alimohammad hakimian

Arbitration is one of the important methods of dispute resolution in domestic and international law. The traces of this legal institution can also be found in Imamiyyah jurisprudence, known among jurists as the appointed judge (qadi tahkim). Imamiyyah jurists have resorted to religious evidence from the Quran, Sunnah, and consensus to legitimize arbitration under the title of appointed judge. The present research, using an analytical-descriptive method and library data collection tools, answers the question: What is the basis of arbitration in Imamiyyah jurisprudence? Should the appointed judge have all the conditions of an appointed judge, or is having some conditions of an appointed judge sufficient? The findings of this research show that the majority of jurists, citing verse 35 of Surah An-Nisa, consider the basis of arbitration to be appointment and have considered all conditions of an appointed judge necessary for the appointed judge as well. It should be said that the evidence of the majority of jurists does not have the power to prove all the conditions of an appointed judge, including ijtihad, for the appointed judge.

Judgment arbitration which is opposite to appointment judgment is an institution in jurisprudence to settle disputes between the parties and is now appearing in legal law as “arbitration” and this method of resolving legal jurisprudential disputes is growing day by day due to respect for the rule of the parties’ will in choosing the judge or arbitrator. There is disagreement among jurists about the Quranic proofs of the legitimacy of this jurisprudential-legal institution, such that some derive its legitimacy from some verses of the Quran, and others believe that it is not legitimate based on some other verses. The question is, what are the verses that imply the legitimacy or illegitimacy of arbitration (judgment arbitration)? What are the implications of each of these verses? Although a comprehensive jurisprudential examination of each issue requires the examination of all evidences of jurisprudence, including the Four Sources or al-Adillat al-Arbaʿa (Arabic: الادله الاربعه) or Quran, the tradition, consensus, and reason, in this article, by focusing on the verses of the Quran and maintaining the centrality of the noble verses of the Holy Word of Revelation, the verses that the commentators have raised indicate the illegitimacy of arbitration. (such as the verse referring disputes and disagreements to God and the Messenger and the verse about faith with referring disputes to the Prophet) has been the subject of controversy, and among the verses that those who insist on the legitimacy of arbitration, only the meaning of verse 31 of Sūra al-Nisāʾ about marital duties (Arabic: نشوز, “Nushūz” is a jurisprudential term mainly referring to a wife’s disobedience of her husband in things like sexual requests and leaving the house without his permission. It is also used for a man when he disrespects her and does not observe her rights. It is also used for marital discord) has been accepted, and with the acceptance of the imperative word of “appoint” (Arabic: فابعثوا) in this verse and the rejection of the theory of being directory for this word and with the proof that this verse is not assigned to the disputes of the spouses and considering its general governing on all claims and disputes (with the help of Sīrah al-ʿUqalaʾ and argument a fortiori and some narrations), the legitimacy of the institution of arbitration in law and judgment arbitration in jurisprudence has been proven.

One of the foundations of the Islamic government is the legitimacy of its laws and legal system. The governing laws in society are legitimate as long as they have no least inconsistency or contradiction with the religious prescripts (laws) and the Muslim jurists are those who deduce the religious prescripts from legal evidence and issue them in the form of jurisprudential fatwas. Therefore, a law is legal when it does not contradict with the judicial decrees(fatwas). However, the judicial decrees of the Muslim jurists as regards to a single subject-matter can be different. Now the question arises as to which of these judicial decrees can be a standard or criterion in legislation. Drawing upon the descriptive-analytic method, this article holds the view that many possibilities in the realm of the standard judicial decrees may fall into the state of confusion in such a way that scholars have put the individualistic jurisprudence the subject of their discussion while according to the thesis raised in this essay, the society-based jurisprudence should constitute the basis for the recognition of a standard judicial decree. In this connection, this article seeks to introduce the society-based jurisprudence as the main context for deducing standard judicial decree. It also makes mention of this issue that no judicial decree can be set as a criterion for legislation and that the judicial decree can be a standard one when it is derived from the society-based jurisprudence and can thus be characterized as being consistent with other judicial decrees, being able to resolve the problems and being in correspondence with the objectives of the Law (shariÝah).

One of the requirements in the field of legal discussions is to find consistent and reliable foundations for the challenges related to issues such as environmental degradation. This study aims to find a local basis for the protection and preservation of the environment, especially where the environment is devastated and degraded. The question arises here is that among the local principles, can the rule of respect be used in the protection and preservation of the environment and for the liability resulting from its destruction and damage? In order to achieve the objectives of the research, the necessary data have been collected from library sources and were examined via the descriptive-analytical method. Based on the findings of the present study, the rule of respect is known as one of the possible principles in justifying civil liability for violating the right in the realm of the environment. The need to respect and protect the environment are justifiable on the one hand, given the intrinsic value of the environment and secondly, its instrumental value for better life of the human and its significant economic value in human life and also, the substantial damages that destructive actions against the environment inflict on human life and his/her material and spiritual benefits. On the other hand, arguments of respect, incidentally, include both financial and non-transactional aspects. In addition, the integrity of this protection, inevitably, requires that it be justified in case of violation of liability for compensation of harmful and destructive action against the environment.

To settle arguments or conflicts of the parties, two judges may be involved, a judge who is appointed in the Islamic Law, and a judge who makes judgements on the basis of arbitration institution. The study of the legitimacy of this highly helpful institution to the judiciary constitutes the basic question of this article. There have been little disputes over the legitimacy of this institution among the Muslim jurisconsults, and finally its legitimacy has been generally accepted at the time of the Infallible Imams (peace be upon them). Regarding the possibility of personal judgement on the basis of arbitration institution when the Infallible Imams are not present, the well-known religious scholars, basing their arguments on certain traditions (transmitted reports), believe that if the judge is a mujtahid (a jurisprudent who can infer Islamic rulings from resources and is an authority on Divine Law), his decision is legally binding (operative) whether he is an appointed judge or he is a judge by arbitration; and if the he is not a mujtahid, his decision, even if there is a mutual agreement between parties on his decision, is not legally binding or operative. They have made the conclusion that the judge by arbitration can be attributed to someone who, despite of being qualified to occupy the office of a judge, is not appointed as a judge by the Infallibles (peace be upon them) when they are present. This article tries to cast light on the arguments for the legitimacy of judgement on the basis of arbitration institution. However, due to the fact that the traditions concerning the judge by arbitration are said to have general application, that no attention is paid to the distinction between presence and nonpresence of the Infallibles (peace be upon them) as an important factor as regards traditions, and that the assumption of the wise is to be taken into consideration, the commonly accepted view regarding the issue in question has been scrutinized. To sum up, taking into consideration the traditions quoted by Abikhadijah, the ability to make judgements (being a mujtahid) is considered not to be the necessary and special qualification of a judge by arbitration. In addition, in the Islamic government, when the Infallibles (peace be upon them) are not present, the legitimacy of this institution as the one which can settle the disputes has been established.

International arbitrators to determine the law governing oil investment contracts believe in opinions and theories to explain their nature and the enforcement of the law even in cases where the parties have identified the predominant law which suggests their compliance with purely theoretical classic or academic revised opinions. Apparently one cannot bound to a fixed theory on the nature of foreign investment contracts in oil upstream sector. Each contract is created under its own terms and in a specific legal system, taking into account the needs of the parties and the prevailing economic conditions. Usually, during the pre-contract negotiations, the parties are informed of the amount of need, conditions and economic situation of the other party and, accordingly, follow the process of concluding the contract. In determining the nature, the extent of the role of each of these cases must be determined. Therefore, in this paper, in contrast to the various doctrines about the nature of these contracts, the theory of "flexible contracts" is presented. Thus, the view of oil contracts in a spectrum of nature rather than a specific nature compatible with any contract can be surveyed and explained. This flexibility is not abandoned, and it has a leg within the regulatory order of the host state. This theory can, by examining the legal and economic factors that compel the parties to conclude a contract, not only to capitalize on the legal issue based on the external realities of the market but also to reduce the impact of noneconomic factors.

The research method used in this study is the description and examination of the prevalent theories with an analytical approach along with the critique of these theories. And considering all the basic and effective elements in the nature of upstream sector of oil contracts, through a logical standpoint to the status of capital exporting countries and host countries of capital, the theory of Mokhtar or the preferred theory has become rationally investigated.

Need of oil-rich countries for capital, management and technology services and modern technology of major oil companies (For more information, see: Library of the Institute for International Studies on Energy, 2001: Vol. 3: 645-601) and the readiness of oil companies to invest in huge oil resources and contribute to those resources to reduce the seller's risk and the use of high investment benefits in energy sources, the oil-rich countries and major international oil companies have been compelled to conclude major contracts in the upstream sector of oil. These treaties have raised serious developments in international law. All of which seeks to play the role in demanding the financial rights derived from contracts concluded between the companies (transnational corporations or multinationals) and the state institutions of the host countries. In some cases, these relationships lead to differences between the parties and, consequently, refer to the official arbitration centers or issue case judgments (Mohebbi, 1995: 385-446). The judges had to determine the nature of the contracts to resolve the legal disputes so that they can find a lawsuit verdict. These legal conflicts have occurred in cases of confiscation, nationalization or unilateral termination of the contract (Mohebbi, 1996: 9-70). The contracting states, referring to principles such as "the principle of self-determination", which many lawyers consider it as the most fundamental principles of the jus cogens (Tunkin, 1957: 208) and also the famous principle of "the permanent right of nations to rely on all resources of underground wealth and economic activities"; the principles that were repeatedly expressed and emphasized in the resolutions of the General Assembly and some other United Nations organs, especially paragraph 1 of Article 2 of the Charter of the Rights and Duties of the Countries which make their works being legitimate (Alidoosti Shahraki, 1990). Large oil companies did not remain silent. In response, they put forward ideas such as the theory of the acquired rights and "the principle of pacta sunt servanda" which is more or less a theoretical basis for foreign companies to be entitled to compensation in exchange for expropriation (Sonarajah, 1986: 171). Investigating the claims of the parties and their legal reasons gave rise to different opinions about the nature of these contracts between the international arbitrators. This difference between the judges of the internal courts of the host country of the capital at the stage of consideration or execution of arbitration judgments created different opinions which also spread to academic legal circles. Some in this legal battle have tried to support the countries that own oil and gas reserves. And others who have become more popular in their views have argued for the benefit of large oil companies. Having regarded the state of the capital exporting countries and host countries of capital, the author should adopt the theory of flexible oil contracts in upstream sector of oil.

Having major oil companies with advanced management and technical services and their ability to explore, develop, produce and extract oil with high standards and Maximum Efficient Recovery (MER) will encourage them to conclude a contract with the host government. The high cost of doing these things is not usually either in the capacity of the host government or the host government prefers to spend its finances on infrastructure that does not encourage the private sector. The host government's strategy and its need for modern international oil companies and the acceptance of the cost of the project by them will make the host government of the capital that owns the oil reservoirs to award concessions to the opposite side. On the other hand, the host countries, by developing a legal regime that meets the needs of the country, tries to guide the foreign investor to the realization of the goals that his legal regime is based on. The realization of this goal is another factor that compels the capitalist countries to award the international contractor. The fact that these contracts are for the satisfaction of the public interest of the host country and that the government may take action to change or terminate it is accepted by the investment companies which is also accepted in international arbitration judgments; But the signing of the contract by the managing director of the state company and approval by the parliament or the Council of Ministers or without the involvement of the representatives of the government is effective in interpreting the contract and the lack of consideration of its legal effects may lead to irreparable damage. It seems that, given the degree of awarding advantage by the host country or the contracting party, which is based on the analysis of the terms of the contract, in particular the terms and conditions contained therein, and the type of contract that may be of a concession, partnership or service, the nature of the contract may be clarified. Therefore, given that each contract is in certain circumstances, it can be said that for foreign investment contracts in the upstream sector of oil, one can not give a firm view of their nature. Each contract is created under its own conditions and in a particular legal system, and the extent of the role of each of the aforementioned principles in determining its nature should be examined. Therefore, the author termed this idea as "the theory of flexible contracts", in order to examine the nature of the matter in accordance with its principles and its own context. This nature can benefit from the broad spectrum of private domestic contracts or public-to-international contracts.

Contracts under the abuse of urgency have not been discussed in Fiqh (Islamic Jurisprudence) as an independent subject. The Islamic Jurisprudents have discussed this issue in the book of foods and drinks, following the discussion on the justifiability of consuming (eating) another’s property when in an emergency; five different theories are available about the status of the contract between the person in distress and the owner of the food; the theory of Detailed Adjustment of the Contract has been accepted and chosen due to jurisprudential reasons.
To make the theories more clear, firstly the literal and jurisprudential concepts of duress and urgency will be presented; then the scope of duress and urgency in contracts will be distinguished and the effects of duress and urgency in their scope would be investigated.Then the five theories drawn from juristic bookswill be discussed, and finallyby referring to related Hadith’, the chosen theorywill be expressed, criticized and explained with regard to jurisprudential foundations.

Jurists have tried to introduce the juridical institution of automatic guarantee in various forms such as “wasting”, “causing”, “chances of gain or loss”, “the rule of possession”, “infringement”, “negligence”, and other instruments. They have not clarified, however, that whether these rules are bases to determine the responsible or to specify responsibility. In the present study, having distiguished the two bases, the author has intrdouced the rule or respect as the basis for responsibility of Muslims toward each other and the rule of no harm as the basis of responsibility for non-Muslims. The main and essential difference between two bases is that, in addition to be obliged to not harm each other’s properties, lives, and fames, Muslims are obliged to perform positive actions to fulfill the above obligations; while, toward non-Muslims, they are only negatively obliged and they should not harm their lives, properties, and fames.