نشریه حقوق فناوری های نوین
پیاپی 2 (پاییز و زمستان 1399)

The hardship of enforcing a contract is one of the most frequent problems in any legal system after a crisis; In this regard, the necessity of explaining a comprehensive theory about the hardship, especially in the pandemic of covid-19 as the most terrible crisis in recent centuries, is strongly felt. Today, many contemporary legal systems, including countries such as France, Germany, and England, have responded to the hardship of enforcing the contract with convergent approaches. These legal systems, while explaining the necessary condition of hardship, have also provided certain solutions for the problems of this matter in the realm of contract theory. The approaches of contemporary legal systems to the hardship can be categorized under the two general forms with the titles of "hardship as impossibility" and "maintaining the contract while reviewing it". Paying attention to these approaches in the Iranian legal system will provide very insightful achievements for Iranian jurists which can be used to achieve a proper balance between the principle of necessity and contractual justice.

Public interest is closely related to public order; something is considered to benefit the public only when its violation defies public order. Public interest is a legitimate right internationally bestowed to investee countries to nationalize and confiscate properties of foreign investors. The present study aims at providing a comparative analysis of nationalization of properties of foreign investors in Foreign Investment Laws of Iran, Turkey, Azerbaijan, regarding public interest and order.As implied in the theory of public ownership of the governor or Imam on people’s property, the principle of public interest and the principle of substitution of the sovereign over the person who refrains are considered as bases of the law of nationalization and confiscation of properties of foreign investors. Public order in Iran and Turkey is mainly economic, while it encompasses politics in Azerbaijan which is in ore agreement with Anglo-Saxon perception of public order. Moreover, in the law of Azerbaijan, unlike that of Iran and Turkey, state interest is considered along with public interest as the basis for nationalization and confiscation of properties of foreign investors. Thus, it is concluded that Iranian law is closer to Turkish law. However, public interest and order, and nationalization of properties of foreign investors in the law of Iran are in more agreement than the laws of Turkey and Azerbaijan with international standards.

It has always been a common legal idea that a physician shouldn’t be liable of patient‘s corporal loss made without any fault. Doctor’s liability is rationally restricted by his abilities and therefore, he should not be considered responsible for those injuries made without his fault. But most Shiite jurists reject this belief. They account physician’s treatments as quasi-intentional crime and as the result, impose absolute liability on doctors. The Islamic criminal law approved by 1992, accepted the second view and lead to serious criticism of the legal society. As the reaction of this regulation, the new Islamic criminal law which is passed by 2012 has chosen a totally different approach. Now, it is necessary to prove medical fault in order to win a lawsuit against a physician. “Fault” has become a pillar in medical liability and even without any “clearance”. No one could take a malpractice action to the court successfully but through proof of medical fault. This article aims at evaluating the new law and then, determines the final position of Iranian legal system regarding medical liability.

Difficulty of extraction from the depths of the earth and sea beds has made oil and gas industry the most dangerous industry in the world, so that the parties of upstream oil and gas contracts always seek to use different solutions such as indemnity clause to allocate the risks. According to indemnity clause, risks is up to the party that is more capable of managing risks. continuously repetition of this clause in the aforementioned contracts can be regarded as a practice- a step before formation of a custom rule- in the field of risk allocation in oil and gas industry that undoubtedly will be an effective step in formation of lex petrolea in the future. But by a survey in writings and thoughts of scholars and the text of the upstream oil and gas contracts, it can be found that there is no overall consensus about the definition and scope of this clause and sometimes the scope of this clause has been confused with other similar terms. So in present article we have considered concept, nature and important notes in drafting of this provision.

AbstractIran is in a special place in terms of oil exports, and it is natural that in this valley traders are also looking for a better market and more profits. With development and progress oh the Internet and new technologies, the world economy has taken an upward trend towards e-commerce. The questions that will be answered are the questions that can be answered between the Iranian Stock Exchange and the International Forex Market, which one can be suitable for oil traders and what kind of contracts they sign to make more profits. Therefore, this research aimed to explain the nature and fundamentals of stock and forex markets and future contracts and their differences, to have a comparative view on their advantages and disadvantages towards each other and to investigate the conclusion of futures contracts in these two markets.The findings indicate that the international forex market in Iran is legal and legitimate and has many advantages for oil traders compared to the stock market and it is proved that trading in this market is not gambling and usury. Also, if you use contracts for difference or CFDs in their transactions, they will receive more points. Special formalities are needed to conclude future contracts on the stock market and Forex markets.

It is generally accepted that the content of the contracts reflects the goals of contractor parties and with relying on contractual rules and mechanisms be performed accurately and completely to ensure the parties that their efforts for concluding the contract shall result in their mutual intention and interest. One of the most important contractual rules is co-operation rule that if be included in the contract might encourage or prevent the parties from doing some activities to make sure that the concluded contract shall work out. The problem might arise when this rule is not included or implied in the contract and even such unexpected events have happened that make it difficult for both parties to be bond to the concluded contract. Under these circumstances this essay by analyzing this rule under the important international documents including the CISG, PECL, DCFR, Islamic Fiqh and the Iranian legal system, has suggested the solutions such as contract management methods to maintain the oil & gas contacts performable and resolve the contractual conflicts.

Financing as a general meaning that can be achieved in various conventional methods, so something that separate the method of Forfeiting from other forms of financing, including borrowing as traditional way, that is The ability to provide the financial needs of business activits and investors, including the need for liquidity in international trading through Transfer of long-term demands withoutTermination In the shortest time and the least harmful method.Thise method of financing will be done In the form of a contract between Forfiter and creditor. Therefore, Financing in this method concluded in the form of a contract by reliance on the Forfiter and creditor. In this research, Legal review of parties and financing instruments in the Forfeiting contract and its impact on the elements, case study for the draft is in question . Nowadays, all transactions related to goods and services can be the subject of a Forfeiting contract because the sole responsibility of the exporter to the importer is the quality and reliability of the goods. In recent years, transactions that focus on the development of oil and gas fields and raw materials such as oil, mineral raw materials and durable goods using common tools in forfeiting such as draft, promissory notes, letters of credit and transferable payment guarantees, can be financed.

Standby Letter of Credit is one of the tools which has gained more significance in the field of the Banking Law over the course of the past decades. Nevertheless, this tool has not been properly studied in many countries, including Iran. Thus, its role and status remains unclear. Considering the increasing importance and advantages of using this tool in commerce, it proves necessary to study it carefully. This research is after careful study of the peculiarities of Standby Letter of Credit, and also comparing it with a similar tool, namely Demand Guarantee. Due to the similar functions of these tools, which both guarantee the risks of transactions, it is imperative to carefully delineate their differences. In this research we have tried to make clear the similarities and differences in the legal regimes governing the two types of documents, both from procedural and substantive angles. As conclusion, it seems that Standby Letter of Credit has many of the advantages of Demand Guarantee, and in some aspects has even more advantages, since regarding them there is no dispute on the admissibility of the principle of independence. Moreover, despite many similarities, we should consider Standby Letter of Credit as a quite distinct tool. Promulgation of separate regulations under the title of international provisions governing Demand Guarantee supports this idea. It should be noted that the article has been written in a descriptive-analytical manner.

New technologies, challenges, risks and environmental opportunities Abstract The effect of technology can be examined in two dimensions..On the one hand, with more access to science and knowledge and its combination with power, human beings dominated more resources and regions and to achieve progress by having on technology, environmental damages caused. On the other hand, technology can help reduce environmental hazards and harms despite human knowledge and wisdom. damaging or preventing damage depends on human awareness and intention to use technology. Technology, in contrast to its destructive role in the environment at the beginning of industrialization due to the growing awareness of humans about the need to protect their land and environment and passed it on to statesmen and transnational corporations it will gradually have a constructive and environmental role. This article explained the role of technology in environmental protection by qualitative method and from the perspective of data collection.

One of the crucial reasons for proving a claim, especially in the field of property in Imami jurisprudence and Iranian law, is the Presumption of Possession rule. In this article, we have tried to prove expand the domain of this rule to genealogy and deviations using a library method. The arguments that prove this are both narrated arguments, including narrations and rational arguments, including the construction of reason. Therefore, just as narrations and the construction of reason can prove the rule of presumption of position in the property, we can also transmit the arguments to genealogy and deviations. Expanding the Presumption of Possession rule to the medical new technologies such as surrogacy and the artificial womb is also discussed. Also, in many cases that the Farash Rule cannot apply, the Presumption of Possession rule may apply. We proposed that Article 35 of the Civil Code amended as follows: " Possession by the title of ownership shall be taken as proof of ownership, and also in deviations and genealogy unless the contrary proved. "

Arbitration is playing a very important role in international and domestic commerce. Party autonomy and free will are prevalent in all aspects of arbitration which includes rules of evidence, submission, admission, and disclosure. Lack of predetermined rules and leaving them to the parties or the tribunal causes confusion, especially as the judge's role in the management of the submission of the evidence, the value of evidence and the discovery and disclosure are distinctively different in Civil and Common Law traditions. Therefore, knowing the practice of international commercial arbitrations with regards to evidence is of crucial importance. In this paper, the practice, laws and rules of international commercial arbitration are examined in Iran and representatives of Civil and Common Law traditions. International commercial arbitration has developed its own specific rules and practice of evidence which not that of neither Common nor Civil law's. Considering this specific practice and the fact that one cannot rely on their knowledge of domestic procedures, it is necessary for the lawyers to become familiar with the rules of evidence in international commercial arbitration. It is also necessary to note that these rules are governed by part autonomy, and they should think of setting the rules of evidence before any dispute or at least before the commencement of the proceeding. This paper recommends using the standard guidelines on the rules of evidence such as those published by the International Association Bar and incorporating them in their arbitration clauses or agreements.

Compatibility and conformity of verbal and customary concepts of contract law rule with technical concepts of the electronic environment are one reason that has made it possible to conclude an electronic contract and consequently the spread of business in this field. With the enactment of the Electronic Commerce Law, electronic contracts, both in terms of the formation process and nature, such as non-electronic commerce, have the necessary legal support and are valid within the country's framework's legal system. In other words, the digital or virtual nature of the agreement between the parties is correct in terms of legal analysis and is not prohibited by law. With the expansion of cyberspace and the need for the rules governing trade in cyberspace and as a result of disputes arising from these interactions and transactions, finding a solution to resolve these disputes is inevitable and necessary. By inferring the rules for resolving disputes in non-electronic space, solutions can be found for resolving disputes in cyberspace. These solutions can resolve existing ambiguities and gaps in non-judicial methods in resolving disputes by complying with commercial and civil law and domestic and international arbitration laws. In this article, while introducing the concept and nature of the symbol of electronic trust as a researcher and strengthener of Internet business, an attempt has been made to talk about potential and actual ways of resolving disputes arising from its use in national law.