Fork in the Road Clause in International Trade Arbitration Practice by focusing on ICSID
Verdicts
ALIREZA
ebrahimgol
the Professor Assistant of law faculty of Tehran university( college of farabi)
author
mahdi
haghighian
Ph.D student in oil and gas law- Shahid Beheshti University
author
text
article
2019
per
In many bilateral investment treaties, the investor is allowed to submit its claim to domestic courts, arbitration or any other agreed tribunals. Offering different options to the investor for the method of dispute resolution could lead to some problems, such as conflicting decisions and ambiguous interpretations. Because of these problems, some states have placed some restrictions upon investors and prohibited them from submitting their claims in different courts or tribunals at the same time. Fork in the road is a specific clause requiring the investor to make a final decision and choose a specific court or tribunal, among all competent courts and tribunals, to submit its claim. Choosing any tribunal prevents other tribunals from having jurisdiction. This article aims to examine international arbitration practice regarding fork in the road clause by focusing on ICSID awards.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
9
34
https://jplr.atu.ac.ir/article_9477_57b1a10bd2796ee9277e657f09505c16.pdf
dx.doi.org/10.22054/jplr.2018.26583.1685
The Effect of the Link of Civil Cases to Extension of Justiciablity of Judgments In Iran and France: Emphasizing on Case-Law
Mehdi
Hasanzadeh
Associated Professor in Faculty of Law, Qom University
author
Badi`e
Fathi
PhD Candidate of Private Law, Qom University
author
text
article
2019
per
The link of disputes causes procedural dependence and connection between them. The dependence is sometimes so serious that requires to deal with the cases in all phases of proceedings as a whole. Disintegration of the cases makes the most serious problems in term of conflict of rulings and implementation of conflicting rulings. Disregarding this issue will result in some crisis in proceedings and may create problems for judicial system especially where the remedies of judicial system are not effective for reduction of issuing conflicting rulings or- as the case may be- for cancelation of rulings. Accordingly, it is necessary to consider exactly if one of the concerned cases is justiciable and the other is non-justiciable, whether taking action against a justiciable one may be extended to the other one. In French law, article 39 of the Code of Civil Procedural gives positive answer regarding incidental cases and in the other cases resorted to non-dividablity. In Iranian law, the law is silent and it seems, in the case of "full connection", the cases are dividable in later phases of proceedings. In this regard, the legal obligation for simultaneous proceedings for concerned cases is also applicable to the later phases of proceedings. The complaint regarding one case, therefore, affects the other case, too.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
35
58
https://jplr.atu.ac.ir/article_9478_ca55cacd22738958b85a710dc75605a6.pdf
dx.doi.org/10.22054/jplr.2018.26769.1692
Features of Justice in the First Article of the Iranian Civil Liability Act in Comparison with of John Rawls's Distributive Justice Theory
Habibollah
Rahimi
Associated Professor of Allameh Tabataba'i University, Tehran, Iran.
author
Fatemeh
Torof
PhD student in private law of the Allameh Tabataba'i University, , Tehran, Iran.
author
text
article
2019
per
Since 1971, and concurrent with the dissemination of John Rawls’s theory of justice, his views on the concept of justice and its execution in the society has been at the forefront of the recent theories in the twentieth century. In the second principle of this theory (called the principle of difference) Rawls focuses on substances such as distributive and redistributive justice, material justice, inequality in favor of the poors and vulnerable deciles and ensuring welfare for all. As we do not expect law and specially the branch of civil responsibility to be indifferent to new approaches toward justice, this essay tries to analyze the first article of the Iranian civil responsibility Act in the context of Rawls’s theory.It is assumed that this article plays an important role in the legal system in this country. From the authors point of view the discussed article contains some characteristics like following legal formalism, centralization on formal justice (vs. material justice) and tendency to execute corrective justice (vs. distributive or redistributive justice). These features lead to obvious differences with Rawls’s considered approach about justice and equity.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
59
88
https://jplr.atu.ac.ir/article_9480_407276a3853fb1d9a4a4bd80a7e8f2e1.pdf
dx.doi.org/10.22054/jplr.2018.22442.1577
Competition Authorities and the Modification of Proposed Mergers (With Emphasis on Issues of Intellectual Property Domain)
Ebrahim
Rahbari
Assistant Professor of International Trade Law & Intellectual Property Law Department, The Faculty of Law at Shahid Beheshti University, Tehran. IRAN
author
text
article
2019
per
Mergers have always raised competition concerns and competition authorities have tried to prevent anticompetitive practices made through them. One of the most efficient methods is designing a framework to primary evaluation of proposed mergers and striking a balance through the validation of mergers by employing structural and conduct remedies. In IP domain, the mentioned measures in the light of particular matters of such field, come to assist competition authorities in order to modify the mergers in waiting period and provide a proper chance in utilizing the potentials of the mergers in promoting innovation and technology development. By analyzing the solutions proposed by US and EU law, this research aims to examine different types of remedies relevant to proposed mergers and clarify their efficiency, challenges and developments in IP field. This article also tries to regulate and justify the process of validation the proposed mergers subject to some conditions by making an interpretation on existing legal rules contained in Iranian laws.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
89
116
https://jplr.atu.ac.ir/article_9481_6cf19a281fce5d13fdc2bf0ef5f971cc.pdf
dx.doi.org/10.22054/jplr.2018.19054.1489
Role of Disclosure Requirements in Providing Effective Protection of Traditional Knowledge and Medicine
mehdi
zahedi
Associate Professor of Allameh Tabataba'i University, Tehran, IRAN
author
Mohammad Hossein
Erfanmanesh
PhD Candidate in Public Law of Allameh Tabataba'i University, Tehran, IRAN
author
text
article
2019
per
Due to the need for legal action to protect traditional knowledge and medicine, efforts to prevent unauthorized use and to consolidate the possession of the owner countries on this knowledge have been made in the international arena. One of the key and most challenging proposed mechanisms for protection of traditional knowledge and medicine is disclosure requirements through the sui generis system of traditional knowledge protection. According to this proposal which targets misappropriation of traditional medicine through patent applications involving the utilization of traditional knowledge, patent applicants would be required to disclose the country providing such resources, and to provide relevant information regarding compliance with prior informed consent and access and fair and equitable benefit. The question that this Article tries to examine is to what extent the disclosure requirement could provide effective protection for traditional medicine and prevent biopiracy? Also, as it is proposed that these requirement to be incorporated in TRIPS Agreement within World Trade Organization and draft articles for protection of traditional knowledge in World Intellectual Property Organization, this Article will analyses the process and challenges of both proposals.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
117
144
https://jplr.atu.ac.ir/article_9482_318679ab400abfa944a29fc6243c7fd7.pdf
dx.doi.org/10.22054/jplr.2018.22883.1588
Distinction of Formal Nullity from other Causes of Non-Acceptance
Reza
Shokoohizadeh
Assistant professor, Private and Islamic Law Department, University of Tehran, Theran, IRAN.
author
Asghar
Arabiyan
Assistant professor, Islamic Law and Jurisprudence Department, Islamic Azad University, Theran, IRAN
author
text
article
2019
per
Taking into account the fact that in Iranian and French law, formal defects of petition can be recoverable; the appellant is interested in regarding the cause of nullity as formal one. Conversely, the defendant is interested in considering the cause of nullity as non-formal to render the reject of petition, immediately by the court. Tendency of jurisprudence toward each of these conflicting interests may disorder the balance of Civil Procedure. But hesitancy of jurisprudence in determining the cases of formal nullity is more dangerous than excessive resort to each solution. This hesitancy resulted in non-predictability of the cases in Iranian Jurisprudence. Reject of appeal by the court, without possibility of correction of defects, encourage the debtor to refuse from the compromise with creditor. This Article is an attempt to distinction of formal defects of petition from substantive defects and cases of non-acceptance of litigation. On the other hand, in each case, some suggestions have been rendered. But the fist aim of this Article is to clarify the divergent tendencies in Iranian Jurisprudence in respect of the subject matter of this Article.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
145
170
https://jplr.atu.ac.ir/article_9483_73e86e5efc58a6bb4c5eb8aec983fca2.pdf
dx.doi.org/10.22054/jplr.2018.21935.1566
Value Pluralism of International Intellectual Property Law
Tayebeh
Saheb
Assistant Profesor Intellectual Property Department of Tarbiat Modaes University, Tehran, Iran.
author
text
article
2019
per
Most theorists of IP law have attempted to justify intellectual property rights in preserving one particular value as a super value. The dominant view is that international IP law aims to maximize economic efficiency through incentivizing creation and reducing searching cost. This view regarded as a major hurdle against recent demand of developing countries to extend IP law system to Traditional Knowledge, Folklore and Genetic Resources. The protection of these matters could not be justified based upon economic considerations. In fact, it is based upon other values such as justice and fairness. The solution to overcome this hurdle is to believe in Value Pluralism at least at international level. Due to the diversity of the subject matters of IP law, as well as differences in beliefs and values of the host societies and failure of one single theory to justify all aspects of IP law, it is hard to reduce IP law system to one specific value. Instead, there are several values inside the system in which all of them have the same degree of importance and depending on each case, they could be super value. Therefore, it is necessary to find super value case by case and articulate any area of IP law in accordance with that Super value. Judges are also required to interpret the law on the protection of that specific superior value. After explaining the concept of pluralism of values and value monism, this article argues in support of pluralism of value in the field of intellectual property rights .In order to choose a super value in each case, two criteria will be provided.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
171
204
https://jplr.atu.ac.ir/article_9484_7a1f350c435c50a58c997a5b44653dd1.pdf
dx.doi.org/10.22054/jplr.2018.24968.1640
Unfair Contract Terms in Consumer Contracts
Morteza
Adel
Assistant Professor the Department of Private Law in University of Tehran, Tehran, Iran
author
Mohsen
Shamsollahi
PhD student of private law in university of Judicial Sciences and Administrative Services, Tehran, Iran
author
text
article
2019
per
Nowadays, the increase in using the contracts in which one party has a stronger position against the weaker party provides the stronger party a possibility to insert some unfair terms in contract. In recent years, some countries have tried to enact some legislation to protect the weaker party against such terms. This Article examines comparatively regulations on unfair contract terms in EU in order to consider its historical development, what an unfair contract term is and why the weaker party should be protected against such terms. General contract rules and some special protective Acts that have been adopted in recent years in Iranian law arises the question of how the protection of weaker party considers, especially consumers, against unfair contract terms. Our view is that although general rules and special acts, to some extent, protect the weaker party against unfair terms, it is necessary to enact new protective Acts for the purpose of full protection of consumers against these terms .
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
205
234
https://jplr.atu.ac.ir/article_9485_bd03e3bd75fcb939a7abba114ecad985.pdf
dx.doi.org/10.22054/jplr.2018.27677.1725
Early performance of contractual obligaition in Islamic and Iranian Law
Seyed Mohamad tagi
Alavi
Proffessor of University of Tabriz, Tabriz. Iran.
author
hossein
yousefi
LL.M. In Private Law University of Tabriz, Tabriz. Iran
author
text
article
2019
per
In contract law, general rule is that contractual obligation must be fulfilled in due date. Any breach of this rule either as a result of a delay or the lack of its implementation requires compensation. Undoubtedly, the time of contract performance is among the factors that has a direct effect on the parties’ liability. Therefore, the obligation must be met in due date within the definite period. However, there is a possibility that under some circumstances, the performance occurs earlier than due date which is interpreted as an early performance. The question is whether it is possible to perform before the due date. Although some countries have a clear legal position in this regard, Iranian law does not consider early performance. This subject has not discussed by lawyer and academics either. On the other hand, this issue has been dealt with by jurisprudence, and different views have been expressed. There is no stipulated valuation in Iranian Law, we suggest that this issue should be considered in the Civil Code.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
235
262
https://jplr.atu.ac.ir/article_9486_7d8cc927a42255721e2845bbe0d4cc7b.pdf
dx.doi.org/10.22054/jplr.2018.25010.1641
An Analysis of Concept of "Fortuitous Event" and its Impact in the Compulsory Insurance Act of 2016
Mehdi
Fallah kharyeki
Assistant Professor of Islamic Azad University, Ayatollah Amoli Branch, Department of Private Law
author
text
article
2019
per
Section (c) of Article 1 of compulsory insurance act of 2016, put under the law any accident caused by vehicles due to fortuitous events. In legal writings generally fortuitous events considered as force majeure, but this notion of fortuitous events with a lot of compulsory insurance act articles does not seem compatible. Hence, the question arises that "fortuitous events" in the compulsory insurance law, what does it mean and what is its impact? Review of legal writings show that, according to some French lawyers, Force Majeure and Fortuitous Event (Cas Fortuit), have different meaning but, in the writings of our law, such a conceptual distinction was known verbal argument and both, has studied as Force Majeure in general meaning. However, the use of such distinction between force majeure and fortuitous event is very revealing for unambiguous interpretation of compulsory insurance act of 2016. In order to illustrate the effect of this distinction, in the first part of this article, the concept of fortuitous event in general and specific and deficiencies of application of this concept is analyzed, so that in the second part, concept of fortuitous event and its effect is considered in the compulsory insurance act.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
263
288
https://jplr.atu.ac.ir/article_9488_d89e425fc9412ae27515bb29cd8721b6.pdf
dx.doi.org/10.22054/jplr.2017.20487.1535
The competent court and the governing law of copyright by reviewing international documents
Fatemeh alsadat
Iravan mohajeri
Ph.D. student of private law at Tarbiat Modares University, Tehran, IRAN
author
Morteza
Nassiri
Associate Professor, Faculty of Law, Tehran University, Tehran, IRAN
author
Mahmoud
Sadeghi
. Associate Professor, Faculty of Law, Tarbiat Modares University, Tehran, IRAN
author
text
article
2019
per
In the past, the protection of copyright was minimal, and the infringement of the copyright was regarded only as a tort. Conflict of law issues were resolved solely by the territorial approach to intellectual property rights and in accordance with the principle of national treatment. With the advent of the Internet, the availability and use of copyright were uncontrollably accelerated and facilitated, and the possibility of using cross-border copyright as well as the entry of the foreign element caused the complexity of these claims.The ubiquitous infringment of copy right is the result of broadcasting information on the internet and indeed in world that there is no solution for it in existing documents because of its novelty.The two fundamental issues of the governing law and the competent court in this article are aimed at responding to the efficiency or ineffectiveness of the common conflict of law system by studying the provisions of the Berne Convention as the most important document, the Brussels Convention and the ALI and the CLIP principles (as non-binding principles), and it was concluded that The traditional system of conflict of laws is not enough for this purpose and doesn’t respond the copyright lawsuits and so we requires a special conflict of law system.
Private Law Research
Allameh Tabataba’i University
2345-3583
7
v.
25
no.
2019
289
317
https://jplr.atu.ac.ir/article_9487_4ce712afe67030ab5a2e616bcba9c791.pdf
dx.doi.org/10.22054/jplr.2018.26135.1676