دانشنامه حقوق اقتصادی
سال بیست و نهم شماره 2 (پیاپی 22، پاییز و زمستان 1401)

Today, the arbitration regime for dispute settlement based on international investment treaties faces many challenges. One of the most obvious concerns is the lack of transparency in this regime, which has become the subject of differences in theories in recent years. This issue is so serious in some theories that it points the inherent principles of confidentiality and privacy of arbitration, and on the other hand, it has undermined the stability, reliability and predictability of international investment arbitration, and ultimately challenges the legitimacy of this system.In recent years transparance has been put under scrutinies by different relevant authorities to be rectified and improved. This article focuses on the Investor-State arbitration, while examining the various forms of transparency in the international investment arbitration process, and evaluates the latest developments regarding transparency in arbitration based on investment treaties. Then, by examining the potential risks of transparency and its ultimate goals, it proposes a series of strategies to adapt the process of procedural transparency reforms to achieve its goals. These solutions should be considered gradually in this kind of arbitration in order to clarify the continuity and persistence of transparency in international investment arbitration proceedings and, at the same time, maintain privacy and confidentiality advantage in arbitration.

Despite the introduction of "sustainable development" as a suitable framework for development in the last three decades and the positive reaction of many governments to it, there is a question whether regulatory governments, do strengthen the right of people to sustainable development or put challenges and obstacles in front of it?In this research, we have examined how neoliberal principles and policies governing regulatory governments, such as market competition, privatization, deregulation, trade liberalization, foreign investment, export-oriented production, and growth-oriented development, has created obstacles in front of sustainable development. and therefore distorts the right of people to benefit from sustainable development.For this purpose, we have used the analytical-descriptive method and proposed that the creation of new international institutions to strengthen the binding of environmental treaties, to adopt policies that lead to the reduction of poverty and inequality, and also to establish The new taxes that are collected in exchange for the destruction of the environment in the course of economic development, may help to heal the current situation.

Today, the concept of economic freedom as one of the necessary conditions for achieving sustainable growth and development has particular importance, so understanding the concept and components of the subject, as well as the limitations and obstacles imposed on it, are essential for any legal system to achieve economic growth and prosperity by reducing or eliminating barriers. Therefore, in the present article, the quantitative limitations of the principle of freedom of trade as one of the components of economic freedom are explained by descriptive-analytical method, and the approach of the Iranian legal system was examined through scrutiny of laws, regulations and annulments of the General Assembly. The result is that the Constitution and related ordinary laws, such as the Article 44 General Policy Implementation Law, the Development Plan Law, the Export and Import Law, and the Customs Law, have been legislated in order to support the development of foreign trade, facilitate the processes of the licenses, reduced customs formalities and also the removal of non-tariff barriers. Contrary to the legislative approach, the executive sometimes creates or expands trade restrictions and prohibitions through regulation, but The Administrative Justice Court, as the body that oversees government approvals, relies on the rule of law, often with a narrow interpretation of the legal restrictions and citing to general legal principles such as the acquired right have protected the freedoms of individuals.

It is assumed that financial markets by utilising private law instruments operate in a way which lead to equilibrium and efficiency based on distributive justice. However, in case financial markets deviate from this equilibrium and efficiency, there is a need to provide and implement economic law remedial solutions which, includes the utilisation of tax-subsidy policies that bring in favorable distributive outcomes. The present study uses library resources and descriptive analytical approach to analyze important tax-subsidy interventions in Iranian financial markets, explain appropriate normative framework for tax-subsidy intervention in financial markets and examine compliance of tax-subsidy interventions in Iranian financial markets with this normative framework. The authors believe that the most appropriate way to restore the efficiency and equilibrium of financial markets is to apply those tax-subsidy policies and regulations that are based on the Kaldor-Hicks formula of distributive justice; Derived from economic analysis of law. These interventions are designed in a way that if in short-term they bring in adverse effects for some groups, these groups will be compensated by the effect of wealth maximization in the long run.

In mainstream economics, people make decisions based on a rational model based on the cost-benefit logic. However, the behavioral attitude, as the outcome of the teachings of behavioral economics, posits that decisions are not made in the real world by real individuals about real issues as defined in the rational models of decision-making (Cost-benefit); rather, the decision-making process is influenced by biases.
One of the theories in the field of behavioral economics that deals with the effect of these biases on individuals’ decisions is the prospect theory, which focuses on the effect of loss aversion bias on the decision-making process. This study investigates the effect of loss aversion bias on the legislature’s decision-making based on the prospect theory and the teachings of behavioral economics.
The findings of this article confirm the existence of loss aversion bias-based thinking in the Iranian civil liability system, including the enacting of appropriate means of litigation, foundations of liability, and principles and rules of loss compensation. Using the prospect theory, this article seeks to find the traces of bias of loss aversion and evaluate the position of this bias in the liability system in order to provide a more realistic picture of the legislator’s decision-making.

Despite the fact that Takeover is usually used as a common strategy for the growth and development of companies, this process has unavoidable effects. Explaining that Takeover actually affects the set of actors of the companies and in many cases, it does not lead to the expected benefits. One of the reasons for this is the nature of Takeover, which, unlike other similar legal entities such as Mergers, is mostly hostile and against the will of the Target Company.
In this research, the question is addressed by analytical-descriptive method and with a comparative study, what effect does Takeover have on the company's shareholders and managers?
According to the findings of the current research, the interests of managers are secured without the existence of special regulations in the field of Takeover; however, in the absence of protective regulations, the interests of shareholders may not be secured in the Takeover process. This fact is especially important in Iranian law; because most of the existing laws are in the legislative field of the Merger and regarding Takeover, the legislator has expressed the limited rules related to this field in a scattered and decentralized manner without mentioning its name.

The concept of the efficient breach is made of fundamental modifications withinside the regulation of responsibilities and the substitute of the system of ethical utilitarianism with a system based on value originality. And considers the idea of contract regulation now no longer as "obligatoriness of contracts", however as "necessity of acquiring the preferred contract", that is inevitable if the contract is acquired through executing the contract. And if its miles occurred through the breach, breach of contract isn't simplest disgusting, however commendable and possibly necessary, and "efficiency" is the criterion for being based on one in every of methods. In present-day criminal perspectives, it's miles a remember of "credit" that "shipping the authentic thing " is one of the methods to obtain it. Also, the obligation of making the "desirable" isn't completely at the obligor, and the obligee is needed to participate withinside the choicest provision of the contract because of intervening withinside the contract. In addition, it isn't simplest for the parties who're withinside the scope of the results of the transaction, however, additionally, a third party, relying on the circumstances, may input into this variety and be responsible beneath neath this agreement. The purpose of the prevailing study withinside the Iranian legal system is to use a descriptive-analytical approach to evaluate this concept to the principles and postulates of this legal system. Although before everything look this concept is taken into consideration in opposition to the obligatoriness of contracts and its utility is forbidden, however, in a deeper analysis, the possibility of its utility in this legal system based on jurisprudence isn't ruled out, And preventive liability for breaches will significantly increase economic efficiency.

The expansion of urbanization,raised raised the issue of housing and construction development as a necessity.In this regard, the legislator, by creating a contract called pre-sale of buildings, in addition to facilitating access to affordable housing, helped finance construction projects. However, the pre-sale contract is like a sapling that simply plants it without taking measures for its care and management, dries it up. the lack of a management-monitoring model in the building pre-sale process has been a serious issue in the pre seller-pre buyer relationship which has created many problems. Therefore, the question is how to achieve a legal mechanism for efficient management of the pre-sale process. To answer this question, this article, based on the method of desk research and referring to documents in collecting information, along with descriptive-analytical researching method, first of all, considered the issue of Payment supervision and arbitration in disputes as the most challenging issues in buyer-seller relations. And in the framework of the study of the role of the notary in the pre-sale process in foreign law and the opinions of experts in the field of the capacities of the notary system, has presented a model to answer this question based on the rationale of the agency issue in economics and using the theory of contracting project management centered on the role of the notary.

Implementation of a legal rule requires its interpretation. According to the documents of the World Trade Organization, this should be done based on the customary rules of interpretation in international law. Among the effective components in the interpretation of the organization's agreements are other rules of international law provided that they are relevant and applicable to the relations of the members of the treaty under interpretation. The components of this component are analyzed by examining the opinions of the organization's dispute resolution panel and the opinions of legal scholars in order to answer the important question of whether other rules of international law are actually applied in the interpretation of the organization's documents with the mentioned conditions.
The sources of this research are library and include the reports of jurists, opinions of international authorities and documents of international law, and the research method is descriptive-analytical.
The results of this study show that the Dispute Settlement Body of the organization, mainly with extreme reliance on the text and wording of the rule under interpretation, as well as a narrow understanding of the word "members", are resistant to the effectiveness of other related international law rules that can be applied among members.

Validity of penalty clause in monetary obligations has always been a controversial issue in the Iranian legal system. Due to the exposure of institutions such as the Constitutional Council and the Expediency Discernment Council to the damage of late payment, despite the adoption of laws such as the Code of Civil Procedure this question still remains in the Iranian legal system and it is asked the parties can claim a sum in excess of the annual rate of the Central Bank as a fixed sum, based on the contractual terms? General Assembly of the Supreme Court's Unified Judicial Precedent No. 805 has considered the permission of this matter subject to its non-contradiction with the imperative laws and regulations and the present study with an analytical-descriptive method in order to answer above question, by examining evolutions regarding the damages of late payment in the Iranian legal system, state three jurisprudential, legal and economic analyzes and it has proved that accepting the validity of any amount of contractual obligation in monetary obligations can't be deduced not only from the text of the relevant laws and regulations but in addition to conflict with the law, has many adverse economic effects and exposes the agreement to the suspicion of usury.

A set of factors that affect Judicial behavior have been studied from the perspective of various sciences such as economics. Economics offers a specific way of delving into different subjects. Regarding the concepts of rational choice theory in economics such as its definitional meaning (making proportional tools and goals), maximizing expected utility, and maximizing wealth, this paper seeks to show what factors can influence judicial decisions and behaviors. It seems that recognizing the factors influencing the behavior of judges by policymakers and paying attention to them in policy-making can increasingly affect the quality and quantity of verdicts reached by judges and can lead to better allocation of financial resources in the judiciary system. The finding results based on library resources and descriptive-analytical methods show that hiring more judges to increase court outputs is not always an optimal solution. Even in some cases, an increase in judges' productivity allowances can provide enough external incentive to improve the quality and quantity of their verdicts.

Cryptocurrencies is a class of digital asset that is controlled using cryptographic algorithms and often works in a decentralized manner. Some experts believe that cryptocurrencies could be the future currency or international money. Therefore, cryptocurrencies and related technology might disrupt many things, including finance and law. Fiat currencies derive their authority from the government or monetary authorities. For example, the Federal Reserve back-stops each dollar bill. However, Cryptocurrencies are not backed by any public or private entities. Therefore, it has been difficult to make a case for their legal status in different financial jurisdictions throughout the world. In order to determine the positions, capacities, and challenges of cryptocurrencies in international monetary and financial law, it is necessary to first analyze the status of cryptocurrencies as money and then examine the position of cryptocurrencies in the International Monetary Fund as well as some other international financial organizations. Monetary and financial organizations have had different positions towards cryptocurrencies. The International Monetary Fund has done little more than encouraging the use of government cryptocurrencies. The position of international financial institutions has also been different in this regard: from the pessimistic approach of the Bank of International Settlements and the European Central Bank to the organizing approach of the Financial Action Task Force, as well as the passive approach of the World Bank Group. It seems that in order to use the benefits of cryptocurrencies (such as blockchain technology in international transactions) and avoid the problems caused by them (such as currency instability and financial crimes), it is necessary to complete and strengthen the international monetary and financial law system in this regard.