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

Disputes arising in the context of letters of credit, similar to other international commercial contracts, are unavoidable. This internationally used instrument involves partners that are located in several nations. Hence, it is important to ascertain the appropriate jurisdictional competence to adjudicate these conflicts, as it might significantly influence the final resolution of the issue. International businessmen and merchants often incorporate a provision in their agreements to choose a certain court, with the aim of enhancing predictability, minimizing litigation expenses, and expediting the resolution of their disputes. The stance of many nations on the issue of determining jurisdiction for the court is diverse. In Iranian law, it is noteworthy that the explicit statement of this particular subject by the legislator is absent, despite the evident business exigencies that warrant the inclusion of such criteria. In the realm of European Union (EU) law, as opposed to Iranian law, the Recast Brussels Regulations of 2012 included a provision that enabled parties to confer jurisdiction to the court for the resolution of disputes, subject to certain circumstances being met. Within the legal framework of the United States of America, it is observed that various states possess distinct mechanisms for the authentication of those conditions. However, it is generally acknowledged that these conditions hold validity in the majority of instances. In the event that the contract does not include provisions about jurisdiction, the determination of which court has jurisdiction should be made by referring to the applicable national laws. This article undertakes a comparative analysis of the approaches used by Iran, the European Union, and the United States of America with respect to forum selection and jurisdiction determination in cases involving documentary credit claims in situations when no specific condition is present.

Assume that a member state of the international community has not recognized another state and at the same time, both states are members of a treaty in which the possibility of referring a dispute to the International Court of Justice is provided. Now, if one of these two states, based on its legal and political expediency, decides to file a lawsuit in the court due to the violation of the obligation(s) arising from the treaty in question, can the respondent state raise the preliminary objection of non-recognition before the court? This assumption can also be raised in the case of two states that have not recognized each other. To answer this question, the procedures of international courts, including the International Court of Justice and the International Criminal Court, have been examined in this article. The answer that can be given to the central question of the present article is that recognition is a political action with legal consequences. However, the legal consequences of recognition cannot normally lead to the declaration of incompetence or inadmissibility of the court, unless the handling of the dispute between two states depends on the examination of the issue of recognition and its consequences on the continuation of the litigation due to restrictions such as the reservation to the treaty or the lack of consent to establish treaty relations between the two contracting states.

The parties of the contract may agree on multi-tiered dispute resolution clauses. These clauses are usually negotiation, conciliation, mediation, or expert. The purpose of parties is to try to settle the disputes amicably before commencement of arbitration proceeding and avoid the costly process of arbitration, and strengthen their business-relationship. This article discusses about the validity, legal views about the nature of the multi-tiered dispute resolution clauses, its impact on jurisdiction of arbitration. There are three views about the nature of these clauses: Jurisdictional, Admissibility, Procedural. What the parties have stated in their contract indicates their intention. The nature of these clauses are closely linked to the parties’ intention at the time of their conclusion. The intent of the parties and the manner of arrangement of the clauses in the light of the applicable law, will determine the effect of these clauses on the jurisdiction of the arbitrator.

Today, with the advancement of communication, defamation claims have crossed the national borders, it is possible for several foreign elements to be involved in a claim. In this situation, several courts may apply jurisdiction based on their relationship with those elements. This issue is problematic where there is a little connection between those elements and the jurisdiction. Therefore, legal systems must provide jurisdictional rules that prevent such a challenge. In this research, it will be investigated what jurisdictional criteria are used by the legal systems of Iran, England and the European Union in these claims. Can these rules meet the legitimate expectations of private individuals and at the same time have the necessary flexibility in view of the evolution of technology? In the English legal system, the legislators have adopted special rules for defamation which provides that, the courts can hear the lawsuit if England is the most appropriate place to file that claim. therefore, the English courts should examine the connection of the lawsuit with other jurisdictions. In the European Union, in addition to the general rule of the defendant's place of residence, the place of damage where the defamation was published also has jurisdiction. In EU law, the center of the victim’s interests will be competent in internet defamation. However, there are no specific rules for defamation in Iranian law, and the general jurisdiction rules will be applicable in the case of defamation. This Iranian approach is ineffective for defamation and will cause difficulties for litigants.

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 .......

In the rulings of the Supreme Court called Unification of Judgment Decision, regarding cases where multiple injuries lead to determining the amount of blood money or atonement that reaches half of the full amount, a dispute arose as to whether the blood money for an injury should reach half of the full amount in order to be appealable in the Supreme Court or If the total quorum reaches this quorum, the jurisdiction of the court in the appeal proceedings will be realized. This dispute was resolved by the Iranian General Board of the Supreme Court in such a way that the sum of damages for the total injuries is sufficient to establish the jurisdiction of the Supreme Court and there is no need for one injury to have such an amount of damages. This Unification of Judgment Decision issued on number 808 seems to be contrary to the philosophy of matters assigned to the Supreme Court and it does not seem to have any correspondence with other issues of jurisdiction in this regard.

One of the old problems of Iranian law is the conflict of competences that exists in practice between the organization of registration of documents and real estate and the judiciary. One of these cases, which is not ambiguous in the laws, but when it comes to an execution where disputes are considered, is when a document is executed, but one of the parties or a third party objects to the execution. In short, if the objection is about the issuing the execution, this matter is under the jurisdiction of the judiciary, but if the objection is about the execution itself, it is under the jurisdiction of the head of the local registry. The Supreme Court tried to resolve a dispute regarding the third party's objection to the execution of the document, according to judicial unanimity award number 784, but the investigation showed that the award not only did not resolve dispute, but also due to ambiguity. It may have caused more differences.If the dispute arises either from the third party or from the parties, it is related to the execution stage of the document and has an executive nature (according to the regulation of executive "operations"), it is within the jurisdiction of the head of the registry, but if the dispute is about the executive itself. or the dispute is quarrel , in this case, without a doubt, the dispute should be resolved in the court.

AbstractThe General Board of the Supreme Court has resolved the dispute in a Unification of Judgment Decision No. 729 regarding the competent judicial authority to deal with the declared crime under the title of "Electronic Fraud". Based on this decision, in cases where the origin and destination of the money transfer are in different jurisdictions, the jurisdiction where the bank that opened the account of victim is located has been recognized as competent to handle the case. It seems that there is a difference in the elements of the crime between the fraud described in the "Case Report" and "Unification of Judgment Decision", in such a way that in the first one, it is a traditional type of fraud and in the second one, it is an electronic type. Contrary to the Unification of Judgment Decision and based on the arguments expressed in this article, including attention to the place of completion of the crime, in the mentioned fraud, whether traditional or electronic, the judicial authority of the destination of the money transfer competent to the proceedings has been stated.

Taxpayers mostly wish to avoid paying or paying lower taxes. Lower payment or non-payment is sometimes done by violation of tax laws, other times not a violation. If paying lower tax don't violate the law, it will be either legitimate or illegitimate. Paying lower taxes illegitimately by using legal means is called tax avoidance, which creates a tax gap and erodes tax equality. For this reason, the rise of anti-tax avoidance rules is necessary, and in the Iranian legal system, we have not currently comprehensive rules on anti-avoidance. In this article, the authors have a study on the immature status of tax avoidance rules by an analytical-descriptive and critical approach. The present study has been done in three categories: firstly, on Rules and regulations of the Iranian legal system, secondly on Anti-avoidance rules and doctrines, and, thirdly on the challenge of creating anti-avoidance rules and the dimensions of the existence of these rules. Consequently, we have concluded that The Anti-avoidance rules have not been maturely been raised in the Iranian Legal System and this situation becomes more understandable by the study on foreign law. In addition, there are some challenges in the emergence of anti-avoidance rules which arise in two dimensions: substance and jurisdiction.

The significance of comparative study in the field of administrative law, which heavily relies on foreign legal frameworks unlike other domestic legal fields, cannot be overstated. Within this context, the examination of administrative justice, which plays a pivotal role in the establishment and evolution of administrative law in influential legal systems, becomes increasingly important. This article aims to explore the characteristics and distinctions of administrative justice models across the globe, with a focus on the legal foundations of each respective legal system and the extent to which these distinctions are reflected in the procedural components. Among the various classifications of administrative justice patterns, the classification of countries based on organizational criteria and competency appears to be the most meaningful and comprehensive. From this perspective, countries can be categorized into three models: judicial unity (English model(, judicial duality (French model(, and mixed system (Germany-Belgium model(. Key factors such as the definition of the concept of public interest, the relationship between substantive and formal rules, the nature of the judge-administration relationship, and the unity or duality of the legal framework and judicial authorities significantly influence the formation and differentiation of each justice model. These factors manifest themselves to varying degrees in the quality and manner of justice, as well as in the issue of control and the authorities of the administrative judge.

According to article 570 of the Islamic Penal Code, the actions of officials and officials affiliated with government agencies that lead to the deprivation of personal liberty of individuals and violations of constitutional rights can be the basis for guaranteeing criminal executions such as dismissal and imprisonment. This paper, while analyzing the above-mentioned article, explicitly raises the important question that, assuming that government officials and officials take illegal actions based on a provision contrary to the law, can judges of the courts invoke the authority provided for in article 170? Should the Constitution apply the performance guarantee specified in article 570 of the Penal Code? In the present paper, by studying cases of judicial procedure of courts and using a descriptive-analytical method, it has been concluded that the authority obtained from article 170 of the Constitution has no necessity other than non-implementation of illegal provisions by judges and in such cases the inherent jurisdiction of the Administrative Court of Justice in articles 170 and 173 of the Constitution and by using capacities such as issuing warrants for reviewing the legal aspect of the protested regulation is referred to the Administrative Court of Justice and based on the Court's decision in the above regulation, a decision is made in the criminal case.

Nowadays, by the increasing expansion of commercial contracts in the international arena, the use of multi-tiered dispute resolution clauses have been increased. These clauses have many functions for the parties compared to other judicial and arbitration methods. Identifying this issue is very useful in the practical procedure, assuming that the terms of the dispute resolution are binding, the arbitrator starts the arbitration regardless of the observance of these terms by the parties, the arbitration award is invalid due to the lack of competence of the arbitrator, or the violation of the terms is simply a matter of admissibility. A group is of the opinion that non-compliance with the condition of multi-tiered dispute resolution clauses directly affects the jurisdiction, and the arbitrator has exceeded the limits of his jurisdiction, subsequently the decision issued according to the law is null, and it has no legal effect. In contrast, some believe that this issue is related to the admissibility, which is a gentler approach and in line with respecting the sovereignty of the volition governance principle to resolve the dispute through arbitration and non-intervention of the court. Basically, their basis for supporting this theory is that the claim is merely defective in form, and the arbitration agreement between the parties is valid. Regarding the types of legal reactions to non-compliance with the conditions of dispute resolution, suspending the arbitration process at the same time as granting a deadline to comply with the pre-arbitration conditions is preferable to other solutions.

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.

Compensation for the Iraq-Iran war of 1980-88 has been a constant issue in Iranian politics and law. In fact, from the very beginning of the war, Iran expected the UN Security Council to consider the issue of damages by determining the aggressor. In the post-war years, too, despite the endeavors of the UN Secretary-General following the provisions of Resolution 598, the choice of an alternative was never taken seriously as an objective political or legal action by Iran. It seems one of the reasons for this reluctant was the lack of awareness of the reliable jurisdictional basis for resort to a reliable legal solution such as the International Court of Justice. As we study the positions of the Iran's political authorities and the relevant scholarly writings on the subject, there is no indication to the Court to institute proceedings against Iraq. The article, while introducing the jurisdictional basis of the Court, deals with the subject of the relevant capacities and restrictions incorporated in the provisions of the treaty and the procedure of the International Court of Justice.

whereas many cases of terrorist crimes and terrorist financing have international dimensions, the serious and effective fight against these crimes faces two challenges: on the one hand exercising jurisdiction and choosing a qualified court on the other. It is not possible to deal with these dangerous crimes without resolving the issue of contradiction of criminal jurisdiction of countries, as well as qualification of domestic or international courts to deal with these crimes. The present article has been written by descriptive-analytical method and based on written documents and sources and its information has been collected through library study. Based on this research, it seems that for the counter-terrorism campaign and it’s financing to be more effective, accepting the principle of universal jurisdiction is necessary, and it can be a way to prevent criminals escaping, although there is no prohibition on governments using other principles of jurisdiction. In addition, resolving the issue of the qualified court for investigating these crimes is possible by relying on the existing domestic and international juridical literature. This is because, in addition to being able to take advantage of the capacity of domestic courts, governments can use the capacity of the International Criminal Court or case and regional courts to prosecute offenders and to provide global justice and security through Collaboration and under special circumstances, especially when the crime of terrorism or its financing is transnational or international.

In Draft Articles on Responsibility of States for Internationally Wrongful Acts, the general notions related to the international responsibility of states are specified. However, this is doubtful whether these notions can be used in the ICSID arbitration process. According to the convention and the procedure of the ICSID Arbitration Center, in the absence of an explicit agreement in the arbitration agreement, state responsibility based on the ICSID Convention and the rules of customary international law can be brought to the attention of the ICSID International Arbitration Center. The absolute obligations of the investee state concerning investment security are compatible with the Draft Articles on Responsibility of States. The application of the provisions of the Draft Articles on Responsibility of States is another reason for ignoring domestic laws to avoid international responsibility in the ICSID arbitration procedure and will contribute to stability in the field of international investment. On the other hand, the development of the concept of human rights to support the foreign investor for the purpose of establishing the absolute responsibility of the investee state in the ICSID arbitration procedure indicates the absolute responsibility of the investee state for the benefit of developed countries, which consequently limits the sovereignty of the investee state and as a result will lead to the violation of national sovereignty, unilateralism, and finally, the states’ tendency to withdraw from the ICSID Convention.

In recent years, algorithmic decision-making mechanisms and machine learning have been increasingly used by the private sector and then by state agencies. Despite the advantages such as increasing the speed, accuracy and reducing the cost of decisions, the algorithm has created new challenges for the principles of administrative law, such as jurisdiction and judicial supervision, due process, transparency, impartiality and, non-discrimination. This article tries to analyze the aforementioned challenges considering the necessity to adapt to the new achievements of mankind on the one hand and preserve the ancient achievements such as respect to the rule of law on the other hand. Revision in administrative law, taking into account the continuous development of technology, can finally turn the theory of algorithmic administrative law into a prominent theory in administrative law. The requirements related to upgrading existing technologies and removing their disadvantages to make algorithmic processes more transparent can still preserve the fundamental value of the rule of law and prevent it from turning into the algorithmic rule. Algorithm technology has not been as formidable and destructive as to deplete administrative law of its foundations, nor is it so insignificant that it does not justify the necessity of re-articulating the foundations of this legal branch.

Cross-sectoral conflicts, such as environment-trade disputes, are generally multi-dimensional and interwoven. Thus, a single dispute, with the same facts and same disputing parties, can undergo parallel proceedings before competent courts and tribunals under diverse technical regimes and end up contrasting judgments. Given that under general international law there is no legal principle to determine which international body has the main or exclusive jurisdiction in parallel proceedings, cross-sectoral dispute settlement can be challenging for international law system. In the researcher’s viewpoint, regulating and modifying the jurisdiction of dispute resolution courts and tribunals against one another, via sustainable development as the Common Good of international community, can be a solution to this challenge. In this regard, the present article, in a descriptive-analytical research, intends to elaborate on the capability of sustainable development in the accomplishment of this issue.

According to articles 34, 159 and 173 of the Constitution, it is the right of individuals to sue and anyone can refer to judicial authorities; However, the Supreme Council of the Cultural Revolution has removed some decisions issued in the field of education and research from the jurisdiction of the judicial authorities and placed them under the jurisdiction of the Supreme Council.This resolution has a subject departure from the competences of the Supreme Council of Cultural Revolution; Because limiting the jurisdiction of judicial authorities is not an example of educational and research matters. Another thing is that assuming the acceptance of the Supreme Appeals Board of Ministers as a administrative turbinals , the necessity of judicial review according to the views of the Constitutional Council and legal principles is obvious, and not complying with it is a violation of the right of citizens to access judicial authorities.Considering the basic uncertainties regarding the Resolution 630, the branches of the Court of Administrative Justice have different approaches in dealing with this resolution. Some branches, referring to Resolution 630, have issued a decree of incompetence in considering the decisions of the boards, and some branches have not accepted Resolution 630, arguing that according to Article 170 of the Constitution, judges are obliged not to implement illegal resolutions. In order to solve the problem and avoid people's confusion, the cheapest and fastest solution is to issue a unanimous decision by the General Board of the Administrative Court of Justice on this issue.

Supervision of public institutions improves their performance. In a dynamic public law system, the principle is on the controllability of the actions of all executive bodies. Due to the importance of the position of the Guardian Council, this hypothesis has been proposed that the decisions of the Council are unmonitorable and any monitoring exercise, independence and dignity. According to the note of Article 12 of the Law Organizations and Procedures of the Court of Administrative Justice, the decisions of the Guardian Council are not considered to the General Board of the Court, and according to Article 117 of the Civil Service Management Law, The guard is excluded from this general rule. The question of this research is how is it possible to monitor the administrative and financial actions of the Guardian Council? Based on this, the presented hypothesis emphasizes that the administrative and financial powers of the Guardian Council can be judicially supervised, and this issue especially emphasizes the separation between the political and administrative actions of this institution. The results of this research show that in our legal system, due to the wrong understanding of the position and position of the Council, sometimes the monitoring of the financial and administrative actions of this institution is neglected, while the correct monitoring of the two categories of actions, causes the better performance of the Council. And the rights of the nation are guaranteed. The research method in this study is descriptive-analytical, and the library method was used to collect the sources.