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

Arbitration is a mechanism to create a balance between the conflicting desires of individuals, and to achieve this goal, arbitrators should only pay attention to the common interests and desires of the parties so that the dispute is resolved based on that. On the other hand, the rules mentioned in the Washington Convention on Arbitration, which states the procedure for dealing with disputes regarding international investment by ICSID between a contracting state and an investment person who has the citizenship of another state, are used to deal with the proposed lawsuit. It is free of any substantive rules. However, a rule is included in Article (1) 42 of the mentioned agreement which states that substantive rules that are enforceable in a lawsuit are examined and identified by the court and based on that It deals with the content. In fact, the mentioned article is an example of the rules for resolving the conflict of laws, which can be found in various laws such as the national law, according to which the court resolves the conflict of laws.

How to administer contracts concluded in foreign trade, especially in relation to determining the appropriate law for managing disputes, has always been one of the challenging issues of contract law, which has been the subject of many discussions among jurists for decades. Examining the international commercial arbitration procedure shows that there are two important options for managing such contracts, which are the application of conflict resolution rules, which often lead to the application of a specific national law, and the other option is Lex Mercatoria, or transnational commercial law, which the main feature of its principles and rules is that it does not belong to a specific legal system, and in other words, its constituent principles and rules are extraterritorial. In this research, while analyzing the problems related to the application of conflict resolution rules in contracts concluded in international trade, we will show how to solve these problems through the application of Lex Mercatoria. The discussions raised in this article show that due to the many problems related to the application of national conflict resolution law, Lex Mercatoria can be a more efficient option for managing contracts concluded in foreign trade.

Different countries according to their legal system, each one assigns various definitions and examples to domicile, personal status, and nationality. For prevention of these disputes, the Hague Conference on Private International Law Organization, therefore, with the aim of uniformity of the rules of private international law, has decided to determine competent law and provide a unit definition of domicile by setting the Convention of 1955 relating to the settlement of the conflicts between the law of nationality and the law of domicile. Despite that, the domicile in English law and American, is the main factor of communication and even in French law it has been accepted as a secondary law, but in Iranian law this communication factor is not accepted as to the personal status as a secondary rule and in the case of stateless. Therefore, relating to these persons according to Article 7 of the Civil Code on the application of national law to the personal status of aliens, there is no choice, except les fori. In Iranian law, the only case that law of domicile, instead of law of nationality, can be determine competent law the personal status, it is envoi to Iranian law. While the principles of non-discrimination based on the necessity of applying, the same law to persons who lives in the territory of a state in some cases require the applying law of domicile. Therefore, in order to enforcing justice and preventing wasteful application of the lex fori, the acceptance of communication factor of domicile as a secondary rule especially in cases of personal status of stateless persons in our legal system is suggested.

In protection of victims of terrorism, the rule is to compensate the material and moral damages of the victims through the mechanisms provided for in the national legal systems including by the specific private institutions and State funds. Globalization of the phenomenon of terrorism is leading to globalization of the norms and mechanisms for protection of the victims. There are now a number of regional and international documents protecting victims in general and victims of the acts of terrorism in particular. For example, the 1983 European Convention on the Compensation of Victims of Violent Crimes, the 1985 GA Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law and the Statute of the International Criminal Court are of importance. They recognize the rights of the victims of terrorism to restitution, material and economic compensation, criminal protection, medical, psychological and psychiatric aids, police and security assistance and legal and cultural protections. However, more effective protective measures are required.

The 1965 Washington Convention on the settlement of investment disputes between states and nationals of other states created international center for settlement of investment disputes (ICSID). This center conducts investment disputes arbitration according to the rules of the convention. The choice of law rules of the Washington Convention have been provided in article 42. Second sentence of article 42 (1) specifically deals with the applicable law in the absence of choice of the parties and set forth that “the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.” Regarding to this rule، different interpretations have been made both in practice of ICSID arbitral tribunals and in views of scholars and arbitration authors. The differences of interpretations are from one extreme of the application of internal law of host state alone and in all circumstances، up to the other extreme of supremacy of international law and independent application of it. After considering all view points، this article reaches to the conclusion that initial purpose of the Washington Convention or ICSID and the parties’ (investor and host state) interests require that the national law of the host state must necessarily be applied، but، also in certain and special circumstances another law or rules of law including rules of international law will be applicable.