فصلنامه مطالعات حقوق خصوصی
سال چهل و چهارم شماره 2 (تابستان 1393)

With the emergence of new legal regimes such as intellectual property rights، new complexities in the process of determination of applicable law are involved in private international law. The dilution of physical center of gravity for disputes related to intellectual property rights and the effects of utilitarianism in law with an emphasis on public interest has led to the adoption of new methods and mechanisms by courts in intellectual property disputes which mark a departure from conventional conflict of laws rules. Therefore، lawyers and judges facing the above challenges have not confined themselves to the conventional rules and have followed new approaches in the field of conflicts of laws such as public interest analysis approach to compensate the obvious shortcomings of conventional rules. To achieve a conflict of law rule corresponded to this point of view، the current paper seeks to examine applicability of public interest theory in the scope of intellectual property conflict of laws.

Accessibility to the improved (breeded) plant varieties is vital for agricultural and horticultural industries. Providing food-security for growing population of the world، sustainable agricultural production، need for an increase in agricultural incomes، economic development and improvement are necessary for sustainable efforts in the field of plant breeding and improving. Considering the specific and complex processes، expensive and long lasting plant breeding and reproducibility and easy access to the plants’ materials of new varieties، efforts in this area will be justifiable and imaginable so that there will be an opportunity for returning the investment. Granting exclusive right to breeders (breeders’ rights) and those who are in charge is assumed to be an effective factor in enhancing investigator’s motivation; particularly investing in private sectors. In the realm of competition and free trade and commerce (free market)، protection of the new plant varieties، as one of new realms of intellectual property rights has been referred to as the Patent or an effective Sui-Generis system or a combination of both these systems. In line with operation of the scientific efficiencies and competencies existing in this international field، and facilitation of access to new technology of protection of these varieties in Iranian laws، a new area has been assigned as sui-generis system (special protective system). The current essay tries to indicate and explain this special system with a special emphasis on standards on International Union for the Protection of New Varieties of Plants (UPOV).

The legislator has not an explicit view about revision to judgments based on definitive oath. This point has caused disagreement between judges and lawyers. Such disagreement may be entitled the losing party to petition in revision court in one case and deprive other losing party from it in similar case. In addition، the lawyers doubt in basis of rule in article 369 of civil procedure code based on impossibility of appeal from judgments based on definitive oath، and they couldn’t justify this rule. There is such doubt in judicial votes even in votes of branches of the Supreme Court. This research studies the subject in Islamic jurisprudence and analyzes it in case law. This article proves revision to such judgments is incontrovertible right for losing party and the rule of article 369 is justifiable by reason basics.

At present، new tendencies in international commercial arbitration try to delocalize and gives more independence to arbitration، from national laws. The ultimate degree of this independency is demonstrated in Lex Mercatoria theory. In recent years this theory has been gone beyond the frontiers of pure theory and entered into the national laws of some countries such as Netherlands، France and India. In addition، arbitration rules of international governmental and non-governmental organization and arbitration entities intends more and more to recognize arbitration awards issued based on anational laws to settle international commercial disputes. Finding a philosophic foundation for Lex Mercatoria which pretends rising the third legal system against national and public international law has been less taken in to consideration. Justification of the foundation of this law is encountered with three major obstacles: close relationship between law and state، enforcement and concept of law، itself. On the other hands، the relationship between Lex Mercatoria and the other legal system (official or non-official) is inevitable challenge.

Medical science is the science of the twentieth century has made significant progress. In proportion to these improvements، law has been developed in response to complex questions ahead. One of new areas of medicine is infertility treatment that with the various ways Ten percent of couples with infertility concerns has greatly relieved. Using the method such as IVF، IUI and esc in the treatment of this disease، is faced law an important new questions. Regardless of the legitimacy of these methods، Effects arising from the reproductive such as lineage، inheritance، guardianship، (child) custody and confidentiality is among the works that should be studied and explored. Comparing different countries laws and legal solutions in the two countries will help a lot in determining position of the subject on the rights. Lineage is the most important result of the laboratory embryos that in this article the rights of Iran and the United States will be reviewed and implemented.

Consultative view of judge among its decisions and acts in civil trial has been neglected and less analyzed. This view is a guidance and consultation that a judge gives to the parties; A consultation which has any executive or probative effect and in this way is comparable with «consultative order» in Islamic Jurisprudence. As a consultative view is not a judicial act، its issuance from a judge may be result to undue anticipate of parties from an independent and impartial judicial power.

Article 387 of the Civil Code provides: «If the object sold perishes before delivery، even without fault or neglect of the seller، the sale will be canceled and the consideration restored unless the seller has already applied to a magistrate or his substitute for the enforcement of the delivery، in which case the loss will be borne by the buyer only». Although the absoluteness of the rule of this Article includes the loss of the object of sale by a third party، there is no consensus in respect of consequences of the loss of the object of sale between the Shieh jurists and lawyers. Therefore، this paper will attempt to investigate and analyze the views of jurists and lawyers، and ultimately more logical view will be strengthened.

In various legal Systems، with adoption of the validity of exclusion clause as a rule، in the exceptional instances for the reason of social importance of the matter and contrary to the public policy، exclusion clause is void. Thus، in the case of death; bodily injuries; deliberated breach of contract or legal duty; gross negligence and deception imputed to party relying to exclusion clause، it is void; moreover; in the case of fundamental breach of contract or contrary to inherent requirement of contract; exclusion clause is invalid.

Establishing and operating private Radio and Television and its possible activity beside State Radio and Television is the selective method of administering Radio and Television in many Countries worldwide. In legal System of Iran، State Run Radio and Television in Article 44 of the Constitution and Interpretation of Guardian Council of mentioned Article، establishing Private Radio and Television encounter with many disagreements and barriers. Analysis of position of Constitution and its official Interpret and Solutions for getting Rid of mentioned challenges are one of the necessary points of Iranian Legal System. In addition، the Rules passed by Islamic House of Representatives which enhance the concentration of in Radio and Television and in which the necessity of privatization is not concerned، should be taken into consideration.