نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق خصوصی، واحد اراک، دانشگاه آزاد اسلامی، اراک، ایران
2 استادیار گروه حقوق خصوصی، واحد فراهان، دانشگاه آزاد اسلامی، فراهان، ایران
3 استادیار گروه حقوق خصوصی، واحد اراک، دانشگاه آزاد اسلامی، اراک، ایران
کلیدواژهها
عنوان مقاله English
نویسندگان English
1. Introduction
The global aviation sector depends on a an effective legal infrastructure for aircraft financing to attract investment and manage credit risk. International instruments—particularly the Geneva Convention (1948) and the Cape Town Convention (2001)—have established new frameworks for accessory real rights, including the direct enforcement of rights and asset-based financing. In contrast, the Iranian legal system recognizes the traditional mechanism of judicial enforcement of accessory rights, which mandates under Article 779 of the Civil Code that enforcement requires judicial intervention. This structure imposes significant economic costs on Iranian airlines, including higher interest rates and limited access to international capital markets.
Research Questions
1. Main Research Question:
Are accessory real rights (ḥuqūq ‘ayniyya tabi‘iyya), as provided for under the Geneva Convention (1948) and the Cape Town Convention (2001), compatible with the principles of Imamiyyah jurisprudence and the Iranian legal system, and can they be implemented within Iran’s current legal framework?
2. Subsidiary Research Questions:
1. What capacities do Iran’s new financing laws provide for harmonization?
2. What are the economic effects of accession to each of these international conventions?
3. What strategies can be adopted to harmonize Iranian law with these international instruments?
2. Literature Review
Existing scholarship on aircraft financing in Iran is fragmented and often examines civil law and Imamiyyah jurisprudence only to a limited extent.
1-2. Domestic Legal Scholarship
Iranian legal scholars have extensively analyzed Article 779 of the Civil Code and its application to financing contracts.
1-1-2. Civil Law Interpretations
Scholars such as Dr. Katouzian and Dr. Shahidi emphasize the judicial nature of security enforcement within a prescribed procedure.
2-1-2. Recent Legislative Developments
Studies by Eshraghi Arani (2015, 2016) and Jafari (2020) examine the capacity of the Financial Facilitation Laws of 2015–2023 to overcome traditional barriers, although they do not systematically integrate this legislation into international frameworks.
2-2. Jurisprudential Approaches
Classical Imamiyyah sources, including Jawāhir al-Kalām (Najafi) and Tahrīr al-Wasīlah (Imam Khomeini), have rarely been used in contemporary discussions to address concepts such as commercial self-help, despite containing flexible principles such as awfū bi-l-ʿuqūd (fulfillment of contracts) and lā ḍarar (no harm).
3-2. International Comparative Studies
International literature (e.g., Goode, 2022; IATA, 2022) underscores the economic impact of the Cape Town Convention. However, the general neglect of Imamiyyah jurisprudence has limited the development of legal dialogue.
3. Methodology
This research employs a descriptive-analytical and comparative method. Its primary sources include:
- Jurisprudential texts (Tahrīr al-Wasīlah, Jawāhir al-Kalām);
- Iranian legislation (Civil Code, Financial Facilitation Laws of 2015 and 2023, Law on Removal of Obstacles to Production);
- International instruments (Geneva Convention of 1948, Cape Town Convention of 2001);
- Case law from international tribunals (e.g., AerCap Holdings N.V. v. Iran Air).
The doctrinal analysis is supplimented by economic data on financing costs and an evaluation of recent reforms in Iran.
4. Results and Discussion
The study finds that Imamiyyah jurisprudence does not contain a substantive prohibition on the self-help enforcement of security interests. Rather, principles such as taslīṭ (dominion over property) and ‘urf (commercial custom) support contractual autonomy. The main structural obstacles in Iranian statutory law include:
- The requirement of judicial enforcement under Article 779 of the Civil Code;
- The invalidity of irrevocable powers of attorney under Article 19 of the Elimination Obstacles to Production Law;
- The absence of a centralized and internationally recognized aircraft registry.
However, the recent financing legislation marks a significant shift by establishing a unified collateral registry, thereby laying the institutional groundwork for legal harmonization. The economic cost of non-accession is substantial: Iranian airlines face financing costs that are 10–15% higher than those faced by the signitoreis of the Cape Town Convention. The paper argues that the jurisprudential conflict can be resolved through arguments based on public interest and an expansive interpretation of ‘urf in commercial contexts.
5. Conclusion
Full accession to the Cape Town Convention is not merely a legal reform but an economic imperative. The study proposes a “gradual harmonization” model, which includes:
(1) Making reservations on matters concerning Islamic jurisprudential rules;
(2) Amending the Civil Code to permit the direct enforcement of security interests in aircrafts;
(3) Establishing a national aircraft registry that is compatible with the International Registry;
(4) Developing judicial expertise in transnational secured transactions.
This pathway enables Iran to acheive financial integration without compromising its jurisprudential foundations.
کلیدواژهها English
