مجله حقوق خصوصی
پیاپی 26 (بهار و تابستان 1394)

These days globalization especially in the capital and property parts has impressed all fields of the Law. Moving towards private contract in overseas relations and adjusting the volume of standard contracts in relationships maybe largely elapsed the field of international private law. But the truth is that regardless of the main lines of this field of law achieving an agreement which is covering all or at least main part of differences is impossible. In addition، a contract can never predict all aspect of differences and in some cases law system with mandatory laws on the subject will dam the agreement. This issue especially in intellectual property due to some inherent features and some related conventions to these properties creates difficulties. This article seeks to speculate the connecting factors considering the characteristics of the intellectual property in the scope of related contracts.

Increasing development of international communications and disputes from it on the one hand and ineffectiveness of traditional conflict rules on the other hand, have caused a new doctrine called "The law of the country with the closest connection", that is applicable on communication category of property, tort and etc.,. This doctrine implies that any case to be consider independently in the light of its connection factors that makes, courts apply for any case using the inductive method, proportionate and specific rule. It seems that, this doctrine have been accepted in International instruments and domestic laws in various countries. Article 968 of the Civil Code that is devoted to the governing law of the contracts, accepted traditional conflict rule, that according to it, law of contracts will govern on it,. It seems, that this traditional rule con not respond to the requirements of the world trade in the current era and it is essential that legislator revised acceptance this traditional rule about contracts with current developments in the sphere of international conflict rules.

Globalization and increasing Political, economic and cultural relations among different countries’ people have resulted in many legal effects. One of the important results of these relations is the increase of disputes among people in the world that forums must apply a foreign law to settle them. Certainly, Iranian forums have dealt with such cases. Although the proof of foreign law as a question of fact is up to the parties in Iran, but in confronting with different and conflicting evidences and witnesses about foreign law and its content, the forums should play more effective role in proving the foreign law. Nowadays, most legal systems have adopted the means for interference of forums in the proof of foreign law. Although the necessity of interference of forums is accepted, but there is an important question. Which solution can be proposed for the forum to prove a proper foreign law and its content? This essay with considering some corresponding laws and experience of some countries proposes the international cooperation and bilateral agreements as a proper resolution.

Naturalization is one of the ways for attracting eligible and qualified persons in the way of economic and social development. Legal provisions or laws related to naturalization can play a significant role in this process. Conditions for naturalization in those laws shall led to attraction of eligible and interested persons. Furthermore, those who have acquired such nationality shall have such rights which integrate them into the country who has obtained its nationality. Laws of countries which have been successful in this respect, such as the United States and Canada, have taken into account these conditions. Iranian law related to naturalization is not suitable in respect of the required useful conditions, and so it is proposed to be amended.

The complexity and diversity of international assignment or license of IPRs and the territoriality principle, makes determining their applicable law difficult. The rules governing IPRs, are distinct from applicable law to contractual issues, hence the importance of characterization in these contracts. Party autonomy and the discretion of courts are faced with restrictions including competition law originating from national or international public policy. In the absence of agreement as to governing law, Rome I Regulation, after stating specific rules for determining the applicable law to certain categories of contracts, has adopted the characteristic performance criterion not applicable to certain IP contracts. Other instruments typically provide for the application of the law of the country with the closest connection with contract. There are different standards to identify such a country, the best of which is presented by Max Planck rules which is based on the analysis of a group of elements. Since Iran is a developing country in need of importing technology, the assignee’s or licensee’s country also deserves attention. The Iranian laws have no specific rule in this regard and the conflict of law rule in article 968 of the Civil Code is not compatible with the characteristics of those contracts.

The concept of right as one of the fundamental concepts of the law, policy and ethics, has been entered into legal discourse of Iranian community. However, right is a contested concept, and any discussion of it requires theorizing. Despite offering different views about the nature of right that can be categorized under two theories named will-based theory and utility-based theory, it seems that we can recognize the claim-based theory as a comprehensive conceptual theory about right. According to this theory, right is a guaranteed individual claim that has been justified based on two elements of human dignity and moral agency. Any way can we defend the nationality as a human right? In this article we will attempt to show from a descriptive and analytic perspective that nationality is one of the fundamental human claim rights and moreover is the precondition of all rights. The non-recognition of the nationality as right will directly lead to denial of intrinsic dignity and moral agency and therefore deprivation of humanity.

Aliens presence in other states territory, be individually or collectively, has An ancient history and because of this, Aliens presence in other state is not a unusual phenomenon. Explicitly this presence entails some legal effects. Aliens have minimum rights recognized by states; otherwise some discriminations may be seen in performance of this rights. Nowadays by some developments in International law and moving toward Inter-State to an Individual Rights Perspective, Aliens Legal Situation encounter with some changes. In this process, beside explicitness of legal standards for treatment with Aliens in host states, we see some human rights approach. Because of this developments, it is necessary to examine aliens legal situation in Iranian Legal System by detailed examination in the lights of current legal material and some changes in today’s circumstance such as human rights developments and humanization of International law and Because of international sensitiveness about Islamic Republic of Iran’s approach to aliens rights and adoption and enforcement of international obligations, some practical suggestions to adjustment and improvement of current situation will be made.