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

Nowadays, the use of conciliation as one of the alternative dispute resolutions (ADR) is expanding in many parts of the world. The reason is behind the numerous advantages that this procedure has in its essence for solving commercial disputes with high efficiency. Now the questions that are raised are as follows: Are there any rules of conciliation in Iran or not? If the previous question is positive, are these rules effective? And what are the rules of conciliation in the laws and regulations of other legal systems? As a brief answer, it should be noted that in Iran, despite the existence of legal rules such as conciliation in the civil law and mediation in the civil procedure law, still conciliation as a dispute resolution method has not reached maturity and has not found an independent position among other procedure. This article is based on the premise that the rules of conciliation in the current legal system of Iran are significantly different from the rules of conciliation such as the UNCITRAL model law, the rules of the International Chamber of Commerce, the directives of the European Union, the Singapore Convention or even the national law of Singapore; In such a way that currently it cannot be used as an independent and efficient method in commercial contracts.Therefore, while analyzing the current laws in Iran, with a comparative perspective, the author tries to provide a comprehensive vision of effective regulations in conciliation. Although the principle is on confidential proceedings in the conciliation method, exceptions should also be made. According to the directive of the European Union, the principle of confidentiality is maintained and no person, including the mediator, has the right to disclose the resulting documents except: (a) in cases where this is necessary for the essential considerations of public order of the relevant member state, especially when for it is necessary to ensure the protection of the best interests of children or to prevent harm to the physical or mental integrity of a person; or (b) in cases where disclosure of the content of the agreement resulting from the mediation is necessary for the purpose of implementing or enforcing that agreement. The result of this paper revealed that, Another measure that needs to be fully anticipated is the issue of not being able to refer to the documents and evidence presented by the parties in other proceedings, and this issue originates from the main philosophy of compromise; As it was said, sometimes the parties consider compromise as a method of resolving their dispute, when condemning the other party is not their main goal, and in most cases they want to continue their business relationship with him. In principle, in order to obtain the satisfaction of the other party, they may waive some of their indisputable rights, or accept some of the violations of their obligations, or present reasons and documents to their detriment, so that they can show their goodwill to the other party.

Note 1, Article 43 of the Securities Market Law, the board of directors of the stock exchange, along with the arbitration board, is competent to deal with damage claims in the process of the initial offering of securities; The board of directors of the stock exchange, in addition to the dignity and duties of the board of directors of public joint-stock companies, has other competences and duties regarding being a publisher and self-regulating organization. The above-mentioned regulation needs to be carefully examined in terms of the type, scope and limits of jurisdiction of the board of directors of the stock exchangeAnd by examining it, it is discovered that it is unclear about the procedure and organization of the hearing, as well as the issuance of the opinion and its implementation. In addition, the board of directors lacks any legal-judicial dignity, and the handling of lawsuits in it is faced with a fundamental problem, and due to the jurisdiction of two authorities with different organizations, the possibility of conflicting opinions issued in a single matter is very high. However, in the laws of other countries, including the United States and the United Kingdom, although other institutions other than the court are responsible for dealing with violations, creating compromises, arbitration between the injured party and the causer of the damage, and similar cases in the process of the initial offer, the judicial investigation of the issue is the responsibility of the judicial system. A detailed examination of the regulations on the topic of discussion and its adaptation to other countries makes clear the necessity of its narrow interpretation, modification and completion in the current situation where the capital market needs support; Therefore, this article aims to emphasize the necessity of amending the relevant regulations by carefully examining the existing internal and external sources and writings, while examining the various aspects of the board of directors' competence;  Especially since the preparations for amending the law have already started.

Mediation and conciliation, as one of the oldest dispute resolution methods, have never found a similar place compared with arbitration or litigation. The numerous advantages of this method for both the disputing parties and the judicial system have led to special emphasis on this dispute resolution method in the Judicial Evolution Document and also have resulted in the signing of the Singapore Convention by Iran as an international mechanism for the enforcement of the settlement agreements. The recent approaches show the desire of Iranian legislators to develop conciliation over other dispute-resolution methods. But considering the current lack of executive support for most settlement agreements, the aforementioned goal is hard. The most important reason for the reluctance of individuals and businesses to mediate is the lack of enforceability for the settlement agreements as a dispute-resolution document resulting from the mediation process. The use of mediation has no logical or legal justification, because due to the lack of enforceability of the settlement agreements, the parties must refer to the competent judicial authority for the enforcement of the settlement agreements, and it is more logical that instead of spending money and time in mediation, they firstly refer to the aforementioned judicial authority to resolve their dispute.This comparative study based on an analytical-descriptive method tries to examine the current status of executive support of settlement agreements, as the most important factor in the development of mediation.The question of the research is whether the executive support of the result of the mediation process is necessary, and if the answer is positive, what approach should be adopted by domestic and international regulations to achieve the goal? This article hypothesizes that the use of the legal system from the benefits of mediation depends on the executive support of the settlement agreements, the accession to the Singapore Convention from the international point of view, and the application of the provisions of the UNCITRAL Model Law 2018 from the domestic point of view. Finally, the article concludes that executive support of the settlement agreements is the most important reason for the success of the mediation and the benefit of this old method of dispute resolution in the commercial activists and the judicial system of any country. In the international arena, with the approval of the Singapore Convention, an effective step has been taken to eliminate the aforementioned weakness and develop mediation. In Iranian law, there is a positive attitude towards mediation, and this issue is evident in the signing of the Singapore Convention, but unfortunately, the regulations of the Iranian legal system have given very limited executive support to the settlement agreements. Due to the lack of sufficient enforceability for domestic and international settlement agreements in Iranian Law (except in special cases), the Iranian Legislator should enact a special statute inspired by the UNCITRAL Model Law 2018 to support the domestic settlement agreements and complete the process acceding to the Singapore Convention as soon as possible to enforce international settlement Agreements.

The ways of reparation of loss through “Restitution” and “Compensation”, are determined by the legislator and are guidelines for the courts. In the approach of economic analysis of law and based on the famous theory of Ronald Coase, in a situation where the cost of the agreement is lower than the cost of applying non-consensual solutions, the negotiation of the parties is an efficient way to resolve the dispute. Because everyone is more aware of their own interests than others, and based on agreement, a solution is reached that places the marginal utilities for each of the parties at the highest possible level. In this article, we diagnose Iran's tort law system by using Coase's theory. We hypothesize that by considering the approach that exists in Coase's theory, the damages lawsuits can be resolved in a faster and cheaper way so that there is much less need to refer to judicial courts. The results of this research show that Iran's legislator has dealt with liability claims in the same way in all cases, regardless of whether the cost of the agreement is lower than the cost of using judicial and administrative organizations to resolve disputes or not.

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.

Conciliation, as one of the oldest dispute resolution methods, has not always been favored by individuals and business actors due to the lack of enforceability for the settlement agreement as a result of the mediation process.  One of the most important issues regarding the enforcement of dispute resolution documents in all relevant treaties is the principle of recognition and how to recognize the settlement agreement.  Therefore, recognition of settlement agreements as one of the most important issues of the Singapore Convention will be examined in a comparative study of Iranian law as follows: "Recognition of settlement agreement as its' prevention effect against new litigation", "Recognition of settlement agreement as comparing its' provisions with law of the enforcing courts" and "Recognition of settlement agreement as its' approval in the seat courts". Finally, the article concludes that the Singapore Convention's approach to the requirement for recognition of settlement agreement as its' approval by enforcing courts can be criticized in some respects, but the provisions of the Convention on the possibility of using the settlement agreement to prevent re-litigation and un-necessity of its' approval in seat courts is logical. The current state of the Iranian legal system regarding the recognition of the settlement agreement is not justifiable because in addition to the involvement of various courts in the process of settlement agreement's enforcement, the agreement cannot prevent re-litigation of the dispute.

diation, despite its historical antiquity and significant benefits for parties, has been less successful than other methods of dispute resolution such as arbitration and litigation. According to scientific and practical researches, the reason for the mentioned situation was the lack of enforcement support of the settlement agreements as a result of the mediation process. To cover this weakness and to promote mediation, the United Nations ratified the Singapore Convention. The convention has recently entered into force and signed by Iran, although it has not yet been ratified by the Iranian legislature. In the present study, various rules and aspects of cross-border implementation of international trade settlement agreements have been analyzed, so that the Iranian legislature, legal researchers and business activists can have a correct understanding of the provisions of the Convention. Finally, this article concludes that the Singapore Convention has taken an important step towards the development of mediation in order to provide enforcement support to the settlement agreements and to grant the status of Res Judicata to said document. Of course, there are ambiguities and rules that can be criticized in the treaty, the inclusion of which is due to the need for consensus of the countries and certainly the Singapore Convention, by providing the setting and development of mediation, can result in ratification of more comprehensive mediation treaty. The Iranian legislature is advised to accede to the Treaty, and to harmonize the legal approach to domestic and international mediation, to enact a national mediation law inspired by the UNCITRAL Model Law so that the Iranian dispute resolution system takes an important step in promoting this method of dispute resolution.

The term of Taqiyyah is so popular in Shia’s religious literature, and is among the major principles to further learn about the infallibles’ Sirah (life and character) which since the advent of Islam and enmities towards it has been the center of attention among divine leaders and whenever hardship and problems resulting from such confrontations at social and individual levels emerge, Taqiyyah would be the best rational solution to advance objectives. In today’s world, with respect to numerous confrontations between Islamic resistance movements and the global arrogance and also due the ensuing problems as a result of this resistance, the element of Taqiyyah is a major strategy. This article aims to – via revealing the true nature of Taqiyyah and judging documents related to views opposing resistance, expound on the accordance of the theory of resistance with major Islamic principles and their non-contradiction with Taqiyyah and explain some current strategies with Taqiayyah in face of enemies.

The development of international transactions and the commercial exploitation of intellectual property has increased the necessity of creating dispute resolution methods in the field of intellectual property in accordance with international requirements. The parties to the dispute are looking for efficient, flexible, and low-cost dispute resolution mechanisms that will not disrupt their business relations. This is despite the fact that intellectual property disputes often lead to long and expensive lawsuits due to the territorial nature, diversity of rights, and technical complexities that result from the integration of different fields such as artificial intelligence with other fields, which is not favorable for the courts and litigants. Therefore, intellectual property rights holders have turned to methods that are more under the control and management of the disputing parties to resolve disputes. The special features of intellectual property rights and its lawsuits, such as territoriality, the specialization of intellectual property issues, conflicts in the jurisdiction of courts, widespread violations in different jurisdictions, the importance of confidentiality, the length of the process, andthe huge costs of international proceedings. The lack of an international convention on the enforcement of intellectual property judgments is one of the most important reasons that has affected the efficiency of judicial proceedings in these cases. Non-judicial dispute resolution methods, which mainly have fewer formalities and costs and are faster, reduce many of these problems. Among the non-judicial methods, mediation has the advantage of considering the characteristics of intellectual property, and compared to other methods, it is more successful in resolving these disputes. The interdisciplinary nature of most intellectual property claims and the need for various expertise to resolve disputes and the possibility of examining complex intellectual property cases, especially patent claims, by technical experts in the shortest time compared to other methods and often at a much lower cost, territorial nature of intellectual property rights and solving the problem of conflict in the jurisdiction of national and international courts and reducing the risk of issuing conflicting opinions, reducing the damage of the owner of the intellectual work due to the urgency and speed of mediation in resolving the dispute, focusing on the mutual interests of the parties and resolving the dispute amicably and, as a result, maintaining the commercial relations of the parties in long-term contracts that sometimes cover the entire period of protection of intellectual property, the suitability of the rapid development of technology, and the rapid diffusion of intellectual properties due to their intangible nature with the speed of dispute resolution in mediation compared to the slowness of judicial proceedings, extraordinary flexibility in the dispute resolution process and the possibility of adopting creative solutions such as concluding a license agreement, technology transfer, integration, cooperation in research and development, and agreement on the division of patent within a specific territorial area instead of being limited to the specific  Judicial decisions such as revocation, financial damage,   and etc. are the advantages of this method in solving intellectual property disputes compared to other alternative methods.Also, privacy and confidentiality and maintaining the technical and commercial secrets of the parties, avoiding the reinterpretation of the claim in court and the risk of narrowing the claims, reducing the risk of patent invalidation, avoiding the research process, and obtaining the opinions of multiple experts due to the complexities of intellectual property claims, especially patent lawsuits and its costs, complete control of the parties on the determination of proceedings and the absence of legal dates and deadlines, being held in a single stage and with quick results, lack of legal obligation of the parties to accept the mediator's recommendations and suggestions, and the optionality of the procedure that leads to the parties not resorting to useless tricks or objections to slow down or create obstacles in the mediation process. Another reason is the effectiveness of mediation in resolvingintellectual property disputes. A field research has been prepared to answer the question of what functions the mediation institution has to resolve intellectual property disputes and it comes to the conclusion that mediation is effective in all aspects of the conflict, including judicial and non-judicial elements such as commercial interests, feelings, and other conditions of companions. Considering the dispute and empowering the parties, it allows them to find the right solution based on their special interests and needs. Therefore, it can be said that although dispute resolution through mediation is not considered the only appropriate method for resolving intellectual property disputes, it has desirable functions and is efficient in most of these disputes.

Mediation, as one of the well-known and old methods of dispute resolution, unlike arbitration and litigation, does not have enforceable results in international cases. Notwithstanding of the ratification of the United Nations Convention on International Settlement Agreements Resulting from Mediation, due to its young age and a small number of members, it has not yet been able to overcome the important shortcoming of Mediation, namely the lack of compulsory enforceability. So one way to give enforceability to a settlement is to insert it into an arbitration award so that the executive support of the New York Convention can be exploited. On the other hand, due to the consensual nature of the mediation and the adversarial nature of the arbitration, there are questions and problems with the possibility of applying the New York Convention to the conciliations reflected in the arbitration award. These problems are mentioned in these clauses in the present article: "possibility of the non-existence of arbitration agreement", "lack of dispute between the parties", "possibility of violation of the defense rights of the parties ", and "exceeding the limits of the arbitrators' authority", "lack of seat for an arbitral award", "lack of some arbitration standards, including reasoning". Finally, this article concludes that it is certainly not possible to guarantee the enforcement of an arbitration award that reflects conciliation between the parties under the New York Convention, but it is possible to increase the chance of enforcement of such an arbitration award by applying some considerations in the proceedings.

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.

Conciliation as one of the most well-known dispute resolution methods has gained special credibility due to ratification of Singapore Convention on International Commercial Settlement Agreements 2019 by the United Nations and the granting of executive support to settlement agreements resulting from mediation. One of the types of settlement agreements is judicial settlements recorded by court, which are considered as a kind of settlement agreements due to the main role of the will of the parties (rather than the judge) in drafting them. Also, it is always possible for the parties to reach a settlement after a dispute has been filed in court, and in some cases, the parties to the dispute may even reach an out-of-court settlement agreement and submit the settlement to the court for approval in order to benefit from enforcement support. In both cases, the judge reflects the settlement agreement of the parties in the form of a judicial settlement. An important issue regarding judicial settlements recorded by courts is the possibility of their enforcement in other countries, which is questionable due to the involvement of two dispute resolution

litigation and conciliation. This is because the judicial settlement has a dual nature, because on the one hand, it is a kind of settlements due to the exclusive intervention of the will of the litigants in its conclusion, and on the other hand, it has a judicial nature due to its reflection in the court judgement. Therefore, in order to examine the possibility of enforcing foreign judicial settlements, the provisions related to the enforcement of the settlement agreements and court judgements can be applied. As a result, there are serious doubts about the international treaty applicable to the enforcement of judicial settlements in foreign courts. The position of Iranian law in this regard should also be examined.

The purpose of the present study is fundamental because it contributes to the development of law and in essence, the method of the present study is analytical/descriptive. There is also a comparative approach in this study due to the review of the 2019 Singapore Convention, the 2005 Hague Convention and the 2019 Hague Convention.Theoretical and Conceptual Framework: To examine the subject of the present study, judicial settlements should be examined from the following perspectives: cross-border enforcement of judicial settlements of courts in accordance with the Singapore Convention, cross-border enforcement of judicial settlements of courts in accordance with The Hague Conventions, and cross-border enforcement of judicial settlements of foreign courts in accordance with the Iranian law".

 The main questions of the present article are: Is it possible to enforce cross-border judicial settlements in accordance with the Singapore Convention? Is it possible to enforce cross-border judicial settlements in accordance with the Hague Conventions? Is it possible to enforce cross-border judicial settlements in accordance with the Iranian law? The hypothesis of the present study is that due to the approach of conventions applicable to cross-border judicial settlements and the narrow approach of the Iranian Civil Judgment Enforcement Law, in none of the above three hypotheses can the possibility of cross-border enforcement of the judicial settlements be considered high.Research achievements: Overall, the article concludes that 1- the enforcement of judicial settlements by foreign courts is fraught with difficulties because the Singapore Convention generally excludes such settlement agreements from its scope of executive support in Article 1.3.2- the explicit support of the Hague Conventions for judicial settlements, due to the unacceptability and small number of member states of these treaties, cannot have a positive impact on the enforcement of judicial settlements by foreign courts, 3- the vague and numerous restrictions mentioned in Articles 177 and 169 of the Iranian Civil Judgment Enforcement Law also greatly reduce the possibility of the enforcement of foreign court judicial settlements in Iran. Overall, based on both international law and Iranian law, the possibility of enforcement of cross-border judicial settlements in other countries do not consider high, and individuals and businesses are advised to submit the settlement to an arbitrator (rather than a foreign court) to benefit from the successful New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in the various States party to the said Convention.

Mediation or Conciliation has several advantages comparing with other commercial dispute resolution methods, including speed, cheapness, and countinuing commercial relations between the parties. Unfortunately, this dispute resolution method is not widely used in commercial disputes and individuals and business actors have not been able to profit the benefits of this dispute resolution method. The main reason for this situation is the lack of adequate executive support in Iranian law for the settlement agreement as the result of the mediation and conciliation process. Therefore, in this article, while explaining the benefits of mediation and the need to legislate supportive laws regarding this dispute resolution method, a commercial mediation model act has been proposed to the Iranian legislature, so that future enactment of this law leads to significant progress in Iranian commercial dispute resolution. The following three topics are analyzed in the article: "The benefits of commercial mediation and the need for a special legislative policy to support commercial settlement agreements", "The current legislative policy of the Iranian legal system regarding commercial mediation" and "Proposing a commercial mediation model act to the legislature".

In the last two decades, the influx of cases into the judicatories and courts has become one of the serious problems of the judiciary, so that this problem has caused lengthy proceedings, reduced the accuracy of judges in issuing verdicts, burn out and fatigue of judges because of the high volume of cases. And in general, it has reduced the efficiency of the judiciary. This has led the judiciary to seek a solution to this problem from the very beginning, and one of these measures to reduce the number of cases to the courts was to establish a dispute resolution council. Although the formation of this institution was necessary and useful, the focus on reducing the number of cases and absolute statistics caused the councils to move away from their philosophy of existence, which was to correct the essence of the conflict and the chapter of hostility through compromise. Therefore, in this study, we have tried to deal with the effect of statistics on the performance of dispute resolution councils with an analytical method. Also, in this article, the information obtained from the statistics of the dispute resolution councils of Markazi province has been used as a statistical sample. Studies have shown that the increasing number of cases in the judiciary contains a worrying reality and should be addressed through fundamental solutions such as strengthening the principles of prevention