جستجوی مقالات مرتبط با کلیدواژه « : expropriation » در نشریات گروه « فقه و حقوق »

Many investment host-states, invoking the spread of the coronavirus and the need to deal with Covid-19, have taken over the assets of private companies, forced them to make certain goods, intervened in their pricing, stopped their products, prevented export of their products and forced some to close their activities. In some cases, host-states may in fact expropriate the foreign investments for political, social, and economic reasons, such as reducing social pressures, increasing the possibility of success in elections, and acquiring low-cost, profitable investments, but invoke the need to combat the pandemics in order to mislead the arbitral tribunals. Since the host state have frequently sought to justify non-compliance with their treaty obligations by resorting to crises such as the outbreak of Covid-19, this article, referring to the investment treaties, doctrine and arbitration practices, and in order to strike a balance between interests of the investor and the host-state, in the first part, discusses the possibility, manner and arguments for filing a claim for expropriation by foreign investors by invoking the host-state measures in the situation of outbreak of pandemics including Covid-19, and in the second part, investigates the means of compensation for expropriation in the above-mentioned claims.

The acquisition of urban land in public law is one of the important issues raised in public law, which is in conflict with the private ownership of individuals.However, institutions such as the municipality sometimes have the possibility of expropriating private property.An important element that makes government institutions able to rely on it to take away private property if necessary is the priority of the public and society's interests over the individual interests of individuals.Based on this, the theoretical foundations of ownership, as one of the examples of administrative actions of the government, is based on the theory of public service, because ownership is realized in the position of eliminating the conflict between collective interests and individual interests, and because of public service, and the application of the preferential rules of administrative law. In possession, this service is also provided on the basis of this. Lawsuits arising from land acquisition are mainly legal, and the authorities for resolving disputes in this field are divided into two categories: specialized authorities and general authorities.The basic question that this research seeks to answer is how can claims arising from the acquisition of land by government institutions be evaluated from a jurisprudential and legal point of view? The research method in this article is descriptive-analytical and the library method was used to collect the sources. The results of this study indicate that from a jurisprudential point of view, private ownership of real estate has been recognized based on the rule of Yad and Qa'id Taslat.

Article 54 of the Law on Removing Obstacles to Competitive Production, a note to Article 9 of the Law on Increasing the Productivity of the Agricultural Sector and Natural Resources, and the Ministry of Agricultural Jihad, in cooperation with the country's Property and Deed Registration Organization, is obliged to remove the interference caused by the implementation of parallel laws and regulations in national lands. government and individuals exceptions to amend the ownership documents and issue agricultural documents after resolving the disputes and according to Article 3 of the Executive Regulations, Note (3) of the Addendum to Article (9) of the Law on Increasing the Productivity of the Agriculture and Natural Resources Sector, the subject of Article (54) The Law on Removing Obstacles to Competitive Production and Improving the Country's Financial System, the Interference Removal Commission was established at the province level . Article 9 of the law on increasing the productivity of the agricultural and natural resources sector also stipulates the duty of the mentioned ministry to establish the ownership of the government and obtain ownership documents in the name of the government on national resources and favorable and state lands, respecting the privacy of the villages and removing the interference caused by the implementation of the regulations. It is parallel until the end of the fifth five-year plan of economic development. Although the cases mentioned in determining the jurisdiction of the said commission have been clear, with the description of the multitude of laws and regulations governing government lands, there have been doubts about the scope of the jurisdiction of the said commission. An example of these doubts is reflected in the disagreement of the branches of the Supreme Court of the country on the authority of the commission to enter into the case of expropriation .......

Ownership is one of the most important issues in law. There are two types of ownership: public and private. Sometimes public ownership is also called government ownership. In this article, the means and methods by which immovable property becomes the property of the government will be examined.

The method of studying and gathering information and research findings is descriptive.

Ethical Considerations: 

All ethical principles governing research have been observed in the presentation of this article.

The most common way for the government to own property is to buy it from individuals. Also, immovable property may be donated to the government by individuals for various reasons. In addition, creating wealth for the government, in the sense of implementing construction projects by allocating government credits, is another way of acquiring immovable property. Finally, sometimes the acquisition of immovable property by the government takes place due to the expropriation of private property of individuals for the benefit of the government through methods such as confiscation of property.

In the field of intellectual property rights, host states’ policies, and accordingly, the approach of the relevant treaty towards expropriation and intellectual property rights play a key role when separating expropriation from regulatory measures. This article will analyze these issues as well as the approach adopted by Iran in this regard, while also discussing the necessity of changing the approach adopted in Iran's foreign investment protection treaties. It then continues to examine Philip Morris v. Uruguay because, firstly, although the relevant treaty contained expropriation provisions similar to those of most treaties to which Iran is a party, eventually Uruguay managed to win the case. Therefore, Uruguay’s defenses can be helpful for Iran in similar cases. Secondly, it will be shown that issuance of a favorable award for the host state in this case provides no guarantee that other tribunals follow the approach adopted by that tribunal. Therefore, the article suggests specific clauses to be inserted into investment treaties of Iran that can be interpreted to the benefit of public interest and, as such, reduce the possible instances that require compensation to be paid by the government.

Research Question:

 Which aspects of the host state’s defenses in Philip Morris v. Uruguay can be utilized by Iran in similar expropriation claims? When faced with similar expropriation disputes, would it suffice for Iran to rely on defenses similar to those of Uruguay in the said case? What is the best possible approach for Iran to adopt in its foreign investment promotion and protection treaties to avoid compensation in expropriation disputes?

Literature Review:

The Persian legal database contains few studies examining the Philip Morris v. Uruguay case. They mostly contain overviews of the case and discuss the restrictions imposed on trademarks as a method of expropriating industrial property rights. However, no prior article has examined how the defenses used by Uruguay could be of use to Iran’s government when faced with similar expropriation claims. In this regard, the authors explain the importance of the state’s regulatory and policing powers and their degree of interference in the foreign investor’s property rights. Nevertheless, this piece indicates that the host state’s defenses in the Philip Morris v. Uruguay case cannot be relied upon in all similar instances, especially considering that Iran seems to have adopted the “high protection” policy towards foreign investments and has consequently opted not to discuss and define the connection between expropriation and governmental measures in the field of intellectual property rights in most of its BITs. The article suggests that Iran adopt the “increased predictability” or “qualified” policy and set apart intellectual property rights-related regulatory measures from the scope of expropriation. A similar suggestion can only be found in an article written by the authors of this article titled “Legal Nature of Compulsory Licensing under Patent Law:  A Regulatory Measure or Expropriation?”. However, the said suggestion, unlike the suggestions in this article, was primarily focused only on a single regulatory measure of the host state i.e., compulsory licenses.

This article uses a descriptive and analytical method and the authors have resorted to library research to gather the relevant resources. A wide range of resources including the most recent books, articles, dissertations, cases, and regulations have been used to author this piece. In particular, it has been attempted to examine different treaties on the protection and promotion of foreign investment so that the article would be of a comparative nature.

Treaties on the promotion and protection of foreign investment contain different views concerning the relationship between expropriation and governmental measures that are taken regarding foreign investors' intellectual property rights. Considering that the exclusion approach reduces the instances in which the host states would have to pay compensation, this article concludes that Iran's government should adopt this approach when drafting these treaties and set aside its current approach which is unclear about the relation between expropriation and regulatory measures in the field of intellectual property. Until then, due to the similarities between the approaches adopted by Iran and Uruguay regarding the relation between expropriation and governmental measures in the field of intellectual property rights, Uruguay's defenses in Phillip Morris v. Uruguay can be utilized by Iran in similar expropriation claims filed against it.

Modern governments always consider themselves agents of public will and protectors of public interests and goals. Public opinion also measures governments based on their attention to public goals. One of the general goals of governments in the field of achieving good governance is to develop infrastructure and increase public welfare, and in this field, most governments try to achieve more success in this field by attracting foreign investment.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Due to the long-term nature of the investment contracts and the period of its exploitation, there may be changes in public opinion, fundamental changes in the structure of governments, revolutions may cause a change in attitude towards public goals and expropriation, confiscation and nationalization of the investor's property.

Ethical Considerations: 

In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

In this regard, there are many issues, one of the most important of which is the role of good governance in determining the legitimacy or not of expropriation in line with public goals. As a result of the investigation, it will be clear that today the principles of good governance have become one of the incentives influencing the continuation of foreign investment.

In the 20th century, we witnessed multiple expropriations in the forms of nationalization, confiscation, or seizure of property. In the first half of the 20th century, the Government of the Soviet Union and its colonies made extensive confiscations, and in the west, the Mexican government nationalized its arable land and oil resources. The second half of the 20th century started with the nationalization of the Iranian oil industry, and subsequently, in multiple cases, Asian and African states nationalized their resources. The investor countries, that were present in the countries rich in natural resources primarily through multinational companies, considered themselves the main victims of this exercise of sovereignty, and this became the basis for disputes between the parties. The investors turned to international arbitration to restore the rights that they thought they have lost. Therefore, we witness multiple approaches by the arbitrators concerning the exercise of the principle of permanent sovereignty of states over natural resources. By looking at the history of changes in this matter, we find that this issue has always been a place of constant fight or flight of the parties, and the arbitrators did not give up turning to all kinds of arguments and theories to protect the interests of each party, which resulted in the transformation or adjustment in existing standards, and therefore, led to the exercise of the principle of permanent sovereignty of governments over their natural resources.

Limiting the ownership of individuals in the implementation of approved urban plans is one of the challenging cases in urban planning law. It is obvious that when there is a conflict between two interests, you should choose an interest that includes a larger number of people in the society. Therefore, in the confrontation between private and public interests, priority is given to the public interest, which can be easily justified using general legal rules and principles.In the current research, the author has investigated the legal rules and regulations and judicial procedure in this field and the challenges in the two legal systems of Iran and France using the library method. What can be inferred from the comparison of the two legal systems and legislative developments in the field of urban planning rights and the institution of expropriation due to public interest is that the said institution has a long history in French law and has gone through many ups and downs, and the judicial procedure in This field has worked much more dynamically and effectively, but Iran's law in this field is younger and does not have the necessary efficiency. Therefore, it is suggested to the legislator, in order to protect the private property of individuals, by taking advantage of the successful experiences of other legal systems, including French law, to enact clear and transparent laws and to consider the guarantee of effective implementation for them, so as to avoid ambiguity and summaries of the law, so as not to witness the mismanagement of some offending institutions.

Expropriation takes place in two dimensions. One is in the field of civil works and urban planning, in which the government and government institutions and municipalities, in accordance with laws and regulations and through formalities based on their needs, take ownership of private persons. And another in order to provide housing and solve this social problem of expropriation. The purpose of this study is how to expropriate property from inherited property in terms of Islamic jurisprudence and Iranian law. The research method is descriptive and analytical and the research results indicate that Regarding the heirs, there are three theories among the jurists, which are limited wills to one-third, the excess of which belongs to the Imam A will in excess of one-third for charitable purposes only and a will in excess of one-third in any amount. If a person dies and none of the heirs, relative or causal, is the subject of Articles 862 and 864 of the Civil Code, according to Article 866 of the Civil Code, the assignment of the will will be the responsibility of the ruler. This article, which is about the deceased without a heir, only leaves the matter to the ruler, but does not provide any ruling on issues such as the limits of the ruling authority and the quality of possession of the deceased by him and how to possess it. This is a flaw in the law. Madani caused the legislator to address this issue by passing the law on civil affairs and clearing up any ambiguities.

The protection of ownership is rooted in the foundations of the legal system, and its foundations are completely dependent on the ruling view of the ownership theory. At the same time, in any legal system, the individuals’ ownership may be invaded due to public needs. The problem is, what are the foundations of ownership protection? With what justification and basis can such protection be violated and denied? In Iran's jurisprudence, the protection of ownership is based on jurisprudential rules such as “Domination” and “Prohibition of the Detriment” or as a fundamental right. Expropriation was also justified in two western-jurisprudential schools of thought. On the one hand, the theories of public interest and necessity, which have a jurisprudential background, were raised, and on the other hand, the theory of public interest entered the legal discourse. In English law, the protection of ownership as a fundamental right is done through the rule of law and the principle of parliamentary sovereignty and the compliance of all actions with the law, and judicial supervision is its guarantee. Expropriation is also permissible if there is public interest, but the attitude towards public interest has different interpretations due to conceptual ambiguity. Nevertheless, the authors believe that the basis of expropriation is rooted in the legitimacy of the state. Such legitimacy at a minimal level is associated with the right to life of the government, so that expropriation is one of the basic tools of the government to continue its existence and provide public service. At the same time, the maximum level of legitimacy is rooted in the legitimacy of the political system from the people's point of view. From this point of view, in Iran, the divine-popular basis of sovereignty, which is the birth of the constitution, considers the basis of expropriation to be granted to the government through the people.

Extensive research has been conducted on expropriation of foreign investment. However, different methods of expropriating intellectual property of foreign investors have yet to be shed light on by legal scholars. Considering that issuance of compulsory licenses is one of the most important measures in this respect, this article shall focus on compulsory licensing through critical analysis of different approaches in this regard, and an attempt will be made to provide a proper response to the question whether compulsory licenses are regulatory measures or expropriation ending in compensation. The piece will make an effort to achieve this through illustration of current stance of the Iranian legal system, domestic and international regulations and pertinent legal cases. It seems that despite the initial regulatory nature of such licenses, one cannot exclude all instances of granting compulsory licenses from the expropriation provisions. Instead, adoption of a case by case approach along with due consideration of the literature of the treaty and domestic regulations in order to determine whether the measure of government in regard to issuance of such licenses is expropriation or not is recommended.

Property and the resulting rights have always been honored and protected, and of course, restricted and deprived. In the relevant laws and regulations, although property is one of the basic human rights, it may be violated and restricted in some necessities such as securing the public interests of society, so that the damage leads to its deprivation and abstraction of property from the owner. The Islamic legislator has tried to expropriate property in accordance with property rights and according to the needs of society. Therefore, measures such as the provision of the Court of Administrative Justice and the Guardian Council have been considered in order to protect private property. In this article, which has been compiled in a library method, we will be in a position to answer the question of how the Court of Administrative Justice can prevent or protect the expropriation of persons, but the result is that the Court of Administrative Justice cannot prevent expropriation alone or without legal protection or fully protect the right to property.

In modern legal systems, the state has the power to own land in order to achieve part of the public purpose, and laws determine the scope of authority of government authorities to secure property rights. In this regard, the main question of the present article is what are the competent authorities in the process of expropriation in the law of Iran and France and what is the process of expropriation in these two countries in terms of public interest? The results of the present study indicate that in France, expropriation operations are carried out by dual administrative and judicial institutions in two stages: administrative and judicial. The administrative authorities begin it, and the judges and the special judge of judicial possessions end it by issuing a transfer of ownership and an order to pay compensation. But in the Iranian legal system, the powers of the executive branch are vast and the role of the judiciary is limited, and the expropriation judge in the Iranian judicial system is unknown. However, the intervention of the prosecutor as the guardian of the public interest in the stage of transfer of property is mandatory. In addition, in the process of acquiring property in Iran, unlike in France, right holders do not have the opportunity to object or request an appeal regarding the method of approving the plan and its content.

This article discusses how the standard of compensation for expropriation of foreign investments employed by international investment tribunals can affect State parties’ preferences reflected in international investment agreements as well as the efficiency of these standards in light of an economic analysis of law. It is suggested that State parties to these agreements often pursue their own economic development as well as protecting their nationals who invest in the territory of the other contracting State. In so doing, the State parties try to diminish the externalities associated with their measures and decisions on foreign investors on the one hand, and to reduce the risk of investment in their territory for foreign investors, on the other. By comparing the standard of full reparation established in customary international law to the standard of prompt, adequate, and effective compensation due immediately before the expropriation, usually agreed upon in investment agreements, this article concludes that the former standard -i.e. the standard of full reparation- is not entirely compatible with the preferences of State parties to international investment agreements and, thus, cannot always be considered as an efficient standard.

In terms of registration status, lands and properties are in one of the unknown cases of registered as current (i.e., in registration process), or registered ownership, and in each of these situations, particular claims account for the highest percentage of cases. These lawsuits consists of ownership proof, expropriation, obligation to prepare an official document, disputes over boundaries, aggressive possession and conflicting transactions and fraud, etc. The main reasons for these disputes and lawsuits should be in factors such as the high level of unknown property of registered owners, non-monopoly of transactions through official documents, interpretations contrary to the philosophy and purpose of the registration law, the unlimited role of real estate companies in related transactions that should be searched for lands and properties, as well as the marginal role of notaries and the lack of a new registration system.

One of the epitomes of interference of the government and the public institutions in the social life, is the authority and power of expropriation of lands and the properties of persons with the target of provision of the public interests. Such an interference, which is accomplished based on giving order, public welfare and social advisable affairs, may create a field for establishing civil liability for the government based on specific basis, such as the principle of equality against the Law and the theories of organizing the loss, public service and social interrelationship. At this juncture, in consideration of the important duties of Ministry of Petroleum in the field of implementation of the public and civil projects, based on the different rules, such as the legal bills for procedures of purchase and ownership of the lands and properties in order to implement the public, civil and military plans within the scope of outspread authority of the said Ministry in the field of expropriation, taking of properties and lands for Ministry of Petroleum, the said ministry is liable to compensate for loss and damages of the persons in accordance with the related Act and Laws.

One of the serious concerns of human rights institutions is legal deficiencies of international investment law that could undermine human rights support. The most important way to address this problem is to benefit from the procedures of international investment arbitration. This paper tries to analyze the relation between human rights and international investment law through the analysis of awards issued by ICSID tribunal in the field of human rights, and illustrates the amount of human rights considerations in those awards and contributes to the development and promotion of human rights in international investment law. It is notable that the arbitral practice is positively engaging with human rights obligations of investors. However, it must be recognized that approaches of ICSID investment tribunal towards human rights are not yet based on a fixed procedure. It must be admitted that the development of investment law arbitration on human rights will be a gradual approach.

Since from the very beginning of the formation of human societies, human beings have always witnessed various crimes in which some human beings violated each other's rights; Naturally, as these societies developed, humans began to think about preventing abnormal behaviors. One of the best preventive factors of criminal and abnormal behaviors and actions that has been the punishment of violators including the ones with a long history, and is still a part of conventional punishments is confiscation of property. For human beings acquire property with great suffering, one of the most painful punishments is the expropriation. This study, using an analytical-descriptive method, explains the nature of confiscation, which can be introduced as "permanent deprivation of property rights by the government and the transfer of property to the government without exchange." Although manifestations of such a punishment can be seen after the advent of Islam and during the time of the Rashidun Caliphs and the Umayyads and the Abbasids in the life of the caliphs and their agents, attributing this punishment to the sharia is not true and no firm evidence is seen in the sira of the Infallibles. However, this punishment is found in some Iranian legal materials before and after the Islamic Revolution, and for this reason, these legal materials can be subject to criticism.

Since from the very beginning of the formation of human societies, human beings have always witnessed various crimes in which some human beings violated each other's rights; Naturally, as these societies developed, humans began to think about preventing abnormal behaviors. One of the best preventive factors of criminal and abnormal behaviors and actions that has been the punishment of violators including the ones with a long history, and is still a part of conventional punishments is confiscation of property. For human beings acquire property with great suffering, one of the most painful punishments is the expropriation. This study, using an analytical-descriptive method, explains the nature of confiscation, which can be introduced as "permanent deprivation of property rights by the government and the transfer of property to the government without exchange." Although manifestations of such a punishment can be seen after the advent of Islam and during the time of the Rashidun Caliphs and the Umayyads and the Abbasids in the life of the caliphs and their agents, attributing this punishment to the sharia is not true and no firm evidence is seen in the sira of the Infallibles. However, this punishment is found in some Iranian legal materials before and after the Islamic Revolution, and for this reason, these legal materials can be subject to criticism.

Precautionary principle requires that, states should refrain from any activity that harms human health, natural resources or ecosystem.The absence of scientific certainty does not justify delaying appropriate measures. The precautionary principle has three components :significant or serious danger, scientific uncertainty and precautionary action.The implementation of this principle in oil contracts occurs when host states, in the face of significant or serious risks, take precautionary measures such as the environmental impact assessments, suspensions, re-zoning, cancellation of permit or termination of contracts. In Mamidoil v. Albania, host state prohibition on investment activities was not considered as indirect expropriation due to the risks of constructing oil tankers nearby residentental zone. But on the contrary in Burlington v. Ecuador, the arbitral tribunal considered termination of the deal and taking possession of the oil blocks as illegal expropriation. This paper examines the views of international investment arbitration on two oil disputes related to the precautionary principle and tries to find the reasons for rejecting or accepting precautionary measures and violation of investor's rights.