جستجوی مقالات مرتبط با کلیدواژه "arbitrator" در نشریات گروه "فقه و حقوق"

Normally, upon rendering the arbitration award and serving it to the parties, the connection of the arbitrator with the case is terminated. However, in many cases the dispute between the award creditor and award debtor concerning the arbitration award, continues through the filing of lawsuit to demand annulment the arbitration award and to be dealt with it during the two stages of first instance and appeal. In practice, regardless of the outcome of the dispute, the arbitrator has very little involvement in the process of the proceedings dealing with the annulment of the arbitration award. This is so while he is the person with a greatest knowledge concerning the arbitration process that has taken place. Moreover, the outcome of the annulment of the arbitration award can damage the personal and professional reputation of the arbitrator or the arbitral body, and may provide the ground for the imposition of civil liability on the arbitrator or arbitral body. In this article, by considering one example of the judicial precedent, we shall examine the legal power of an arbitrator to defend his award during the proceedings of the annulment of the decision or after the final annulment of the arbitration award. In the end, it has been concluded that supporting the presence of the arbitrator during the annulment proceedings and the interaction of the court with the arbitrator is acceptable, and with certain conditions, it is possible for him to object as a third party to the annulment of the arbitrator award, and consequently, the award may be reversed.

Although arbitration is a contractual method of dispute settlement but it has a judicial output. This output emerged from imposing the arbitrator's award on disputing parties. The entry of the arbitrator into the arbitration process requires the establishment of a contractual relationship between him and the parties to the dispute. The agreement which is concluded by the disputers to obligate the arbitrator to settle the dispute is called the "Arbitrator's Contract". This contract, which is considered less, at least in Iran's law, is the source of the arbitrator entry into the process of arbitration and his intervention in resolving the dispute. According to this contractual relationship arbitrator obligate to settle the dispute between disputers. In contrast, disputing parties also obligate to pay remuneration. The main practice of this research is to analyze the unknown relationship from the contract law perspective. An implicit assumption of the issue is twofold, firstly, men of parties in this pattern must be specified and then to check whether the issue and entity or the nature of that correlation can be applicable to the preset contract forms of civil law or it is a new separate design. Results from the analysis of relationship between arbiter and disputing parties reveals that at least three involved agents must meet the same state of mind on the case, which discusses unraveling issues in return of specified wage and finally this contract has its own nature and aspect.

To accomplish their ultimate purpose to end the settle the dispute, arbitrators have powers derive from the arbitration agreement and applicable law. Nevertheless, some of powers are not expressly conferred on arbitral tribunals by constituent documents. These powers are so vital for the function of tribunals and maintain their integrity and authority that allow them to carry out their duties effectively. The sources of inherent powers in the procedure of international arbitration mainly includes general legal principles, doctrine of implied powers, identity of international courts and the function of international courts to settle the dispute and ensure the fulfilment of the international justice accurately. Limiting the arbitrators to contractual or legal powers would face tribunals with manifold challenges. The findings of this research in the procedure of international arbitral tribunals indicate that arbitrators have the inherent powers derive from the nature of arbitration in specific circumstances.

Arbitration, as a dispute resolution method, is a contract by which the parties entrust the resolution of current and possible future disputes to their trusted persons in a special transaction, and undertake to implement their judgments, without referring to the courts of law. they do. The arbitrator's decision is the final goal of the arbitration. In the meantime, obstacles and problems may arise during voting, and these obstacles and problems are evident in both domestic and international voting. The implementation of domestic and international judgments in judicial authorities faces legal and judicial problems, some of which are due to legal violations and ambiguity, and the other part is due to the lack of sufficient judicial procedure in the issue of implementation and recognition. The non-appealability of an arbitrator's decision against a third party, as well as the absence of an independent institution to implement the arbitrator's decision within the arbitration institution itself, are examples of problems and obstacles governing the implementation of arbitration decisions. In Iran's legal system, there is a restriction for public and government entities, which has shown itself in the form of Article 139 of the Constitution of the Islamic Republic of Iran. This principle is complete in terms of predicting a supervisory and control mechanism regarding public and government property and assets, but it brings inappropriate effects and consequences in business relations and especially attracting foreign investment, and with the nature of business affairs that speeding up the It is business affairs, it is in conflict. In the present article, an attempt is made to explain and discuss the obstacles to the implementation of arbitration decisions with descriptive-analytical method and library study through data collection.

The purpose of arbitration is to resolve a dispute and this brings the arbitration closer to the judiciary, then it creates the impression that the arbitrator must also be subject to the same conditions as are necessary for the judge. These are qualities that are essential to a judge but are optional for the arbitration body, that is, arbitrator or arbitrators appointed by the parties to the dispute. Even if, this feature does not conflict with the “judgmental" feature of arbitration, and the requisiteness of having the character of a judge by the arbitrator, was not called into question, at the very least, it casts doubt on the necessity of the arbitrator's independence and impartiality. Because, generally, the parties to the dispute select persons for arbitration that are somehow related to them. This is more evident in three-person judgments. Because in this type of arbitration, essentially, the parties to the dispute have the full discretion to choose their own arbitrator, and usually, they look for a judgment that has the most affinity, relevance, and affiliation with them. This article by separating the concepts of independence and impartiality will review and analyze the prevailing approach in international arbitration.

Although arbitration is as old as the history of mankind, much of what we know today as arbitrator in Islamic texts is the result of ijtehad of Islamic jurists that established this institution in the periods of jurisprudence. Despite the similarities and differences, the relation between this institution in Islamic jurisprudence and the institution of arbitration in the present case law must be regarded as a continuation of the old law in the new law. Because the outstanding features and elements of today's arbitration including the mutual consent of the parties to the arbitration as well as the issuance of verdict on the basis of fairness and justice, has also existed in arbitration in the past. However, there are essential differences between the issue of jurisdiction over arbitration in the past with that in the present, the most obvious reason for which is the absence of the phenomenon of modern government and the modern judicatory system which considers one of its duties to oversee the process of arbitration in the positive and negative manner.

The establishment of the obligation to resolve a dispute by the arbitrator requires the declaration of his will and acceptance. The acceptance of this obligation by the arbitrator creates a contractual relationship between the arbitrator and the parties to dispute. From the view point of law of obligations this relationship includes some aspects which have been less considered at least in Iranian law due to some legal ambiguities. The present study by answering questions like: whether this contract is in the form of a mutual interest contract or a bare contract, whether an agreement is necessary or the parties can terminate it at any time, whether the contract with the arbitrator is a personal contract or it does not depend on the parties, and finally, whether this contractual relationship is among conditional contracts or a contingent contract, applies the library method to seek an analysis of some aspects of the contract with the arbitrator.

The legislator sometimes considers the only solution to some of the issues being arbitrary and has led to the formation of compulsory arbitration in Iran's legal system. Therefore, arbitration or Optional is the source of the contract, or compulsory, which has legal origin. In compulsory arbitration, the parties have no discretion in referring or refusing a dispute to arbitrators, and the law requires them to refer to arbitration. Compulsory arbitration is not in any way a right to litigation, because foreclosure is true when there is no prosecution. On the other hand, litigation simply does not mean referring to state courts and referring to arbitration also provides for the right to litigation. Examples of the process of compulsory arbitration include securities market disputes, pre-sale construction, privatization, contracting, and family disputes. In this research, by descriptive-analytic method, we have defined that although arbitrary arbitration is the principle of compulsory arbitration, it is an exception to avoid prosecution, reduction of judicial cases, more speed in resolving disputes, and ... the mechanism of arbitration Compulsory evaluation is useful..

“Promise for others” is a legal entity whereby the parties to a contract make a specific commitment to be performed by a third party not involved in the conclusion of the contract. In the arbitration agreement, the parties assign their disputes resolutions to a third party not involved in the conclusion of their agreement. By developing the view that an arbitration agreement can be a promise for others, this article seeks to analyze and adapt these two types of contractual relationships with each other. In this regard, it can be assumed that only if the arbitrator has been designated in the arbitration agreement, such a relationship can be considered a promise for others.

Today, settlement of international commercial disputes via recourse to arbitral tribunals and referring to arbitrators is considered to be common and rife. Difficult at the ground to try judiciary issues comprise: long proceedings process, litigation charges, different substantive laws in states, existence of elaborate procedures and etc. are available. And this causes to persuade parties referring to the arbitration instead of court for obviating their disputes. Iranian international arbitration commercial law with goal of the facility of the trade settlement was accepted and enacted in year 1376. Noted law is inferred from UNCITRAL model law. Model law enacted year 1985 is regarded to be important source for member states in ground of resolving disputes at arbitration. One of the significant issues in this law is discussion about” interim measures of protection”. By reason of defects and deficient that were presented on the ground, the UNCITRAL working group embarked to reform in year of 2006 for adding new articles. This event eventuated to advance and improvement in international arbitration position. And many of the countries concurrent with reformation, staged to retrospection of their own laws. However, Iranian international arbitration commercial law also without accompaniment to the international revolutions was fixed. With the delinquency in our law, willingness of individuals to settle their disputes through arbitration regarding Iranian law will be reduced. Hence, we try in this research to study reformation happened on the UNCITRAL model law and other national laws and need for Iranian legislative into concurrent with the revolutions that are necessary in international society.

AbstractNowadays, Arbitration is an effective framework for resolving international commercial disputes. Most of the issues related to the international arbitration process allocate for the status, rights and obligations of disputant parties and the arbitrator. The Arbitration Agreement which is the legal basis of the arbitral proceedings only creates the legal relationship between disputant parties, therefore it does not deal usually with the legal relationship between the arbitrator and disputant parties that is effective in their mutual rights and obligations. The authority and position of the arbitrator empowers him to agree on his rights and obligations with disputant parties and whenever the expectation of the parties may endanger the arbitration process he will stand against the unreasonable demands of them and will organize their rights and obligations within a legal formal framework. The best framework accepted in some jurisdictions is the establishment of a separate contract known as the “arbitrator's contract”. The contents of this agreement include the most important rights and obligations of disputant parties and arbitrator which affect their position.

Arbitration is an alternative method in which the neutral and selected arbitrator of the parties outside the court seeks to resolve the dispute. In the course of arbitration, the arbitrator is the main actor and he is the one who ultimately decides on the dispute. The most important obligation of the arbitrator in this battle is to resolve the dispute, and his other obligations are in keeping with this main obligation. The establishment of this obligation requires the acceptance of the arbitrator and, if the dispute arises and the petition is handed down by one of the parties, the arbitrator is required to fulfill the obligation accepted by his will. The present paper deals with the question of the issue and nature of the arbitrator's obligation to resolve dispute. Using the library method and referring to internal and external sources, the present study seeks to clarify the legal aspects of the arbitrator's obligation from the obligations law view. In this regard, it can be argued that the arbitrator's obligation to resolve the disputes is in fact an obligation to the issuance of the award, it must be definite and possible and like the judge, arbitrator should seek the discovery of the truth.

Stating the elements of arbitration agreement and their analysis in relation with Iran general rule of contracts has a major impact on determining the type and validity of agreement, as well as arbitrator legal position. In addition, this analysis has an impact on the arbitrator's type and scope of responsibility. In this paper, with studying the existing theories about the legal status of the arbitrator, including its semi judicial or contractual nature, after mentioning the advantages and disadvantages of the arbitration in the view of the arbitrator, parties and legal logic, amount and type of responsibility in each theory has been investigated. Taking into account the existence of arbitration agreement in either case, the impact of the agreement on the legal position, and vice versa will be examined. After that, by providing a practical analysis about the nature of an arbitration agreement, a legal arbitration flexible commentary under the title of " contract in the contract theory" , which in the view of the writer embodies both contract and semi judicial and reduces the disadvantages as much as possible. In the final section of the paper , on the basis of this very analysis the arbitrator and parties position towards each other will be expressed. After criticizing different theories on the arbitrator's position, individual judge as the appropriate theory is proposed.

Referring the dispute to arbitration is done in two ways: independent contract and arbitration clause. An arbitration clause is included in the contract when there is still no controversy and parties will refer their possible future potential disputes to the arbitration. Arbitration clause is generally considered as a stipulation in contract. But the point that whether the arbitration clause has the potential of being the subject of stipulation in contract or not is the topic of this study and also finding that if it has such a feature in which divisions will that stipulation in contract be placed. These issues will study from the stand point of judicial precedent. The importance of this issue is that depending on the legal nature of the arbitration clause, its legal effects will be different. In this regard, by analyzing the concept of an arbitration clause, the views in this area and in particular with analyzing the important principle of the independence of the arbitration clause it can be assumed that despite the fact that the arbitration clause can be construed in terms of each of the conditions of the performance and result, however, since the arbitration clause has a direct effect on the denial of the jurisdiction of the court and can be the subject of an independent obligation, it has a special legal nature that it removes the traditional rules of civil law.

Arbitration is fundamentally an agreement to create private justice by non-state tribunal. In relation to the nature of arbitration, there is no consensus and the nature of this institution has been for a long-time subject to challenge and arguments for and against it. In this respect, there are four theories, contractual, jurisdictional, hybrid and independent natures. Each of these theories may have effects and different consequences on arbitration. Since the attitude of national courts towards international commercial arbitration affects arbitration proceedings, it is intended to deal with this question: As far as nature of arbitration is concerned, which of these four theories can be justified? The evaluation of four theories will be considered with respect to the nature and scope of arbitrators’ power, arbitration awards and choice of law. This article shows that arbitration has both contractual and judicial natures, which is a reflection of parties’ agreement and applicability of the law of the place in which the arbitration takes place. In this Theory, the contractual and jurisdictional elements are incorporated in each other.

Just as judges are independent and parties to a dispute cannot refuse to comply with their verdict due to dissatisfaction, arbiter or arbitrator is independent and the future satisfaction of the parties is not a condition for arbiter’s verdict to be operative. This resulted by the judgmental nature of arbitration because in arbitration nature arbitrator is not considered as attorney to the parties. Another reason is that according to more accurate jurisprudential opinion, arbiter becomes independent just as parties grant him with qualification. Parties cannot refuse to recourse to arbiter and arbitrator or incapacitate him not only after verdict is issued but also in the course of procedure. As well, arbitration like judgment, follows “the authority of judged res “rule and even the arbiter cannot violate or modify his decision after it is issued.

Arbitrator or private judge must be independent and impartial. Domestic and international commercial arbitration law in many countries in addition to the obligation the independence and impartiality of arbitrator, has other obligations, namely the obligation to disclose. Arbitrator must disclose any relationship with the parties to arbitration. Commitment to disclosure should not be mixing with the obligation of independence and impartiality. In this paper, the obligation to disclose the sources of domestic arbitration and international trade were studied to help guide domestic and international arbitrators.

The propagation of utilization of arbitration as a method of dispute resolution depends on the public confidence in the method. In this regard, the independence of arbitrators and their impartiality are necessary conditions for the realization of such confidence. Independence and impartiality of arbitrators ensure a fair trial in arbitration and the lack of aforementioned features makes it impossible to trust the fairness of the dispute settlement process and its result. The importance of confidence in the health of the dispute settlement system is to the extent that many international instruments have frequently emphasised on the necessity of the two above-mentioned features. In the recent decade, contemporaneous with the incredible development of arbitration, the debate over independence and impartiality of arbitrator has become important and controversial because neither national laws nor international provisions provide a clear difinition of the said concepts. This article set out to explain the exact point that the independence and impartiality are distinct concepts and are not interchangeable with each other; Independence is concerned with the relationships between the arbitrator and disputing parties, while impartiality considers the arbitrator's conduct over the equal treatment with the parties. The aforesaid distinction includes such a legal effect that each of these two concepts shall be considered as an autonomous and separate cause for challenging arbitrators.

According to the new rules of civil procedure of Iran، if the verdict of an arbitrator be issued and delivered after the arbitration s period، it is void and won’t be executable. Thus every one of arbitration s party can ask the court to rescind the award. This subject caused many disagreements among lawyers. Some lawyers believe if the issue and delivery happen after determinate period for arbitration، it is void. But if an arbitrator makes his award during the time of arbitration and delivers it after period، it is valid and correct. In contrast to this view some other lawyers argue delivery of verdict after termination of arbitration s time is equal to issue of it after period. In this article، we will see that for some reason there is no possibility for an arbitrator to prove the opposite of this subject. In this article we will follow second opinion

A fair hearing in the courts requires the principles of procedure. Because arbitration is kind of judgment، so in the arbitration hearing the arbitrator or arbitral tribunal is not bound to observe the principles of procedural formalisms. But they oblige to compliance of principals of civil procedure. Equal treatment with parties and adversarial procedure are principles that arbitrator obliged to satisfy them. Independence and impartiality are elements of equal treatment and proper notice and give a full opportunity to elements of adversarial procedure in arbitration hearing. Challenge to arbitrators competence، application for setting aside and refuse to recognition and enforcement of award are tools to satisfy compliance of principles of procedural civil in Arbitration hearing. In this paper، ways of satisfying principles of procedure and its sanctions has been considered.