مجله حقوق خصوصی
پیاپی 44 (بهار و تابستان 1403)

Justice and order have remained fundamental principles within various legal systems throughout history. In certain systems, these ideals are believed to be realized through the strict enforcement of laws, while in others, consensus around societal norms is deemed essential for achieving justice and order. Despite these differences, it is evident that all judicial systems strive to attain these goals by uncovering established truths. In the pursuit of justice and order, two distinct methods have emerged: the objective analysis of evidence and the ascription of enduring meaning to evidence that transcends the bounds of litigation, and the narrative approach, wherein the rationale aligns with the parties' narratives and derives contextual meaning from them. This exposition is rooted in the belief that prevailing legal scholarship in Iranian law emphasizes the significance of objective evidence, while the narrative approach holds greater sway in American law. However, through a comparison of these two methodologies, it becomes apparent that elements of the narrative approach are also present in Iranian civil litigation. It could even be contended that evidence fundamentally cannot be applied to a dispute without considering the underlying narrative. Consequently, legal scholars should acquaint themselves with this narrative approach and its principles, enabling them to possess a heightened self-awareness that contributes to broader objectives within civil litigation.

According to Article 388 of the Trade Law, as well as Article 114 of the Trade Bill approved in 1403, the transport operator is responsible for the actions of sub-operators. Jurists consider this article an example of contractual liability resulting from non-action, while the acceptance of the civil liability for the main obligee for non-action as a general rule faces many ambiguities and problems, and there are serious difficulties in attributing this point of view to the Iranian legislator. According to the principles of jurisprudence and the civil law, the carrier is considered a trustee; Therefore, assuming that the transport operator has permission to delegate the obligation, if he does not commit violations and abuses and a third party incurs loss of property, there is no reason to hold the first transport operator responsible, and the only person liable for the damage is the guarantor. It seems that the interest of society requires the responsibility of the first administrator. In this regard, this research seeks to answer the question: What are the solutions that can be used to determine the responsibility of the first operator due to the actions of the sub-operators? In short, the first method is to use an implicit condition, both customary and legal. Another solution is to use the mechanism of the ruling, which can be applied in two main ways. In one approach, granting a license to a transport operator is conditional upon accepting the responsibility towards sub-operators. In the second approach, the legislator imposes a mandatory order for the transport operator, such as liability insurance, and in the next step, sets a performance guarantee for its violation.

Even though asymmetric arbitration clauses seem to be used frequently in dispute resolution clauses for various industries especially, finance industry, there is no statutory guidance with regard to the validity of such clauses. Ultimately, the validity and use of asymmetric arbitration clauses depend on the circumstances in a specific jurisdiction. On the one hand, recognition of the parties’ autonomy in the incorporation of the agreed terms, and on the other hand, the injustice caused by misusing these clauses and inequality of the parties are among issues examined in this article. Under the arbitration section of Iran’s civil procedure law, arbitration is considered an exceptional dispute resolution mechanism, and it recognizes arbitration when the parties have agreed to refer their disputes to arbitration. This arbitration section has no specific regulation when only one of the parties has the right to refer the dispute to arbitration. This article studies the validity of asymmetric arbitration clauses under the laws of the Islamic Republic of Iran. Also, this paper by way of comparative analysis, seeks to explore the background of one of the imperative principles, i.e., equal treatment. This article finds that unless in exceptional circumstances, there is no obstacle to recognition of the validity of asymmetric arbitration clauses under Iran’s law. But, the validity of these clauses faces with serious challenges when there is a significant difference between the parties bargaining power in disputes involving consumer rights.

Today, jurisdiction clauses are important and widely utilized in maritime bills of lading. According to these clauses, the contracting parties choose the court or courts of a particular country to decide their disputes. In principle, a jurisdiction clause is binding only between those who have agreed to it. This paper aims to examine whether a jurisdiction clause agreed to by the shipper and carrier and incorporated into a bill of lading binds a third-party bill of lading holder. For this purpose, the paper, using a descriptive-analytical method and a comparative approach, examines the attitude of the EU, UK, and Iranian law. It contends that, under the EU and UK law, a jurisdiction clause binds the bill of lading holder provided that he/she has taken delivery of the goods from the carrier, demanded delivery of the goods from the carrier, or made a claim against the carrier based on the rights and obligations stated in the bill of lading. Although the Iranian law is wholly silent about the enforcement of jurisdiction clauses, the paper shows that the attitudes of the EU and UK law in this area have been totally accepted by one of the Iranian courts.

With the development of communication and media tools, defamation cases have transcended national borders, so the international elements involved in such cases can be very numerous. Therefore, the legal systems should provide choice of law rules for the courts that have an appropriate effect. This research will investigate that what kind of rules are used in the legal systems of England, the European Union and Iran to determine applicable law. Are these rules compliant with the conditions of defamation claims? In the studied legal systems, no special rule has been designed for defamation. In the European Union, due to the exception of defamation from the general rules of conflict of laws, national rules are applied. In Iranian law, only the general rule of lex fori is applicable, but in English law, according to common law, defamation must be held liable by both the lex fori and the lex loci delicti. This research will demonstrate that the rules provided in these legal systems are ineffective and have to conform to defamation lawsuits.

Artificial Intelligence, as one of the most important grounds of new technologies, infiltrates all aspects of human being life. one of these aspects is the inventions created by artificial intelligence, and this question will arise that if artificial intelligence would benefit legal rights of inventions? what is the necessity of recognition of this legal right, and what are the challenges of recognition in the framework of traditional system of intellectual property law? The current article studies the possibility of inventorship of artificial intelligence, with a focus on DABUS, the famous case in which DABUS is named as an inventor in a  patent application. The current research tries to examine the possibility of reconciling the requirements of invention patentability with the specifications of artificial intelligence, and investigate the possibility of inventorship and ownership of artificial intelligence using an analytical-descriptive method while addressing the process of DABUS case. Although DABUS patent applications have thus far failed in most legal systems, most requirements of patentability coincide with the features of artificial intelligence. Even Civil law countries acknowledge that originality cannot be assessed according to artistic quality, and it is necessary to apply different standards of originality for different types of works. Thus, the basis of IP protection should be reviewed. This study concludes that the recognition of DABUS as an inventor in some international patent offices can be the beginning of making changes in new patent system and also the recognition of other legal rights, namely the personality right of artificial intelligence.

Following the entry of a digital platform operator into the intra-platform market, it is likely that the platform will privilege its affiliated product over the third-party products. This paper attempts to answer whether all forms of preferential treatment should be prohibited and considered anti-competitive, and whether the document proposed by Iran’s Supreme Council of Cyberspace in 2019 is effective in preventing online differentiated treatment. The findings indicate that due to the variety of dominant and non-dominant platforms’ practices, their different effects and the possibility of reaping dynamic efficiency, there is no basis to deviate from the rule of reason in the competition assessment of self-preferencing, and Iran’s Council has gone beyond the principles of competition law by applying the per se illegality rule to any form of self-preferencing. To prevent the anti-competitive effects of self-preferencing and to address the drawbacks of the recent competition document of Iran’s Council, this article suggests the enactment of a new legislation which defines gatekeeper platforms and imposes certain ex-ante obligations on gatekeeper platforms operating in Iran, namely the separation of their horizontal and vertical (intra-platform) operations, setting out the search ranking parameters, and clarifying the conditions for blocking access to the platform.

The purpose of conducting this research is to find out whether the selling authority of the abandoned streams within the legal boundaries and the protection zone of the cities lies with the Ministry of Energy or the municipality. So that the owners of the properties adjacent to the abandoned creeks know from which of these authorities they should buy the bed of the abandoned creek in order to combine it with their property. In this research, which was carried out in a descriptive-analytical way and with a library method, referring to the available sources in this field, it was concluded that the beds of abandoned natural streams that will not be used in the future and are within the legal and privacy limits of the protection of the cities and the abandoned unnatural streams that are located in this area can be sold by the municipality to the owners of the adjacent properties in order to merge with that property, based on Note 6 of Article 96 of the Municipal Law, and Article 2 of the Law on Fair Water Distribution, does not have the power to override Note 6 of Article 96. However, if the natural stream is registered by the Ministry of Energy, its subsequent abandonment has no effect on the matter, and in any case, the municipality will not be able to sell such a stream in terms of registration in the name of the Ministry of Energy on behalf of the government.

Resulting law on Banking Operations without Usury, approved on 10/06/1362, was not part of formal transactions for banking. The designers of this law, without understanding the nature of banking, built a structure where the bank acts as a businessman to earn profit. A structure that is contrary to the function and expertise of banking. Such a structure is rooted in a view that does not distinguish between "natural interest of money" and "usury". In this article, this point of view is evaluated, and it is proved that money is assigned to that benefit in the course of time according to the natural course of affairs; "Benefit" that is different from "usury" and "decreasing the purchasing power of money". Therefore, the depositor's money is deposited to the acquiring bank and the "owner" bank of the deposited funds, and the banks can pay the interest of the money to the depositor without involving themselves in contentless contracts based on the deposit agreement. Based on the loan contract, they can receive the principal and interest from the recipient of the facility.

The development of artificial intelligence and the strengthening of some features of this technology have made significant changes in various aspects of law. One of the most important features of the aforementioned is the increase in creativity that has led to the realization of Generative artificial intelligence. Generative artificial intelligence, with its special nature of creativity, can play a role in various fields, including the creation of literary and artistic works. Considering the participation of artificial intelligence in the creation of works, it is necessary to examine the legal consequences of such participation. To achieve this goal, the present research, with a descriptive-analytical approach and utilizing the comparative method, by clarifying the nature of creativity and explaining the role of Generative artificial intelligence in the creation of works, has raised several legal consequences. Regardless of other issues, the challenges related to the attribution of ownership, the challenges related to granting personality to artificial intelligence, and issues related to the complexities of legislation are among the most important legal consequences of this issue. According to this research, there are different solutions, including the definition of sui generis intellectual property rights, granting limited personality to artificial intelligences, and finally benefiting from the experience of other legal systems regarding the flow of related laws and regulations and defining the necessary criteria.

As the most important actors of social security systems, pension funds follow certain principles in their investments; One of these principles is the principle of responsible investment. Responsible investment means integrating environmental, social and governance factors in the decision-making process for (long-term) investment and managing related activities. The emphasis on responsible investment by international organizations and the tendency of many pension funds in the United States of America, the United Kingdom and the European Union member states to do so indicate the importance of the issue. For this reason, the current article has investigated the responsible investment of pension funds using the descriptive-analytical method and based on library studies. The findings of this article indicate that pension funds in countries have different approaches to responsible investment; So that some of them strictly follow the rules of responsible investment; Some others try to comply with this principle to some extent, and another group of funds do not pay any attention to complying with this principle. The approach of these last two groups of funds is mainly due to the lack of knowledge required for responsible investment, the difficulty of choosing a portfolio and the high cost of this type of investment.