جستجوی مقالات مرتبط با کلیدواژه « قرارداد تامین مالی » در نشریات گروه « فقه و حقوق »

It is commonly assumed that the costs of litigation are provided by the parties. However, the increase in litigation costs, the need to manage the risk of litigation along with profit minded have led to the emergence and prevalence of investment in litigation. Under a process called "litigation financing," a third party pays costs to receive a profit in the event of a successful litigation, without relinquishing the right or transferring the litigation. Despite the advantages of this method, concerns have been raised about its adverse consequences on litigation. This article, through an analytical study of the nature and effects of litigation financing, seeks to answer the question of whether the nature of this legal entity is valid or not. And how can we take advantage of it and reduce its negative consequences? What can be accepted is that the financing of litigation is valid and its use will bring benefits to the Iranian legal system, but in order to manage it properly, it is necessary for the legislator to use the experiences of other systems before the popularization of this legal institution. The article brings main issues that should be considered in legal regulating of litigation financing.

The information asymmetry between the National Iranian Oil Company and the companies applying to enter into oil and gas development contracts is the cause of the phenomenon of adverse selection in those contracts. This study seeks to answer this question: what are the legal and contractual solutions for managing risks due to adverse selection, and whether the selection process of exploration and production companies guarantees the prevention of adverse selection or not. For this purpose, the findings of economics have been used in the framework of the adverse selection model with the aim of identifying legal and contractual tools to manage these risks. Examination of the evaluation processes of exploration and production companies indicates that the methods adopted for the evaluation and screening of applicants are not sufficient and this process can be considered as an example of adverse selection e. In this regard, designing and establishing a comprehensive contractor evaluation system, assigning the evaluation of financial capacity of contractors to credit rating agencies and using the capacity of contractual conditions to implement signaling and screening patterns are some of the strategies that can minimize client risks relevant to adverse selection.

Commercialization of justice and increasing in litigation costs (court costs, fees etc.) has challenged access to court for some individuals. In order to remove this problem and facilitate their access to court, various mechanisms such as contingency fees, legal expenses insurance and funding litigation costs by third parties have been devised. The latter institution is an aleatory contract that for first time established during 1990S in Australia and then was accepted in other countries. The contract is concluded between a funder and a plaintiff, by which the former pays plaintiff’s litigation costs in exchange for share of recovery. There are arguments for and against this contract. In US legal system, The critics consider the contract void due to being Qarar, ignoring the prohibition of maintenance and champerty rules, contrast with public order, increasing the cases, encouraging unmeritorious claims and reducing the settlement’s incentive. Conversely, it could be considered valid based on the society’s need and social and economic interests, facilitating individual’s access to court, preventing from private justice, increasing incentive to settle and preventing to file baseless suit.

Nowadays, the high costs of litigation (attorney's fees, expert's fees and court costs, etc.), known as a challenge to access to justice, have encouraged the parties to seek justice and truth by using a variety of methods, such as third-party litigation funding to finance these costs. In this way, the investor, who is not originally a party to the suit, finances the party’s litigation costs in return for a share of the proceeds of the court verdict or settlement. Despite the benefits of third party litigation funding mentioned by proponents, it is essential to identify the challenges that have involved the judiciary and players in this industry. The lack of proper regulation, overall increase in litigation and particular frivolous suits, ideal rather than the reality of the "development of access to justice" as an important achievement of this entity, commoditization of justice, threat to the integrity of the judicial system, are the challenges of this entity in US and UK judicial system. In Iran, in addition to some of the above problems, authorizing the third-party litigation funding before preparation may lead to increase in the problems in the justice system.