مجله حقوقی بین المللی
پیاپی 47 (پاییز و زمستان 1391)

The concept of jurisdiction refers to the state power and authority over its nationals and residents within its territory exercised through legal official bodies and agencies such as legislative, judicial and executive organizations. The exercise of this power beyond the territory of a country is called extraterritorial jurisdiction. As far as judicial jurisdiction is concerned, national courts apply traditional criteria and rules such as lex loci rei, lex loci solutionis, lex loci domicilii and the like in order to exercise their jurisdiction over transnational cases. However, the vast presence of transnational or multinational companies in international arena and in particular, their complex organizational structure along with the broad scope of their activities at international level caused national and international courts to face with new jurisdictional questions in cases where transnational companies are involved. Resolution of these new questions requires new criteria in order to justify judicial jurisdiction of the relevant courts. The corporate veil-piercing theory is a mechanism developed to serve this requirement. The core of this theory is to prevent fraud in transnational activities of the companies and in particular, to prevent misuse of the principle of corporate independence from the shareholders. Based on this mechanism, the relevant court may lift the corporate veil and extend its jurisdiction over the mother company – foreign company- or foreign shareholders and thus justify the extraterritorial jurisdiction of itself. This rule was initially developed in commercial cases by domestic courts and was subsequently applied by international courts and tribunals to justify diplomatic protection by national state of the shareholders and also in certain human rights cases in support of the claims by victims of human rights abuses. The application of the rule is appreciated by jurisprudence of national and international courts as well as the doctrine.

The buy-back contracts in the upstream sector of Iran’s oil and gas industry are used as a current contractual mechanism in attracting investment, particularly foreign investment from the early 1370s (1990s). The reason behind the use of the said contracts is categorized under the political, economic and legal justifications. Nevertheless, the main reasons of pursuing this type of contract are statutory requirements such as Principles of 43, 44, 45 and 81 of the Constitution, compliance with the principles of state’s possession and sovereignty over oil and gas resources, and securing and providing state’s interests as well as requirements for economic development. The buy-back contracts, as designed and used in Iran, not only aim to secure state sovereignty over oil and gas resources, but also the contractor (foreign investor) would be obliged to transfer and hand over the field after commissioning and production process to the National Iranian Oil Company.

The right to self-determination of peoples, right to political participation and its associatedrights including political rights and freedoms as well as right to elect and to be elected,principles of equality and non-discrimination are all widely recognized international normsand conventional rules which have been derived from the principle of democraticlegitimacy and then they are guaranteed by conventional means. Over the last few decades, Human Rights Committee, European and Inter-American Commissions on Human Rights, Organization for Security and Cooperation in Europe and the UN General Assembly have developed an unprecedented international practice regarding the internal governingstructures of the states. This practice has a specific impact on the future of the right todemocracy. The present article aims to clarify the position of the right to democracy within the contemporary international law through analyzing the international participatory rights embodied in the human rights conventions as normative foundations of the right todemocracy and their role in the development of customary human rights norms.

Customary international law, due to its particular features, has a significant position in the hierarchy of the international law sources and plays an effective and efficient role in the unification of behavioral policy of states. In the meantime, the role of non-governmental actors as well as the possibility of their direct participation in the process of the formation of customary rules has been seriously followed by the publicists. Nowadays with the extension and development of the role of non-governmental actors in the various international fields, the possibility of the effective participation of these actors has been considered in the process of formation of international law rules, but non-governmental organizations and individuals are yet not the principal and active subjects and it seems that there is a long way for the non-governmental actors that their position to be realized in the international community.

The natural resources are the most valuable wealth belonging to every nation which based on them the sustainable and equitable development in any society would be planned and implemented. So far as they are lying on the territorial borders of two countries and being shared between them, the issue becomes highly sensitive. Devising a legal regime for the shared natural resources and their way of exploitation are so a vital concern for the states that the pre-exploitation by other partner states would be usually denied since they have done it before the establishment of a legal regime. This article aims firstly to examine the impacts of the pre-exploitation on the shares of the countries under international law and then explore whether the pre-exploitation was consistent with the principles and purposes of the UN Charter as well as international jurisprudence. Then a computational model is offered so that it reveals the pre-exploitation by the states from the shared natural resources and based on this model their shares would then be properly distributed. In the end, as a practical example, the South Pars gas field was evaluated based on the computational model and its results were analyzed.

Arbitration agreement is the most important criteria in determining the competence ofarbitration tribunal and it also reflects the basis of arbitration legitimacy that its breach canbe led to nullification and refusal of recognition and enforcement of related arbitral award.Breach of arbitration agreement can be divided into two groups: subjective breach andobjective breach. Extension of arbitration agreement (clause) will be acceptable only if notbeing led to breach of arbitration agreement and also be applicable in interpreting thearbitration agreement and distinguishing the real parties and their intentions. Otherwise, the extension of arbitration agreement should be considered against the most basic principals of law; meaning that the arbitration tribunal has acted in manifest breach of its competence.

Ecuador’s claim against Colombia or "Aerial Herbicide Spraying Case" was heard by theICJ at 31 March 2008. It contains some points and issues which are ecologically of highimportance in trans-boundary pollutions so that some experts call it “Trail Smelter” of thetwenty-first century. The Trail Smelter case (USA v. Canada) is not an unknown issue forthose interested in the international environmental law. It is so famous that Prue Taylormaintains it can be called an international environmental law proverb. The most importantfinding in the Trail Smelter award may be certainly summarized as principle of sic utere tuout alienum non. Hence, the Aerial Herbicide Spraying case has developed and establishedthis principle in international environmental law system but without prejudgment andbefore ICJ’s final decision, more study still needs to be made through the judicial precedent and legal literature to clarify the different aspects of it.