فصلنامه مطالعات حقوقی
سال سیزدهم شماره 2 (تابستان 1400)

Unlike international commercial arbitration, where the issue of recognition has been explicitly considered as necessary requirement of arbitral award enforcement, in domestic arbitration there is no specific provision about recognition in the Act relating to the enforcement of internal arbitral awards. Therefore it is debated whether recognition is essentially a requirement to the enforcement of such awards or if the court is bound to enforce arbitral award if it is not revoked by the competent court and cannot refuse to enforce such award in contravention of obligatory rules or public order. In Iranian law, the position of Article 489 of Civil Procedure Code is not clear and there is a disagreement in the judicial process as to whether recognition is necessary for enforcement. While in Australian law, because of similarity between rules governing the recognition of domestic arbitration with international arbitration, there is no discussion in this matter. This article examines the recognition and enforcement of domestic arbitral awards in Iranian and Australian law and provides practical solutions for our country's legal system. The purpose of this paper is to recognition and enforcement of internal arbitration in Iranian law and Australian law and to provide practical solutions for the Iranian legal system.

Reviving the Kant`s contractualism is able to foundation for evolving the modern administrative law and reflecting the universal values in construction of administrative order, especially in ages that globalization has been affecting on administrative law scope. Developing the judicial review on administrative acts, administrative trial and values of good governance are the most famous indication of emerging of universal administrative law system. This article seeks to answer a question about how to construct and combine the concept of administrative justice of the contract-foundation with a descriptive-analytical method, which seems to be a suitable context for the development of the above values in the field of administrative law. Administrative justice is a concrete phenomenon that cannot be found only in the legal context. In other words, the emergence of administrative justice in the modern state is the product of the coexistence of public interest and contractism. This concept of administrative justice is distinct from the ancient concept of justice in classical states. In this context, administrative justice is a concept based on social contract and public interest that harmonizes social developments and public will with the legal structure. In fact, this coexistence is the starting point of administrative justice with the emergence of the government.

Preemptory Norms and International Commercial Arbitrations; A Comparative Study in Iran, Germany, the UK, and the US Legal Systems Hamidreza Rostami Abstract Arbitration is regarded as one the most preferable ways of the pacific settlement of disputes in international commercial claims due to the advantages it has over judicial resorts. One of the most important feature of arbitration, inter alia, is the authority of the will principle. However, it must be noted that this principle would be balanced in cases of contradiction to the ordre public and Jus cogens. In these cases, it is the preemptory norm which would prevail. To the extent these norms affect the principle and the recognition of these norms are of a high importance in the arbitral processes. This essay will focus on the scope and extent preemptory norms have effects on international commercial arbitrations.

Article 12 of the civil liability act is adapted from the law of obligations of Swiss and this kind of responsibility is unprecedented in traditional iranian law and jurisprudence. But most iranian legal writers are inspired by French law to analyze this article and they have stated the basics such as the theory of risk and assumed fault for it. Many iranian legal writers have tried to refer the basis of this responsibility to civil liability rules. The most important rule used to justify the employer's responsibility is the rule of ‘ sababe aghva az mobasher’. But the fact is that, except in some cases very limited, this rule can not be able to justify the employer's liability. For this reason, the judiciary has refused to comply with Article 12 in compensation for physical damage. Regarding the uniqueness of the criterion of causality and customary citation in financial and physical damages belief in abrogation of article 12 on physical damage and its survival in financial losses is controversial.

Normally, the common intention and goal of the parties to the contract is the full implementation of its provisions. To prevent breach of contract and fulfill the common will of the parties, there are several performance guarantees that One of them is the provision of a certain amount in the contract as a liquidated damages. The purpose of this study is to investigate the effect of this performance guarantee on general and competitive rules. In this regard, the nature and legal effects of this method have been studied to answer this main question that What is the nature and legal effects of liquidated damages in applicable legal systems, and which approach is more compatible with reciprocal justice and the purpose of the contract? In addition to the general rules, in competitive rules, the application of anti-competitive practices upsets the relative balance of power between the parties to the contract.The effect of including this performance guarantee in accordance with the general rules is three approaches: Absolute application - such as Iranian law and French law before the 1975 reforms; The invalidity of the condition - in the system of common law and the application and execution of partial damages with the possibility of adjusting it to unreasonable and exaggerated conditions (UNIDROIT principles, PECL and French law after the 1975 amendments).

The study of Iranians’ tort related writings explicates that most of the top jurists believe that there is a maxim called “the principle of full compensation”. Provided that the other two requirements of liability (causation and harmful act) exist, this principle states that all damages, regardless of their type, should be compensated without any need for a specific law prescribing the liability to compensate that kind of damage. Case law is in doubt on how to react to this principle and has since taken two different approaches. Contrary to popular belief, however, our search in the philosophical foundations (and also in the main goals of tort law) shows that there is no theory that stays adamant about compensating all kinds of damages in any circumstances. From only one theory we can infer such a principle, but because of some major defects in this conclusion, it has been widely criticized by tort law philosophers.It seems that the belief in such a principle (of full compensation) is not acceptable neither practically nor theoretically; it is unfeasible in practicality and reduces the power of tort law in organizing and arranging different kinds of social activities, and it is theoretically unsubstantiated. In this article, I propound this idea that invoking this principle should be avoided by our jurists, and as well as our courts.

Although civil procedure is part of formal law, it is influenced by substantive law. Due to the need for conformity of the rules of procedure with the Sharia (Islamic Law), jurisprudential rules inevitably affect the rules of procedure. One of these rules is the "Rule of Correlation of Permission with its Components". The question is how this substantive rule affects the proceedings in civil matters. Using the legal and jurisprudential analysis, this study investigates the effect of this rule on the three issues of claim determination, the realization of the validity of the sealed matter, and the jurisdiction of the court. The result of the study on claim determination is that under the implicit claim theory, the court must, based on the principle of correspondence, consider both the claim and its components. The result of the study on validity of the sealed matter is that acceptance of the inclusion of this validity in relation to the justifying causes of the sentence is like its spoken ones. In the case of inherent jurisdiction, it is concluded that the family court has jurisdiction not only over family matters but also over the components and consequences of those matters, thereby providing a strategy for achieving the goals of Article 10 of the Constitution, namely protection of family sanctity and stability of family relationships.

In line with the ideas of participatory criminal policy, the Iranian legislature has accepted the support of non-governmental organizations (NGOs) for vulnerable victims in Article 66 of the Criminal Procedure Code of 2013 and allowed the NGOs to protect these victims in criminal proceedings by declaring a crime and participating in the trial. The present article also aims to investigate the function of NGOs by answering the question of whether NGOs have the necessary efficiency in supporting vulnerable victims. Findings show that these support measures face challenges; the lack of criteria for evaluating the cases, the limitation of their intervention, and the ignorance of the judges cause them not to be used well. In addition, the NGOs have a weak legal nature and often operate independently, do not cooperate with the mass media, and often lack expertise. They also lack the trust of the government and the people and the good financial situation. From this day on, it is necessary to think of measures both in the legislation and to give the necessary training to the judges in this regard. Efforts should also be made to ensure that NGOs have a good social status in society, reduce their dependence by generating income, and be better able to support vulnerable people.

Kant’s theory of right is one of the most significant theories, which distinguishes between right and morality by giving pivotal role to the concept of freedom concerning the definition of “strict right” and removing the concepts of “perfection” and “happiness” from it. However, his emphasis on the Metaphysics of morals distinguishes his position from positivism, leading to some challenging discussions about the relation of morality and right. Accordingly, this makes the coherent interpretation of the theory impossible. Considering the concept of (moral) obligation as a core concept of Kant’s metaphysics of morals, we can categorize Kant specialists into two main groups: a) The dependentists, who believe that the strict right implies the concept of obligation and b) independentists who think otherwise. Amongst second groups, three thinkers are most famous: Ebbinghaus, one of the pioneers of the theory; Allen Wood, a radical American philosopher and Marcus Willaschek, who suggests the most sophisticated version of theory by proposing the idea of the paradox of juridical imperatives. Furthermore, Willaschek makes an attempt to analyze the concept of coercion, impossibility of derivation of coercion from categorical imperative and impossibility of conflict between Wilkür and Wille in Kant’s theory of right in order to prove his interpretation. The present essay aims to introduce the independence doctrine, especially willaschek’s interpretation, to Iranian scholars.

However, in the Iranian legal system, a legal entity called "administrative contract" has not been identified and despite the efforts of public law jurists, such a path has not gone well. But it seems that in Iran, in the shadow of the requirements of the modern state, some of the administrative contracts here, specifically the mandatory ones, have been in place for decades, and promise to establish a law known in the Roman-German tradition as an "administrative contract." The present article answers this question by understanding such importance: What are the grounds and problems of the birth of administrative contracts through compulsory contracts in the Iranian system? In response to this question, using the research method descriptive-analytical, these results have been obtained. First; Compulsory contracts in Iran are, in many cases, functionally the same as administrative contracts. Second; Due to the occurrence of such a situation, one can hope for the legal recognition and establishment of administrative contracts in Iran and in this way it got rid of the confusion that prevails in the current atmosphere.Third; Despite the legislature's railing for the birth of administrative contracts in Iran, there are many obstacles in front of this legal institution in Iran. Fourth; The focus of these obstacles is in the view of the Guardian Council on the issue of the contract.