نشریه پژوهش های حقوق تطبیقی
سال هجدهم شماره 3 (پیاپی 85، پاییز 1393)

As a main path to the implementation of a fair trial and rule of law‚ judicial independence amounts to the judge’s independence of any imposition or interference from the political powers and parties involved. Operationalization of judicial indepdence is‚ on the one hand‚ contigent upon the structural independence of the judicial system‚ and on devising certain approach for ensuring the individual independence of the jugdes‚ on the other. The present study involves the illumination and investigation of the concept of judicial independence and «how» of verbalizing this principle in Iran and France’s legal systems. This comparative study indicates that Iran’s legal systems has‚ compared to france، put forth more reliabe guarantees for the structural independence of the judiciary system. However‚ it still has some drawbacks in terms of judge’s indicidual independence.

An emergency sale is an obligation imposed upon the party who possesses the goods of the other contracting party. In case of an extra ordinary situation such as perishable goods، he has the duty to sell such goods in his possession. This legal institution is being adopted both in Vienna 1980 Convention on International Sale of Goods (CISG) and Iranian Law. However، in Iran''s law، this issue has not been studied as much. This paper makes efforts to do a comparative study of this legal theory. The author is in the opinion that، in case of existing of all requirements of an emergency sale، this institution is capable of being used in other contracts as stipulated in the law of Iran; this notion may be used as protective means in contracts for the goods، which are lawfully in the hands of the other party.

The relationship between the competition law and intellectual law might be considered from different directions. There are many discussions about the interaction or conflict between these fields of law. Some schollars are believe that the rules، which are applicable in these fields are in conflict; because one of them has formed for preventing the monopolies and supervising on the economic agents’ activities to prevent the harm that can be imposed to competition in the market، and the other supports the exclusive rights arising from the intellectual properties. On the other hand، but some scholars believe that there are no conflicts between these fields. But the evidence of the last theory might be challengeable، because some scholars consider the competition law over the intellectual property law due to its features، although others believe that there is an interaction between these fields. Assuming the interaction theory or conformance of intellectual property law from the competition law، some questions will arise، and we have to find suitable answers for them: «What is the effect of domination of competition law over the intellectual property law on the general rules of contracts and their principles?» Do the general rules of contracts follow the mentioned law? Is the interaction between intellectual property law and compeptition law considered as conspiracy against the last principles? «and If it was necessary for supporting the competition، can we force the owner of exclusive right to transfer the right or to accept other''s usage، of it?

It is necessary two elements are placed next to each other for the formation of customary international law: Objective element (practice) and Subjective element- opinion juris sive necessitated. About the former element، although some writers say that physical actions contribute in the process of making practice alone; dominant approach in the framework on the basis of international judicial practice indicated the acceptance of any act - physical or statement - as evidence for the objective element of custom. Also، in the context، omission of states may play a role under some conditions. Likewise، in most cases، international judge has no other choice but to consider recognizing the double elements of custom from the existing sources only based on a single act. This situation would complicate the issue more; something which basically governs in the entire area of the formation of customary international law. So we should remark that the subject of customary law، in general، is one of the important debates in the international law system.

International Commercial Arbitration is one of many possible procedures for the settlement of disputes in regards to economic transactions. It is based on the consent of parties، and its arbitrator is appointed by the parties. The arbitrator will be powered to settle the dispute، and give a binding decision that will be given execution by the courts. Therefore، it is necessary that we clarify two subjects: first، the dispute should be clear and specific in order that the arbitrator can settle it; and second، if the parties present real and convincing evidence to the arbitrator in order that he is able to discover facts. In this regard، we are faced with two questions: 1) If the claims and defences of parties are vague and indefinite، how the arbitrator will determine them? and 2) If the discovery of fact needs evidence that is in the possession of the party or a third party but they refuse to provide to it the arbitrator، how the arbitrator can take it? In addition، the principle of broad powers of the arbitrator in the international commercial arbitration has been accepted; however، it is unclear. According to the principles and rules of national and transnational civil procedures، this article seeks to explain the role of international arbitrator in solving the above problems. We will say that the arbitrator can determine the dispute to settle by relying on his broad powers، and that he can discover and take requested evidence to proof the dispute، but he may face with restrictions causing to limit his initiatives.

The legal system governing the administration of elections as a mechanism has been mentioned at the constitutions، statute law and the fundamental customs of the different countries managing accurate and fair election. The significance and rule of the election administration system holding an advised election، has a direct ratio with healthy، clarity and accuracy of the election progress. In the practical praxis of countries، the independent، governmental and mixed models have been formally recognized; as countries following this model can be classified from this viewpoint. In fact، according to the given models، the basic purpose of making electoral institutions is the maximum guaranty of the protection of citizens'' votes، and finally، performing a fair election. Although، based on some indicators، the executive management can be divided into several models، it is not possible to decisively assert that the process of implementation of the election in some countries with similar model hold equally; in other words، the model type of the institution of election administration cannot conclusively indicate the implementation of similar process of election of countries. This article tries to legally examine the Triple Systems Executive Management (TSEM) of election in the world and mentioning the Principles of ruling the activity of election institutions. Finally، some propositions regarding the administration of elections in Iran are offered.

Individual litigation is common device for prosecution violating rights in legal regimes. The procedure is usually efficient، and is an effective device to protect individual’s rights. Nonetheless، in the cases where the value of cases is low، persons usually refuse to bring an action because its costs are more than its benefits. Conversely، the defendant unlawfully gets a windfall. This situation becomes acute whenever the plaintiffs are numerous، and most of them for low value of the relief do not file a lawsuit. In American and Canadian law، class action has been devised to deal with these situations. In America، some classes have been predicted that the persons belonging to each of them، in the case of being present legal requirements، can initiate an action. The requirements of numerosity، commonality، typicality، and adequacy of representation have to be present in all classes (general requirements) for the court to certify the class; however، they are required in a damage class action that the device would be superior to other procedure for aggregating of numerous claims، and the common legal issues of trial would predominate over the individual issues (specific requirements). This separation does not exist in Canadian law; moreover، in some aspects including the number of plaintiffs and no need to predominance of common issues over individual issues، differs from American law. There does not exist the same device in Iran’s law، and the sole method for individual’s litigation is to bring individual action that sometimes equals to non-litigation due to various obstacles. This paper analyzes its requirements in American and Canadian law to provide a context for examining and adopting it in Iran’s law.