Abbas Toosi; Javad Kashani
Abstract
Lease is one of the most important legal relationships that, by its economic and social dimensions, has been a main concern for statesmen of any country. In Iran, since modern legislation, the question of how to regulate the relationships has been subject to ups and downs. Civil Code may be understood ...
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Lease is one of the most important legal relationships that, by its economic and social dimensions, has been a main concern for statesmen of any country. In Iran, since modern legislation, the question of how to regulate the relationships has been subject to ups and downs. Civil Code may be understood as a starting point based on the autonomy of will (supply and demand). Influenced by some evolutions, the lease gradually came to be a critical contract so that statesmen authorized themselves to intervene in leasing relationships. Looking at such lease Acts proves such interventionist trend. The trend, however, ceased to continue following Islamic revolution and by passing of the 1376 Act, it came back to its starting point (Civil Code). Such a turning fitted to the idea of market efficiency. This paper examines the said interventions on the idea of market efficiency first by reviewing the lease Acts in terms of interventionism and then by using economic theory, it examines some situations known as market failures and shows that the interventionist Acts of lease cannot be explained on the basis of market failure.
Seyed Ghasem Zamani; vahid bazzar
Abstract
In international investment law, the investor's negligence is considered to be a factor which affects the determination the amount of reparation. Thus, if a causal relationship is established between the investor's conduct and the damage, the amount of claimable damage will be reduced in accordance with ...
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In international investment law, the investor's negligence is considered to be a factor which affects the determination the amount of reparation. Thus, if a causal relationship is established between the investor's conduct and the damage, the amount of claimable damage will be reduced in accordance with the role of the investor in the damage. This rule, which can always be used against the respondent, is concerned with the determination of the amount of reparation after assuming responsibility. The duty to mitigation as one of the aspects of "injured party’s negligence" refers to a situation in which an investor refuses to prevent extension of damage after creation of damage and despite its ability. The proof of the investor's negligence is, contrary to the current procedures, with the defendant. It does not affect the jurisdiction of the arbitration tribunal or the responsibility of the host state and can only lead to a reduction in the amount of reparation. Third party participation or force majeure in creation of the damage cannot be the basis for applying the "injured party’s negligence" rule. This is also the case when the international community is considered to be an injured party or when the investor's negligence is the sole cause of damage.
Saeid Mohseni; Seyyed Mohammad Mahdi Ghabolidorafshan
Volume 1, Issue 2 , February 2013, , Pages 167-195
Abstract
Fundamental errors in the complication of a literary and artistic works and arts or deep changes in thoughts and ideas may couse a gap between the author and his works or his reputation and dignity. Therefore, one of intellectual rights in literary and artistic Property for arts creator has been identified ...
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Fundamental errors in the complication of a literary and artistic works and arts or deep changes in thoughts and ideas may couse a gap between the author and his works or his reputation and dignity. Therefore, one of intellectual rights in literary and artistic Property for arts creator has been identified in legal systems of France and egypt. A right of author is modification and withdrawal of works. Also the acceptance of rights is not absoult limited scope and specific conditions shuch as compensation of lose are predicateble for implementation of rights. In Iran this right has been not mentioned in the legal exts and regulations. So in the this paper we take consideration the achievement of French and Egyptian legal systems or legal jurisprudence approach toward concept and scope of rights is necessary to enter of kingdoms ore use of rules and rules out is had. Obviously in this case the scope rights shall be determind in according to principles. However it is worth that legislative considerderd the special rights for literary and artitics. However it is worth that legislative considered the special rights for literary and artistic or experience use of other legal systems. It ust be acted toward the effects of explicit forecast.
Mirghasem Jafarzadeh; Ali Seyedin
Abstract
Disclosure grace period” is a length of time in which the applicant can file patent or industrial design application after public disclosure of the subject-matter and without impairing the novelty requirement. To provide “grace period” in patent law, the legislature should consider ...
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Disclosure grace period” is a length of time in which the applicant can file patent or industrial design application after public disclosure of the subject-matter and without impairing the novelty requirement. To provide “grace period” in patent law, the legislature should consider four elements: duration of grace, type of disclosure, absolute or relative immunity of investor’s disclosure against third parties’ publications and priority right. This article discusses the mentioned elements and also pros and cons of grace period by analyzing Iranian law and through comparative studies. It is concluded that grace period is like a double-edged sword which means, on the one hand, that providing broad grace period along with strong shielding for inventor’s disclosure can promote academic inventors and SMEs, but on the other hand, this approach can be misused by strategic delay or disclosure. Additionally, interaction of priority right with grace period can be a barrier for technology transfer and attracting investors. Considering the status of Iran as a developing country, it is suggested that Iranian Legislature should increase grace period to 12 months, accept absolute immunity regarding patents and relative shield for designs and use the date of priority for the calculation of grace period in relevant cases.
Hasan Badini; Layla Javanmard
Volume 2, Issue 4 , December 2013, , Pages 169-191
Abstract
AbstractThere have been different viewpoints about the possibility and themanner of seizure of Key money and good will: Some believe Key moneyand good will can't be seized and auctioned off at all; on the contrary, someothers advocate the idea that they can be seized and auctioned off. Finally,some have ...
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AbstractThere have been different viewpoints about the possibility and themanner of seizure of Key money and good will: Some believe Key moneyand good will can't be seized and auctioned off at all; on the contrary, someothers advocate the idea that they can be seized and auctioned off. Finally,some have distinguished between seizure and auction, they argue that Keymoney and goodwill can be seized but cannot be auctioned off. In this articlewe have supported the view which has differentiated between Key moneyand the goodwill; differentiation which can affect the form and the mannerof seizure.
Tayebeh Saheb
Abstract
Most theorists of IP law have attempted to justify intellectual property rights in preserving one particular value as a super value. The dominant view is that international IP law aims to maximize economic efficiency through incentivizing creation and reducing searching cost. This view regarded as a ...
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Most theorists of IP law have attempted to justify intellectual property rights in preserving one particular value as a super value. The dominant view is that international IP law aims to maximize economic efficiency through incentivizing creation and reducing searching cost. This view regarded as a major hurdle against recent demand of developing countries to extend IP law system to Traditional Knowledge, Folklore and Genetic Resources. The protection of these matters could not be justified based upon economic considerations. In fact, it is based upon other values such as justice and fairness. The solution to overcome this hurdle is to believe in Value Pluralism at least at international level. Due to the diversity of the subject matters of IP law, as well as differences in beliefs and values of the host societies and failure of one single theory to justify all aspects of IP law, it is hard to reduce IP law system to one specific value. Instead, there are several values inside the system in which all of them have the same degree of importance and depending on each case, they could be super value. Therefore, it is necessary to find super value case by case and articulate any area of IP law in accordance with that Super value. Judges are also required to interpret the law on the protection of that specific superior value. After explaining the concept of pluralism of values and value monism, this article argues in support of pluralism of value in the field of intellectual property rights .In order to choose a super value in each case, two criteria will be provided.
Hamid Kabiri shahabad; Mohammad Issaei Tafreshi
Abstract
Information inequality of the parties to the contract is known as an asymmetric information phenomenon. This causes two other phenomena called adverse selection and moral hazard that are seen in the banking loans market more effectively. In this paper, the role of collateral against this phenomenon has ...
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Information inequality of the parties to the contract is known as an asymmetric information phenomenon. This causes two other phenomena called adverse selection and moral hazard that are seen in the banking loans market more effectively. In this paper, the role of collateral against this phenomenon has been examined by considering the economic importance of movable property and the need to use these assets for collateralization and attraction of credit. In addition, the requirement of movable collaterals for playing this role has come to light. This article argues that the use of collateral will efficiently handle adverse selection and moral hazard phenomena within the Iranian banking loans market, especially with respect to the weakness of the tools necessary for tackling with this issue and will also prevent from accumulation of dues. However, the lack of information transparency and confidence in the security rights within movable property weakens the function of this type of collateral and reduces its potential for collateralization. The creation of a public register system of security rights in movable property as the most effective tool for ensuring transparency and confidence in movable
Hamid Miri; Mansour Amini; Saman Motaghi Shahri
Abstract
This article discusses Electronic Funds Transfer (EFT) based on an assignment framework. Payment order in EFT is considered to be an assignment offer. If the Fund Transfer is considered on this basis, it must contain conditions for the emergence of an assignment and its legal consequences. In this ...
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This article discusses Electronic Funds Transfer (EFT) based on an assignment framework. Payment order in EFT is considered to be an assignment offer. If the Fund Transfer is considered on this basis, it must contain conditions for the emergence of an assignment and its legal consequences. In this respect, debt or credit as subject matter of this agreement is available in most cases of EFT, even if there is no debtor and creditor relationship between the issuer of the payment order and beneficiary. In terms of intent for creation an assignment, since the issuer is willing to transfer funds that is being holding by bank and there is no need for debtor’s consent and there is no fiduciary relationship between them, the legal relationship created between the issuer and the bank has to be interfered as an assignment. As regards consequences, by accepted this idea, the right of the bank to reject Fund Transfer order can easily be interpreted. Having said that, what a bank does on order after receipt of payment order should not be considered to be the acceptance of the offer, because this is a regular and preliminary process. Since the doctrine is not able to respond to some situations for Fund Transfer, including Fund Transfer to another account of the issuer, it has been subject to some criticisms.
Homayon Mafi; Mohammad Hosin Taghipour
Abstract
Arbitration is fundamentally an agreement to create private justice by non-state tribunal. In relation to the nature of arbitration, there is no consensus and the nature of this institution has been for a long-time subject to challenge and arguments for and against it. In this respect, there are four ...
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Arbitration is fundamentally an agreement to create private justice by non-state tribunal. In relation to the nature of arbitration, there is no consensus and the nature of this institution has been for a long-time subject to challenge and arguments for and against it. In this respect, there are four theories, contractual, jurisdictional, hybrid and independent natures. Each of these theories may have effects and different consequences on arbitration. Since the attitude of national courts towards international commercial arbitration affects arbitration proceedings, it is intended to deal with this question: As far as nature of arbitration is concerned, which of these four theories can be justified? The evaluation of four theories will be considered with respect to the nature and scope of arbitrators’ power, arbitration awards and choice of law. This article shows that arbitration has both contractual and judicial natures, which is a reflection of parties’ agreement and applicability of the law of the place in which the arbitration takes place. In this Theory, the contractual and jurisdictional elements are incorporated in each other.
Fazlolah Mosavi; Mehdi Mosavi; M.Hossein Vakili Moghadam; Mehdi Golami
Volume 1, Issue 1 , February 2013, , Pages 183-213
Khirollah Hormozi
Abstract
The aggregation and separation of claims, the disjoining an action into several actions and courts’ decision in each case are important topics. These issues are not mentioned explicitly in Iranian Civil Procedure Code (CPC), but they are considered in French law precisely. The CPC has referred ...
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The aggregation and separation of claims, the disjoining an action into several actions and courts’ decision in each case are important topics. These issues are not mentioned explicitly in Iranian Civil Procedure Code (CPC), but they are considered in French law precisely. The CPC has referred to separation of claims; however, the aggregation of claims has not dealt with directly. There is no indication in the CPC as to judges’ decision in aggregation and separation of claims. In addition, there is no explicit regulation about disjoining an action into several actions and indissociably of the claim. The aim of this article is to discuss the issues of separation of claims, aggregation of claims and related judges’ decisions. Furthermore, it considers disjoining an action into several actions and pertinent cases. In doing so, by comparing Iranian law with French law, it deals with the possibility of commencing several claims through one petition, the aggregation of claims and the disjoining an action into several actions
Private Law
Mohamad hossein Taghipour; Seyedeh tahereh Mosavi khatir
Abstract
Any right, whether positive or negative, can be transferred. Assignment means that all or a part of the existing obligation is transferred to one or more persons with the agreement of the assigner and the assignee without obtaining the consent and agreement of the debtor, for compensation or free of ...
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Any right, whether positive or negative, can be transferred. Assignment means that all or a part of the existing obligation is transferred to one or more persons with the agreement of the assigner and the assignee without obtaining the consent and agreement of the debtor, for compensation or free of charge. The person who becomes the owner of the obligation after the assignment can use all the attributes and benefits of that obligation. One of the basic issues in the discussion of the assignment is the debtor's rights and the way to protect their rights in the assignment. The review of domestic laws shows the ambiguities and gaps of this legal entity, and the resolution of these ambiguities and gaps depends on comparative study. Therefore, this research with a comparative study aims to answer the question of what are the rights of the debtor in the assignment and how can the rights of the debtor be protected at the time of the assignment? In this research, in a descriptive and analytical way, the voluntary assignment and the way of protecting the rights of the debtor in the assignment in the legal system of Iran and English law and the principles of European contract law will be dealt with, which is appropriate considering the countless gaps in this matter. Iran's legal system benefited from the achievements of other legal systems, especially the principles of European contract law, which is an international document, and its basic foundations are based on European common law, in order to improve and eliminate gaps.By referring to some laws such as Articles 746 and 321 of the Civil Code, Article 38 of the Insolvency Law, and Article 26 of the Insurance Law, it is possible to prove the existence of assignment in Iran's legal system and its independence and distinction from the legal institution of Novation. According to this research, the legal rules about assignment should be set in such a way as to protect the debtor. The first way to protect the debtor is the non-assignment clause in contracts, which is accepted in all three legal systems. In addition, there is a general rule in the assignment that the assignee cannot have more rights than the assigner, or even in some cases may have fewer rights than the assigner, which ultimately owes the benefits of this general rule. In addition, if the assignment takes place between the assigner and the assignee and the debtor takes action to fulfill the obligation to the assigner before receiving the official notification, in this situation, the obligee will not re-enforce the obligation and leave the resulting loss to the parties. In the rule of Prior Tempore Potior Jure, the first assigner is based on the date of assignment, and in the rule that was adopted in the case of Dearle v Hall, the date of written notice to the debtor is the criterion for determining the person entitled to enforcement.In the British legal system and the principles of European contract law, a written notice to the debtor about the assignment is mandatory, but there is no provision in Iranian law regarding the written notice to the obligee after the assignment. This issue is also one of the important objections regarding the assignment request. Of course, according to the insolvency Law, the assignee can be released from responsibility by proving that he informed the assignment before payment or that the debtor was informed about the assignment by another means. Therefore, in Iranian law, the knowledge of the debtor is effective in transferring the claimant, and this knowledge can be realized in both written and oral ways.So the necessity of compiling and enacting comprehensive laws in relation to the legal entity of the assignment and assigning an independent title to it in civil law considering the great importance of this legal entity and especially considering the expansion of transactions in the field of international trade and increasing the speed of exchanges, is seriously felt. Also, like English law and the principles of European contract law, in Iranian law, a written notice to the debtor about the assignment must be required in the form of a statement or by the court officers, because in this case, it avoids creating any dispute and ultimately leads to a reduction in the number of claims.
Abdolhossein Shiravi,; Seyyedeh Mitra Moosavi
Abstract
This article seeks an appropriate response to the issues that the parties to international shipbuilding contracts struggle with and they are lawsuits arising from disputes related to the manner of risk distribution in these contracts as well as the variety of associated cases and their referral to arbitration ...
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This article seeks an appropriate response to the issues that the parties to international shipbuilding contracts struggle with and they are lawsuits arising from disputes related to the manner of risk distribution in these contracts as well as the variety of associated cases and their referral to arbitration tribunals or international courts. Identifying existing or perceived risks in international shipbuilding contracts and the quality of management and distribution of these risks among the contracting parties have a significant impact on the life and survival of the contract and on achieving the desired result and the ultimate goal of the contract. A wide range of financial, legal, political, technical and economic risks are involved in the contract, the distribution of which must also be detailed. besides, national, regional and international legal rules and requirements in the field of maritime standards restrict and regulate the freedom of will of the parties. The main risks include design, technical or qualitative risk and financial risk. The effects and guarantees of each of these risks vary and the way out of them should be foreseen in the clauses of the contract or other similar documents in the light of the principle of sovereignty of the will and it should also be specified which party bears the burden of these risks. Risk, as the case may be, is borne by the party to the contract who has the greater capacity, power and from technical, legal or financial point of view has the capacity to compensate and procure it. Depending on the case, the design risk is borne by the design provider (owner, builder or design consultant), technical or quality risk is borne by the builder until the end of the warranty period, and financial risk is borne by the financing applicant
Hamid Miri
Abstract
Issuing an award by the arbitral tribunal, having an impact on the whole proceeding, resolving a dispute, having jurisdictional character and finality of decision are the most important criteria in order to distinguish award from other tribunal decisions. Notwithstanding, beside these criteria, sometimes ...
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Issuing an award by the arbitral tribunal, having an impact on the whole proceeding, resolving a dispute, having jurisdictional character and finality of decision are the most important criteria in order to distinguish award from other tribunal decisions. Notwithstanding, beside these criteria, sometimes in this regard, it should be referred to award legal description has been done by the legislator. Although the first criterion is not particular one for recognition award but the second criterion has been used to recognize procedural order and, in this regard,, I think that Impact ability is enough. Indifference on the conception of dispute resolution has raised difference opinions on the nature of some decisions and types of award. When we use the jurisdictional character of decision either it refers to the judicial power of arbitral tribunal or to dispute resolution. Indifference on the conception of dispute resolution has raised difference opinions on the nature of some decisions and types of award. When we use the jurisdictional character of decision either it refers to the judicial power of arbitral tribunal or to dispute resolution
Soheila Dibafar; Morteza Shahbazinia; Fereidoon Nahreini
Abstract
One of the essential objectives of international arbitration is to obtain fair and neutral procedures without being bound by the formalities and technicalities of procedural rules applicable in national courts. This aim is affirmed by articles 18 and 19 of Iran International Commercial Arbitration Act, ...
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One of the essential objectives of international arbitration is to obtain fair and neutral procedures without being bound by the formalities and technicalities of procedural rules applicable in national courts. This aim is affirmed by articles 18 and 19 of Iran International Commercial Arbitration Act, approved in 1376, and sections 33 and 34 of England Arbitration 1996 Act. In such a private dispute resolution mechanism, the parties’ autonomy is significantly accepted in the law governing the rules of arbitral proceedings. Furthermore, by considering the two basic principles (parties’ rights must be heard and treated equally), arbitrators have a wide range of initiative in determining the rules of proceedings. Therefore, the idea of neutrality of the arbitral seat is considerable and acceptable in the arbitral proceedings. Yet, the question that arises is to what extent the neutrality of the arbitral seat is acceptable in evidence. According to the international arbitration acts reviewed in this essay, the procedural flexibility, namely, the neutrality of the seat of arbitration is allowed to the extent that it does not contradict with the fundamental requirements of evidence.
International Trading
Sara Aghaei; Tayebeh Saheb
Abstract
One of the obligations of the carrier in sea transportation contracts is to follow the contractual route or the appropriate route, the violation of which can deprive the carrier of some contractual rights. Usually, in the contract of carriage or in the bill of lading, the appropriate route for the sea ...
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One of the obligations of the carrier in sea transportation contracts is to follow the contractual route or the appropriate route, the violation of which can deprive the carrier of some contractual rights. Usually, in the contract of carriage or in the bill of lading, the appropriate route for the sea voyage is specified, and if it is not determined, the direct geographic route between the loading port and the unloading port is considered the appropriate route. In cases where there is more than one geographical direct route, the most common route is considered the appropriate route. Deviation of the ship from the contractual route or the appropriate route is one of the most common and common violations in marine transportation contracts, which is known as a serious action in maritime transportation by having effects such as the lack of obligation of the insurer to compensate for damages since the deviation from the route occurs. In maritime transport contracts, the parties seek to include terms that can flex the rules governing the agreement and the effects of breach of obligation. The condition of freedom in deviating from the route is included in the contract as a legal solution to neutralize the effects of the ship deviating from the route in favor of the transport operators. The mentioned condition is known as a correct condition in the law of England and America. In English law, the condition of freedom in deviating from the route has legal validity, but at the same time, the said condition should not provide grounds for the carrier's violation and evasion of responsibility. Therefore, in most cases, by measuring the possibility of invoking the said condition based on the standard of reasonableness of the deviation, they explain the possibility of invoking the condition and the scope of its application.In American law, the condition of freedom in deviating from the route is recognized as an exemption from liability and as an exception to paragraph 2 of article 3 of the 1936 Maritime Law. In this legal system, the possibility of including the condition of freedom in deviating from the route in favor of the carrier is recognized by the agreement of the parties in the contract. In order to provide an interpretation with the aim of proving the compatibility between two different and apparently conflicting articles in the discussion of the liability of the carrier, the American jurists considered the exemption from responsibility based on the condition of freedom to deviate from the route as an exception to the primary responsibility determined in paragraph 2 of Article 3 are In fact, contrary to the English legal system, in which the condition of freedom is viewed as a matter for explaining the territory of the contract; The American legal system places it in the list of exceptions to the responsibility of the carrier.The reasoning of the American courts in facing the cases related to the deviation of the ship from the route, in which the condition of freedom in favor of the carrier to change the route is included, expresses the acceptance of the views of the lawyers and the alignment of the courts in the way of interpreting the articles of the 1936 Law of Sea Transportation of Goods.Examining the validity and legal position of the condition of freedom in deviating from the route in Iranian law requires that the question related to the validity or invalidity of the said condition be answered first, and then, assuming it is true, the effect of this condition on the contract and the responsibility of the carrier should be examined. The explanation of the correctness or invalidity of the condition of freedom in deviating from the route depends on the nature and type of obligation of the carrier and its exclusion from the scope of the cases that are known as invalid conditions in the general rules of contracts.In Iranian law, taking into account that the cases of justified deviation from the route have been specified in paragraph 4 of article 55 of the amended Iranian Maritime Law of 2013, the question is raised that any change of route based on the condition stated in the contract and outside of the cases mentioned in the last article Is it illegal? In fact, this question should be answered that by specifying the sea voyage route in the bill of lading and allocating one of its clauses to the condition of freedom to deviate from the route, are there two conflicting clauses in the contract or bill of lading? Clause 4, Article 55 of Iran's Maritime Law, is a regulation that explains the scope of application of the condition of freedom to deviate from the course by taking into account its provisions, and the validity of the condition of freedom to deviate from the course, as well as the limits and loopholes of its application, is examined according to the principles of interpretation of contracts. will be One of the most important principles of interpretation used by the courts is the interpretation of the contract as a whole unit. This means that if in the transport contract or bill of lading, there is a specific route to carry out a sea voyage and in another article, the condition of freedom to deviate from the route agreed upon by the parties, using this method of interpretation that the courts are required to apply, the interpretation of the contract must be It should be done in a way that all its components and conditions are considered validThis research has explained the validity of the condition of freedom for deviating from the route in sea transportation contracts with analytical-descriptive method and using library data.Key words: condition of freedom, unreasonable deviation, appropriate route, maritime transport contract, carrier's obligation
Private Law
Seyyed Hasan Hosseini Moghaddam; Setareh Ayoubi; Mehdi Taleghan Ghaffari
Abstract
Today, online stores sell goods and services through online contracts, exchanging emails with the other party, or filling out a specific form on the website by one party. Online contracts may be executed by presenting the terms of the contract to one party and then asking the applicant to click on the ...
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Today, online stores sell goods and services through online contracts, exchanging emails with the other party, or filling out a specific form on the website by one party. Online contracts may be executed by presenting the terms of the contract to one party and then asking the applicant to click on the words "I agree" or something similar. The number of consumers who use online platforms to fulfill their shopping needs has increased, and online stores have responsibilities for the intermediary role and the platform they provide for online buying and selling. From the legal point of view, two types of contractual or non-contractual responsibilities can be considered for these stores. Currently, these types of internet businesses are very popular among users, but in any case, we should look for a space to increase the security of this type of service and secure it, while taking care of and protecting consumer rights; because at present, with the very wide growth of this type of websites and online stores in different fields, we have witnessed the provision of services in the fields of sports, culture and leisure, electronic devices such as audio and visual devices, household, personal and office, real estate and land, vehicles, services and training, supplies and business, and even recruitment and employment or expression of job opportunities, etc. Since online platforms often act as "gateways to control and limit interactions in a system", the first question is whether online platforms and online stores can still be considered simply as intermediaries or should they be suppliers. The second question is whether platforms, as dominant channels in the market, may be held liable to their customers for infringements caused primarily by platform suppliers. Finally, the third question is whether there is a necessary connection between the first and second questions, namely that the platform operator may be held liable to its customers while it may not be treated as a mere intermediary, it may be treated as a supplier of goods and services provided by Platform Providers. Regarding the activity of online stores and their responsibility for their actions or others, it cannot be assumed that they are not absolutely responsible. The important issue is that in online shopping, the buyer makes a transaction that the seller has not seen closely, therefore, the necessity of such purchases, due to its nature, requires more support from the buyer. Because in such transactions, the buyer does not have detailed information about the seller of the goods, their credit, and the transaction, and the burden of the purchase risk is on the shoulders of the buyer. For this reason, as well as for the specialization of the subject and its great application and importance, in this research, an attempt will be made to examine the civil liability of online stores in the laws of Iran and the European Union. In relation to the foundations of civil responsibility of online stores, the theory of fault should be accepted as the main basis of civil responsibility in the laws of Iran and the European Union. In fact, where the providers of their Internet services and goods commit harmful acts, their liability is still based on fault. However, regarding the responsibility of internet sellers, you can also refer to other bases. The important thing about online stores is that concluding a sales contract through the internet in this category of stores should not create doubt that online stores are not subject to the general rules of civil liability. On the contrary, it should be stated that such stores are subject to general rules regarding civil liability rules; because buying or selling through online stores differs from traditional contracts in only a few specific cases; the most important of which is the method of concluding a contract. In other words, except for a few minor cases, in other cases, buying from an online store is not much different from buying from a real store; therefore, in relation to the civil liability of online stores, two types of liability can be realized, contractual and non-contractual liability. This type of separation in civil liability has been accepted both in the civil law of Iran and in the civil law of the European Union. On the other hand, in order to realize the civil liability of online stores in two areas of contractual and non-contractual liability, certain conditions are necessary. So in the field of contractual liability, the existence of a valid contract, breach of contract, and the existence of damage caused by the breach of contract are necessary, and in the field of non-contractual liability of the online store, the occurrence of loss, harmful action and the relationship of causation is necessary. It is suggested that cyberspace and internet stores are very suitable for millions of jobs. On the other hand, the Internet is a useful tool for marketing various services. In this regard, the creation of up-to-date and applicable laws as well as the amendment of existing laws are more important than ever. For this reason, it is suggested that, especially in Iranian law, laws in the field of online stores should be formulated in a specific way, and in these laws, the civil liability of this type of store should be determined clearly, inspired by the principles of civil responsibility and not limited to accepting one of the opinions and principles. Laws that, in addition to preventing the occurrence of computer crimes, should provide the opportunity for legal internet businesses to operate and grow, and this means that the laws are fair. In addition to the definition of platforms, the law that is developed for this purpose should include the providers and users of the internet platform for the purpose of electronic commerce, the law that is formulated for this purpose must state the criteria and criteria accepted in the legal analysis, of course, a mechanism for the purpose of floating the bon and the ability to generalize the criteria. Claims between parties (both platform, supplier, and user) should be considered. Also, the cases where the rules related to transactions do not respond to the new needs are written and govern the relations of the parties.
Majid Sarbaziyan; reza hashemi; mazkoor salehi
Abstract
The national courts’ intervention in the arbitration process is inevitable if the trial is expected to be significantly efficient. The national courts should solely intervene in arbitration process if they are legally permitted to do so. The importance of anti-suit injunction is observed in international ...
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The national courts’ intervention in the arbitration process is inevitable if the trial is expected to be significantly efficient. The national courts should solely intervene in arbitration process if they are legally permitted to do so. The importance of anti-suit injunction is observed in international commercial arbitration, since it serves a dual function, that is, it is sometimes issued to support arbitration and sometimes to prevent arbitration. Therefore, it is necessary to address this question: “What are the positions of national legal systems and international rules/regulation regarding the anti-suit injunction?” National courts in the common law system tend to issue such injunctions based on arbitration agreements. By contrast, such injunctions are treated by the codified statutes as unjustified intervention in the judicial system. In international set of rules, such as UNCITRAL Model Law on International Commercial Arbitration, New York Convention and Brussel I Regulations on EU Law all have not granted permission to national courts to issue anti-suit injunctions. As far as Iranian law is concerned, there is no statutory provision on the permissibility of issuing the aforementioned injunction in the civil procedure and in international commercial arbitration
Mahboubeh Abdolahi
Abstract
Electronic transaction means any exchange of funds where, at least, one operation is conducted using electronic means. In these transactions, although the customer demands transaction to Transferring bank, but the electronic transaction part are doing by Clearing House or Intermediary bank. It concepts ...
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Electronic transaction means any exchange of funds where, at least, one operation is conducted using electronic means. In these transactions, although the customer demands transaction to Transferring bank, but the electronic transaction part are doing by Clearing House or Intermediary bank. It concepts that Clearing House has not direct relationship with customer, consequently, the question arises that if damages caused by him, Is he liable against customer? It seems that the clearing house’s liability against its customers is a type of professional liability with a dual state that is a combination of contractual and civil liability named it “legal basis” that is composed of civil and contractual liability. In addition, the liability of clearing house is strict and the mere reference of damage to him leads to its liability and it is only through proof by the force major can be exempted from liability. Attending to clearing house obligate the part of transaction mere and other part of transaction undertake by transferring and transferred bank, consequently, in loss claim action, the customer should prove that damage refer to clearing house.
Ali pourrezaei; Ali GHaribeh
Abstract
The principle of independent legal personality of a company creates risks for third parties. It should be noted that most of these risks emerge in dealing with third parties. One risk could be “ultra vires”, because directors may trade with third parties in the position of “ultra ...
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The principle of independent legal personality of a company creates risks for third parties. It should be noted that most of these risks emerge in dealing with third parties. One risk could be “ultra vires”, because directors may trade with third parties in the position of “ultra vires”. By taking different approaches, different sanctions for these violations could be proposed. The position of English law was to support the company at the beginning, and this led to the invalidation of the transaction. This approach was moderated by the passage of time and through different methods. The 2006 Company Act considered the “support of the third party” approach with the consequence of eliminating outer effect of ultra vires, creating the trading stability and establishing internal cost of company. In Iranian law, due to deficiency of statutory provisions, different sanctions based on divergent views are provided. It is due, mainly, to the lack of a clear distinction between capacity of the company and its directors’ powers. In Commercial Draft Bill 1391, It can be observed that the continuation of the dispute is foreseeable.
Jafar Nouri Youshanlooi; Abolfazl Shahin
Abstract
The reform of the French contract law occurred pursuant to the Ordinance No. 2016-131 of February 10, 2016 implements the reform of legal regime governing contractual obligations and evidence. For the purpose of simplification of French contract law and in the light of its compatibility with laws on ...
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The reform of the French contract law occurred pursuant to the Ordinance No. 2016-131 of February 10, 2016 implements the reform of legal regime governing contractual obligations and evidence. For the purpose of simplification of French contract law and in the light of its compatibility with laws on international contracts, this Ordinance makes major changes to French contract law such as reinforcing the role of judges for securing contractual justice and increasing the power of unilateral consent for the purpose of economic efficiency of contract. French contract law has a great influence on Iranian contract law and Iranian jurists in the context of the contracts. Commentaries on Iranian Civil Code have paid a great attention to French law, which led to a close relationship between French contract law and its Iranian counterpart. Therefore, this article aims to explore the effects of new French contract law on Iranian law
mortaza hajipour
Abstract
In the sale contract, primary obligation of the parties is the duty to perform in accordance with the contract. In the event of failure to fulfill obligations by the seller, the buyer may avoid the contract. However, non-performing party may be willing to remedy and repair existing defects. The willingness ...
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In the sale contract, primary obligation of the parties is the duty to perform in accordance with the contract. In the event of failure to fulfill obligations by the seller, the buyer may avoid the contract. However, non-performing party may be willing to remedy and repair existing defects. The willingness to cure defects poses the question of whether non-performing party has a right to remedy and repair and if yes, how a balance can be struck between right to cure and right to avoid the contract. This research aims to examine this topic by analysing Vienna Sale Convention, UNIDROIT Principles and Iranian law. It can be said that the right to cure has expressly been recognized by Vienna Sale Convention, even though there is uncertainty between this notion and its connection with the right to terminate. In UNIDRIOT Principles, the right to cure is precedent on the right to avoid the contract. In Iranian law, there is no provision in relation to the right to cure. As a whole, the recognition of the right to cure and repair defects accords with the principle of preservation of contract, good faith and fair dealing, and duty to cooperate in mitigation of damages.
Morteza Adel; Mohsen Shamsollahi
Abstract
Nowadays, the increase in using the contracts in which one party has a stronger position against the weaker party provides the stronger party a possibility to insert some unfair terms in contract. In recent years, some countries have tried to enact some legislation to protect the weaker party against ...
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Nowadays, the increase in using the contracts in which one party has a stronger position against the weaker party provides the stronger party a possibility to insert some unfair terms in contract. In recent years, some countries have tried to enact some legislation to protect the weaker party against such terms. This Article examines comparatively regulations on unfair contract terms in EU in order to consider its historical development, what an unfair contract term is and why the weaker party should be protected against such terms. General contract rules and some special protective Acts that have been adopted in recent years in Iranian law arises the question of how the protection of weaker party considers, especially consumers, against unfair contract terms. Our view is that although general rules and special acts, to some extent, protect the weaker party against unfair terms, it is necessary to enact new protective Acts for the purpose of full protection of consumers against these terms .
Oil and Gas Law
Hesam Khodayarinejad; Mehrab Darabpour
Abstract
Tax has undeniable role in Provision of the governments general budget and special position in financial regime of all oil and gas contracts. Host states always trying to provide presence and investment conditions of multinational enterprices in oil and gas industry for advancing their economic goals ...
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Tax has undeniable role in Provision of the governments general budget and special position in financial regime of all oil and gas contracts. Host states always trying to provide presence and investment conditions of multinational enterprices in oil and gas industry for advancing their economic goals and collecting considerable Income tax. Although multinational enterprises are important actors in the international trade and one of the main factors of global economic growth, the destructive effects of some of their actions are not desireable. The structure of these companies is somehow that parent company controls and manages many subsidiary companies in various countries and advances its besiness goals in any way possible. This structure provides for these companies the possibility of tax avoidance via transfer pricing mechanism. In international oil and gas industry, a significant volume of transactions are between parent company and its subsidiary companies or between subsidiary companies of a parent company. Transfer pricing is a mechanism based on that goods. services, rights and property related to intellectual property, facilities and ... transfer from parent company to subsidiary or between subsidiaries of parent company at a price different from the usual market price. Indeed, the purpose of utilization of this mechanism is internalization of transactions and determining desired prices for the purpose of reducing taxable income and transfer of funds from geographic territory with a high income tax rate to another geographic territory with a low income tax rate. Host countries tax revenues affected by this action of multinational companies. Host countries with the aim of collecting maximum tax revenues determine financial regime of oil and gas contracts, whiles controlled transactions of multinational enterprises obstruct this goal. Transfer pricing violates competition law to the detriment of small companies. Although multinational enterprises with their structure internalize transactions, avoid tax payment and save financial resources resulting from it easily, but small companies do not have such a capability, can not avoide tax liabilities and invest financial resources resulting from it in other sectors. Oil and gas industry due to the need to huge investment and modern technologies is desprately depending on the presence of multinational companies, and a very high turnover of money increase the motivation of those companies in the utilization of transfer pricing mechanism. Supply of required goods and services from affiliated companies at a price outside the normal market price and providing facilities with an interest rate higher or lower than the usual rate reduce tax income of host states and create many challenges to deal with this problem. Utilization of Arm's-Length principle is the most efficient tool to deal with transfer pricing. Based on this principle, if the price of goods and services exchanged in controlled transaction between two related companies differ from the usual price of those goods and services in uncontrolled transaction between two independent companies, tax experts ignore the price of controlled transaction and base the price of uncontrolled transaction for calculation of taxable income. This principle is universal and the method of its applying has been predicted in the tax laws and regulations of most countries. It is determined, By examining judicial precedent of countries, that tax experts, in calculating the due tax, ignore price announced by tax payer and by applying this principle determine taxable income. Despite all the advantages of the arm's-length principle, the challenges of its application cannot be overlooked. Comparative analysis is the basis of applying this principle and to do this, tax experts should find similar transaction related to same goods or services exchanged in a controlled transaction to compair price. In most cases, desired goods and services are unique and finding a similar transaction is impossible. This research, with the library method and examining judicial precedent, explains the transfer pricing of multinational companies with the special attention to the international oil and gas industries to find out that how these companies, by internalization of transactions and determination of their desired price, avoid paying tax to host governments. In the following, coping with transfer pricing by applying arm's-length principle, methods of applying this principle and Iran's legal status in dealing with this problem will be reviewed to find out that which legal instruments Iranian National Tax Administration has to deal with transfer pricing.
Private Law
Issa Moghadam
Abstract
Simultaneous employment in companies and other competing agencies can be considered from different point of view. One of these is to examine it from the point of view of its conflict with competition, which is examined in competition law. Considering the important impact that competition has for the ...
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Simultaneous employment in companies and other competing agencies can be considered from different point of view. One of these is to examine it from the point of view of its conflict with competition, which is examined in competition law. Considering the important impact that competition has for the progress of society, supporting competition through the adoption of effective regulation is one of the duties of governments. Supporting competition through legislation is done in different ways, one of which is the introduction of anti-competitive behavior. In relation to simultaneous employment in competing companies, the main question that arises is whether this behavior is anti-competitive or not? And on the assumption of contradiction, is this contradiction enough to require prohibition by the legislator. Although the role of simultaneous employment in competing companies for commercial and industrial progress cannot be completely denied, there is no doubt that it increases the possibility of information exchange and collusion between competing companies in various fields such as product pricing and as a result, it causes the competition between these companies to be reduced or eliminated. Therefore, it has been recognized and prohibited as anti-competitive behavior in the laws of Iran and the United States of America. In addition to the main question above, several secondary questions are also raised in this context, which are: Should the ban be applied to all companies or some of them, which is more important? Should the prohibition only apply to directors and officers of the company or all employees? Should this be absolutely prohibited or only if it disrupts competition? What is the criteria for considering two companies as competitors? The basic principle in relationto determining the scope of prohibition of simultaneous employment is that the prohibition should be established as much as necessary and have a minimal aspect. Regarding this issue, regardless of some similarities, there are important differences between the two countries, some of the differences are due to the different approaches of the two countries to fight it and it is normal, but in Iran's regulations, on the one hand, the domain of agencies and individuals who are subject to the act , it is expanded in an unusual way, and on the other hand, the criteria provided for the conditions of competition realization and the concept of competing companies are not very precise, which makes it less effective. In addition to the point of competition, this issue can also be investigated from the point of view of the legal relationship of a person with the company in which he is employed. Because when a person is employed in a company, certain duties and obligations are created for him in order to strive for the success of the company and refrain from doing contrary behaviors, and the question is whether working at the same time in a rival company is contrary to these obligations? There is a possibility that in the employment contract, a person is prohibited from competing with the employer, in which case she will adhere to the condition, but if such a condition is not included, the matter needs to be investigated. There is no regulation in this regard in the studied countries. In American law, according to the rules of common law, this is contrary to the fiduciary relationship of a person with the company, as well as contrary to his duty of loyalty to it, and is prohibited. It should also be considered prohibited in Iranian law, because employment in a rival company can lead to behavior contrary to the interests of the first company. It is important to point out that there is a difference between the two mentioned states. Prohibition of simultaneous employment in competing companies due to its anti-competitiveness is intended to protect the community and is related to public order and has an imperative aspect and cannot be agreed upon. While it is prohibited from the point of view of conflicting with the relationship between the person and the company, it is to protect the rights of the company and is not related to public order, and an agreement against it is possible. Because this may have positive effects in some cases, such as when two companies cooperate in some fields.
