players are acting. one of them are internet intermediates such as internet service provider and site mangers and data producer also second group of them are users that are end consumers of internet service. the resource of making tort in the cyber space is same with others resource in the actual world because of nature difference between cyber space and actual world we can not performance total rules of basic tort in cyber space all so we can not performance same and one doctrine about this world. in this paper we try to reconnaissance the players who are present in the cyber space. and we could comparison resource of making tort in actual world white cyber space. at end we try to comparison important doctrine about base of tort in cyber space. finally we can not performance all rules of tort that there is in actual world in the cyber space but we should be more inventor
Amir Vatani; Sayyed Ghasem Zamani; Jafar Zanganeh Shahraki
Abstract
Compensation for damages arising from a breach of contractual obligationsshould place the injured party in the position he would have been in had thecontract not been breached. By accepting the idea of full compensation, theUNIDROIT Principles of International Commercial Contracts as well as theConvention ...
Read More
Compensation for damages arising from a breach of contractual obligationsshould place the injured party in the position he would have been in had thecontract not been breached. By accepting the idea of full compensation, theUNIDROIT Principles of International Commercial Contracts as well as theConvention on Contracts for the International Sale of Goods (1980), judicialprecedents, and international arbitration awards have recognised this approach.Despite the recognition of the principle of compensation, this theory is subject tocontroversy in Iranian law, particularly in the event of damages caused by theloss of anticipatory benefits. From justice and economic efficiency perspectivesand for the sake of adapting Iranian commercial rules with ones reflected ininternational trade instruments, and for considering the affirmative religiousjurisprudential principles, it is recommended that effective steps should be takentowards the removal of all existing legal barriers in Iranian law.
Morteza Shahbazinia; Parya Maleknia
Abstract
The high level of confidentiality is the most important feature ofmediation. In fact, confidentiality is at the heart of mediation. In thisarticle, the safeguards of confidentiality in mediation is examined frominternational perspective by comparing UNCITRAL Model Law onInternational Commercial Conciliation ...
Read More
The high level of confidentiality is the most important feature ofmediation. In fact, confidentiality is at the heart of mediation. In thisarticle, the safeguards of confidentiality in mediation is examined frominternational perspective by comparing UNCITRAL Model Law onInternational Commercial Conciliation 2002, The European Directive onCertain Aspects of Mediation in Civil and Commercial Matters 2008,WIPO and relevant ICC rules. This study demonstrates that the mainprinciple of mediation is based on confidentiality and therefore, itsexceptions should be limited and interpreted narrowly. To promotemediation, it is necessary to provide rules dealing with the confidentialityof information exchanged in the mediation process in the best possiblemanner. At the same time, the advantage of confidentiality should not bemisused by opportunists.
Mohammad Hassan Sadeghi Moghadam; Mojtaba Eshraghi Arani
Rouhollah Rezaei; Ebrahim Abdipour Fard; Esmail Nematollahi
Abstract
Breach of contract may occur by the fault of party in breach. There is a variety of degrees in contractual fault and the highest degree of fault is intentional one. The breach of contract is considered to be intentional when the party in breach calculates the financial costs and benefits of the breach ...
Read More
Breach of contract may occur by the fault of party in breach. There is a variety of degrees in contractual fault and the highest degree of fault is intentional one. The breach of contract is considered to be intentional when the party in breach calculates the financial costs and benefits of the breach and then decides not to perform his/her contractual obligations. The notion of intentional breach and its consequences are recognized in common law and civil law and also in some European instruments such as PECL and DCFR. The intentionality of breach is considered to be relevant in above jurisdictions and instruments. For example, in the case of intentional breach, common law courts allowed the specific performance. They sometimes refused to mitigate the amount of penalty clauses and to recognize the exemption clauses in favor of the breaching party. Also, in civil law jurisdictions the intentional breach works as an allowance for unforeseeable damages. The hypothesis of this contribution is that in the case of intentional breach, courts must take a stricter approach than the usual breach and they should seek to improve the position of the creditor in terms of accessing to contractual remedies.
Gholamali Seifi zinab; Mohammad Ahmadnezhad bahnamiri; Mohammadreza Dargahi
Abstract
Several views have been raised about the situation between couples in the Islamic Imams and Islamic Laws of Iran. Some jurists and lawyers believe that coupling between couples is reprehensible, and coupling is not a reason for not being able to refer. However, some jurists believe that pairedness is ...
Read More
Several views have been raised about the situation between couples in the Islamic Imams and Islamic Laws of Iran. Some jurists and lawyers believe that coupling between couples is reprehensible, and coupling is not a reason for not being able to refer. However, some jurists believe that pairedness is a reason for the impossibility of referring to hafa, and after the couple's hubs there is no possibility of referrals. .What is the point of view about the situation between couples? It is a question that can be argued that in the common life of couples is absolute, or is it bound by the implicit condition of durability? In the sense of being bound by the implicit condition of survival, the duration of the couple is that the couples, given the assumption of the continuity of the financial couple to their spouse, make the coexistence of the coin in absolute lifetime not absolute. For this reason, after a violent violation, you will be required to regain money. If we consider the attachment of the couple between the couples during a lifetime, there are other issues, including the reasons for the implicit condition of the couple's durability, the nature of the implicit condition of the durability of the couple, etc. We can explain this.
Gholam Nabi Fayzi Chekab; Mahsa Azarmehr
Volume 3, Issue 8 , April 2015, , Pages 137-174
Abstract
Today's multimodal transportation industry is a complex and the most widely used industry. The Rotterdam Rules have strived to deal with such complexities, and to provide a reasonable solution for today’s needs of extensive transportation industry. Therefore, the Rotterdam Rules have ...
Read More
Today's multimodal transportation industry is a complex and the most widely used industry. The Rotterdam Rules have strived to deal with such complexities, and to provide a reasonable solution for today’s needs of extensive transportation industry. Therefore, the Rotterdam Rules have expanded the range and scope of its jurisdiction to all sectors of maritime transport operations. The extension of Rotterdam Rules sovereign, inevitably, leads to a complex problem caused by the collision between the Rotterdam Rules and other related Conventions. To address this problem, the Rotterdam Rules have adopted Article 26 to avoid possible conflicts and Article 82 to solve the conflicts, even though this method of conflict resolution is not compatible with the objectives of the Rotterdam Rules for achieving uniform and integrated systems. This article aims to elaborate the scope of the Rotterdam Rules in terms of time, place and subject of the Rotterdam Rules jurisdiction, and also to examine how the Rotterdam Rules coexist with other maritime and non-maritime transportation conventions.
Gilda Keisandokht
Volume 1, Issue 2 , February 2013, , Pages 137-165
Abstract
Legal order has two different meanings: The first one is a collection of regulations that governs people in the society. The second one is legal security which is derived from the enforcement of legal rules and is one of the main objectives of the establishment of legal rules. In this article along with ...
Read More
Legal order has two different meanings: The first one is a collection of regulations that governs people in the society. The second one is legal security which is derived from the enforcement of legal rules and is one of the main objectives of the establishment of legal rules. In this article along with analyzingnotary’s role in development of legal order, we will consider both of those meanings and will see that in spite of importance and expertise of the notary and his role as a justice of the peace, he has not managed to ful fill his traditional functions like authentication of legal acts so far in our country and as a result he cannot well participate in development and growth of legal order. Moreover after implementation privatization programs, it seems that the non sovereignty functions of the Registration Office should be delegated to the notary as an important member of private sector and the supervisory role of the Registration Office over the notaries should be more efficient than the past
Hasan Badini; Farzaneh Motevaseliyan
Abstract
One of the common difficulties in the field of environmental torts is the proof of causation between the tortious conduct of the tortfeasor and the damage suffered by the victim. This problem, according to the principles of economic analysis of tort law, results in denial of tort claims which itself, ...
Read More
One of the common difficulties in the field of environmental torts is the proof of causation between the tortious conduct of the tortfeasor and the damage suffered by the victim. This problem, according to the principles of economic analysis of tort law, results in denial of tort claims which itself, encourages the tortfeasor to externalize costs of his hazardous activities, dilutes his incentives to reduce environmental risks in an optimal way, and finally, disturbs the deterrent function of tort law. On the contrary, in recent decades, it is widely accepted that the preventive principle plays a crucial role in sustainable development. The importance of preventive approach in environmental policies requires the tort law –as one of the means of such policies –to serve the aim of deterrence as well as compensation. With these points in mind, this paper first clarifies the three main situations in which the proof of causation is problematic. It then tries to analyze possible solutions of those situations, using an economic perspective and to propose the most compatible solution with deterrence and efficiency, namely using the proportional liability in specific categories of environmental accidents.
Mansour Jabbari; Majid Hasannejad
Volume 2, Issue 4 , December 2013, , Pages 141-165
Abstract
AbstractAccording to international and national regulations, are exempted fromliabilities in different situations such as proving that they have taken allnecessary measures to avoid the damages, failure of passenger or consignersor force major. These exemptions are divided into two categories: statutoryor ...
Read More
AbstractAccording to international and national regulations, are exempted fromliabilities in different situations such as proving that they have taken allnecessary measures to avoid the damages, failure of passenger or consignersor force major. These exemptions are divided into two categories: statutoryor non-contractual exemptions and contractual exemptions which areaccording parties" will. Due to vast material we will study the first one inthis article.Surveying exemptions permitted in international regulations in thisarticle, we will try to compare them with exemption of Iranian law in orderto pave the way to remove the shortcoming of domestic regulations.
Hamid Reza Nikbakht; Shaha Jafaro NADOUSHAN
Volume 3, Issue 10 , March 2015, , Pages 141-161
Abstract
In the realm of commercial trade, it is a common practice that sellers and buyersmanifest their intentions to conclude the contract of sale through differentcommunications and correspondence. The parties may exchange forms andgeneral terms prepared invariably in advance for all contracts. There may be ...
Read More
In the realm of commercial trade, it is a common practice that sellers and buyersmanifest their intentions to conclude the contract of sale through differentcommunications and correspondence. The parties may exchange forms andgeneral terms prepared invariably in advance for all contracts. There may be aconflict between the buyer’s and the seller’s forms. Thus, when a dispute arisesbetween the parties, the main question is whether a contract has beenconcluded, even though there are conflicting terms. If the answer is positive, afurther question is: What are the terms of this contract?By considering circumstances and conduct of the parties, on the whole, after theexchange of the forms, it can be said that there is a valid contract. A viablesolution is to disregard the conflicting terms, and instead, to consider provisionsof the law governing the contract. When CISG is the law applicable to the salecontract, its provisions may well be used to fill the gaps after conflicting termsare ruled out.
