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.
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 ...
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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?
Homayoun Mafi; Mohammad Hosien Taghipoor
Abstract
In EU and American law, the principle of autonomy has been recognized. For the purpose of unification, Rome 1 Regulation allows parties to choose the law that has no link to the contract. By contrast, in American law, the selected law is required to have a basic or reasonable relationship with the contract. ...
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In EU and American law, the principle of autonomy has been recognized. For the purpose of unification, Rome 1 Regulation allows parties to choose the law that has no link to the contract. By contrast, in American law, the selected law is required to have a basic or reasonable relationship with the contract. According to Rome 1 Regulation, the chosen law does not affect the application of overriding mandatory provisions of the law of the forum and the law of the performance of the contract. In American law, the chosen law should not be in conflict with public policy of the forum and a fundamental policy of a state which has, substantially, greater interest than the chosen state in relation to the determination of a particular issue. This article examines the positions of European Union and American law regarding the determination of applicable law
Homayun Mafi; Mehdi Fallah
Volume 3, Issue 9 , December 2015, , Pages 149-170
Abstract
One of the most widely used independent bank obligations in international trade law is a demand bank guarantee. This is always exposed to the risk of unfair demand, because it is payable on demand. It means that the beneficiary calls and receives guaranteed fund despite of full performance of the underlying ...
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One of the most widely used independent bank obligations in international trade law is a demand bank guarantee. This is always exposed to the risk of unfair demand, because it is payable on demand. It means that the beneficiary calls and receives guaranteed fund despite of full performance of the underlying contract by principal. In fact, documentary characteristics and the principle of independence provide an opportunity for the beneficiary to affect the exceptional and secondary function of bank guarantee as a result of an unfair demand. The question posed is how unfair demand can be prevented. By examining rules and regulation governing international trade and the draft bill on commercial law approved in 1391, it would seem that among possible solutions, such as the requirement of presenting a court judgment or an arbitral tribunal award and a statement by the beneficiary or principal indicating points in which the applicant is in breach of its obligations, the assumption of nonperformance of the contract, in the event of demand by the beneficiary, is the most appropriate solution.
Homayoun Mafi; Meysam Rameshi; Ali Bagheri
Volume 3, Issue 10 , March 2015, , Pages 121-140
Abstract
Incidents may occur during the performance of the contract which prevent oneor both parties from performing his obligations, even though the parties do nothave any role in causing such incidents. Art 79 of the CISG deals with theimpossibility of the performance of the contract as a cause of exemption ...
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Incidents may occur during the performance of the contract which prevent oneor both parties from performing his obligations, even though the parties do nothave any role in causing such incidents. Art 79 of the CISG deals with theimpossibility of the performance of the contract as a cause of exemption fromliability for damages arising from a breach of contract. In some cases, thecircumstances, which have been the basis of the contract balance at the time ofcontract formation, change and subsequently the performance of the contractbecomes difficult. The CISG contains no specific provision dealing withhardship (Ta'assor) and related exemptions. Therefore, a question arises as towhether the CISG covers such cases. There are different doctrinal views andjurisprudence which will be discussed in this article.
