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 ...
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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.
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
