Private Law
Badie Fathi
Abstract
Il est possible que deux ou plusieurs affaires connexes devant deux juridictions distinctes et egalement competentes est en train d’etre instruit et en ce cas il exige que ces affaires mettent ensemble, envisagant ces rasions: la réduction des coûts sociaux et économiques, ...
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Il est possible que deux ou plusieurs affaires connexes devant deux juridictions distinctes et egalement competentes est en train d’etre instruit et en ce cas il exige que ces affaires mettent ensemble, envisagant ces rasions: la réduction des coûts sociaux et économiques, de permetre au juge de connaître correctement le problème et de résoudre tous les aspects du litige plus rapidement, la bonne administration de la justice, la prévention des jugements contradictoires et l'intérêt d'une bonne justice de les faire instruire et juger ensemble. Dans ce cas, le demandeur et le défendeur ont le droit et même l'obligation de soulever de Exception de connexité Selon l'article 103 de la loi de procédure civile d'Iran approuvée le 9 avril 2000 après JC. L’exception de connexité peut être soulevée devant les deux juridictions .Les systèmes de procédure civile de l'Iran et de la France sont similaires à cet égard,, mais il existe également des différences : par exemple, si L’exception de connexité est acceptée, les affaires connexes devraient-elles être renvoyées devant le premier tribunal ou le deuxième tribunal ? Il est nécessaire d'avoir un lien entre les affaires dans la procédure civile iranienne et française. Le lien peut être un lien simple,un lien suffisant et un lien complet(l’indivisibilité des pretentions). Il semble qu'un lien simple ne puisse pas de se dessaisir et de renvoyer de l'affaire, mais un lien suffisant et un lien complète peuvent de se dessaisir et de renvoyer de l’affaire. Parce que dans ce cas il existe entre les litiges un lien tel qu'il soit de l'intérêt d'une bonne justice de les faire instruire ou juger ensemble.En Iran L’exception de connexité a caractéristique de l’ordre public Donc Le juge peut, d'office, ordonner la jonction de plusieurs instances pendantes devant lui Mais en France Il résulte des articles 101 et 103 Code de procédure civile que le renvoi pour connexité doit être demandé par les parties. On admet que le juge ne peut relever d’office l’existence d’une connexité entre deux affaires.L’exception de connexité peut être soulevée par l’une des parties, mais aussi par un tiers mis en cause ou intervenant volontairement au litige Et pour raisond'ordre public. Le délai de soulevée L’exception de connexité , contrairement à la règle stipulée à l'article 87 du Code de procédure civile, qui stipule que les exceptions doivent être soulevées avant la fin de la première audience, Elle peut être déposée devant la Cour d'appel et la Cour de cassation. Par consequent le délai pour soulevée L’exception de connexité n'est qu'à la fin de la première audience. En France, il y a toujours eu un scepticisme face aux exceptions à la tradition héritée du droit romain.Parce que les soulevée entraîne des retards dans les procédures et la justice. Selon cette tradition issue de la domination romaine in limine litis, à l'article 74 du Code de procédure civile, il est stipulé que Les exceptions doivent, à peine d'irrecevabilité, être soulevées simultanément et avant toute défense au fond ou fin de non-recevoir. Il en est ainsi alors même que les règles invoquées au soutien de l'exception seraient d'ordre public.La demande de communication de pièces ne constitue pas une cause d'irrecevabilité des exceptions. Les dispositions de l'alinéa premier ne font pas non plus obstacle à l'application des articles 103, 111, 112 et 118. Il est précisé à l'article 103 que L'exception de connexité peut être proposée en tout état de cause, sauf à être écartée si elle a été soulevée tardivement dans une intention dilatoire.Ce qui est dit à l'article 103 » sauf à être écartée si elle a été soulevée tardivement dans une intention dilatoire.«peut être critique est critiquable. , Parce que l'objectif principal L’exception de connexité est la prévention des jugements contradictoires et avec cette déclaration, cet objectif est violé.en France Les recours contre les décisions rendues sur la connexité par les juridictions du premier degré sont formés et jugés comme en matière d'exception d'incompétence.En cas de recours multiples, la décision appartient à la cour d'appel la première saisie qui, si elle fait droit à l'exception, attribue l'affaire à celle des juridictions qui, selon les circonstances, paraît la mieux placée pour en connaître. Mais en Iran Les les decisions Concernant L’exception de connexité ne sont sujettes à aucun recours. Il s’agit d’une faille dans la loi et il est suggéré de la modifier. le fait de ne pas pouvoir porter plainte dans ce domaine est l'un des défauts de la loi sur la procédure civile, et il est suggéré que la loi soit amendée.Lorsque les juridictions saisies ne sont pas de même degré, l'exception de connexité ne peut être soulevée que devant la juridiction du degré inférieur. Bien que cela soit contraire au principe Double degré de jurisdiction. Les tribunaux français ont rarement accepté la connexité international Mais en Iran, selon l’article 971 du Code civil, cela n’est pas acceptable.
Private Law
Mehdi Zahedi; Sara Solhchi
Abstract
In contemporary intellectual property law, literary and artistic property rights extend beyond mere movies or literary works to encompass the fictional characters integral to these creative endeavors. This legal support not only serves to inspire creators but also to safeguard their imaginative achievements. ...
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In contemporary intellectual property law, literary and artistic property rights extend beyond mere movies or literary works to encompass the fictional characters integral to these creative endeavors. This legal support not only serves to inspire creators but also to safeguard their imaginative achievements. Among these creations, fictional characters hold a profound influence over our daily lives and entertainment pursuits, spanning various media such as movies, books, and computer programs. Iconic figures like Sherlock Holmes, Batman, and Superman exemplify the significant fictional characters that have received such protection. Given the vast diversity of fictional characters, it becomes imperative to secure the rights of their creators, thereby fostering the necessary motivation for their ongoing creativity. Consequently, the principal objective of this article is to delve into the mechanisms by which fictional characters are safeguarded within the framework of literary and artistic property rights. Specifically, the article seeks to address whether it is feasible to independently protect these characters within this legal structure.To achieve this goal, a descriptive-analytical methodology is employed, drawing upon court jurisprudence, particularly in the United States, to elucidate the legal underpinnings and delineate the elements, possibilities, and criteria for protecting fictional characters. Central to this examination are discussions on the concept of fictional characters, methodologies for protection, criteria for identifying infringements, proprietary rights, and protected elements. Moreover, it is important to note that data collection for this article follows a documentary and library-based approach. Utilizing the library method, a cornerstone of scientific research, ensures a comprehensive exploration of existing literature and resources. Through this methodological framework, data is systematically gathered and analyzed using a descriptive-analytical lens. The article concludes that fictional characters can indeed be independently supported, distinct from the larger artistic work. These characters are defined as "abstractions eliciting a response in the mind of the reader or viewer through written or spoken words." Consequently, certain guiding principles must be observed in supporting fictional characters, notably the principle of " idea-expression dichotomy." In the realm of works in in Literary and Artistic Property Law System, protection extends to the tangible expression of the work, rather than the underlying ideas. The work is defined as "the expression of creative and original literary and artistic thoughts of the creator that has been established in the outside world." Additionally, authenticity and fixation conditions are pivotal for support, ensuring the character's origin from the creator and its objective manifestation. Further examination focuses on tests designed to assess potential violations of fictional character rights, such as the " Distinct Delineation Test," the " Story being told test,” And the "three-part test." These tests evaluate elements such as physical appearance, identity, evolution, and narrative significance. Ultimately, an analysis of relevant cases demonstrates that courts recognize the possibility of independently protecting fictional characters, provided they exhibit originality and developed expression. The application of such tests within judicial procedures serves to bolster creator motivation, stimulate creative endeavors, and attract investment in cultural and artistic domains, alongside other cultural and social pursuits
Private Law
alireza bariklou; Alireza Azarbaijani; Hasan Omidvar
Abstract
The function of contemporary contract law goes beyond its classical function, which focused on the principle of contractual private and mutual interests. So that the function of contract law is to achieve social goals that are mainly to protect the security of legal relationship and necessity of debts ...
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The function of contemporary contract law goes beyond its classical function, which focused on the principle of contractual private and mutual interests. So that the function of contract law is to achieve social goals that are mainly to protect the security of legal relationship and necessity of debts payment, and not to harm others, the market regulation function whose main purpose is to support the market institution with three different approaches, -the self-reliance policy and minimal intervention, the transactional policy and exceptional intervention to finding the best solution to prevent the party from escaping the transaction, and the functional policy. Also, economic goals based on specific and case by case strategy such as the relief of hardship policies and general strategy such as economic planning policy of general rules to increase economic social welfare.A transaction with the intention of escaping from religion is a legal act that has caused difficulties in ensuring judicial justice, because the obligee by concluding such a transaction practically deprives himself of financial power and as a result, his previous obligation becomes non-binding according to the provisions related to debt.On the one hand, this situation causes losses to the creditors who have entered into a long-term transaction with the debtor's property in trust, and on the other hand, it causes the trader to benefit unjustly and illegitimately from the legal protections of the debtors, because according to the legal philosophy of these protection provisions, assistance is to the real debtors who themselves did not voluntarily expose them to debt, not those who use these protections as a means to escape from their obligations.In addition, the prevalence of this type of transaction, which leads to the appearance of a transaction without a composition, which is known as a formal transaction, and also the conclusion of a transaction without the intention of implementation, leads to the justice of the law of contracts and the provision of judicial justice, facing a problem in the subject law. to be The explanation of the issue is that the status of any contract can be examined in two stages: First, it is in the identification and legitimizing stage, in which the contract is evaluated in terms of social interests and general goals of contract law. If the transaction was in accordance with the goals of the basic principles, it will be recognized in the structure of the rights of the contracts, otherwise it will be declared prohibited. For example, Gharari transactions are not recognized in Islamic law, because it is against the goals of the basic principles. If a deal in this stage is in accordance with the underlying principles, it will be accepted and then it will be the second stage of its validation in the relations of the parties and in a case-by-case manner, whether the concluded contract has the correctness conditions? Therefore, the compliance of the transaction with the general rules and goals of contract law is referred to as legitimacy, and its non-compliance is referred to as illegitimacy and its compliance with superstructure rules, and its non-compliance is referred to as "nullity". It is worth remembering that although many books and articles have been written about this, but all of them have analyzed the issue from the point of view of validity and invalidity, while this article examines from the point of view of the legitimacy of the principle of the transaction, which according to the principle of respecting the rights of creditors, the trust of the Muslim market. And the social benefits and the need to resolve the conflict, has he considered such a deal as legitimate? In Iran's contract law, "transaction with the intention of evading debt payment" has become a legal problem in contractual relations, because on the one hand, in Article 218 of the Civil Code, such a transaction is considered valid and valid, and on the other hand, in the criminal regulations, It can be prosecuted under the title of fraud and other criminal titles. In this article, in an analytical-descriptive method, while rethinking and deepening the principles of contract law and distinguishing the superstructure and underlying principles, the status of this transaction was investigated in accordance with the basic principles of contract law, i.e. the principles from which the rules governing contracts are adapted.The main question of the current research is, what is the legal status of the transaction with the intention of avoiding debt payment from the perspective of the basic principles of contract law? It seems that the invalidity of this transaction is considered from the point of view of Sharia, because it brings consequences such as harming the creditor's income, depriving the Muslim market of confidence and increasing contract disputes, all of which are considered illegitimate according to Shari'a argumentsTherefore, in this article, in accordance with the general goals and function of contemporary contract law, in a descriptive-analytical manner, the Iranian contract law approach to the transaction with the purpose to escape debt payment was examined and it was proved that this transaction is not compatible with any of these goals so it is necessary to be changed.
Private Law
Ahad Gholizadeh Manghutay
Abstract
Bill Amending a Part of the Commerce Act 1969 (BACAI) is ambiguous about the manner of directors board members’ and executive manager’s fiduciary possession of joint stock company’s property. Commerce Act in other companies deems manager’s possession of company’s property ...
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Bill Amending a Part of the Commerce Act 1969 (BACAI) is ambiguous about the manner of directors board members’ and executive manager’s fiduciary possession of joint stock company’s property. Commerce Act in other companies deems manager’s possession of company’s property as agent’s possession of principal’s property. But, although agent’s possession of principle’s property is fiduciary and fault-based, it is unknown whether in case the company’s property suffers damages, manager (agent) is responsible unless he proves his innocence (diminished fiduciary possession) or he is not responsible unless the principle proves his fault (intensified fiduciary possession). Besides, in case of any doubt, which kind overrules? Further, dividing responsibility manner among various responsible persons such as directors’ board members and executive manager needs some discussion. Dividing fiduciary possession into diminished and intensified is a result derived from amalgamation of stages of truth and established judicial situation, i.e., from amalgamation of civil evidence with commerce law. There are clear signs for it in Commerce Act. This research shows that the Legislature as in the Commerce Act has deemed agent’s possession of company’s property as diminished fiduciary possession; in the BACAI as well it has not principally changed its mind in respect to directors board members’ and executive manager’s possession into intensive fiduciary possession but annual audition and financial clearance have disrupted possibility of applying the diminished fiduciary possession. In case responsible persons were more than one, responsibility would be divided proportionally and if there was no reason to the contrary, proportions would be equivalent.Obviously, determining manner of board members and executive manager’s possession can respond to a variety of issues about manner of their responsibility. Separation of fiduciary possession into diminished and intensified and setting the diminished fiduciary possession as principle is also helpful in this case, and in the first step, it determines that board members or executive manager are plaintiff or respondent of the lawsuit. Obviously, intensified possession in which responsibility continues to be based on fault should not be confused with guarantors possession in which liability is not based on fault. Although fiduciary possession can be converted into guarantors possession, and moment of this conversion can be determined by resorting to the principle of the lateness of the event. Diminished fiduciary possession, including customer’s possession, mortgagee’s possession and tenant’s possession may also become intensified due to unwanted staying of property at the possession of fiduciary; As we can see in the non-delivery of the cargo from the transport operator, the non-appointment of the successors of the board members with the expiration of their term of office, or in exercising the right of bailment of the transport operator. In fact, just knowing that the responsibility of board members and executive managers is based on fault has not been enough to respond to the relevant issues.The legislator considers fiduciary possession of an attorney (or representative) to be a diminished fiduciary possession, i.e. the attorney is liable for the property he has been entrusted with unless he proves his innocence. Therefore, Commerce Act too considers the manager's possession on the properties of different types of companies, including limited liability, general partnership, limited partnership, joint stock partnership, and proportional liability partnership as diminished fiduciary possession. In the 1968 amendment bill and the Cooperative Sector Act, despite the inconsistencies in the amendment bill, the legislature has not promoted its view on the members of the board of directors and the executive manager’s possession to intensified fiduciary possession but annual audits and account clearances have impaired the possibility of applying diminished fiduciary possession In such a way that after auditing and approving the balance sheet and profit and loss account for each year, for that year possession is considered as intensified fiduciary for the board of directors and executive manager, that is, they are assumed to be clean for that year unless their dishonesty and culpability are proved. This can also be extended to the companies contained in the Commerce Act. In the event of a multiplicity of responsible persons, responsibility will be proportional and in the absence of the opposite reason, proportions would be equal.There is no funding support.
International Law
Fereshteh Banafi
Abstract
Artificial intelligence is the ability of a computer system to solve problems and perform tasks that would otherwise require human intelligence. Artificial intelligence technologies have evolved for decades. Today, many countries are going to develop artificial intelligence in their military programs. ...
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Artificial intelligence is the ability of a computer system to solve problems and perform tasks that would otherwise require human intelligence. Artificial intelligence technologies have evolved for decades. Today, many countries are going to develop artificial intelligence in their military programs. Using artificial intelligence for the military purpose will cause many human rights challenges, especially in the area of privacy which is regarded as a fundamental right in a conflict. This privacy extends to cyberspace, to ensure informational privacy and protection of data. Therefore, this research descriptively analyzes the legal and political arrangements and gaps in international humanitarian law and international human rights to protect the privacy in military artificial intelligence between the parties in a conflict and concludes that despite the shortcomings of international humanitarian law and international human rights law, resisting national security to protect informational privacy and delegate the definition of international human rights frameworks in the field of artificial intelligence as part of the authority of private companies besides formal and informal legislation can fill gaps in the rules governing the use of artificial intelligence in a conflict.It should be noted that in recent years, the human rights community has been busy with digital rights, and especially with the effects of artificial intelligence technology, and there has been increasing attention to the relationship between international human rights laws and standards governing military artificial intelligence.With regard to the use of artificial intelligence, one cannot ignore the danger of constant tension between the purpose and nature of artificial intelligence on the one hand and its use for ethical decision-making in military matters, even with the presence of human control. It should be noted that the advantages of using artificial intelligence in the military field have great potentialities, but it may also create several challenges. For example, Artificial Intelligent technologies can facilitate autonomous operations, lead to more informed military decision-making, and increase the speed and scale of military operations. However, it may be unpredictable or vulnerable in some ways. Therefore, in addition to the benefits of artificial intelligence in military industries and lowering the cost of the physical presence of the them, threats caused by the use of artificial intelligence, especially in fully autonomous weapons, and the violation of informational privacy and the establishment of a system of responsibility and accountability for filling legal loopholes caused by the use of artificial intelligence is very necessary.In this regard, the first possible danger from a military environment under the supervision of artificial intelligence in case of the silence of humanitarian and international human rights rules, data contamination and as a result the loss of digital, physical, political and community security and the distortion of the fundamental right to human dignity. The competition of countries in the use of artificial intelligence to upset the balance of power in the world community has created an increasing concern about the fall of rights and ethics. In this regard, suggestions can be made to amend the rules of international human rights in order to regulate the regulations of military artificial intelligence during the conflict. First, it is a violation of national security for information privacy. The mere fact that a national action is taken to protect national security cannot be a document of violation of fundamental human rights laws by a country. Second, international human rights standards in the field of artificial intelligence should be included in the statutes of private companies. Empowering employees as part of the authority of companies is one of the things that can limit the use of artificial intelligence outside the framework of human rights. And, the promotion of the rules of international humanitarian law whether formally or informally.Informal legislation includes common understandings based on non-binding resolutions and declarations, guidelines and regulations of uniform professional conduct, the practices of industries, domestic laws and policies, civil society reports and political policies, and international and transnational dialogues. Also, redefining and amending official human rights treaties by international institutions can cover digital rights under the rules of international human rights and humanitarian rights. Despite this, although data protection and information privacy regimes are not applicable due to the exclusion of national security of countries, but by establishing informal norms and legislation in international humanitarian law, it is possible to help include the ethics of artificial intelligence in the contemporary laws of war. It is a key factor in human control, which is necessary to comply with international humanitarian law and to satisfy ethical concerns, as a basis for internationally agreed limits on independence in weapons systems. This research has tried to provide a strategy upon which helping the international community to strengthen the rules of humanitarian law and international human rights against the threats caused by the use of artificial intelligence in the military context in the field of violation of the right to informational privacy and accountability of those who violates it.
International Political Economy
mahmood bagheri; Saeed Rahmani; yasamin afsharifard
Abstract
With the emergence of the age of explosion of information and communication, all aspects of human life were affected by this. In such a way that the use of technology has become one of the inseparable parts of today's world. With the expansion of global trade, the need for advanced systems for monetary ...
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With the emergence of the age of explosion of information and communication, all aspects of human life were affected by this. In such a way that the use of technology has become one of the inseparable parts of today's world. With the expansion of global trade, the need for advanced systems for monetary and financial exchanges was felt more. With the remarkable progress of information and communication technology, banking networks have decided to facilitate and develop their calls and orders regarding financial transactions by creating infrastructures based on information and communication technology. In this, financial messenger systems have been of special importance, because in fact, these systems are the main infrastructure of establishing communication between domestic and international banks. Also, these systems are used for large financial transactions such as issuing letters of credit and guarantees. The most famous international example of these systems is the SWIFT network, which is the most extensive financial messaging network where almost all banks in the world are in contact with each other through the infrastructure and language of this network. Due to the unique features that SWIFT has compared to other financial transfer networks and methods, it can be said that the monopoly of financial messaging networks is in the hands of this financial messaging network. This means that returning to bilateral methods or creating a parallel platform is impractical and uneconomical. On the other hand, in different systems, governments regulate regulations based on various motives, such as limiting the economic power of a company, securing the interests of a particular company, or even for political exploitation. One of the ways to achieve this goal, the public institutions regulating the sectoral regulations, in order to provide safe and continuous public services to the citizens, protect the rights of consumers and investors, and also use the order as much as possible in the way of the interaction of the players of the markets in question. The distinctive feature of the recognition of sector regulations should be considered as the monopoly of these regulations in the market and the constituent sectors. Therefore, it is considered the main inspection of non-competitive markets that the government enters this sector with the title of "regulator". That is, the government intervenes by using the policy of economic regulation and in the form of sectoral regulatory institutions, in order to, on the one hand, support the consumers by bringing the performance closer to the optimal conditions, and on the other hand, prevent the spread of inefficiency and economic anomalies. In this case, the purpose of sector regulatory institutions and economic regulation systems is to regulate the activities of natural monopolies, especially public benefit industries and services, to protect the interests of consumers and improve efficiency. Thus, by creating economic regulation systems, the government tries to simulate a competitive market in a way, and by imposing regulatory regulations, it forces the relevant monopolies to act like a competitive market. Natural monopoly and the creation of a banking messaging unit network for financial exchanges and transfers have led to a sharp reduction in transaction costs for banks. In other words, with the advancement of technology and the provision of suitable infrastructure for the communication and connection of all banks to each other, the creation of a platform and a single communication language made the use of traditional methods such as telex and two-by-two communication of each bank with the other bank eliminated. However, due to the fact that the control and supervision of SWIFT is in the hands of a minority of the member countries, this company has abused this position based on its economic interests and its influential members and can, based on unilateral contractual conditions, target the members of the minority. Deprived of their services this minority practically has no substitute. On the one hand, since the existence of a natural monopoly in a product and service excludes it from the supervision and control of the regulations of competition law, and since SWIFT, as a system that provides banking services, is a natural monopoly, and the creation of other networks for Financial transactions for banks have no relative advantage, so it seems that this monopoly network should be monitored and controlled through sectorial regulations. With regard to the above, this research by explaining the special features of banking financial messenger networks, emphasizing and relying on SWIFT features and the similarities of these features with natural monopoly industries; It is looking for a solution to set regulations to control and monitor this financial messenger network. First, by examining the structure and legal nature of SWIFT, it has acquainted with the mechanism of this financial messenger network and its relationship with banks, and by examining the role of information technology in creating a natural monopoly for monopoly networks and systems; it has to know the advantages and disadvantages of such a monopoly.
Private Law
Mohamad hossein Taghipour; Seyedeh tahereh Mosavi khatir
Abstract
Any right, whether positive or negative, can be transferred. Assignment means that all or a part of the existing obligation is transferred to one or more persons with the agreement of the assigner and the assignee without obtaining the consent and agreement of the debtor, for compensation or free of ...
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Any right, whether positive or negative, can be transferred. Assignment means that all or a part of the existing obligation is transferred to one or more persons with the agreement of the assigner and the assignee without obtaining the consent and agreement of the debtor, for compensation or free of charge. The person who becomes the owner of the obligation after the assignment can use all the attributes and benefits of that obligation. One of the basic issues in the discussion of the assignment is the debtor's rights and the way to protect their rights in the assignment. The review of domestic laws shows the ambiguities and gaps of this legal entity, and the resolution of these ambiguities and gaps depends on comparative study. Therefore, this research with a comparative study aims to answer the question of what are the rights of the debtor in the assignment and how can the rights of the debtor be protected at the time of the assignment? In this research, in a descriptive and analytical way, the voluntary assignment and the way of protecting the rights of the debtor in the assignment in the legal system of Iran and English law and the principles of European contract law will be dealt with, which is appropriate considering the countless gaps in this matter. Iran's legal system benefited from the achievements of other legal systems, especially the principles of European contract law, which is an international document, and its basic foundations are based on European common law, in order to improve and eliminate gaps.By referring to some laws such as Articles 746 and 321 of the Civil Code, Article 38 of the Insolvency Law, and Article 26 of the Insurance Law, it is possible to prove the existence of assignment in Iran's legal system and its independence and distinction from the legal institution of Novation. According to this research, the legal rules about assignment should be set in such a way as to protect the debtor. The first way to protect the debtor is the non-assignment clause in contracts, which is accepted in all three legal systems. In addition, there is a general rule in the assignment that the assignee cannot have more rights than the assigner, or even in some cases may have fewer rights than the assigner, which ultimately owes the benefits of this general rule. In addition, if the assignment takes place between the assigner and the assignee and the debtor takes action to fulfill the obligation to the assigner before receiving the official notification, in this situation, the obligee will not re-enforce the obligation and leave the resulting loss to the parties. In the rule of Prior Tempore Potior Jure, the first assigner is based on the date of assignment, and in the rule that was adopted in the case of Dearle v Hall, the date of written notice to the debtor is the criterion for determining the person entitled to enforcement.In the British legal system and the principles of European contract law, a written notice to the debtor about the assignment is mandatory, but there is no provision in Iranian law regarding the written notice to the obligee after the assignment. This issue is also one of the important objections regarding the assignment request. Of course, according to the insolvency Law, the assignee can be released from responsibility by proving that he informed the assignment before payment or that the debtor was informed about the assignment by another means. Therefore, in Iranian law, the knowledge of the debtor is effective in transferring the claimant, and this knowledge can be realized in both written and oral ways.So the necessity of compiling and enacting comprehensive laws in relation to the legal entity of the assignment and assigning an independent title to it in civil law considering the great importance of this legal entity and especially considering the expansion of transactions in the field of international trade and increasing the speed of exchanges, is seriously felt. Also, like English law and the principles of European contract law, in Iranian law, a written notice to the debtor about the assignment must be required in the form of a statement or by the court officers, because in this case, it avoids creating any dispute and ultimately leads to a reduction in the number of claims.
Oil and Gas Law
Hesam Khodayarinejad; Mehrab Darabpour
Abstract
Tax has undeniable role in Provision of the governments general budget and special position in financial regime of all oil and gas contracts. Host states always trying to provide presence and investment conditions of multinational enterprices in oil and gas industry for advancing their economic goals ...
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Tax has undeniable role in Provision of the governments general budget and special position in financial regime of all oil and gas contracts. Host states always trying to provide presence and investment conditions of multinational enterprices in oil and gas industry for advancing their economic goals and collecting considerable Income tax. Although multinational enterprises are important actors in the international trade and one of the main factors of global economic growth, the destructive effects of some of their actions are not desireable. The structure of these companies is somehow that parent company controls and manages many subsidiary companies in various countries and advances its besiness goals in any way possible. This structure provides for these companies the possibility of tax avoidance via transfer pricing mechanism. In international oil and gas industry, a significant volume of transactions are between parent company and its subsidiary companies or between subsidiary companies of a parent company. Transfer pricing is a mechanism based on that goods. services, rights and property related to intellectual property, facilities and ... transfer from parent company to subsidiary or between subsidiaries of parent company at a price different from the usual market price. Indeed, the purpose of utilization of this mechanism is internalization of transactions and determining desired prices for the purpose of reducing taxable income and transfer of funds from geographic territory with a high income tax rate to another geographic territory with a low income tax rate. Host countries tax revenues affected by this action of multinational companies. Host countries with the aim of collecting maximum tax revenues determine financial regime of oil and gas contracts, whiles controlled transactions of multinational enterprises obstruct this goal. Transfer pricing violates competition law to the detriment of small companies. Although multinational enterprises with their structure internalize transactions, avoid tax payment and save financial resources resulting from it easily, but small companies do not have such a capability, can not avoide tax liabilities and invest financial resources resulting from it in other sectors. Oil and gas industry due to the need to huge investment and modern technologies is desprately depending on the presence of multinational companies, and a very high turnover of money increase the motivation of those companies in the utilization of transfer pricing mechanism. Supply of required goods and services from affiliated companies at a price outside the normal market price and providing facilities with an interest rate higher or lower than the usual rate reduce tax income of host states and create many challenges to deal with this problem. Utilization of Arm's-Length principle is the most efficient tool to deal with transfer pricing. Based on this principle, if the price of goods and services exchanged in controlled transaction between two related companies differ from the usual price of those goods and services in uncontrolled transaction between two independent companies, tax experts ignore the price of controlled transaction and base the price of uncontrolled transaction for calculation of taxable income. This principle is universal and the method of its applying has been predicted in the tax laws and regulations of most countries. It is determined, By examining judicial precedent of countries, that tax experts, in calculating the due tax, ignore price announced by tax payer and by applying this principle determine taxable income. Despite all the advantages of the arm's-length principle, the challenges of its application cannot be overlooked. Comparative analysis is the basis of applying this principle and to do this, tax experts should find similar transaction related to same goods or services exchanged in a controlled transaction to compair price. In most cases, desired goods and services are unique and finding a similar transaction is impossible. This research, with the library method and examining judicial precedent, explains the transfer pricing of multinational companies with the special attention to the international oil and gas industries to find out that how these companies, by internalization of transactions and determination of their desired price, avoid paying tax to host governments. In the following, coping with transfer pricing by applying arm's-length principle, methods of applying this principle and Iran's legal status in dealing with this problem will be reviewed to find out that which legal instruments Iranian National Tax Administration has to deal with transfer pricing.
