Document Type : Research Paper

Authors

• Hamidreza Nikbakht ¹
• Ahmad Hemati Kalvani ²

¹ Professor of Private Law at Shahid Beheshti University, Tehran, Iran

² Ph.D. student of Private Law at Shahid Beheshti University, Tehran, Iran

Abstract

Article 139 of the Constitution of the Islamic Republic of Iran, which restricts and binds the referral of litigation regarding public and State property to arbitration, for obtaining an approval from the government and the parliament, has led to different views and legal opinions. In general, they can be categorized into “literalist” and “realist” theory”. The result of literalist theory is that article 139 applies to any dispute that on the one hand, there is the State, and it has been agreed upon by arbitration and thus if any dispute exists, it will be resolved by arbitration in which, it should obtain an approval from the government and the parliament, otherwise, the arbitration will not be valid. According to this view, article 139, in general, is not economically beneficial for the State and therefore it must be thought upon. In contrast, there is the realist theory which can be a response to the literalist theory and holds that, with a rational and principled interpretation, the principle can be freed from the problems which are arisen by former theory and also the dynamics of principle 139 is useful for the State in terms of national interest

Keywords

• Arbitration
• Article 139
• Property
• Arbitrability
• Jurisdiction
• Judicial Arbitration