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.
Heshmatollah Shahbazi; Ebrahim Taghizaadeh; Morteza Shahbazinia
Abstract
The influence of human rights in private law or in other word constitutionalization of private law is relatively a new debate in legal reasoning that constitute the subject of this research. Applying human rights in private law depends on context, legislator and judge, and reasoning method. The reaction ...
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The influence of human rights in private law or in other word constitutionalization of private law is relatively a new debate in legal reasoning that constitute the subject of this research. Applying human rights in private law depends on context, legislator and judge, and reasoning method. The reaction of different legal systems in this matter is not the same. Direct application, indirect application, judicial application, and non-application is brief of these reactions. Legal system of Iran is capable for direct application of human rights in private law. Although the courts do not use this capacity. Due to distributive justice and for modification of freedom of contract principle, we can apply the human rights and fundamental rights capacity. The human dignity is the concept that enforceable in evaluation of contractual terms and unwaivable [S1] rights so that infringe of human right can be regarded as opposite of public policy. In this research the methods and contexts of constitutionalization of private law has been examined. [S1]این کلمه کلا در فرهنگ لغت وجود ندارد. اگر کلمه تخصصی است که حفظ شود و گرنه با معادلی بهتر جایگزین گردد.
Mohammad Isaeei Tafreshi; Morteza Shahbazinia; Habib Ramezani Akerdi
Abstract
In dealing with the bankruptcy regime, the legislator requires legal entities tomanage this regime for specific purposes. One of these legal entities that plays asignificant role is “automatic stay”. This legal entity is designed to preventindividual action of creditors. Different factors ...
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In dealing with the bankruptcy regime, the legislator requires legal entities tomanage this regime for specific purposes. One of these legal entities that plays asignificant role is “automatic stay”. This legal entity is designed to preventindividual action of creditors. Different factors play a role in the efficiency andinefficiency of the automatic stay. The main reasons for efficiency are increasingthe value of property of the bankrupt and reducing costs. The main cause ofinefficiency is the redistribution of wealth. In Iranian law, a limited scope andthe lack of enforcement of the automatic stay are regarded as main reasons forinefficiency of this legal entity. In the United States, the scope of automatic stayis wider than Iranian law, and this legal entity can be enforced in the former.Theautomatic stay is unavoidable in Iranian law, whereas there are different viewsin U.S. law in this regard.
