مجله حقوقی بین المللی
پیاپی 63 (پاییز و زمستان 1399)

It has been traditionally accepted that the law should abstain from interfering  in the preliminary negotiations of the parties for contract formation procedure. This makes the preliminary negotiations a risky period. Based on venturesome theory of negotiations, the parties must begin negotiations considering the possibility of non-concluding the contract and bear the risks of leaving the negotiations by the opposing party. Over time, it became clear that non-interference of law in pre-contractual procedure causes unfair results and does not accommodate the social destination of contract. Therefore, modern law recognized the interference in preliminary negotiations. Accordingly, in the Principles of European Contract Law and UNIDROIT Principles of International Commercial Contracts, based on the principle of good faith, certain obligations are undertaken by the parties of the preliminary negotiations and that the breach of these obligations entails liability. This theory has been declining due to the intervention of law in preliminary negotiations and accepting liability at this stage.

Distribution of reparation in situations of shared responsibility has always been one of the main challenges of responsibility in international judicial proceedings. In all cases of shared responsibility, the question arises as to which entity is responsible and how responsibility should be distributed among several factors. The Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) and the Draft Articles on Responsibility of International Organizations (2011) provide only limited guidance on the distribution of reparation. Likewise, the international jurisprudence has made brief references to the sharing of reparation among joint agents. Distribution of reparation to joint agents is done separately, taking into account the extent of the responsibility of each of the agents for causing harm and damage. Although, as defined by the International Law Commission, causality has no place among the constituent elements of an international wrongfulness, it is one of the main means of distributing compensation. Moreover, the analysis of the relationship between different instruments in different situations of shared responsibility can be found to have an effective role in the distribution of reparation.

The parties to arbitration can agree on the applicable law, however, in case of lack of determination, the arbitrator shall determine it according to the appropriate conflict of law rules. Also, the arbitrator can interpret and determine the applicable law. If the applicable law is disregarded, since the arbitral award is final and the act determines the grounds to challenge, the parties cannot challenge the award. Iran’s International Commercial Arbitration Act does not determine disregarding applicable law as a ground for challenging the award, so the parties’ autonomy and finality are in contrast. The research shows that although the court cannot review the award beyond the expressed grounds, parties can add some grounds to it. In some cases, the disregard of the applicable law could be interpreted as to act out of mandate or or lack of impartiality.

The taking of evidence is one of the central issues in every international arbitration procedure which includes producing documents, hearing parties and also doing inspections. It is important for the parties and arbitral tribunal to be aware of the rules that govern the taking of evidence, because issuing any award by the arbitration tribunal requires the involvement with the taking of evidence process. By studying international instruments, national laws on arbitration, the procedures of international arbitration institutions and also the awards of arbitral tribunals, it becomes clear that because of the consensual nature of arbitration, the rules on the taking of evidence have been based on the principle of party autonomy. The will of the parties in this regard may be explicit or implicit or even may be in the form of the delegation of the authority to the arbitrator to determine the rules. However, the arbitral tribunal and the parties should comply with the due process requirements, the efficient proceedings principle, the duty of good faith and the principle of confidentiality.

During the last decade of 20th century, the liberalization of financial services and the progressive internationalization of capital markets were deemed to be the building blocks for a new international financial order in which inclusive economic growth and prosperity for all human beings would be achieved and financial stability would be well maintained. Instead, it paved the way for one of the biggest global financial crisis so far i.e. Sovereign Debt Crisis. This article argues that sovereign debt defaults, during the last two decades, in the absence of a global legal framework for orderly resolution of sovereign debt disputes, has provided ample evidence that the existing international financial order which is excessively fragmented, has failed in achieving both financial stability and growth and the contractual clauses have been proved to be inadequate and inefficient in restructuring sovereign bond debts. Therefore, resolving sovereign debt crisis is not achievable unless further developments in international law of finance occur. This could be done through establishing an international legal regime governing sovereign debt workouts with a view to balance the interests of the debtor State and its population on the one hand and the rights of the creditors on the other.

Trade liberalization and trade activities may have direct impacts on environment. The aim of this research is to study the importance of environment in the North American Free Trade Agreement (NAFTA) and the function of Commission for Environmental Cooperation (CEC) in addressing environmental complaints. Another axis of this research is NAFTA renegotiations and American trade agreement which is called USMCA in 2018 and compare it with the Comprehensive Economic and Trade Agreement (CETA) which is a trade agreement between Canada and Europe. The research using an analytical-descriptive method concludes that according to the commission actions, the commission has been successful in showing transparency and also in the implementation of plans of the member States and as a result can be a good model for the same organizations.

The theory of jus cogens entered into the international positive law by virtue of the 1969 Vienna Convention on the Law of Treaties. According to its article 53, there are three criteria for identification of a peremptory norm which are (i) being a norm of general international law, (ii) non-derogability, and (iii) recognition and acceptance of non-derogability by the international community of States as a whole. Furthermore, belief in the peremptory status of the ban on use of force is widespread but an evaluation of the prohibition on use of force based on the above-mentioned criteria demonstrates that the prohibition on use of force could not be considered as a peremptory norm since such nature has not been sufficiently recognized by the States. furthermore, it is derogable and apologetic under Security Council’s authorization to use force and self-defense, respectively. In contrast, the prohibition on aggression is indeed non-derogable and without any exception and also its peremptory nature has been implicitly recognized by the international community of States as a whole. Thus, it appears that the peremptory norm of international law on use of force should be the prohibition on aggression.

In the pre-JCPOA (Joint Comprehensive Plan of Action) era, there were numerous actions brought in certain domestic courts relating to Iranian persons due to sanctions imposed by the United Nations Security Council on Iran. Among these, reference can be made to the judgements issued by the courts of Singapore, the United Kingdom and the Netherlands. These actions provided opportunity to the courts to deal with the issues raised in connection with the restrictions and impediments imposed under the UN Security Council resolutions and the related domestic rules. These judgements suggest how to use the legal mechanism in the national courts in the benefit of the Iranian parties. These cases with no precise statistics regarding the number of the actions, have not been thoroughly considered by the Iranian legal community. The jurisprudence produced through these cases might be of assistance to the Iranian persons which are active in commercial and governmental sections in figuring out the approach taken by various States in dealing with the legal disputes relating to sanctions imposed on Iran, and then taking them into account in their future legal relationship with other States’ public and private sections.

Cyber-attacks are unknown spheres in international law due to the abstract nature of cyber-space and their intangible implications in relation to the objective space. The pursuit of international law in cyber-space, such as the advent of Alice in Wonderland, is full of wonders that, when compared with the world’s objective laws, the correct answer cannot be found for the events that occur within it. This process has led to the emergence of barriers to the development of international law governing cyber-attacks, most of which include the weakness of international legal literature on the concept of cyber-attacks and the weakness of communication between the real world and the cyber/virtual world. Although the principles and rules of international law respond partly to some of the international legal aspects of cyber-crime attacks, disagreement among governments suggests that current responses are inadequate  and inconsistencies prevail. However, two general approaches namely drafting regional and international treaties and confidence-building measures might be introduced in order to overcome the fundamental obstacles that hinder the development of international law governing cyber-attacks, through which international legal literature relating to cyber-attacks could be well-developed.

In October 2019, the Ontario Superior Court of Justice decided the seizure of Iran’s bank accounts and the sale of Iran’s property in Canadian territory to execute the US Court judgments in the so-called terrorism cases. Canada has violated Iran’s jurisdictional immunity by enacting Justice for Victims of Terrorism Act (2012), and violated Iran’s enforcement/(or) executive immunity by executing US Court judgments, and has thus engaged Canada’s international responsibility. Iran can institute proceedings against Canada in the International Court of Justice by issuing a declaration of the acceptance of the Court’s compulsory jurisdiction, and it does not appear to be difficult to prove the wrongfulness of Canada’s action in the merits, given the ICJ Judgment in the Jurisdictional Immunities of the State (2012). In addition to the possibility of US entry to the (or) US intervention in the case as a third party and raising multiple claims, and the possibility of  a counterclaim, there will also be threats to Iran due to the declaration of the acceptance of the Court’s compulsory jurisdiction and it is likely to trigger some claims against Iran within the scope of that declaration.

Bunkering is an authorized activity and a manifestation of freedom of navigation. Prosecution of different aspects of foreign ship bunkering is within the jurisdiction of the flag State when it is carried out on the High Seas. Dispute of parties over the M/V “Norstar” case before the ITLOS in this situation and compared with the exercise of Coastal State jurisdiction by third State in affairs of flag State jurisdiction has no comparable history. Studying Norstar case with a descriptive-analytical approach and relying on jurisprudence of the ITLOS is the subject and purpose of this article. The main issue is the relationship between freedom of navigation rights in the mask of bunkering with the exercise of coastal State jurisdiction in the jurisprudence of the ITLOS. Research findings show that the right to freedom of navigation of a foreign ship is directly related to exercise of Coastal State jurisdiction. But bunkering in High Seas is not under jurisdiction of the Coastal State when all or part of bunkering of the foreign ship has not taken place in its Territorial Sea or Contiguous Zone in the jurisprudence of the ITLOS. In these circumstances, Coastal State’s reliance on the right to exercise jurisdiction over the foreign ships in the Territorial Sea does not suffice, although the foreign ship has returned to its Territorial Sea or within the jurisdiction of a third State after bunkering and is under direct judicial control.

The Harirud International River is a continuous boundary river between Afghanistan, Iran and Turkmenistan, which has its head on the territory of Afghanistan (upstream). So far, no trilateral agreement has been concluded between the three countries. The construction of dams in the subsidiary subdivisions of Harirud waterway by the said States have blocked the main flow of water to the main shaft. Given the water crisis and the lack of agreements on how to use the River, it is feared that these marine constructions may lead to an international dispute. Therefore, this paper, using the arbitral and judicial jurisprudence and international instruments and Custom explains the international obligations of Harirud waterway States on the marine constructions. It is concluded that States are required to issue notification for the marine construction. Moreover, the riparian governments commit themselves to fair and equitable use of the River so that it does not seriously damage the lower reaches (Turkmenistan and Iran).

Nowadays, great importance has been attached to the contractual terms especially the agreement on choice of court in international commercial contracts for possible disputes. Although, considering the party autonomy principle and parties’ interests, the agreement on the court that will have jurisdiction over the case is acceptable and this agreement obviously is valid in some legal systems and also in international instruments, Iranian Law casts serious doubt on it. Lack of certain laws and deficiency of case law in Iran have induced this uncertainty. The confusion in the clause to the exclusion of Iranian courts’ jurisdiction is more serious. This article using descriptive-analytical method and focusing on some Acts and Cases in legal system of Iran indicates that in Iranian Law, the agreement on jurisdiction that introduces the Iranian courts as competent court is acceptable. Accordingly, Iranian Law operates like many other legal systems. Nevertheless, it deals with more restrictions on the exclusion of Iranian courts’ jurisdiction clause. This clause is valid unless the subject of dispute is related to issues that the Iranian courts have exclusive jurisdiction.