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, ...
Read More
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.
Iraj Babaei; Shahin Shamiaghdam
Abstract
One of the main functions of evidence law is to demonstrate the applicable standard of proof. In some kinds of evidence, it is not the case because fact finders make decisions according to the probative value of the evidence. In other pieces of evidence, there may be a need to find a standard. Lawyers ...
Read More
One of the main functions of evidence law is to demonstrate the applicable standard of proof. In some kinds of evidence, it is not the case because fact finders make decisions according to the probative value of the evidence. In other pieces of evidence, there may be a need to find a standard. Lawyers trained in common law systems often enquire about the applicable standard of proof but in civil law countries and particularly Iranian law it depends on the discretion of judges and there are no clear rules. Instead, fact-finding standards are based on some general principles. In common-law systems, the standard of proof requires in ordinary civil cases the party who bears the burden of proof to establish by a "preponderance of the evidence". In some other civil cases "Clear and convincing" evidence is the main standard and in criminal cases "Beyond all reasonable doubt". By using normative considerations of efficiency, on the one hand, we may argue and propose that as the main principle, multiple standards are more efficient and will better align decision-making with fact-finding goals than using a unique standard and on the other hand, the preponderance of the evidence and clear and convincing evidence may be regarded as main standards.
