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

Precautionary principle requires that, states should refrain from any activity that harms human health, natural resources or ecosystem.The absence of scientific certainty does not justify delaying appropriate measures. The precautionary principle has three components :significant or serious danger, scientific uncertainty and precautionary action.The implementation of this principle in oil contracts occurs when host states, in the face of significant or serious risks, take precautionary measures such as the environmental impact assessments, suspensions, re-zoning, cancellation of permit or termination of contracts. In Mamidoil v. Albania, host state prohibition on investment activities was not considered as indirect expropriation due to the risks of constructing oil tankers nearby residentental zone. But on the contrary in Burlington v. Ecuador, the arbitral tribunal considered termination of the deal and taking possession of the oil blocks as illegal expropriation. This paper examines the views of international investment arbitration on two oil disputes related to the precautionary principle and tries to find the reasons for rejecting or accepting precautionary measures and violation of investor's rights.

Some legal principles have a close conceptual boundary between them so that researchers sometimes become confused in applying such principles. In this article,using the descriptive-analytic method,it has been tried to recognize the conceptual boundaries of precautionary and preventive principles from each other and to explain that the precautionary principle concerns scientific uncertainty from effects of the act and is exercisedbefore the start of the act. Whereas the preventive principle is applicable in the stage before the start of the act too, it is exercised when there is no scientific certainty to effects of the act. Therefore, in recognizing the boundaries of these principles, in spite of the longitudinal relationship existing between the two principles, there is a fragile boundary between them due to the existence of similar mechanisms and legal consequences.