فصلنامه پژوهش حقوق خصوصی
پیاپی 31 (تابستان 1399)

In this study, attempts were made to have a comparative analysis of the two legal systems of Iran and the European Union on the subject of revocation of the donation. This has been done through familiarizing with the Draft Common Frame of Reference (DCFR) which is the European Civil Code and to study the effects thereof. Though suggesting an opinion on the Iranian and European legislature's approach and its cases, it has been concluded that, despite the similarity in the purpose, due to the acceptance of the principle of revocability, the Iranian legislators have made exceptions to the notion of irrevocability. While in the EU law, due to the adoption of irrevocability principle, the rights of the donor to revoke is limited to: ingratitude of the donee; impoverishment of the donor; and the residual right to revoke (material change of essential circumstances after the conclusion of the contract) albeit with some conditions. This comparative approach to the subject has been widespread both in theory and practice and, through enlightening the minds of Iranian legislator, it can fill the legal vacuum surrounding the issue or bring about a modification of the law.

Resolving the conflict of laws applicable to cultural heritage disputes is an important challenge in private international law. The cause of this challenge is, on the one hand, the preponderant role of cultural property in constituting of cultural and historical identity of nations, and the enormous profit of illicit trade of cultural properties on the other hand which leads to numerous disputes. In most of these claims, the lex rei sitae rule has been applied that normally leads to the issuance of unfair judgments. The negative effects of these decisions result in the question of determining the proper law governing cultural property claims. The theory of applying the lex originis rule to cultural property disputes is the theory which is accepted in this article. In order to prove this theory, this article is divided into two parts using a descriptive and analytical method at first, the lex rei situs rule will be studied and the application of this rule to cultural property claims will be examined by a critical perspective and then the alternative courses of action will be analyzed.

With  the growth of transactional commercial arbitrations in the 20th century, the theory of ‘Transactional Commercial Law’ was proposed by jurists such as Goldman and Schmitthoff, according to which, there is a third legal system along with the system of international law and national law which adjusts transnational commercial relations. There is no consensus among legal scholars about the concept, nature and other issues surrounding transnational commercial law and its study invites ambiguities. Considering the history of transnational commercial rules, some scholars consider this new legal system equivalent to traditional and customary trade law of medieval merchants (Lex Mercatoria), whereas Lex Mercatoria has never had a fixed concept and its meaning has developed over time. Based on a library study and a descriptive-analytical approach, this article studies and assesses the evolutionary process of Lex Mercatoria and clarifies its interrelationships with Transnational Commercial Law. Finally, it is concluded that the comprehensive definition for Lex Mercatoria is not equivalent of Transnational Commercial Law (including in its broad or restrictive sense) without specifying certain characteristic such as classical, modern, and post-modern in which the post-modern Lex Mercatoria comes closer to the concept of Transnational Commercial Law in its restrictive sense.

Interest is one of the prerequisites of bringing an action to the court. This condition is not limited to first instance claims but is also necessary in appeals. But the question of which side holds the right of appeal is not easily answered. Article. 335 (a) of the Civil Procedure Code grants the appeal right to all parties of first instance. However, the appealing of the winning party is not in accordance with the principles of civil procedure code. In French Law, the succombance principle determines in which cases the parties could appeal the review of the judgment of the first courts. There are presumptions that specify the cases of appeal, condemnation in logic of the judgment and condemnation to compensation of costs of proceedings. Nevertheless, these presumptions are not inviolable. Consequently, it is necessary to study the application of succombance principle in different cases. In this regard, the application of succombance principle in respect of court judgment, parties and subject of the case would be studied in this article. The literature of French law would be one of the sources for finding the solutions of cases of appeals in Iranian Law.

In some civil law countries, creators of literary works are granted a special moral right known as the right to withdraw after publication. By virtue of this right, if the creator's opinions and beliefs change drastically after publication, the author has the right to prevent further publication of the work and stopping its circulation in the market. Also, in some legal systems, this right can be exercised for economic reasons in case of non-exploitation of the work by the publisher.Since the underlying principle of this right rests on the theory of personality, advocates of the right of withdrawal consider it as a suitable tool to preserve the creator's personality. In contrast, utility-based legal systems refuse to accept it because of its huge costs on publishers. This right is not explicitly recognized in the Iranian legal system. However, given that foundation of literary rights in Iran is mainly based on the preservation of creator's personality, and the right to withdraw is essentially a companion to the right to create and to disclose, this article defends the insertion of this right in Iranian Legal system

The Rotterdam Rules that has been ratified at 2009 is one of the most important rules with significant innovation in the regulations of international transport of goods by sea. The gradual development of the rules governing the basis of carrier’s liability since Multimodal Transport Convention 1980 to the UNCTAD/ICC Rules 1992 and then the Rotterdam Rules 2009 are discussed in this paper. While according to Multimodal Transport Convention 1980, presumed fault, was accepted as the basis of carrier`s liability, and the majority of scholars claim that the basis of liability in UNCTAD /ICC Rules 1992 is the same (presumed fault), in practice the burden of proof in both groups of the above-mentioned Rules is on carriers and they are practically subject to presumed liability. The Rotterdam Rules is based on the new structure in assigning the burden of proof to each party, and the basis of liability. While the other previous regulations governing the multimodal carriage of goods  comply with certain liability basis, in Rotterdam Rules, this liability is the combination of presumption of liability and presumption of fault, and tort law which alternatively change at each stage. Therefore, carriers in some cases have to prove lack of their fault, and in some cases, lack of their liability, and in some assumptions, the claimant has the responsibility about the burden of proof, and not the carrier.