AhmadReza Asaadinejad; Abdolhossein Shiravi; Mehdi Montazer
Abstract
In many Petroleum contracts, the parties put renegotiation clause in order to keep longtime balance, so that if the balance disrupted, the parties should be obliged to renegotiate in order to rehabilitate the contract balance. So if renegotiation process didn’t reach result, what will happen to ...
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In many Petroleum contracts, the parties put renegotiation clause in order to keep longtime balance, so that if the balance disrupted, the parties should be obliged to renegotiate in order to rehabilitate the contract balance. So if renegotiation process didn’t reach result, what will happen to the contract? Also in which circumstances the parties have right to recourse arbitration? Do arbitrators have the right to adjust the contract? In one side, keeping the balance was the first base of the agreement, and by disrupting the balance the continuation of contract would become unfair and in contrast with common intention, and on the other side, termination of the contract without party consent is impossible. In the absent of arbitration clause, one parties can recourse to the arbitration tribunal, so that the tribunal can arbitrate the case if it is deduced from implicit agreement or enforceable law that it has jurisdiction. In case of putting adjustment right for arbitrator, he can adjust it. otherwise, it can be understood from the first intention of the parties, economical logic, principles of international trade law and the principle of similarity of arbitrator and judge authorities that the arbitrator has right to use adjustment.
laya joneydi; Ayyoub Mansouri Razi
Abstract
Abstract:Usage of Multi-tiered dispute resolutions clauses in commercial contracts , in particular long-term contracts is very common. Theses clauses comprise different stages of ADR (Alternative Dispute Resolution) with Arbitration or litigation. Agreement or decision made in these pre-arbitral or pre-litigation ...
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Abstract:Usage of Multi-tiered dispute resolutions clauses in commercial contracts , in particular long-term contracts is very common. Theses clauses comprise different stages of ADR (Alternative Dispute Resolution) with Arbitration or litigation. Agreement or decision made in these pre-arbitral or pre-litigation stages such as the mediator`s opinion are not binding upon the parties. So the issue is if it is mandatory for parties to follow all steps contemplated in these clauses or not? And what makes these pre-arbitral or pre-litigation steps binding? In this article different relevant opinions will be illustrated. Through comparative studying the case law of ICC, English courts and other countries requirements for pre-arbitral or pre-litigation steps will be illustrated. It is concluded that parties agreement has a binding nature and arrangement must be followed as provided in these clauses and requirements that make different tiers of these clauses as enforceable are clarified. Findings show that if relevant requirements including Usage of binding words,exact drawing of each step and parties` good faith are met, judicial and arbitral authorities take agreed steps in these clauses as binding. In authors` opinions this practice which is in consistent with the principle of freedom of Contracts is correct.
omid rashidi; Eisa amini; rabia eskini
Abstract
Totally Arbitration is divided to Voluntary Arbitration Clause and Compulsory Arbitration Clause. Arbitration Clause as a rule Has Contractual Nature .If The Content Of Arbitration Clause For The Reason Ambiguity Has Been Needed To The Interpretation And Arbitrator To Intended Detection Of Common Intention ...
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Totally Arbitration is divided to Voluntary Arbitration Clause and Compulsory Arbitration Clause. Arbitration Clause as a rule Has Contractual Nature .If The Content Of Arbitration Clause For The Reason Ambiguity Has Been Needed To The Interpretation And Arbitrator To Intended Detection Of Common Intention Of The Parties ,Having No Alternative Must To Interpret Of The Content Of Arbitration Clause ,Upon The Principles And Rules of Interpretation Of Contract .But Legislator In Some Cases Imposed On Will Of The Parties Of Contract ,Accepted Of The Arbitration Clause Or Referring Of Claims To The Jurisdiction Of Arbitral Tribunal And Contractual Nature Of Arbitration Clause Has Been Extinguished Or Limitation .In These Cases If Content Of The Arbitration Clause Faced With Ambiguity And Necessitate Of Interpretation, Arbitrator Must Intended To Detection Of The Legislator Will ,Upon The Principles And Rules of Interpretation Of statutes And Discussion Of Detection Of Natural Will And Common Intention Is Ceased .In This Article Interim Of Making Clear Nature And Criterion Of Distinction Of The Compulsory Arbitration Clause ,Causes And Grounds Of Independent Arbitration Clause Necessity From Basic Contract Present By Application Analysis And State Of Some Cases In The Law Of Iran.
Babak Sheed
Abstract
As the judicial procedure ensures proper and lawful implementation of the law and statuary regulations, arbitration agreement is made for being sure of good performance of the contractual obligations. It is not exaggerate if assert that the parties may conclude the main contract based on its arbitration ...
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As the judicial procedure ensures proper and lawful implementation of the law and statuary regulations, arbitration agreement is made for being sure of good performance of the contractual obligations. It is not exaggerate if assert that the parties may conclude the main contract based on its arbitration clause. So, it is expected that the arbitration agreement or clause has a firmer position than a revocable contract to have a proper function with the wills of the parties. In legal writings and lawyer’s views there is no definitive opinion as to whether or not an arbitration agreement or cause is revocable or Irrevocable, in addition article 481(1) of civil procedure law states that written agreement between the parties is necessary to decline the arbitration agreement which it associates irreconcilability of the arbitration agreement but in article 481(2) has considers death as a cause of declining the arbitration agreement. Researchers have neglected on literal and historical interpretation of the regulations on arbitration. In this research has been attempted through the aforementioned approach means literal and historical interpretation, stabilize inefficacy of each party’s death on arbitration.
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 ...
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< 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.
Hamidreza Nikbakht; Ahmad Hemati Kalvani
Abstract
Article 139 of the Constitution of the Islamic Republic of Iran, which restricts and binds the referral of litigation regarding public and State property to arbitration, for obtaining an approval from the government and the parliament, has led to different views and legal opinions. In general, they can ...
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Article 139 of the Constitution of the Islamic Republic of Iran, which restricts and binds the referral of litigation regarding public and State property to arbitration, for obtaining an approval from the government and the parliament, has led to different views and legal opinions. In general, they can be categorized into “literalist” and “realist” theory”. The result of literalist theory is that article 139 applies to any dispute that on the one hand, there is the State, and it has been agreed upon by arbitration and thus if any dispute exists, it will be resolved by arbitration in which, it should obtain an approval from the government and the parliament, otherwise, the arbitration will not be valid. According to this view, article 139, in general, is not economically beneficial for the State and therefore it must be thought upon. In contrast, there is the realist theory which can be a response to the literalist theory and holds that, with a rational and principled interpretation, the principle can be freed from the problems which are arisen by former theory and also the dynamics of principle 139 is useful for the State in terms of national interest
Hamidreza Holumi yazdi; Hamid Derakhshan nia
Abstract
In the current system of global arbitration, the complete independence envisaged for the arbitration. Nevertheless, it does not mean that the arbitration is completely needless of the court. Misunderstanding of the ‘basis’ and ‘limits’ of the court’s intervention or assistance ...
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In the current system of global arbitration, the complete independence envisaged for the arbitration. Nevertheless, it does not mean that the arbitration is completely needless of the court. Misunderstanding of the ‘basis’ and ‘limits’ of the court’s intervention or assistance in the arbitral process will be the most substantial threatening factor in the formation of an independent and efficient arbitration system in Iran. In practice, one factor behind the role of the courts, as supportive or interventionist, is the issue of assigning an arbitrator by the court. The current study shows that the relevant statutes and the judicial cases to the court’s intervention in the process of appointing a judge is imperfect. This article seeks to present an efficient pattern depicting the court’s intervention in the arbitral process based on the division of arbitral process and its various stages. In this regard, arbitration process can be divided into two parts: First, the court’s intervention in the formation and continuation of arbitration tribunal. Second, the court’s intervention in dealing with substantive issues. In the former, the principle is an interventionist role, and the latter is based on non-interventionist role. This is quite contrary to what is deemed as appropriate.
