نشریه پژوهش های حقوق تطبیقی
سال بیستم شماره 4 (پیاپی 94، زمستان 1395)

Securities transactions, like any other transactions, are primarily subject to contract law; however because, of government intervention in trading, these securities, by passing special legal regime called “securities regulations”,can not be considered as a subject of pure private law any longer (corrective justice) as they are also now in a sense under public law (distributive justice).
If we consider that conflict rules are only applied in private law cases and their application in public law cases has been, generally, prevented by legislators, a challenge for private international law is inevitable in cases that securities transactions place in the field of public law. So, if the court describes the case as a matter of private law, conflict rules can be applied, but if the judge describes the case as a matter of a public law, applying conflict rules is not permitted, and the courts usually apply their own countries, legal regimes.
In this article, we initially try to shed light on different legal regimes to the extent, which is related to the securities law including property law, contract law and securities regulations. Then we study the possibility of applying conflict rules in each legal regime.

Despite the right to legal counsel in prosecution process before the court and tribunals mentioned through international documents and legal systems and/or the necessity of the presence of legal assistance being recognized during the investigations and prosecutions nationally (according to article 48 of criminal procedure law of Iran) and internationally (according to international related documents such as International Covenant on Civil and Political Rights), execution of this right is practically challenged by the legal ambiguities. On one hand the criminal procedure is a mean in the judge’s hand in order to prove the facts; and on the other hand, it is a tool for persons to defend their rights and freedoms. Since many of judicial decisions about the person is based on the documents, which are gathered through facing the police, depriving the suspect from legal assistance will increase the possibility of his her rights suppression. During recent years, in both national legal systems and international criminal court’s procedure several changes have occurred accordingly. This article analyzes the mentioned changes through national law and also the procedure of international criminal courts, and introduces achievements of comparative law regarding how to balance between ensuring the right to legal counsel through tribunals and investigations and establishing a fair trial. The article will hereof study and criticize the failure of Iran’s legal system according to the international standards of fair trial.

The legal doctrine of subrogation was presented in England and developed in some fields of law. British legal precedent provided this theory based on equity and gradually developed its rules, followed and completed. English Legislator in his statutory decisions, developed or adjusted the theory, and changed its rule in necessity. Since two centuries from presentation of this theory, the English courts began to change the foundations of the theory from rules on the equity to the rules on the unjust enrichment. This shift, gradually, will create some changes in this theory. Although some examples and cases of this theory can be seen in Iran' acts and court decision, but this theory is not accepted as a general theory in Iranian law. The study of principles, criteria and functions of this theory in English law helps us to use this theory according to iranian law.

Knowing the basis of any kind of responsibilities is necessary for the proper exercise of its rules of responsibility. The proper utilization of rules of civil liability resulting from the competition law’s infringements requires knowing the basis of this liability; especially the analysis of this liability has less background in Iranian law literature compared to many liability compulsory fields.
European Union Low as one of the leadings systems in the field of competition law was challenging in accepting the civil liability, but exchange of ideas in the precedent of the Union made instructions for damages resulting from a breach of competition law passed in 2014 more dynamic in terms of rule-making. In this research, the European Union’s legal system is taken into consideration because of the similarities in law-making with Iranian law, by the author’s and judges views regarding the in the European Union legal system, are scrutinized.
We have benefited from analysis of civil liability. In European Union legal system the basis of civil liability is approved with pure liability in civil liability resulting from anti-competitive practices, but in Iranian law, accepting this basis and fault theory is hardly recognized as an accepted unit.
In addition to common principles, deterrence and distributive justice were dealt with as the new foundations where the economic analysis of law is carried out in the civil liability of the competition law’s breach, which have been reviewed as outcome-oriented principles in the two legal systems.

Arbitration is an agreement. The arbitration agreement determines who can be as plaintiff or defendant. Development of an arbitration clause to the third parties is in conflict with its nature. Foundations widen the scope of the arbitration clause with regard to international arbitration practice, and the literature can be divided into two types. The first category includes items that, by ignoring the legal entity's parent company, shareholders or its subsidiary companies, can be arbitral tribunal parties, or by ignoring independent legal entity owned and controlled by parent company. In the next category, by finding signs of the issues raised by the consent of a third party, we can be expand the scope of an arbitration clause based on presumed consent.Agents, Estoppels and group of companies’ theory as a basis for extension based on presumed consent have been raised.

Whenever a person is the owner or possession guard of a vehicle in terms of the relation with that vehicle and that vehicle is damaged, he is liabile to compensate it.
In Iran law, according to the law of civil liabilityfault is the basis of civil liability. The liabile of the motor vehicle owner has the obligation to get compulsory third party insurance, and in French law, has the objective liability that is not failed even with the act of God. In case of non-engine vehicles, the owner would be liabile after the fault is proved; however, in France law, the fault goes to the guard of these vehicles. In case of water vehicles, Iran's maritime law points to the necessity of owner’s fault as a liabile. In January 1967, the Law 3 of France emphasized on the non-supposability of the ship owner’s fault. In case of aerial transportation vehicles, the existing laws point to the necessity of owner’s fault as a liabile. In French law, the liability of the aerial transportation vehicle is of typical, and is not canceled even by proving the compulsory accidents.

Following the victory of the Islamic revolution, especially with the end of the war and considering macro-policies of the system based on the reduction of control of the state, competition law has appeared more than past in the area of the legislative. Besides, if the people acknowledge that the rules coincide with their beliefs, they show more commitment to it. Considering that according to the Constitution, regulations must be based on the Islamic criteria, to determine the rules governing the behavior of economic actors, they must be justified based on the Islamic criteria. The principle of 'no harm' is among the most important rules under discussion in the Islamic law, and several theories have been formulated for the provision of this principle. We explain the concepts of principle of “no harm”, and attempt to demonstrate that firstly the government (like every individual of the society) is affected by the concept of this principle, and secondly, if the provisions of the principle of "no harm" imply that the issue that a verdict has been rendered for it, if its primary effect causes harm to others, such award is declared null. In other words, it is improbable that the legislator enacts a law that will harm others; therefore, by relying on this principle, the validity of the said rule will not be recognized.