azam ansari

Iranian legislator Article 481(2) of the Civil Procedure Code (2000) states that an arbitration agreement is set aside if one party dies or becomes incapacitated. Although this article doesn't explicitly mention insolvency, some Iranian lawyers believe that insolvency should be considered a form of incapacity, leading to the termination of the arbitration agreement. Some courts follow this approach, considering an award unenforceable if rendered after one party's insolvency. This essay, using a descriptive-analytical method and comparative approach, aims to answer the question: "What is the effect of insolvency on an arbitration agreement in Iranian law?" Studies reveal that the insolvency effect on arbitration agreements has been a focus in international commercial arbitration and foreign legal systems. Before examining Iran's approach, it's beneficial to explore the perspectives of some developed countries' legal systems on this issue. This analysis helps assess the alignment of Iranian law with recent global developments. In some legal systems, including civil law and common law, three main views have emerged. While there are differing opinions in US law, a distinction can be made between core and non-core insolvency cases. Core insolvency disputes should be adjudicated by insolvency courts, rendering arbitration awards unenforceable. However, in non-core cases, parties can refer to arbitration according to the arbitration agreement. A significant challenge lies in separating core from non-core cases and determining the standards for this separation. The varying standards result in conflicting judgments in US law. Generally, the arbitration clause is applicable unless referring to arbitration undermines the fundamental purposes of the insolvency act. In UK law, the effect of insolvency on arbitration agreements differs for corporate and natural persons. A valid arbitration agreement remains binding on an insolvent company. For insolvent natural persons, if the trustee adopts and respects the arbitration agreement, it's enforceable in all contractual matters or related issues. Claims can be brought against the trustee referring to arbitration, or the trustee can initiate arbitration. However, if the trustee rejects the arbitration agreement, the court has jurisdiction over the insolvency dispute and must decide on arbitration validity. In some legal systems, arbitrability of insolvency disputes is recognized, categorizing disputes as either capable or incapable of being settled through arbitration. Disputes related to insolvent persons are arbitrable in German and French law. Unlike these systems, none of the aforementioned legal systems claim that the arbitration agreement is voidable; rather, it's applicable under certain conditions. Iranian law lacks explicit statutory rules for setting aside arbitration agreements in case of insolvency. Most lawyers believe the agreement becomes voidable upon one party's insolvency, based on Article 496(1) of the Civil Procedure Code (2000). However, this interpretation is not accurate because the article pertains to insolvency disputes under Article 412 of the Commercial Code (1932), which may lead to a judgment declaring a person insolvent. Therefore, it doesn't apply to arbitration agreements made before an insolvency event. Additionally, creditors may find arbitration more favorable to their interests. The other party may also prefer arbitration to court proceedings, potentially saving costs. In such cases,creditors may suffer less financial damage. Furthermore, arbitration agreements are not dependent on the parties' personalities, meaning insolvency doesn't automatically invalidate the agreement. While public policy can prevent the arbitrability of certain insolvency disputes, it cannot override an arbitration agreement. It's important to note that an insolvent person is not considered incapacitated under Iranian statutes by many commercial law specialists. This belief, affirmed by the Iranian Supreme Court, contradicts the notion of resorting to Article 481(2) of the Civil Procedure Code (2000). Some arbitration centers' rules and case law also demonstrate a different approach to the arbitrability of insolvency disputes compared to the traditional Iranian doctrine. The essay reveals that while many judgments and Iranian lawyers support the unenforceability of arbitration agreements in case of insolvency, this perspective is open to criticism and may not align with the latest global developments. Following the views of some Iranian lawyers who believe insolvency disputes are non-arbitrable can pose challenges in the enforcement of international commercial arbitration awards. Iranian courts may not accept the recognition and enforcement of a foreign award if one party was insolvent during the arbitration process. Even if the liquidator continues the arbitration process and an award is issued, it may not be effective.

Today, jurisdiction clauses are important and widely utilized in maritime bills of lading. According to these clauses, the contracting parties choose the court or courts of a particular country to decide their disputes. In principle, a jurisdiction clause is binding only between those who have agreed to it. This paper aims to examine whether a jurisdiction clause agreed to by the shipper and carrier and incorporated into a bill of lading binds a third-party bill of lading holder. For this purpose, the paper, using a descriptive-analytical method and a comparative approach, examines the attitude of the EU, UK, and Iranian law. It contends that, under the EU and UK law, a jurisdiction clause binds the bill of lading holder provided that he/she has taken delivery of the goods from the carrier, demanded delivery of the goods from the carrier, or made a claim against the carrier based on the rights and obligations stated in the bill of lading. Although the Iranian law is wholly silent about the enforcement of jurisdiction clauses, the paper shows that the attitudes of the EU and UK law in this area have been totally accepted by one of the Iranian courts.

Civil Law does not include a specific provision regarding the nullification of the purpose of contract formation, and jurisprudential sources have not addressed the issue explicitly either. The present research applies the descriptive-analytical method and aims at analyzing this issue from a jurisprudential and legal standpoint, in order to answer the question whether a general theory can be formulated regarding the impact of nullification of the purpose of contract formation. The findings of the study illustrate that there are instances in jurisprudence, within certain contracts including lease agreements, gardening partnerships (musāqāt), etc., where it can be argued that nullification of the purpose of contract formation has been exemplified. Since the aforementioned instances are not specific, they can be generalized and analyzed within the framework of the theory of nullification of the purpose of contract formation. According to this theory and in respect to the impacts of nullification of the purpose of contract formation, a guarantee of performing dissolution and the establishment of the right to dissolution can be presented within specific frameworks and conditions. However, in exercising the right to dissolve, compensation for the other party’s loss must also be considered.

Contract law, as the most important part of private law, compiles and regulates the trading relationships of individuals. The importance of this section has always occupied the minds of legislators and lawyers from various aspects. One of the aspects that has received less attention is the "supervision or control of the judicial authority" on the covenants of individuals in order to create balance in the economic relations of the parties. An issue that may be against the principle of autonomy at first. However, according to some philosophical doctrines such as Deontology, consequentialism and pragmatism and economic foundations such as the theory of comparative advantage and the theory of uncertainty and risk and especially the common intention of the parties, can consider a constructive role for the judge and the possibility of intervention and control of the contract to regulate the contractual relationship of the parties to balance the contractual situation. The possibility of revision on contract has been specified in other legal systems more or less, but no place has been identified in the Iranian legal system. Therefore, it is necessary to research in this regard, at first, its basics should be specified and explained as a road map.

Anti-suit injunction is a traditional common law instrument that aims to restrain one of the disputing parties from instituting or continuing proceedings in a foreign court. Although an anti‐suit injunction is directed against the plaintiff, not against the foreign court, civil law countries hold a skeptical view towards anti-suit injunctions as such injunctions intervene in another state’s sovereignty and breach the international comity. This study aims to examine the possibility of issuing anti-suit injunction in the EU, Chinese, and Iranian law. The study contends that under the EU law, the courts of EU member states are prohibited from issuing anti-suit injunctions against a plaintiff in the courts of another EU member state. On the other hand, the EU law does not prevent the courts of EU member states from issuing anti-suit injunctions against a plaintiff in the courts of a third country when they have the power to do so under their national laws. In China, the Chinese courts do not have the power to grant anti-suit injunctions. However, recently, some Chinese courts have issued anti-suit injunctions against plaintiffs in foreign fora. In Iran, the Iranian courts can also issue an anti-suit injunction against a plaintiff in a foreign forum under some circumstances.

Usually, the loss suffered for breaking the obligation is one of the responsibilities bases on contractual liability. Now, the key question concerns the profits that the wrongdoer has obtained. Can we say the party who breaks his obligation under the contract is liable because of his profits without any loss to the other party? Is he required to transfer the benefits to the other party? There have been disagreements on this question in Common Law private law. The essay with descriptive-analytical method searches the answer in Common Law, Iranian Law, and the Convention on International Sale of Goods (Vienna 1980). The results show although gain-based liability in Common Law contract law is seldom has been awarded by the courts and there are some barriers against it, but they can be eliminated by new bases. Considering traditional principles and rules, it is problematic to accept gain-based liability result of breaking the contract in Iranian law. Also, restitutionary liability can be only a way to calculate the loss of the party in the Vienna Convention.

Mediation is one of the well-known dispute resolution methods, and due to the increase in the use of the Internet by individuals, the transfer of most businesses to cyberspace and the conclusion of many transactions by electronic means, in many lawsuits, parties tend to use online mediation to resolve their dispute. The present study examines the challenges of online mediation and the approach of international regulations and Iranian law towards them in the following topics, so that individuals and business actors can figure out the suitability of online mediation to resolve their disputes by taking into account the above considerations: "Lack of face-to-face communication in online mediation", "challenge of confidentiality in online mediation", "general reluctance of using online mediation in some cases", "weak control of meditator over online mediation", and "the difficulty of enforcement of online mediation". Finally, this article concludes that in case of insistence of parties on face-to-face communication, due to the lack of trust in the mediator, lack of access to the required communication technologies or inability to use them, as well as the lack of confidence in the confidentiality preservation of the other party and the mediator, the parties will face serious challenges to use online mediation. According to existing international regulations. Because of the need to a specific law on mediation in Iranian law, the present article suggests the Iranian legislature to enact a comprehensive law on mediation, including the special requirements of online mediation, so that individuals can benefit from the advantages of this dispute resolution method.

One way of dealing with parallel litigation for the courts of common law countries is ‎to issue an anti-suit injunction preventing one of the disputing parties from initiating or ‎continuing proceedings in the courts of another country. Civil law countries believe that ‎this remedy interferes with the proceedings in their courts and violates their national ‎sovereignty. This study aims to examine the attitude of the EU, French, and Iranian law ‎towards the enforcement of anti-suit injunctions. The study contends that in the EU, an ‎anti-suit injunction rendered by a third country is enforceable in an EU member state as ‎long as it accepts the enforcement of such an injunction under its national law and its ‎jurisdiction is not based on EU regulations. In French law, anti-suit injunctions are ‎traditionally unenforceable. However, when parties agree to grant jurisdiction to a ‎foreign court, the French courts enforce such injunctions and dismiss the proceedings in ‎favor of the foreign-selected court. On the other hand, when the French courts assert ‎exclusive jurisdiction to decide the dispute, they may react to an anti-suit injunction by ‎issuing an anti-anti-suit injunction.  In Iranian law, an anti-suit injunction cannot be ‎enforced under Article 169 of the Enforcement of Civil Judgments Code. As a result, ‎there is no mechanism for the enforcement of anti-suit injunctions in Iran. However, ‎due to the advantages of enforcing anti-suit injunctions, the study contends that the lack ‎of a mechanism should not be an obstacle to the enforcement of anti-suit injunctions in ‎Iran.‎

One of the most important agreements often found in international commercial contracts is the choice of court agreement. Today, this agreement is enforceable in many legal systems based on the principle of party autonomy. According to such an agreement, disputes arising under the contract would be settled by the selected court. However, this ideal situation does not always exist, because, the choice of a forum affects the determination of the applicable law, and by replacing the court, the plaintiff can change the final result of the litigation. This is a strong incentive for a plaintiff to breach the choice of court agreement and bring the dispute in a non-chosen court instead of the chosen one. This article examines that, how can the courts in question support the party autonomy principle and prevent the parties from breaching the choice of court agreement. The article demonstrates that the courts in some legal systems can use several remedies to encourage the contractual performance of the agreement. These remedies include suspension of proceedings, anti-suit injunction, non-enforceability of the judgment issued by a non-chosen court, and awarding damages. Although the Iranian law is completely silent about the enforceability of jurisdiction agreements, the present study shows that the Iranian courts can use some of these remedies.

Due to the development of e-commerce and performing a large part of the activities of people in cyberspace, today online dispute resolution methods have been able to find an acceptable position. The determination of seat is one of the ambiguities about online dispute resolution methods. In principle, many important issues in the hearings process are decided by reference to the legal provisions of the seat of dispute resolution, but due to the lack of relevant locations in the online dispute resolution methods, determination method of the seat of the dispute is questionable. The present study has examined the following issues as follows: "Delocalization approach in online dispute resolution methods", "The determination of seat in online mediation", "The determination of seat in online arbitration" and "The determination of seat in online negotiation". Finally, the present article concludes that according to the principle of delocalization, if the seat is chosen by the parties in the online dispute resolution, the same intention of parties is valid and final. In the case of non-selection of the seat by the parties, in online arbitration, the criteria of legal relevance of the seat, the applicable formal law and the competent court can be used to determine the seat, but in online mediation and online negotiation due to lack of legal effect, it is not necessary to determine the seat of online dispute resolution.

Mediation is an appropriate dispute resolution method because of the possibility of resolving disputes peacefully and determining the outcome of the dispute by the parties.  Online mediation in e-commerce disputes, despite of the special circumstances of the parties due to the distance and impossibility of face-to-face meeting, allow individuals and business activists to resolve their disputes peacefully. In the current study, online mediation has been studied In terms of  "concept and characteristics", "advantages", "disadvantages", "process", "resolvable disputes", "enforcement of outcome" and "existing strategies for progress",  so that by clarifying the different legal aspects of this dispute resolution method, individuals can decide whether it is appropriate to use this dispute resolution method or not. Finally, the present article has reached the conclusion that due to the emergence of various technologies, in most disputes, online mediation can be exploited. At the same time, the lack of enforceability of online mediation results in most cases and the lack of guarantee for non- disclosure of confidential information in the dispute resolution process are the main problems of this method that can be solved by enacting comprehensive rules and training mediators.

Determining the grounds of exclusive jurisdiction in private international disputes is extremely important. However, there is no international uniform criterion for determining the grounds of exclusive jurisdiction. Thus, different legal systems have adopted various approaches to determine their courts' exclusive jurisdiction. While a few legal systems have explicitly specified the subject matters falling within their courts' exclusive jurisdiction, the other legal systems such as the Iranian legal system have not determined the grounds of exclusive jurisdiction. So an important question arises about the approach of the last legal systems; in such legal systems, what criteria can be used to guide the judges to determine the grounds of exclusive jurisdiction? This article examines the approach of some legal systems and evaluates some suggested criteria. Finally, the article demonstrates that in the absence of the international uniform concept of exclusive jurisdiction, the judges have to determine the exclusive jurisdiction on a case-by-case basis. They also have to consider the state sovereignty, the subject matter of the dispute, the disputing parties, and the purpose of the lawmaker in providing a particular jurisdiction rule.

This paper, from the point of Economic Analysis of Law and by the descriptive-analytical method, has studied the effect of the prevalence of pandemic diseases such as Covid-19 on the performance of contractual obligations. Since many different contracts may be affected by pandemic outbreak, the effect of pandemic outbreak cannot be assessed under one subject and with a specific sanction. Therefore, the legal status of contracts affected by this disease has been examined under the "impossibility to performance the obligation", "hardship" and "frustration". Considering to the possibility of a new purpose for contract law in the contemporary world, entitled "economic efficiency", some principles related to economic analysis of law, such as "efficient allocation of risk" and "efficiency criteria", especially the Pareto efficiency and Caldor-Hicks efficiency, have been considered in order to select a proper and efficient sanction. Also, some applicable sanctions including "legal deferral", "fair deadline", "Suspension of contract", "modify the contract", "Revoke" and "dissolved", has been reviewed separately; so that while observing the legal principles, the most economically efficient sanctions has been considered for each specific situation. The possibility of sharing damages, under the title of "efficient allocation of risk" between the parties, is also one of the issues under consideration in some special sanctions.

The increasing development of e-commerce and greater access to technological facilities have made online dispute resolution as one of the most important global legal topics. One of the most important aspects of any dispute resolution method is how the outcome of the dispute should be enforced, and traditionally the final dispute resolution documents are enforced by the national courts through the coercion of the loosing party. The possibility of enforcement of final documents resulting from online dispute resolution methods is questionable because all or part of the relationships between the parties and the dispute resolution authority is established online, and in many cases, current international and national regulations do not provide efficient rules for enforcement of said documents. For this reason, e-commerce legal activists have envisioned new ways to enforcement of final documents resulting from online dispute resolution methods. In this article, the enforcement of final documents resulting from online dispute resolution methods has been studied in two main topics: "Compulsory enforcement of final documents resulting from online dispute resolution methods" and "Voluntary enforcement of final documents resulting from online dispute resolution methods". Finally, the present study has concluded that the compulsory enforcement of final documents resulting from online dispute resolution methods through the intervention of national courts, even if there is a legal possibility, is not commensurate with the characteristics and requirements of online dispute resolution methods and the use of voluntary methods if the necessary related rules are established, can significant increase the overall validity of online dispute resolution methods by notably increasing the possibility of enforcement of final documents resulting from said methods and encourage parties and business activists to use these dispute resolution methods.

Pacta sunt servanda is one of the most important principles of law.  However, some people violate their contract obligations. One remedy for this violation is avoidance of contract. There are some differences regarding conditions which could result in a kind of right to avoid the contract. This research attempts to survey the effect of this avoidance through descriptive-analytic and a comparative method in Iranian and Iraqi law and also in Convention on Contracts for the International Sale of Goods 1980 and analyze differences and similarities in above-mentioned legal systems. The results of this research show that although avoidance of contract leads to the deterioration of the parties' obligations in these three legal systems, there are some differences too. Avoidance of contract has a retrogressive effect in Iraqi and the Convention law but it is refused in Iranian Law. Also, there are some differences which have to be recovered by the parties.

While principal private international actions are pending before a court, there is a possibility for arising related actions. However, if the court doesn’t have jurisdiction over related actions, two important questions may arise; the first one is if the Iranian or Egyptian courts have jurisdiction to decide the principal dispute, can they take the jurisdiction to decide the related actions? Also, if the foreign court has jurisdiction over the principal action, is the Iranian or Egyptian court required to dismiss jurisdiction in favor of the foreign court?  The article with the descriptive-analytical method and a comparative approach examines the approach of Iranian and Egyptian laws in this area. The article shows that where the Iranian or Egyptian court has jurisdiction over the principal action, it can take jurisdiction to decide the related actions. Nevertheless, if the Iranian court has jurisdiction to decide the related actions, the jurisdiction of the foreign court over the principal action does not prevent the Iranian court to exercise the jurisdiction over related actions. However, on this question, there are contradicted views in Egyptian law.

Respect for the party autonomy principle has many various effects on private relationships at internal and international levels. The enforceability of choice of court agreements in the private international context is one of the most important effects of this principle. This effect has clearly been expressed in the law of some countries and the related international instruments. Recognizing such an agreement has effects on both the parties to the jurisdiction agreement and national courts. The article seeks to illustrate the effects of such an agreement. This article with the descriptive-analytical method and comparative approach with a focus on some national laws especially Iranian law and some related international instruments shows that recognizing the exclusive choice of court agreements has negative and positive effects on the parties and the courts. The negative effect is excluding the jurisdiction of the courts of one country and the positive effect is conferring the jurisdiction to the courts of another country.

Nowadays, the party autonomy principle is respected in the international private law both in national laws and related international conventions. The authenticity and validity of jurisdiction’s agreements or choice of a court’s agreements in many legal systems are one of the party autonomy principle’s results. Although there is no doubt that the jurisdiction’s agreement must consider general requirements for making the contract, there is an important challenge to a connection between the chosen court and the dispute. In other words, there is an important question: is the connection between the chosen court and the dispute necessary to validate the jurisdiction’s agreement or choice of court’s agreement? This essay with descriptive-analytical and comparative methods and considering the national laws and related international instruments declares that it is not necessary to show the connection between the chosen court and the dispute. This approach has been accepted universally and also has been followed by Iranian lawmakers.

Nowadays, great importance has been attached to the contractual terms especially the agreement on choice of court in international commercial contracts for possible disputes. Although, considering the party autonomy principle and parties’ interests, the agreement on the court that will have jurisdiction over the case is acceptable and this agreement obviously is valid in some legal systems and also in international instruments, Iranian Law casts serious doubt on it. Lack of certain laws and deficiency of case law in Iran have induced this uncertainty. The confusion in the clause to the exclusion of Iranian courts’ jurisdiction is more serious. This article using descriptive-analytical method and focusing on some Acts and Cases in legal system of Iran indicates that in Iranian Law, the agreement on jurisdiction that introduces the Iranian courts as competent court is acceptable. Accordingly, Iranian Law operates like many other legal systems. Nevertheless, it deals with more restrictions on the exclusion of Iranian courts’ jurisdiction clause. This clause is valid unless the subject of dispute is related to issues that the Iranian courts have exclusive jurisdiction.

The unfair term as a disturbing factor of contractual balance is one of the most controversial issues on contract laws or contractual terms. A party somehow abuses a superior economic relying on these terms. On this situation, one question is raised: Is there any solution to deal with these terms considering the principle of freedom of contract in contract law? Results of this study which has been performed based on the descriptive and analytical research method shows that in both (Iranian and Iraqi) legal systems, there is no general rule which can provide full support clearly to the weak side although using general rules such as (the theory of) defects of will and etc. as well as judges' use of interpretative rules of contracts also some rules such as public order may give a few support for only some cases. So legislative interference in offering an appropriate solution is inevitably necessary. In order to develop the appropriate strategy, the legislator should consider the following points: Generality of laws which should cover all related cases to unfair contract terms. Since all aspects of contracts and terms should be measured in order to recognize their unfairness, the judge's role and authority should be emphasized by the proposed rules. Furthermore, a proper solution should be offered to support the weak side to preserve the contract as much as possible also, it can lead to the cancellation or modification of unfair (contract) terms.

Nowadays, in the framework of private law, most legal systems prefer to provide remedies and compensation to an injured person in violation of law or breach of contractual undertakings. The amount of the award limits to the loss of the injured. However, in some cases the injured person rather than seeks the incurred remedies or compensation, it seeks the restitution of the benefit that wrongdoer has gained by breach of victim’s rights. Although focusing on the gain-based liability instead of loss-based liability has been considered in Common Law for a long time but it is controversial as to the foundations of restitution for wrongs. With the descriptive-analytical method, the article explains the concept and definition of restitution for wrongs. While it illustrates some foundations of restitution for wrongs, it examines the foundation of such an institution in the Iranian Legal System. The article shows corrective justice cab be considered a foundation for restitution for wrongs in Common Law. Also, the rule “No man shall profit from his wrong”, the Lucrative Fault and social interests in tort law may provide the solution to accept the institution in Iranian Law.

Nowadays, particular importance attaches to the choice of court agreement as a common clause in international commercial contracts. Nevertheless, for not taking point regarding the validity of such clauses in some legal systems, there are some challenges and ambiguities about it. One of most important problems is the conflict such agreements with sovereignty of state principle and concept of public policy. This essay with surveying the concept of choice of court agreement and also studying some related conventions and regulations shows this agreement is acceptable based on the party autonomy principle. Also by changing the philosophic basis of extra territorial jurisdiction’s rules, jurisdiction agreement doesn’t hurt sovereignty of states. The extra territorial jurisdiction rules is not related to public policy in all cases to say the jurisdiction agreement against them is invalid. The approach of some legal systems such as European Union and international instruments support the view of essay.

The doctrine of lis pendens is accepted in national systems nowadays. The prevention of parallel proceedings, conflicting judgments and loss of time and money to the litigants and the courts are most important reasons to apply it in most legal systems. However, due to several reasons including national sovereignty observance there is a disagreement as to whether the courts apply the doctrine in private international law between different lawyers and also legal systems. The main focus of the article is on the doctrine of lis pendens in Iranian private international law. The article with descriptive-analytical and comparative method shows although the doctrine is accepted in most legal systems, it is overlooked in Iranian private international law. However, Iran legal system is prepared to accept the doctrine in private international cases.

Nowadays, the selection of governing law and competent court in international commercial agreements to resolve the future disputes is acceptable. Nevertheless, The problems and ambiguities regarding the exclusive jurisdiction clauses are considerable because, in some legal systems, the law-makers have not announced their views about these agreements and required conditions for concluding them. This essay seeks to examine the concept of jurisdiction clause private international law and describe the governing principles in this regard. The main question is: which conditions are necessary for making the jurisdiction agreement in international disputes? It seems the conditions expressed in Article 190 of Iranian Civil Code for making valid contracts, considering the requirements of such agreement are necessary in jurisdiction agreement.