Private Law
Saeed Mahjoub
Abstract
IntroductionDiscussion of human tissues can be approached from two perspectives. The first concerns the issue of property and ownership in tissues that have been separated from the human body. The second concerns the transferability and potential exploitation of human tissue after partial or complete ...
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IntroductionDiscussion of human tissues can be approached from two perspectives. The first concerns the issue of property and ownership in tissues that have been separated from the human body. The second concerns the transferability and potential exploitation of human tissue after partial or complete modification—a field of inquiry situated at the intersection of medical law, intellectual property, and ethics. Corresponding to these two perspectives, numerous claims have been brought before the U.S. legal system. Prominent examples include Moore v. Regents of the University of California and Lacks v. Thermo Fisher Scientific Inc. In the former, the plaintiff claimed that his spleen cells, removed during medical treatment, were subsequently used for scientific and commercial purposes without his consent.The case of Lacks v. Thermo Fisher Scientific Inc. dates to the 1950s, when cells from Henrietta Lacks’s cervix were taken without her knowledge or consent and developed into the first immortal cell line (HeLa). This generated substantial profits for the physicians and companies involved. Decades later, after her family became aware of what had happened, they filed a lawsuit alleging violations of the civil and moral rights of Lacks’s survivors, as well as unjust enrichment through the use of biological tissues without the individual’s consent. These two cases occupy a distinctive place in the comparative law literature due to the way they frame the legal issues and the reasoning adopted. Accordingly, the present study aimed to analyze the two cases and discuss their legal dimensions. Literature ReviewIn “A Comparative Study of Organ Trade in France and the Legal System of the Islamic Republic of Iran,” Rahimi-Zamanaabadi and Babaei-Sakhmars (2024) examined the causes and factors underlying the trading of human organs. In another article titled “Organ Trade From the Perspective of Imami Jurisprudence,” Asghari and Abedian-Kalkhuran (2014) merely collected and presented the views of Islamic jurists on the issue. In “Examination of the Evidence for the Legitimacy of Buying and Selling Body Organs in Shia Jurisprudence,” Fakhla’i and Golbaghi-Masouleh (2014) analyzed the relevant evidentiary sources and concluded that organ trade is valid under Shia jurisprudence. The study by Rajaei et al. (2011), titled “The Nature of the Relationship Between a Person and Their Body Organs From the Perspective of Islamic Jurisprudence and Law,” adopted the theory of incomplete dominion (sulṭah-yi nāqis) through a purely jurisprudential analysis, without addressing the broader implications of the theory. Although Rajaei et al. (2011) is jurisprudentially consistent with the current study’s approach, it did not examine the position of Iran’s legal system, nor did it analyze the implications of the theory within that legal framework. Moreover, the novelty of the current analysis lies in its comparative perspective. Materials and MethodsThe present research employed a descriptive–analytical method. It also relied on library sources to collect the data and present the discussion. Results and DiscussionThe nature of the relationship between a person and their body tissues can be understood as follows. First, according to the criterion that divides organs into principal (ra’īsiyyah) and non‑principal (ghayr ra’īsiyyah), and given the invalidity of the sale or donation of principal organs, if a tissue falls within the category of principal organs, its sale, purchase, or donation is undoubtedly void. Therefore, the discussion concerns only non‑principal and regenerative tissues. On the one hand, these tissues may possess proprietary status (māliyyah), and on the other hand, the person exercises a form of dominion over them. Accordingly, the relationship must inevitably be characterized as a right of ownership (ḥaqq‑i mālikiyyat) in its full sense. However, although human organs and tissues may have lawful utility (manfaʿat‑i muḥallaleh) and rational utility (manfaʿat-i ʿuqalāʾī), the subject matter involves the human person and human personality. For this reason, the legislature has often prohibited such transactions in order to prevent the trafficking in the human body. Consequently, the recognition of full legal proprietary status for these organs within the legal system remains subject to doubt.Furthermore, the recognition of bequests (waṣiyyah) concerning organs—given that a bequest is conceivable only with respect to property—and the absence of a strict identity between ownership (milkīyyat) and proprietary status (māliyyah) indicate that an individual possesses a form of dominion and exclusive control (ikhtiṣāṣ) over their organs. It is precisely this dominion that has led the legislature to permit organ donation and the making of bequests concerning organs.Therefore, tissues such as cells, plasma, and similar biological materials may be regarded as customary property (māl‑i ʿurfī). However, due to legislative prohibitions grounded in considerations of public interest, the preservation of human dignity, and respect for the sanctity of the human person (ḥurmat‑i nafs), their full legal proprietary status is denied, and complete ownership over them is not recognized. Nonetheless, this does not negate the existence of dominion and a right of exclusive control for the individual. This right falls within the category of exclusive control (ḥaqq-i ikhtiṣāṣ), rather than objective ownership (mālikiyyat-i ʿaynī), and belongs exclusively to the individual whose body it is. Accordingly, others may not possess, exploit, analyze, or commercialize such tissues without the individual’s permission.Briefly, the implications of this theory are as follows. First, this form of ownership establishes for the individual a right of exclusive control (ḥaqq-i ikhtiṣāṣ), rather than a right of transaction (ḥaqq-i muʿāmalah). Second, any unauthorized use constitutes usurpation (ghaṣb) and is thus prohibited. Third, due to the lack of legal proprietary status, its sale is impermissible; however, its donation is valid. Moreover, because the tissues are regenerative, repeated donation is possible. Fourth, under the rules governing gifts (hibah), receiving considerations in the form of customary compensation or a reward for donation is permissible. As long as such compensation does not customarily amount to a commercial transaction, the repetition of this practice does not face any legal impediment. ConclusionThe analysis of Moore v. Regents of the University of California and Lacks v. Thermo Fisher Scientific Inc. demonstrated that even in legal systems with well‑developed property rules, courts approach separated human body parts with caution and often refrain from recognizing traditional property rights over them. In effect, the U.S. legal system has been reluctant to enter the domain of the proprietary status of human tissues, often justifying this position on the grounds that recognizing such proprietary rights could hinder the progress of medical research. In the absence of a comprehensive determination regarding the proprietary status of human tissues, the U.S. legal system has instead focused on the patient’s consent, which represents a secondary level of the discussion. For this reason, particular emphasis is placed on the informed consent and the ethical and professional responsibilities of physicians in the exploitation of human tissues.In Iranian law, separated body parts—provided that they possess rational utility (manfaʿat-i ʿuqalāʾī) and exchange value—may be the subject of trading. However, regarding non-separated body parts, a distinction must be made between principal and non‑principal organs. Given the general invalidity of their sale and purchase in either case, and despite the conditional acceptance of bequests, the prevailing view considers such transactions invalid—except in the case of a bequest for the purpose of donation. It should be noted that none of the aforementioned approaches is sufficient. Rather, it is necessary for the legislature to explicitly recognize the concept of incomplete dominion (sulṭah-yi nāqis) and ownership in the sense of a right of exclusive control (ḥaqq‑i ikhtiṣāṣ) over human tissues.
Private Law
Maryam Sharifi Renani; Mohammad Sadegh Teimoori
Abstract
IntroductionThe legal regime governing patents is to prevent the unauthorized imitation of patented intellectual property. At the same time, the principles of competition law and antitrust regulations promote fair competition and use in business practices. However, the restrictive power of competition ...
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IntroductionThe legal regime governing patents is to prevent the unauthorized imitation of patented intellectual property. At the same time, the principles of competition law and antitrust regulations promote fair competition and use in business practices. However, the restrictive power of competition laws against patent holders may create tensions, as patent owners may abuse their exclusive rights through monopolistic conduct. The key issue in this conflict is achieving a balance between competition law policies and intellectual property rights. The legislator has recognized the principle of contractual freedom in concluding various types of licensing agreements, as well as the rights of intellectual property owners; however, this does not imply that the abuse of such rights is permissible.The legitimacy or illegitimacy of package licensing agreements remains an unresolved issue in both the legal literature and U.S. case law. More seriously, Iranian law contains no explicit provisions regarding package licensing agreements. The importance of establishing legislative criteria to determine the legitimacy or illegitimacy of such agreements—as well as the non-applicability of its illegitimacy—stems from the technical and technological advantages they may offer despite their potentially anti-competitive nature. In essence, there is a delicate balance between compliance with competition law standards on the one hand and the need to benefit from the technical and technological advantages of package licensing on the other, a balance that requires legislative intervention. Literature ReviewYears after the enactment of the Sherman Act, the U.S. Department of Justice issued a set of licensing guidelines in 1977. These guidelines identified nine terms—known as the Nine No‑No’s—that licensors were prohibited from imposing on licensees. This approach remained in place until 1988, when the Department of Justice issued new guidelines that repealed the prohibition on these nine terms. The Nine No‑No’s included terms that an intellectual property rights holder could impose on a licensee despite having no direct connection to the subject matter of the agreement. One item identified in the guidelines as impermissible was the inclusion of package licensing provisions. Materials and MethodsThis research adopted a qualitative and analytical legal approach, employing both descriptive and doctrinal methods. It first reviewed the historical evolution of American legislation concerning package licensing and examined how courts had ruled on the legitimacy or illegitimacy of package licenses. The research also explored the interpretive challenges posed by the Sherman Act, particularly regarding the meaning and scope of patent holders’ rights. In addition, judicial decisions issued by U.S. courts were analyzed to identify the prevailing case law. The methodology combined statutory interpretation, case law analysis, and theoretical reasoning to evaluate the relationship between patent holders’ rights and competition law. The study also applied principles of economic and legal analysis in intellectual property law to assess the social and economic consequences of such provisions in package licensing agreements. Results and DiscussionWhat enables the licensor to grant a package license, in addition to the willingness to enter into such an agreement, is the close relationship among the items included in the package on the one hand and the licensee’s need for all of them on the other. Considering the principle of freedom of private contracts and the economic advantages of package licensing agreements, without denying their necessity and importance in global trade, it should nevertheless be noted that imposing such agreements on the licensee may constitute an abuse of rights. In this respect, requiring the licensee to accept items beyond the main subject matter of the agreement for which the licensee originally applied is clearly inconsistent with antitrust principles and rules.An examination of the case law of the U.S. courts indicates a judicial tendency toward further narrowing the doctrine of abuse of rights. Their growing willingness to recognize the legitimacy of package licensing agreements reflects a trend that—although consistent with the exclusive nature of intellectual property rights and with respect for the principle of freedom of contract—is not without risks. In particular, it may contribute to the creation of anti‑competitive environment and encourage monopolistic behavior by intellectual property holders. ConclusionConcerning the Iranian context, the Law on the Implementation of the General Policies of Article 44 of the Constitution does not specifically address package licensing agreements; however, Article 45(1) of this law explicitly prohibits parties from conditioning a contract on the acceptance of terms unrelated to the subject matter of the agreement by nature or commercial custom. However, the mere connection among the items included in a package does not appear sufficient to justify the legitimacy of a package license.It would therefore be appropriate for the legislator to consider necessity and indispensability, or at least complementarity among the packaged items as criteria for the legitimacy of such agreements. This approach would help prevent the anti-competitive practices of inventors while still recognizing the technical and technological advantages of package licensing and protecting the lawful monopoly rights of inventors. Furthermore, the invalidity of the objective of disruption in including such clauses in contracts constitutes a significant shortcoming in domestic law, which in turn merits legislative attention. By establishing clear criteria for the legitimacy of package licenses, the legislator could relieve victims of anti-competitive practices from the burden of proving fault and pursuing civil liability claims, while also providing clearer guidance to judges.
Private Law
Mahdi Hasanzadeh
Abstract
IntroductionThe common situation is that the court issues a verdict covering the entire case. However, in some instances, the court may issue a verdict on only part of the case. This situation can arise and be examined in two different ways. First, it may occur deliberately, based on the court’s ...
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IntroductionThe common situation is that the court issues a verdict covering the entire case. However, in some instances, the court may issue a verdict on only part of the case. This situation can arise and be examined in two different ways. First, it may occur deliberately, based on the court’s decision pursuant to Articles 104 and 298 of Iran’s Civil Procedure Code. Second, a verdict on part of the case may be issued without an explicit decision announced by the court, possibly as a result of the court’s oversight or inattention. The first situation involves Articles 104 and 298 of Iran’s Civil Procedure Code, which contain complex and debatable points. The second situation, however, is characterized by a legislative silence, which makes a thorough examination and analysis of the issue all the more necessary.In this respect, the present study aimed to examine the issue by answering the following questions: What is the purpose of dividing a lawsuit under Articles 104 and 298 of Iran’s Civil Procedure Code? What is the role of the plaintiff’s request for a verdict on part of the claim that is ready for decision? What is the nature of the court’s duty or authority in this regard? Finally, what is the logical solution in situations where part of the lawsuit remains unaddressed? Literature ReviewIt seems there is no comprehensive research contribution about the subject of the current inquiry. Materials and MethodsSince the reality in both situations is practically and consequentially the same, the solutions applicable to one situation can also be applied to the other. Moreover, the similar nature of these two situations calls for their joint examination. Accordingly, the present study analyzed both situations within a single inquiry into the issuance of a verdict on part of a civil lawsuit. Results and Discussion Issuing a verdict on part of a lawsuit may therefore be examined in two situations. The first arises when the court, based on Articles 104 and 298 of Iran’s Civil Procedure Code, expressly decides and announces that it will issue a verdict on part of the claim. The second arises when such a situation occurs without any explicit decision or announcement by the court, possibly as a result of the court’s oversight. In practice and in terms of consequences, the reality of these two situations is the same. This similarity calls for their joint examination and for the development of coordinated solutions and analyses.Regarding the first situation, we encounter repetitive and inconsistent language in Articles 104 and 298 of Iran’s Civil Procedure Code. Article 298, which obliges the court to issue a verdict on the concluded part of a divisible claim, is open to criticism. Similarly, the application of Article 104, which appears to require a verdict on the concluded part of a divisible claim, sometimes leads to illogical results. To modify these provisions, there is the need to interpret Article 104 as a matter of the court’s discretion, except where the petitioner has requested it.Regarding the second situation, the law provides no explicit ruling. From an analytical perspective, given the similarity of this situation to the first in terms of the factual circumstances, it is appropriate to rely on the ruling of Articles 104 and 298 and to distinguish between divisible and indivisible lawsuits.In divisible lawsuits, the issuing court should be considered obligated to render a ruling on the part that remained unaddressed. In indivisible lawsuits, however, the issued verdict should be regarded as extending to the part that remained unaddressed, and the division that occurred in issuing the verdict should be treated as an error that may lead to the overturning of the verdict at the stage of appeal. ConclusionThe purpose of dividing a lawsuit in Articles 104 and 298 of Iran’s Civil Procedure Code should be understood as the separation of a part of a single claim. Nevertheless, the ruling of these articles may also apply to cases involving multiple claims. Imposing an obligation on the court to issue a verdict on the concluded part of the case may, in certain situations, lead to illogical results. Therefore, the ruling contained in Article 298 is open to criticism in this respect. In resolving the apparent conflict between Articles 104 and 298, it is preferable to interpret Article 104 as conferring discretion on the court, except in cases of the petitioner’s request.Regarding the situation in which part of the lawsuit remains unaddressed, the logical solution is to require the issuing court to render a judgment on the unaddressed part when the lawsuit is divisible. However, if the lawsuit is indivisible, the nature of its indivisibility extends the effect of the issued verdict to the unaddressed part. In such circumstances, the court’s attempt to separate the lawsuit by issuing a verdict only on part of it constitutes a violation of Articles 104 and 298 of Iran’s Civil Procedure Code and may serve as grounds for overturning the verdict at the stage of appeal.
Private and Islamic Law
Seyed Ali Mirlohi; abbas karimi
Abstract
IntroductionThe global labor market is undergoing a fundamental transformation. Traditional employment models—based on permanent, full-time contracts—are increasingly giving way to new and more flexible forms of working relationships. This shift constitutes one of the defining characteristics ...
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IntroductionThe global labor market is undergoing a fundamental transformation. Traditional employment models—based on permanent, full-time contracts—are increasingly giving way to new and more flexible forms of working relationships. This shift constitutes one of the defining characteristics of the 21st-century economy. Factors such as economic globalization, advances in communication technologies, the rise of the gig economy, and businesses’ increasing need to reduce fixed costs have all accelerated this transition. At the center of these changes are flexible work contracts, which enable employers to adjust their workforce in response to fluctuations in market demand. Among these emerging models, zero-hour contracts (ZHCs) have emerged as one of the most flexible—and most controversial—forms of employment relationships.Originating primarily in the common law system—particularly in the United Kingdom—ZHCs create an employment relationship in which the employer has no obligation to provide a minimum number of working hours. Conversely, in non‑exclusive arrangements, the worker is not required to accept the work offered. Payment is made solely for the hours actually worked. While this structure obviously responds to the needs of sectors such as services and retail, it can create a significant lack of job and income security for workers.The Iranian legal system lacks statutory provisions or a specific legal definition, yet signs of similar arrangements are emerging in online platforms and seasonal businesses in the country. This practical reality presents the legal system with a serious legislative vacuum. The central issue lies in the apparent tension between ZHCs and the fundamental rules governing the validity of transactions in Imāmī jurisprudence (fiqḥ), as well as the protective principles of the Iranian Labor Law.The present study tried to address the following research questions: What is the legal status of ZHCs in the Iranian legal system, given their apparent conflict with the rule of gharar in Islamic jurisprudence and the protective principles of the Iranian Labor Law? Furthermore, can a legal mechanism be developed to validate these contracts conditionally without undermining the fundamental rights of workers?Literature ReviewThe topic of ZHCs has received limited attention in Iranian legal scholarship. Existing research can generally be divided into three categories. The first category includes studies on the general principles of contracts in Islamic jurisprudence and civil law. The second category consists of labor law research focusing on definite and indefinite employment contracts. Although scholars have examined job security in temporary contracts and the judicial precedent of the Court of Administrative Justice, they have not specifically addressed the floating or indeterminate nature of working hours in ZHCs. The third category encompasses general studies on the gig economy. While these works discuss flexible work arrangements more broadly, they lack a detailed jurisprudential and legal analysis of the validity of ZHCs in Iran.Materials and MethodsThis research adopted a descriptive–analytical approach based on library research. The primary sources included authoritative works of Islamic jurisprudence, Iran’s statutory laws (particularly the Civil Code and Labor Law), legal doctrine, and the experience of selected legal systems, such as those of the United Kingdom and New Zealand. The analysis began by examining the nature and characteristics of ZHCs from a comparative perspective. It then applied the analytical tools of legal reasoning and Imāmī jurisprudence to assess the validity of ZHCs. The focus was on resolving the tension between the need for flexibility and the peremptory rules of Iranian law.Results and DiscussionZHCs are distinct from similar arrangements (e.g., hourly employment contracts, piecework, and reward contracts or juʿālah) recognized under Iranian law. Their defining feature is the combination of employment subordination—which brings them within the scope of the Iranian Labor Law—with the absence of any mutual obligation to offer or accept a minimum amount of work. Unlike standard hourly contracts, under which a basic framework of working hours is usually agreed upon, ZHCs contain no guaranteed minimum of work.From the perspective of Imāmī jurisprudence, the principal obstacle to the validity of ZHCs is the rule prohibiting excessive uncertainty or risk known as the rule of gharar. Because the employer does not guarantee a minimum number of working hours, both the subject matter of the contract (the quantity of work) and the consideration (the total wages) remain indeterminate at the time the agreement is concluded. This research argues that although the degree of gharar at the outset appears significant, the contract may still be validated under the principle of validity (aṣālat al‑ṣiḥḥa) if certain legal mechanisms are incorporated. In particular, the study suggests that the element of uncertainty can be mitigated either by transforming it into a reasonable and customary commercial risk or by introducing appropriate contractual stipulations that clarify the parties’ rights and obligations.Under the Iranian Labor Law, ZHCs appear to conflict with Article 7, which requires a definite subject matter for employment contracts, and Article 36, which relates to social security contributions. The absence of guaranteed working hours undermines the principles of job security and economic security that underpin labor protections. Moreover, the current social security system in Iran is structured around continuous employment. As a result, the sporadic and irregular working hours characteristic of ZHCs may create gaps in workers’ insurance records, potentially depriving them of retirement and medical benefits.The current study evaluated two approaches to obviate the challenge. The first is the approach advocating for employer restriction. This approach proves to be inefficient in the Iranian context, as it undermines the flexibility required by production sectors and may push employment into the informal or black market. Instead, the study proposed a second, more innovative approach: worker empowerment and social security modernization. This model is built on three pillars as elaborated below.The first pillar is statutory non-exclusivity. The law must explicitly prohibit exclusivity clauses in ZHCs. Worker security should not come from forcing a single employer to pay for idle time, but from allowing workers to hold multiple ZHCs simultaneously. The second pillar is the modernization of the social security system through the adoption of an hourly-based model. The social security system should be reformed so that insurance premiums are calculated and collected based on actual hours worked rather than on a daily or monthly basis. This would ensure that, even in fragmented employment, workers continue to build uninterrupted social security records. The third pillar is the establishment of a supplementary hourly unemployment fund. A specific mechanism should be established under which a small percentage of each hourly wage is deposited into a supplementary unemployment fund to support workers during periods of low demand.ConclusionThe emergence of ZHCs places the Iranian legal system at a crossroads between traditional protectionism and modern economic realities. This research concludes that ZHCs, in their absolute and unregulated form, are invalid because they conflict with the jurisprudential rule of gharar and the protective principles of the Iranian Labor Law. However, declaring them entirely void is not a viable solution, as it disregards the realities of the labor market.The analysis showed that attempting to force ZHCs into traditional molds—such as by imposing mandatory minimum hours—is counterproductive. The optimal solution lies in systemic reform based on a flexible security approach. By legally prohibiting exclusivity clauses and modernizing the social security system to support cumulative, hourly‑based benefits, the legal system can allow these contracts under regulated conditions. Such an approach preserves the flexibility needed for economic growth while protecting workers’ fundamental rights and livelihoods.
Private Law
Ebrahim Rahbari; Ali Khajavi
Abstract
IntroductionLarge technology platforms play an unparalleled role in the global digital economy. Under the EU Digital Markets Act (DMA), a company is legally designated as a gatekeeper only if it meets specific quantitative and qualitative statutory criteria—such as annual turnover, size of the ...
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IntroductionLarge technology platforms play an unparalleled role in the global digital economy. Under the EU Digital Markets Act (DMA), a company is legally designated as a gatekeeper only if it meets specific quantitative and qualitative statutory criteria—such as annual turnover, size of the user base, and an entrenched market position—rather than merely exhibiting general market dominance. Companies satisfying these thresholds, such as Google, Apple, and Amazon, function as primary intermediaries between business users and end-users. Through mechanisms such as network effects, lock-in effects, economies of scale and scope, and massive data accumulation, these firms have created significant barriers to entry, thereby disrupting competition.These dynamics have raised global concerns regarding contestability, fairness, and transparency in digital markets. In response, the EU adopted the DMA in 2022, shifting from a traditional ex-post approach to an ex-ante regulatory framework. This Act imposes specific obligations on designated gatekeepers to prevent anti-competitive practices before they occur. In Iran, the relevant legal framework consists of general competition laws—particularly the Law on the Implementation of the General Policies of Article 44 of the Constitution—as well as regulatory instruments issued by the Supreme Council of Cyberspace and the Audio-Visual Media Regulatory Authority (SATRA). The current research aimed to provide a comparative analysis of the DMA and Iran’s legal framework to assess whether the country’s current laws are adequate or structural reforms inspired by the EU model are required. Literature ReviewThe current study relied on the theoretical distinction between ex post competition law and ex ante sector‑specific regulation. Traditional competition law often reacts too slowly to the dynamics of digital markets, where tipping points can rapidly lead to monopolies that are difficult to reverse. The exiting literature generally categorizes the challenges posed by gatekeepers into three forms of competition: (1) inter‑platform competition, which refers to competition between different platforms seeking to attract users (e.g., iOS and Android); (2) intra‑platform competition, which concerns competition among business users operating within a single platform (e.g., merchants on Amazon); and (3) cross‑platform competition, where gatekeepers leverage their market power to expand into or influence adjacent markets. In addition, the literature review highlighted that the DMA was introduced because existing antitrust tools—such as Article 102 of the TFEU—were inadequate for addressing structural market failures in which winner‑takes‑all dynamics prevail. The paper also examined Iranian legal doctrine, particularly the Policies and Requirements for Competition Protection and Anti‑Monopoly in Cyberspace Platforms and SATRA’s guidelines, and evaluated how these frameworks would define market dominance and anti‑competitive conduct compared with the more sophisticated and precise concepts set out in the DMA. Materials and MethodsThis research employed a descriptive–analytical and comparative legal methodology. It undertook a detailed textual analysis of the DMA—focusing on Articles 5, 6, and 7 concerning gatekeeper obligations—and compared these provisions with relevant Iranian statutes, including the Law on the Implementation of the General Policies of Article 44 of the Constitution, the Supreme Council of Cyberspace’s policies, and SATRA’s regulations. The study assessed the legal nature of the obligations by distinguishing between self‑executing rules and those requiring further specification. The analysis also examined the definitions of gatekeeper and dominant position, and evaluated the enforcement mechanisms available in both jurisdictions. Results and DiscussionThe comparative analysis yielded several findings regarding the DMA framework. The DMA imposes obligations to ensure contestability and fairness in digital markets, which can be understood according to the type of competition involved. In terms of inter‑platform competition, the DMA prohibits anti‑steering provisions that prevent business users from directing consumers to offers outside the platform. It requires that end users be able to uninstall pre‑installed applications and change default settings, including the possibility of sideloading. These measures are intended to reduce barriers to entry for competing platforms. With respect to intra‑platform competition, the DMA places particular emphasis on prohibiting self‑preferencing under Article 6(5). Gatekeepers that perform a dual role—acting both as a platform host and as a competitor within the platform—are prohibited from ranking their own products or services more favorably than those of third parties. They are also restricted from using non‑public data generated by business users on the platform to compete against them. Finally, regarding cross‑platform competition, the DMA seeks to prevent gatekeepers from leveraging their power into adjacent markets by prohibiting the bundling of core platform services (e.g., identification or payment services) and by restricting the combination of personal data across different services without the user’s explicit consent (i.e., consent bundling).The Iranian legal framework reflects a more fragmented and less systematic approach. The policies adopted by the Supreme Council of Cyberspace refer to platform service providers rather than defining gatekeepers based on clear quantitative thresholds. Although these policies prohibit restrictive pre‑installed applications and require a degree of transparency in ranking algorithms, they frequently conflate obligations owed to end users with those owed to business users. While they also prohibit exclusivity arrangements and unfair terms, they lack the precise and structured ex ante rigor that characterizes the DMA. Similarly, SATRA’s guidelines introduce the concept of user‑centric gatekeeper media, defined according to market share (40% or more) or user base (more than one million users). These guidelines mandate data access for business users and prohibit discriminatory ranking practices. However, their scope is confined to the audio‑visual media sector, leaving other digital markets outside their regulatory reach. Broadly speaking, there are critical gaps. Unlike the DMA, Iranian regulations do not provide a clear and unified definition of gatekeeper applicable across all digital sectors. The Iranian approach relies predominantly on general competition law concepts—particularly the abuse of dominance—which requires a lengthy proof of fault. By contrast, the DMA’s per se obligations facilitate more streamlined enforcement. Furthermore, Iranian regulations often mix criminal law notions, such as hoarding, with the competition law, thereby diluting its economic focus. ConclusionAlthough Iranian policymakers have recognized the risks posed by digital monopolies—evident in regulatory documents addressing issues such as algorithmic transparency, pre‑installed applications, and data portability—the current framework suffers from structural fragmentation and a lack of legal certainty. The comparative analysis showed that the strength of the DMA lies in its structured system of obligations, which operates across four principal dimensions: (1) obligations toward end users, such as ensuring portability and meaningful choice; (2) obligations toward business users, including fair access and the prohibition of self‑preferencing; (3) obligations toward other platforms (interoperability); and (4) obligations toward regulatory authorities, especially with respect to transparency in mergers and profiling practices.By contrast, the Iranian legal framework remains largely reactive and lacks a clear designation of gatekeeper that would automatically trigger specific regulatory obligations. As a result, it is recommended that the Iranian legislature could benefit from adopting a regulatory model similar to that of the DMA in order to promote a fair and competitive digital economy. Such an approach would involve establishing clear quantitative and qualitative criteria for identifying gatekeeper platforms, distinguishing more clearly between obligations owed to business users and those owed to end users in order to address the distinct power imbalances in each relationship, and introducing ex ante regulations that prohibit specific anti‑competitive practices (e.g., self‑preferencing) without requiring lengthy market analysis, thereby enabling faster and more effective regulatory intervention.
Private Law
Hosein Davoodi; Mohammad Sharifzadeh Lari
Abstract
IntroductionContemporary legal systems face the fundamental challenge of balancing legal certainty with the flexibility required to achieve substantive justice in individual cases. This tension is reflected in a wide range of judicial and quasi‑judicial decisions. The present research aimed to address ...
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IntroductionContemporary legal systems face the fundamental challenge of balancing legal certainty with the flexibility required to achieve substantive justice in individual cases. This tension is reflected in a wide range of judicial and quasi‑judicial decisions. The present research aimed to address a theoretical and practical gap in Iranian law, that is, the absence of a coherent framework for classifying judicial decisions according to the nature and scope of the decision‑maker’s authority. The argument rests on the understanding that judicial decisions can and should be fundamentally categorized as either discretionary or legal. This dichotomy is not merely semantic; it carries significant implications for reasoning criteria, methods of legal interpretation, and the scope of appellate review. The study intended to develop and justify this typological framework and demonstrate its analytical value in clarifying ambiguities in judicial reasoning, improving oversight mechanisms, and strengthening the standards of fair trial in Iran. Literature ReviewExisting scholarship on judicial discretion has generally followed two paths. The first consists of substantive, definitional studies focusing on conceptualizing discretion, distinguishing it from its abuse, and emphasizing the judge's role in making fair choices despite legal gaps or ambiguities. The second includes domain-specific, institutional studies that examine the concrete exercise of discretion (e.g., in determination of jurisdiction) within specific legal frameworks. Despite their contributions, a significant theoretical gap persists in the literature, particularly regarding Iranian law. It concerns the absence of a systematic, dual-focus framework that classifies judicial decisions according to the nature and scope of the decision-maker’s authority into two fundamental categories: discretionary and legal. Such a framework would also develop distinct and proportionate criteria for assessing the adequacy of judicial reasoning and legal citation in each category. This study sought to fill that gap.3. Materials and MethodsThe current study adopted a descriptive–analytical method combined with a comparative approach. The descriptive–analytical method helped systematically examine Iranian statutory law (e.g., the Civil Procedure Code, the Civil Code, and the Family Protection Law), judicial precedent (particularly uniformity of judicial precedent rulings of the Supreme Court), and doctrinal scholarship. The objective was to identify, classify, and analyze the characteristics of different types of judicial decisions. The comparative approach served two purposes. First, it helped to situate the case of Iran within broader global jurisprudence concerning discretion, judicial reasoning, and oversight. Second, it offered a way to draw normative support and practical insights from established principles in other legal systems, such as the relationship between the breadth of discretion and the depth of required justification. To enrich the analysis and validate the proposed framework, the study incorporated comparative insights from administrative law principles in the United States (e.g., the requirement of reasoned decision-making) and the European Union (e.g., the principle of proportionality and the duty to give reasons). The analysis was organized into three main sections: (1) establishing the discretionary versus legal typology, (2) defining the criteria of sufficient reasoning for each category, and (3) examining the corresponding methods of legal interpretation. Results and DiscussionThe analysis yielded a clear and operational typology. Discretionary decisions (e.g., the appointment of a guardian, the determination of child custody, or the authorization of gender reassignment) are characterized by a high degree of personal judgment and merits‑based assessment (maṣlaḥat). In contrast, legal decisions are primarily defined by the application of legal rules and statutory text. This category is further divided into two subcategories: (a) decisions involving the technical application of law (e.g., awarding the damages or interpretating contractual penalty clauses), which require controlled and structured interpretation; and (b) decisions based on specifically defined legal grounds (e.g., dismissing a claim for lack of jurisdiction or issuing an eviction order upon the expiration of a lease), which amount largely to the mechanical application of clear statutory conditions.Furthermore, the required standard of reasoning must be proportionate to this typology. For discretionary decisions, the reasoning must be justified and reasoned, emphasizing a transparent, evidence‑based justification of the merits‑based assessment. For legal decisions, however, the standard varies. Decisions involving the technical application of law require reasoned, documented, and justified opinions supported by substantial legal analysis. By contrast, for decisions based on specified legal grounds, a simple identification of the satisfied legal condition (i.e., a reasoned determination) is often sufficient.The appropriate interpretive method likewise correlates with the type of decision. A realist and teleological approach is inherent in discretionary decision‑making, whereas legal decisions are generally governed by a text‑oriented approach. Within the category of technical legal decisions, however, considerations of equity (insāf) may justify a limited departure from strict textualism in order to avoid injustice. A key practical implication for judicial oversight is that appellate review of discretionary decisions should be deferential, confined to ensuring procedural fairness and the absence of abuse of discretion. By contrast, review of legal decisions—particularly those involving the technical application of law—can and should be more substantive, scrutinizing the correctness of legal interpretation and the coherence of the reasoning. ConclusionThe present study proposed and supported an analytical framework for classifying judicial decisions in Iran on the basis of the discretionary/legal dichotomy. According to the findings, this framework is not merely a theoretical construct, but a practical tool capable of clarifying frequently blurred criteria governing judicial reasoning, legal citation, and review. Recognizing the inadequacy of the one-size-fits-all approach, the framework advocates a proportionate model. In this respect, discretionary decisions require reasoning that justifies the exercise of judgment, while legal decisions require reasoning that demonstrates fidelity to, and correct interpretation of, the law. The implementation of this differentiated approach—through judicial training, clear guidelines from the Supreme Court, and informed appellate practice—holds considerable potential for improving the quality of adjudication, strengthening judicial legitimacy, and balancing the competing demands of flexibility and predictability within Iran’s legal system. Future research may extend this framework to quasi‑judicial and administrative decision‑making bodies.
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