نشریه پژوهش های حقوق تطبیقی
سال نوزدهم شماره 2 (پیاپی 88، تابستان 1394)

In construction contracts، one of the analytical dimensions focuses on concurrent delays. The determination of each party''s responsibility and the mutual effects of this type of delay can be regarded as among the complicated and widely-used concepts of construction contracts; the case in which both the owner''s and the contractor''s delays independently cause delay in the critical path is different from the case in which the combined effects of both cause delays in the completion، and one cannot ignore the effects of one on the other. For this type of delay، it is not easy to determine the contribution of each factor، and it is necessary to analyze different factors influencing the delays، though some analysts believe this is impossible. In order to have a proper analysis of the effects of such delays، it is necessary to obtain the drawings، maps، data، the plant schedules، delay periods of each independent cause، and a distinct notion of critical delays as contrasted with non-critical delays. The present study tries to analyze the concurrent delays by examining the legal rules and relevant judicial procedures، and some critical and standards for determining their effects and to find out each party''s responsibility. In addition، it shows the existing challenges and relevant complexities in the way of determining the liabilities of each party.

Contract excuses، as exceptions to the principle of necessity of contract، are concepts، which according to them، the parties can legally get rid of their failure of the contract''s obligations. Some excuses are without the will of the parties، and some others will be caused by one or both parties. Involuntary excuses may generally make the contract impossible to enforce (impossibility)، or they may make it hard to enforce (hardship). The writers are going to have a comparative study on both situations، «impossibility» and «hardship»، and their effects on the contract according to the legal systems and also regional and international instruments. They further wish to suggest a few articles (for Iran civil code)، as proper decisions (termination، suspension and the right to terminate) for the contracts in these two situations. Having a comparative study on voluntary excuses «exempting and limiting clauses» and «the right to refuse performance of obligations»، they found some evidences in Iran provisions، while a general regulation will be appropriate.

The “Harm Principle” in Anglo-American Law is frequently faced a strong challenge by the principles such as legal paternalism and legal moralism. It can، however، resist as a justified principle in the scope of state interventions، and has justified why individual’s liberty should be limited in terms of a minimal state. It is recently claimed that the “No Harm Rule” (la Darara wa la Dirar) in Islamic Jurisprudence can play a role just like “Harm Principle”، and restrict the state’s penal power. After reducing this principle and the rule to constitutive elements، it is found that the “No Harm Rule” has a different basis in comparison with the “Harm Principle”. Accordingly، it is not able to legitimize criminal intervention.

Essence condition of “individual character” or “distinct”، which has been used as a standard in evaluating demanded industrial designs for recording in the two legal systems of Europe and Australia، has entered the field of the essence condition of supporting industrial designs aiming to increase the motivation of designers and promoting the quality of industrial designs. Setting aside careful precision of the expert in evaluating industrial designs and altering it with the view of informed user in evaluating the overall impression industrial design in the mentioned standard، the acceptance process of industrial designs has been changed. of course، this new view in industrial outline has not been protected from objections and ambiguities. The original view of industrial designs in Iranian legal system has approached the essence condition of “individual character” or “distinct” by a new process toward the idiomatic definition of originality in the new law of registering inventions and industrial designs and Trademarks (act 86). This study wants to state its strong and weak points.

The intellectual property rights of broadcasting organizations، such as other intellectual property domains، is one of the most important issues for jurists، lawyers and broadcasters since 1961، when the international convention on protection of performers، producers of phonograms and broadcasting organizations was ratified in Rome. This convention، which is also called Rome convention، grants the broadcasting organizations̕ right of rebroadcasting، fixation، reproduction of fixations of broadcasts and the communication to the public of their television broadcasts. These organizations can further authorize or prohibit these actions. Unfortunately، this convention has never been revised till now، and is not coordinated with the technological advances such as webcasting and simulcasting broadcasts. This article is about to investigate if this type of broadcasts can be protected by law or not? And if they are protectable، which kind of rights are suitable for webcasters? How does their rights infringe? And what is the exceptions to the granted rights in this scope.

The conclusion of investment treaties between states، given the nature of national law and international law، is a new string of discussions between arbitrators and lawyers، which has created some of the issues that do not comply with the rules of the classical national law and international law. Conclusion of two separate but simultaneous agreements، the treaty between the state-state، and between the state-investor on thesubject of separation and recognition of the contractual claims، and the treaty claims (considering the effects of determination of the applicable law and the competence of tribunals) have created considerable importance for the host states، exporting capital states، investment companies and arbitrators. In fact، separation of claims arising out the contract or the treaty not only، in case، makes the domestic courts or international tribunals to be qualified، but also affects on the law governing the dispute based on domestic law or international law principles. Therefore، several criteria have been considered for separation of disputes. Currently the most famous is still the classic standard of Jure Imperii and Jure Gestionis. It is also true in the subject of competent jurisdiction regarding the criteria for which shall the tribunal refer to the stage to accept or decline jurisdiction، whether the plausibility of claimant’s claim is sufficient or shall be considered the Prima Facie Criteria.

Increasing production and storage of electronic documents and information is one of the major consequences of development of IT. Accepting the probative value of electronic documents and information، they have become one of the most important and common evidences proving in litigation. Today، in many cases، the parties of litigation are compelled to exploit this type of probative evidence for proving their claims. When electronic documents and information related to litigation are in control or possession of the defendant، the other party can request their disclosure for his/her own proving claim. According to the request، the defendant is required to disclose in a four-step process to provide the requested electronic documents and information. The current research seeks to comparatively analyze the conditions governing the electronic documents and information disclosure as well as their sanction in English، American and Iranian law.