نشریه پژوهش های حقوق تطبیقی
سال بیست و ششم شماره 2 (پیاپی 116، تابستان 1401)

Territorial restrictions are usually imposed by higher firms on lower firms about Sales domain of products subject to the contract or on the characteristics of customers in production or distribution chain. One of the controversial issues is the examination inconsistency or non-inconsistency of these with competition law. This study seeks to provide a clear answer to the fundamental question of whether territorial restrictions are considered necessarily a violation of competition law or are considered suspect restrictions. The results are evaluated according to the rule of reason in US competition law; While in EU law, exemptions are provided for evaluation the competitive effects declared legitimate and permissible if comply with the declared criteria. In the Iranian legal system, the legislator has simply mentioned two examples of territorial restrictions in Article 44 of the Law on Implementation of General Policies of Principle as anti-competitive restrictive conditions. Therefore, after explaining the concept and economic result, examines and analyzes the procedures of the courts and laws of the United States, the European Union and Iranian law from the perspective of competition law, and shows the surprising deficiencies provides suggestions to amend Iranian regulations to be more in line with the principles and objectives of competition law.

In Iranian Procedural Law, the security for costs order of frivolous claim is a solution that is provided to recover the potential costs of the defendant. However, due to the lack of criterion for identifying frivolous claim in Article 109 of the Civil Procedure Code and its hint to the words "type and circumstances of claim", the application of this solution has faced a serious challenge in the judicial precedent. Indeed, although the security for costs of frivolous claim order requires identifying the frivolous claim, no criterion is provided in this matter in Article 109. In contrast, in English Procedural Law, if the claim has no legal effect or is obviously ill-founded or vexatious (which are all frivolous), the court may strike it out and order the plaintiff to pay costs to the defendant. According to prior contents, this article intends to fill the gap in Iranian legal literature. For this purpose, while studying the criterion for identifying frivolous claim in English law, this hypothesis is reached in Iranian Law: If the facts of the claim are not able to occur or assuming the ability to occur, there is a potent possibility of its non-fulfillment, the claim is frivolous. Further, if the claim is not based on any evidence or if it is based on evidence, there is a potent possibility of failing to prove the facts of the claim, the claim is frivolous. In addition to these, if the claim has no legal effect even if its facts are true, the claim is frivolous.

Considering the role of will in private law, especially in contracts and transactions, some legal systems have also proposed the interference of the parties’ will in determining the competent court to deal with the civil liability claims of the road transport operator. The main question is that, does the will have such a role in the studied systems or not? The primary premise is that in the scope of private law, will has a fundamental role and is even effective in choosing a court. By using the comparative research method, we come to the conclusion that in the studied legal systems, with respect to the public order and imperativeness party of the rules of civil procedure, examples of the manifestations of will can be seen in it. This can be seen implicitly in the legal system of Iran, Afghanistan and the CMR Convention. It is suggested that, as necessary, the scope of will in the proceedings should be expanded like other parts of private law, and the law of civil and commercial procedure in Iran and Afghanistan should be amended in line with the CMR convention and the change in the approach of the countries.

One way of dealing with parallel litigation for the courts of common law countries is ‎to issue an anti-suit injunction preventing one of the disputing parties from initiating or ‎continuing proceedings in the courts of another country. Civil law countries believe that ‎this remedy interferes with the proceedings in their courts and violates their national ‎sovereignty. This study aims to examine the attitude of the EU, French, and Iranian law ‎towards the enforcement of anti-suit injunctions. The study contends that in the EU, an ‎anti-suit injunction rendered by a third country is enforceable in an EU member state as ‎long as it accepts the enforcement of such an injunction under its national law and its ‎jurisdiction is not based on EU regulations. In French law, anti-suit injunctions are ‎traditionally unenforceable. However, when parties agree to grant jurisdiction to a ‎foreign court, the French courts enforce such injunctions and dismiss the proceedings in ‎favor of the foreign-selected court. On the other hand, when the French courts assert ‎exclusive jurisdiction to decide the dispute, they may react to an anti-suit injunction by ‎issuing an anti-anti-suit injunction.  In Iranian law, an anti-suit injunction cannot be ‎enforced under Article 169 of the Enforcement of Civil Judgments Code. As a result, ‎there is no mechanism for the enforcement of anti-suit injunctions in Iran. However, ‎due to the advantages of enforcing anti-suit injunctions, the study contends that the lack ‎of a mechanism should not be an obstacle to the enforcement of anti-suit injunctions in ‎Iran.‎

According to the arbitration agreement, the arbitrators have the authority to settle the dispute of the parties. The invalidity of the arbitration agreement or the arbitrator's award will have a mutual effect on each other. On the one hand, issuing a decision by the arbitration authority is based on the authorities of the arbitration agreement; On the other hand, in binding arbitrations, the arbitrator, by issuing a decision once, is freed from further proceedings, unless a further agreement is made by the parties. The necessity of writing an essay is that in the case of annulment of the arbitrator's award, there is a difference of opinion and procedure regarding the subsequent jurisdiction of the judicial authority and arbitration in future disputes in the arbitration and judicial system of Iran. In this essay, this issue has been investigated and it has been emphasized that the wording of the note under Article 491of Iran’s Civil Procedure According to the fact that "in cases where the matter is not referred to arbitration through the court and the arbitrator's opinion is invalidated, the litigation will be dealt with in the court by filing a petition" refers to the dominant case of arbitration, i.e. binding arbitration; However, in absolute arbitrations, the arbitrator's award is annulled, according to the purpose and philosophy of the parties' agreement to arbitrate, the arbitration agreement is not destroyed, and there is still the possibility of settlement by the arbitral institution. The research method in this essay, while studying legal sources using library tools and studying the judicial precedent, is a descriptive-analytical method of applied type.

One of the issues in the scope of general rules of obligations, is analyzing the different types of contracts. Suspended contract, as a type of contract, is one of those issues that the analyzing its nature and effects has been subject of many discussions and disagreements among the jurists and lawyers. In the Civil Code of Iran, the allocation of one article to the above mentioned issue, alongside the belief in the invalidity of a suspended contract, in Islamic jurisprudence, or disagreements on which, has caused ambiguity in the effects and rules governing the suspension of contracts in the Iranian law. As a result, there is no general rule regarding the status of a suspended contract in the Civil Code of Iran. Whereas, certain articles of the Civil Code of France, have been allocated to suspended contracts. Doctrines and judicial precedents have made efforts to complete the regulations related to the effects and rules of suspended contracts. Accordingly, the present research, holding a comparative approach to the position of Islamic jurisprudence and French law, tries to explain the status of suspended contracts in the Iranian legal system.