Mojtaba Asadzadeh; godarz eftekhar jahromi
Abstract
Abstract: Concluding of the arbitration agreement is based on the principle of party autonomy but this principle is restricted by public order. In other words, although the arbitration agreement is mainly based on the private agreement of both parties, it is not correct that the common will of both parties ...
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Abstract: Concluding of the arbitration agreement is based on the principle of party autonomy but this principle is restricted by public order. In other words, although the arbitration agreement is mainly based on the private agreement of both parties, it is not correct that the common will of both parties have an absolute authority to refer any disputes to arbitration. Sometimes the law forbid or restrict the reference of some disputes to arbitration, and the reason for these are based on the basic concept of public order and interest; thus, the settlement of some disputes are merely on the authority of the courts and if the arbitrators proceed to issue an award about such disputes, that award will not be applicable. This article will outline the opinions of Iranian scholars with regard to the effect of public policy on the arbitration agreements as it could help to understand the floating essence of public policy. In addition, this article set forth to analyses the most important cases in relation to arbitrability which are the Art. 139 of the constitution, bankruptcy claims, family disputes, intellectual property claims, securities claims and also labor and employment contracts.
Hamed Najafi; mahmoud sadeghi; morteza shahbazinia
Abstract
Vicarious liability is one of the types of responsibilities arising from other's action. In US law, unlike Iranian legal system, there is a general rule upon which whenever under the control persons, commits a copyright infringement and thereby a financial benefit get to the supervisor, the latter, shall ...
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Vicarious liability is one of the types of responsibilities arising from other's action. In US law, unlike Iranian legal system, there is a general rule upon which whenever under the control persons, commits a copyright infringement and thereby a financial benefit get to the supervisor, the latter, shall be subject to the vicarious liability. Undoubtedly, children are among the most prominent examples of persons under the control that this usually occurs by their parents. Furthermore, in Current age, it is possible that many infringements occur by children, especially in the Internet. Parents will generally be subject to the vicarious liability for copyright infringements their children. In US law, has been suggested the probability of parental responsibility for copyright by children based on the general rule of vicarious responsibility, while it seems that the nature of the relationship between parents and children and the bases of suggesting parental liability for children's fault, demands some differences in this regard. Parental responsibility for children's torts in Iranian law, unlike US law, is based on fault and care rather than control and compliance, and this is an advantage of Iranian law.
abdulwahed Afzali; mahdi shahabi; mohammadmahdi alsharif
Abstract
In contractual relationships, the principle is to preserve and continue contractual relationships in order to prevent social and economic losses. This is the basis of the concept of "conversion of contract" analysed by judges by considering the "practical result", that is, economic purposes of the parties ...
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In contractual relationships, the principle is to preserve and continue contractual relationships in order to prevent social and economic losses. This is the basis of the concept of "conversion of contract" analysed by judges by considering the "practical result", that is, economic purposes of the parties within the framework of "social interests". Therefore, the conversion of contract goes beyond the issue of interpretation, since it is justified on the basis of the "socialization of law" approach. In addition, this theory is not in conflict with Islamic jurisprudence (Fiqh), because it focuses on the socialization of law at the level of "the purpose of the contract" and does not seek to regain the basis of the validity of the contract in the social conscience. Therefore, it has been recognised as a legal rule in Fiqh and Articles 144 and 618 of the Civil Codes of Egypt and Afghanistan. In Iranian legal system, it has not been recognized despite its practical implications. Since, the conversion of contract has economic and social benefits and is not in conflict with Fiqh, it can be adopted in the Civil Code by putting various instances under one title.
Mansour Amini; simin vahedi
Abstract
Limited liability of shareholders of corporations is the primary principle of corporate law in most countries. Limited liability is however subject of debates by law and economic scholars. The research method applied in this research is theoretical analysis and the research approach is non-normative ...
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Limited liability of shareholders of corporations is the primary principle of corporate law in most countries. Limited liability is however subject of debates by law and economic scholars. The research method applied in this research is theoretical analysis and the research approach is non-normative analyzing the possible solution without considering status que in search of most efficient solution. Limited liability is not efficient in terms of economic analysis of law, particularly in the context of company group, which is the main actor of the today’s world. The externalities created by abuse of company form exceed its benefits. Common law doctrine of veil piercing sets aside the veil of corporation and holding shareholders personally liable for company debts in case of abuses by shareholders or lack of observance of company formalities. This doctrine can modify the effect of the externalities and reduce moral hazard created by limitation of liability. Such theory or similar mechanisms, except with special regulations related to the tax and banking system, do not exist in Iran legal system. Therefore legislation in this regard is recommended.
Ali Ansari; javad askari dehnavi
Abstract
Banks, like any other commercial entity, are likely to encounter the risk of insolvency and consequently go bankrupt for some reasons. As the provisions on bankruptcy are subject to the rules and regulations of the Commercial Code, the solution for dealing with a bankrupt bank is to declare its bankruptcy ...
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Banks, like any other commercial entity, are likely to encounter the risk of insolvency and consequently go bankrupt for some reasons. As the provisions on bankruptcy are subject to the rules and regulations of the Commercial Code, the solution for dealing with a bankrupt bank is to declare its bankruptcy and liquidate its assets. However, declaring a bank’s bankruptcy and going through the bankruptcy process would have an adverse impact on the economy of the country concerned. Banks play a remarkable role in the development and growth of countries’ economy as a result of lending; thus, their existence and operation are highly vital in the development of domestic and international trade. Furthermore, insolvency and bankruptcy of banks would havoc payment systems and harm the public trust, which eventually result in decline in investments. Therefore, the approach of bankruptcy declaration and liquidation of banking assets exposed to bankruptcy is not a logical approach and it is also not in line with the economic principles. The aim of this article is to discuss the preventive legal tools regarding banks’ bankruptcy, which are at the risk of going bankrupt, in parallel with examining the approach of developed countries in this regard.
mohammasdtaghi karimpour alehashem; Seyed Mohamad tagi Alavi; naser masoudi; mohammad mazhari
Abstract
The idea of non-existence of a contract has been considered along with the types of void contracts, called absolute and relative void. In recent decades, Iranian-French legal doctrines have been trying to abandon this theory and to theorize only on the basis of two parts of absolute and relative. Nevertheless, ...
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The idea of non-existence of a contract has been considered along with the types of void contracts, called absolute and relative void. In recent decades, Iranian-French legal doctrines have been trying to abandon this theory and to theorize only on the basis of two parts of absolute and relative. Nevertheless, since the past decades, French judicial practice has been referring to this theory with no hesitation. Since the foundation, content and regulation of this type of invalidity are different from invalidity in other cases, it is not appropriate and logical to treat the both in the same manner. Therefore, for the purpose of accepting this theory, this article emphasizes on the necessity of accepting this theory in Iranian and French law, and outlines some of its technical and practical benefits, including the effects of this theory, which takes into account terms and conditions of transactions. At the same time, my view of accepting the theory is important in terms of its application
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, ...
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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.
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.
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.
Ali Moghaddam Abrishami; Khadijeh Jamalinia
Abstract
Numerous disputes have arisen from frauds and Errors in the process of documentary credit transactions. This issue has caused an obstacle in financing international trade law and Cash flow in banks. It also imposes a huge cost on the banks. International Chamber of Commerce has created a new payment ...
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Numerous disputes have arisen from frauds and Errors in the process of documentary credit transactions. This issue has caused an obstacle in financing international trade law and Cash flow in banks. It also imposes a huge cost on the banks. International Chamber of Commerce has created a new payment Method, called Bank Payment Obligation (BPO), in order to address this problem. By introducing an electronic system through Bank Payment Obligation, International Chamber of Commerce has endeavoured to deal with ambiguous and uncovered areas of documentary credit. To assess whether this new method (BPO) would be able to offer a solution to the problem of fraud and Errors in documentary credit transactions, this article examines documentary credit by discussing relevant case law and by identifying the extent to which Bank Payment Obligation would respond to existing problems. It concludes that although Bank Payment Obligation has a number of similarities with Documentary Credit, its structure and nature in optimal conditions would be able, to a large extent to prevent fraud and Errors in international payment and reduce disputes in this field accordingly.
Mehdi Naser; hossein sadeghi
Abstract
Smart contracts are electronic contracts concluded in public ledgers such as Blockchain, and are supervised by the governing body and artificial intelligence between the time of concluding and final approval. Until the contract is finalized , parties and artificial intelligence, at the time of concluding, ...
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Smart contracts are electronic contracts concluded in public ledgers such as Blockchain, and are supervised by the governing body and artificial intelligence between the time of concluding and final approval. Until the contract is finalized , parties and artificial intelligence, at the time of concluding, may receive any information about the transaction or the parties to the contract by Oracles which are the systems that establish the communication between Blockchain and the foreign world. These contracts are considered in accordance with any legal system relating to the contract, taking into account the essential conditions of the transactions and the unique features, such as self-execution of the effects of the contract and transparency. Formation of these contracts depends on the existence of digital signatures and license to own virtual currencies. Smart contracts, after being approved by the parties and artificial intelligence, are registered in the public ledger and they are then placed in the space of public ledger to be observed. Rules on international contracts are encountering challenges, and a solution to those challenges will lead to an improvement in the implementation of these contracts in the legal system concerned.
