فصلنامه پژوهش حقوق خصوصی
پیاپی 19 (تابستان 1396)

Existing a foreign interest in a case of bankruptcy – such as different nationalities of debtors and creditors or existing goods in the other country or having an agency in the second country - provides a doubt on what is the applicable law? This doubt can be separated to tow branches: what is the applicable procedure law and what is thesubstantive applicable law and what is bankruptcy and insolvency? This research is concerned about the second branch. But in Iranian Codes and jurisdictions there is not any conflict regulars with regard to this situation. In some treaties and foreign doctrines have been provided some usable results. For this legal shortage, we need to provide a doctrine which is in harmony with the other Iranian conflict regulars to be accepted by our legal system.

In most legal systems, there is no legal sanctions regarding natural obligations. Implementation of this commitment depends on the will of debtor and only in this case it is irretrievable. Voluntary execution (Payment) of a natural obligation (also called an imperfect obligation), regardless of its bases which can be an aborted or a pure moral duty is, in most legal systems, considered as a valid legal act in regard of the civil creditors, and not an undue payment or an unjustified enrichment. Therefore, it cannot be restitute except if it is done involuntary or fraudulently to the prejudice of the civil creditors. As the payment of a natural debt is totally depended to debtor’s decision, its legal nature is supposed to be a unilateral legal act, and not an agreement. The French case law regarding natural obligations is contradictory but in Iran’s legal system the execution of natural obligation is valid provided that there is no malice and intent to prejudice the civil creditors.

The influence of human rights in private law or in other word constitutionalization of private law is relatively a new debate in legal reasoning that constitute the subject of this research. Applying human rights in private law depends on context, legislator and judge, and reasoning method. The reaction of different legal systems in this matter is not the same. Direct application, indirect application, judicial application, and non-application is brief of these reactions. Legal system of Iran is capable for direct application of human rights in private law. Although the courts do not use this capacity. Due to distributive justice and for modification of freedom of contract principle, we can apply the human rights and fundamental rights capacity. The human dignity is the concept that enforceable in evaluation of contractual terms and unwaivable [S1] rights so that infringe of human right can be regarded as opposite of public policy. In this research the methods and contexts of constitutionalization of private law has been examined.

lex mercatoria is a set of customary commercial rules which has been common by merchant among them in order to meet their commercial needs. along with developments in commercial relations and also in dispute settlement mechanisms by arbitrations, the status and nature of these set of rule as autonomous free from domestic and international law has been one of the most important issue of international commercial law. the advantages of using this rules in arbitration and also their concordance with today demands of commercial relation has been the most important reason of invoking lex mercatoria in international arbitration as substantive law governing the dispute. so many judicial decisions issued on the base of lex mercatoria. but at the same time, this question of whether these rules are truly autonomous is under disagreement. so in this study we aim to analyze the debatable nature of lex mercatoria and clarify its legal status in international commercial arbitration.

Arbitration is the most common method for resolving international investment disputes. The significant development of transparency in investment arbitration has led this notion to play a crucial role in the field of third party participation. The issue of third party participation in international investment arbitration is subject to controversy and different interpretations. This is a controversial area among national arbitration laws. Rules of different arbitration institutions have also taken different views as to whether third party can participate in international arbitration. ICSID Arbitration Rules, as amended in 2006, and UNCITRAL Transparency Rules 2013 have considered new trends and perspectives in this regard. A number of ICSID tribunals have also adhered to this trend by considering a modern approach. This Article aims to examine these Rules and related case law in the light of third party participation and concludes that there is a tendency towards the recognition of third party participation in investor-State arbitration in order to meet jurisdictional objectives and to bring transparency.

The approach of World Trade Organisation towards energy has been subject of many debates. One of the important issues is whether member States are obliged to free the energy transportation via pipeline or not. Logically, the mentioned freedom is conceivable in two forms, i.e. third party access and capacity establishment. Amongst the main documents of WTO no explicit regulation in this regard can be found. However, bearing in mind the generality of article 5 of GATT, one can deduct the obligation of member States to free both mentioned forms. Yet, in light of principles of interpretation of international documents, international law principles, case law and legal doctrine, the principle of freedom is interpreted and delimited in that it shall not oppose with sovereignty of members on their territories. Moreover, schedules of specific obligations of member States regarding services show the tendency towards freedom of both forms as paramount on services of pipeline in WTO.