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.
Oveis Rezvanian
Abstract
As the international sanctions against Iran were tightened between the years 2010 and 2015, with no clear reason or justification, some European arbitration institutions stopped to filing Requests for Arbitration and providing arbitration services to the disputes related to Iranian transactions or Iranian ...
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As the international sanctions against Iran were tightened between the years 2010 and 2015, with no clear reason or justification, some European arbitration institutions stopped to filing Requests for Arbitration and providing arbitration services to the disputes related to Iranian transactions or Iranian party(ies). From a contractual perspective, this refusal entitles the damaged party(ies) to request for compensation. However, to this aim, a number of assumptions should be first proved, i.e. the existence of a contractual relationship between the parties and the arbitration institution, the occurrence of damage and non-existence of an uncontrollable impediment (such as restrictions imposed by international sanctions). Moreover, considering the nature of services provided by arbitration institutions, the non-contractual liability of these institutions, as well as the possibility of violating the European Non-discrimination Law, are other important issues to be examined. In the present research project, the liability of arbitration institutions for providing services to users and the possibility of reimbursing the damages arising out of refusal to provide such services are discussed. The findings of the research project confirm the possibility of reimbursing the damages by aggrieved parties.
reza hazeghpor; Hamid Reza Oloumi Yazdi
Abstract
lex mercatoria is a set of customary commercial rules which has been common by merchant among them in order to meet their commercial needs. along with developments in commercial relations and also in dispute settlement mechanisms by arbitrations, the status and nature of these set of rule as autonomous ...
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lex mercatoria is a set of customary commercial rules which has been common by merchant among them in order to meet their commercial needs. along with developments in commercial relations and also in dispute settlement mechanisms by arbitrations, the status and nature of these set of rule as autonomous free from domestic and international law has been one of the most important issue of international commercial law. the advantages of using this rules in arbitration and also their concordance with today demands of commercial relation has been the most important reason of invoking lex mercatoria in international arbitration as substantive law governing the dispute. so many judicial decisions issued on the base of lex mercatoria. but at the same time, this question of whether these rules are truly autonomous is under disagreement. so in this study we aim to analyze the debatable nature of lex mercatoria and clarify its legal status in international commercial arbitration.
