rabia eskini

The parent company is a company whose share of the company against another company is sufficient to control management and operations by influencing and electing the board of directors. The most important mission of UNCITRAL is to standardize and modernize international trade law through legislative and non-legislative tools on various issues of international trade law, including the supervision of the parent company. The findings of the present study, which has been written in a descriptive-analytical method with the aim of explaining the theoretical foundations of parent companies' liability in cases of bankruptcy of subsidiaries, indicate that: a) If the company is owned by other companies, with applying the rule of breaking the veil of personality, the parent company may be declared bankrupt under certain circumstances and a bankruptcy order may be issued; b) If the company is a capital company, the parent company can be prosecuted only by applying the rule of fraud to the law.

The Convention on the International Sale of Goods refers to right of lien in five articles: Article 58 regarding reciprocal exchanges and the possibility of delay in payment of the price after inspection of the goods, Articles 85 and 86 about the cost of maintaining the seller for the seller if the customer fails to pay the price or receipt of the seller and for the customer if he wants to refuse the goods. For example, if it does not match, use it. Article 81 regarding the return of the parties after termination and dissolution of the contract and Article 71 deals with the time of suspension of the contract in the foreseeable breach. Iranian civil law does not mention the right of lien in the general rules of contracts, but because of jurisprudential books in the part of sale, Article 377 Iranian civil law without mentioning its name, briefly talked only rules of lien about reciprocal exchanges. However, the other cases mentioned in the convention are not mentioned.Some considered it against the rule, thus with a narrow interpretation of this article, only the prescribed cases are considered subject to the right of lien. In this essay, with study the types and rulings of the right of lien in the Convention and Iranian law and their basics, had been tried to examining the possibility of accepting and applying other prescribed items in convention which are silent in Iranian law.

In the last decade, the combination of blockchain, distributed ledger technology, and digital contracts has led to the invention of the modern form of smart contracts. In fact, smart contract is a self-executing computer software. Resolving the problem of breaches of obligations-especially among anonymous interlocutors in the international arena-, reducing the need to physically go to the court, eliminating major human interventions in the ratification and implementation of the provisions of the contract are some of the achievements of this initiative. One question which is raised is that in addition to the basic conditions of contracts mentioned in Article 190 of the Civil Code, ‘what legal rules are required in the design of such contracts, especially to protect the public non-legal entities?’ The present study was done by descriptive-analytical method to investigate the recent developments of French civil law in order to regulate special provisions of electronic contracts in compliance with Iranian law. Findings show that due to the inconsistency of the nature of smart contracts with current electronic legal contracts, some important legal rules such as good behavior and commitment of the parties to the full knowledge of the provisions of the contract may be violated in such contracts. In addition, there is a possibility of violation of personal or mental criteria governing the correctness of transactions, such as consent to conclude a contract in the electronic agency. As a result, using the jurisprudential rule of Estimar, the maximum authority of the electronic representative is to provide advice in concluding a contract, and the will of individuals cannot be considered as defeated by predetermined computer algorithms. Therefore, the proposed solution in order to express the full will of parties is to use smart combined contracts (code and text).

Developing transboundary business relations doubles the significance of changing the attitude towards the problem of transboundary bankruptcy, questions such as the impact of parent business companies' bankruptcy on companies under their coverage or possession, and vice versa are among the most important questions regarding the issue of transboundary bankruptcy of the multinational companies. The answers to the above-mentioned questions in the national arena have been formulated in the positive laws of each country, but they are still ambiguous regarding the international and transnational contexts. This research has tried to answer the above mentioned questions by descriptive and analytical review of the existing rules and regulations and procedures of the courts regarding the case of transboundary bankruptcy. At last, it was found that it is not possible to examine the effects of the bankruptcy of any company on another company without probing features of transboundary bankruptcy and business characteristics of the multinational corporation's activities. Therefore, features of transboundary bankruptcy have been designed and examined in three legal, economic and political areas.

Since the enactment of the Check law in 1355/4/16, for economic and social reasons, the check as a commercial document has been far from its main purpose, which was the means of cash payment and has been transformed by obtaining credit. This led the legislature to amend the law several times. The last amendment of this law was made on 13/8/1397. One notable innovation in this amendment is enshrined in Article 23. Due to the inconsistency of such a method and order, as well as the ambiguity of the text of this article, it is necessary to examine its essence and form. This research has examined this article in a descriptive and analytical manner and with the help of libraries, and one of its most important findings is the impossibility of issuing an order to suspend the executive operations of the legal court issuing the executive order by a judge of the prosecutor's office or a criminal court, something that is apparently taken from the article in the opposite way. Also, if an order to suspend the executive operation is issued, the issuing judge will be subject to the provision of cash and the amount of the check.

Over the decades, globalization has affected all areas of human life. One of the challenges that globalization has created is securities. On the other hand, due to the willingness of countries to intervene in economic affairs, especially the stock exchange, it has caused a dual nature of public-private. This, along with globalization, has created ambiguities in the conflict of laws related to these documents. The main question that arises is what effect has the globalization and liberalization of securities had on the legislative and judicial policies of countries? The liberalization and internationalization of securities markets, in addition to further complicating some aspects of these markets, has necessitated the development of appropriate legislative policies and strategies with these changes. Unfortunately, there is no explicit provision in Iranian law for conflict of laws in the field of securities, and it seems that the legislature has strengthened the national aspect of securities in the securities market law. After the country leaves the European Union, it is applied to determine the law governing securities. In international documents, the principle of the rule of will to determine the law governing securities is accepted if it does not conflict with public order and rules. In this article, we first examine and determine the legal nature of securities, then, we examine the various legal regimes that may prevail in an international securities agreement, and in the final chapters, using the documents. International, jurisprudence and experiences of other countries, we will clarify the strategies for determining the law governing securities transactions.

Following the development of new technologies at the beginning of the 21st century, a new generation of self-executing electronic contracts called smart contracts in the field of digital commerce has been developed, which is the product of combining distributed office technology called blockchain with computer code and IoT. Relying on computer algorithms for the accurate and secure execution of smart contracts does not eliminate the need for legal evaluation. The question now is whether conflict resolution rules still apply to smart contracts? This research, which has been done with an analytical approach, has evaluated the existing criteria in private international law intersection with this new technology. A comparative study of Iranian and European Union law (Regulations of Rome I) shows that, although the use of personal criteria in determining the law governing smart contracts directly clarifies the answer if the will of the parties is not exercised at the time of designing of the smart contract’s software, the international dispute resolution body, has to resort to objective criteria. The conclusion is that these criteria are still valid. Still, the effect of objective criteria that are most closely related to the characteristics of this type of contract may, in some cases, lead to different results. Therefore, the method of qualitative evaluation and weighting to effective objective factors is suggested.

Totally Arbitration is divided to Voluntary Arbitration Clause and Compulsory Arbitration Clause. Arbitration Clause as a rule Has Contractual Nature .If The Content Of Arbitration Clause For The Reason Ambiguity Has Been Needed To The Interpretation And Arbitrator To Intended Detection Of Common Intention Of The Parties ,Having No Alternative Must To Interpret Of The Content Of Arbitration Clause ,Upon The Principles And Rules of Interpretation Of Contract .But Legislator In Some Cases Imposed On Will Of The Parties Of Contract ,Accepted Of The Arbitration Clause Or Referring Of Claims To The Jurisdiction Of Arbitral Tribunal And Contractual Nature Of Arbitration Clause Has Been Extinguished Or Limitation .In These Cases If Content Of The Arbitration Clause Faced With Ambiguity And Necessitate Of Interpretation, Arbitrator Must Intended To Detection Of The Legislator Will ,Upon The Principles And Rules of Interpretation Of statutes And Discussion Of Detection Of Natural Will And Common Intention Is Ceased .In This Article Interim Of Making Clear Nature And Criterion Of Distinction Of The Compulsory Arbitration Clause ,Causes And Grounds Of Independent Arbitration Clause Necessity From Basic Contract Present By Application Analysis And State Of Some Cases In The Law Of Iran.

The aim of this study was to re-examine the Quranic and jurisprudential evidences of selling self-help as one of the Remedies For Breach Of Contract for the purchase of medical equipment.

This research has been done by library studies and descriptive-analytical method. By referring to Quranic, narrative and scientific texts, the necessary information has been obtained and analyzed.

One of the problems that has arisen in recent years in the field of medical equipment is that for various reasons, including oppressive sanctions, some buyers or sellers of Iranian medical equipment are not able to pay the price or the goods and this factor causes uncertainty. The incidence of material damages and losses to medical equipment activists. The main question of the research is: "What is the ruling on Quranic and jurisprudential arguments regarding the sale of self-help (resale) as one of the Remedies For Breach Of Contract for the purchase of medical equipment?" The findings of the research indicate that the requirements of the holy verse "… فمن اعتدی علیکم فاعتدوا علیه بمثل ما اعتدی علیکم…" (Baqarah: 194) and verses 40 of Surah Shura and verse 126 of Surah An-Nahl and other jurisprudential narrations and rules, including the rule of no Loss principle in Islam and the Retalitation rule, as well as legal provisions in similar matters, not only do not contradict this, but also accept it. However, the principle of agreement must be kept and rights of the other party must be taken into account in this regard, and according to the holy verse "… لا تظلمون ولا تظلمون " (Baqarah: 279), neither party to the deal should be wronged or abused.

Medical equipment contractors can sell the property to another and exercise their rights in order to prevent further damage and uncertainty in the fate of the contract. However, this right and authority should not lead to "oppression", "loss" and "injustice" to the rights of the other party, but from the point of view of the Holy Quran and Islamic traditions, justice and fairness should be observed and the rights of the parties to the transaction should be exercised to the maximum.

Share redemption occurs when a company rebuys its shares at a specific time after it had sold them to another party.  After redemption, these shares transform into treasury shares and will remain as such until resold again. The ways of redemption which effect shareholders’ rights include:  Repurchase from Market, Off-Market Repurchase, Fixed Price Tender Offer Repurchase and Dutch Auction. The redemption has an influence on share’s financial and management rights and the company, as the treasury shares’ owner will lose most of its shares’ rights by explicit stipulation of acts and most legal principles.

One of the issues that have caused debates in various legal systems is the effect of transcending the scope of activities of business companies by their directors. British law in this area has undergone a marked transformation. In the past, legal acts outside the scope of the activities of the company under "Ultra vires Rule" were considered void. However, today, the rule is more flexible in practice and if the legal actions of the company’s directors with contracting third parties are beyond the scope of the activities of the company, such legal acts will be binding on the company. In Iranian law, many lawyers, by accepting and applying the "Principle of Expertise", believe that the scope of the activities of the company should be considered a form of limitation of the jurisdiction of such legal persons, and, as a result, legal actions beyond the limits of the said should be considered absolutely void and irrevocable. Considering the rules of the British legal system, as well as the Iranian trade law and its amending law, indicates the necessity of legislative reform in Iran.

The main criterion of the evaluation of the damages caused by the delay in the execution of the construction contracts is the fairness of the liquidated damage clause and its proportionality with the actual damage. The parties of the contract must be able to evaluate the damages by forecasting and calculating the actual damages, while avoiding the purpose to punish the party who violates the contract. The main criterion in determining the amount of the liquidated damage is its relative proportional to the actual damages and its fairness, and failure to comply with this criteria will cause the court, by ignoring the contractual agreement, to avoid applying and enforcing the clause and calculates the damages and determines it according to general principles and in some cases adjusting it by interfering in the scope of the partie's agreement. In addition, in accordance with the provisions of most countries and principles of international trade law, if a part of the contract is completed and delivered or, in the case of which the contractor has intentionally delayed, the amount specified is not claimed and the courts are allowed to modify. Article 230 of the Civil Code, which regulates the determination of the amount of damages, is not in accordance with the rules of the other countries and the international customs governing this matter, and also faces serious challenges in national scene. It seems that in order to overcome this problem and prevent its harmful and unfair results, it would be better to consider the clause illegal if the amount is exaggerated or if the party is possessor unduly.

Company as a kind of legal persons contains lawful privileges of persons in law. Nationality is an important description and has notable impact in this ground. In spite of the different opinions for this subject certainly, companies have to have nationality of one country. In International or national law, the nationality of the companies will be determined on the basis of some acceptable rules such as Ezterar and Nafye Sabil. Hence in this paper the authors explain the conditions of these rules and the determination of nationality in the commercial companies completely.

The principle of sovereignty of will and contractual freedom states that individual's wills govern both the formation of contracts and the consequences thereof, and all legal relations. According to this principle stated in Iran's Civil Code, Art. 10, uncertain (untitled) contracts the principle of freedom of contract is declared in most of legal systems and international commercial instruments. The first article of "principles of European contract law (PECL) (2002) declares that Parties are free to enter into a contract and to determine its contents….Beside this article the theory of The necessity of the rational, fair with good faith governance in limiting freedom of contracts in international commercial contracts" with the other international principles could complete international law and It supplements the provisions of the Principles, and it may take precedence over other provisions of these Principles when a strict adherence to them would lead to a manifestly unjust result.
The result of the theory is that the principle of good faith and fair dealing must be respectful for governments in their sovereignty so governments mustn’t inter the contract for their own personal political goals and purposes or by irrationally legislation such as article 968 of Iranian civil code or article 477 of Iranian criminal procedures code harm merchants.

Recognition of separate legal personality for company and limited liability mechanism for shareholders leads to creation of an organizational structure for company. This feature imposes commercial risks such as organizational objection to third parties. These objections refer to breach of all mandatory rules of corporate law and contractual rules such as corporate charter. Inter-organizational sanction of such breach of corporate law rules is the annulment of such actions and decisions. But this nullity is not reliable against third parties because of essential differences between commercial law and civil law regarding creation and transfer of right; and commercial law’s emphasis on apparent creation and transfer of rights.
This proves a rule as “impossibility of invoking organizational objections of company against third parties” which leads to “uninvokabilty” of “organizational objection of company” against “bona fide third parties”.

Although there are many researches about electronic commerce، but in the field of Internet Businesses (IBs)، we have lack of research and also up to date and applicable laws. As a result، with library and case research، in one section we state the general rules and regulations governing all IBs، and in the other section we survey appropriative rules and regulations governing every model of IB. Provisions for contract، consideration and contract parties are obligatory for all IBs. On the other hand، though in different sciences we see different classification for IB models، but it seems in a legal classification، we can place all IBs under two general models: original model and brokerage model. Assigning fair fee for brokers in virtual space shall be based on their knowledge، capital and effort.

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.

In a documentary credit relationship، the person for the favor of whom the credit is openned، is not necessarily the last supplier. In fact، he hopes to buy goods from the last supplier and deliver it to the buyer. Transfer of credit is the third alternative rather than the beneficiary of the credit. It gives the first beneficiary right to benefit from differce of transferred credit and original credit prices. It also allows him/her to assign his/her obligations about that credit document delivery. There is disagreement about the legal nature of transfer of credit. The group argued that the benefits of credit can be transferred to a third party conditionally، so the legal nature of transfer is similar to the assignment of benefits. Others believe that as transfer of credit take places، the original legal relation will nullify، and a new relation between the second beneficiary and the transferring bank will be created. So، they believe that the legal nature of transfer of credit is more likely to novation. Various studies’ assessment shows that، despite of some differences between novation and transfer of credit، legal nature of the former is very similar to novation rather than other legal establishments.

Nowadays the prevalence and significance of mutual transactions particularly offset contracts in an international level on the one hand and lack of adequate familiarity with such transactions in the law of Iran on the other hand have given rise to the fact that natural and legal persons are deprived of a wide range of transactions current in international trade. Studying the concept and various types of offset contracts، the present article deals with their nature and effects from the perspective of law of Iran and Shiite jurisprudence. According to these transactions، the customer supplies a product and the vender in turn promises to provide the material used in that product from the purchasing party، or generally to buy an amount of goods equivalent to the value of the sale contract from the first party. As a result، according to the way of relation of vendor’s obligations to the original contract، offset transactions are divided into two categories، direct and indirect ones. The novel idea in this research can be in framing and finding the nature، and effects of one of the most complex transactions in the field of countertrade lying in the domain of mutual sale in terms of concepts، rules and principles in Iranian legal system as well as in Shiite jurisprudence. A variety of ideas can be raised towards determining the specific nature of offset transactions in Iranian law and the Shiite jurisprudence. Hiring persons، mixed contracts، private contracts، promised sale، and the sale of unascertained goods under obligation are the frameworks subject to investigation in this regard. As to the effects of these transactions، suspension in transfer of the object of sale، delivery of the purchase money while concluding the contract، determining a contractual sanction against failure to fulfill obligations، and sale before due can be raised here. Certain points are briefly mentioned in the article while their explanations can be found in a dissertation with the same topic.

Network marketing phenomenon in which mendacious mediators are eliminated, basically is a useful matter. But the companies so-called pyramidal schemes misuse this title. In this companies there isn’t any production, consumable goods and useful work and they just constitute the pyramids in which the money belongs to persons in lower level go into the pocket of company and few people who are in the apex of pyramid. These companies are divided into three groups: investment companies, product-based companies and companies that offer no product.Every country which has a law about these schemes, recognize them a crime. Rational proof and multiple jurisprudential proof implicate that these activities are illegitimate.

In business format franchising agreements, Franchisee, while dependent to other party of the contract (Franchisor), follows the method of business belonging to Franchisor. Franchisee use of the system leads to many obligations such as payment of franchise fees, secrecy of Know how, non competition and making available all necessary factors to use the system. Irrespective of the Law which governs the contract, franchisor always focuses on laws governing franchise agreement in hosting country. Because of different laws affecting the franchise contract and particular nature of some contractual terms pertaining to Franchisee obligations, in some cases contract clauses related to Franchisee obligations are in contradiction with local laws of Franchisee country. This conflict can amount to either invalidity of the contractual term or posing a limitation on its way of performance.

The theory of apparent agency has its origin in English legal jurisprudence. This theory is regarded by the International Law and in many countries especially countries with written Law systems such as France, Belgium, Switzerland and Egypt. In regard with the influence of apparent agency theory in written Law, three presumptions are to be considered: First: some regulations can be interpreted and analyzed through the apparent agency theory. Second: some regulations are based on the apparent agency theory, meaning that this theory can accept exceptions. Third: the apparent agency theory has been explicitly or impliedly accepted as a general principle. This article deals with the three above-mentioned presumptions in the Iranian Law and has reached the following The apparent agency theory does not contradict with the Iranian legal principles.2- In the Iranian Law, there are cases which can be analyzed and justified through the apparent agency theory. 3- Some aspects of the apparent agency theory have been accepted in the Iranian law, at least exceptionally, by borrowing from foreign Laws. 4- The theory of apparent agency is not acceptable in the Iranian law as a general rule, but theories similar and equal to it are available.

Appearance or sign or circumstances in Iranian and national Law has two roles and effects. First positive (thinking the way) and the other is creative in the past it's positive role has been attended but now extra national Law (Romanistic, German and Anglo-American Law) has paid attention to apparent and give it creative role. Most of these attentions are in stopple rule, apparent theory and apparent agency. In national Law of Iran Although hasn’t commented about apparent but can ascertain this importance from application of apparent then compare this situation with the role of extra national Law (foreign) until apparent in with drawl from extra national Law (foreign) and apparent theory having new specification or does this doctrine possess of innovation. Comparing of national doctrine of apparent with extra national (foreign) apparent theory between them. In other words extra national approach of Iranian Law hasnt so much advantage and innovation.

In the aftermath of the Islamic Revolution and due to doubts cast on the usurious character of interests on debenture bonds, the Iranian legislator was led to replace the latters by the so-called profit-sharing securities (ORAGHE MOSHAREKAT). The enactment, of the law and regulation, (in 1997 and 1998) concerning the issuing of profit-sharing securities has given rise to doctrinal discussions regarding the mechanism and legal nature of these kinds of securities. In fact, the question is whether or not these new sorts of securities are identical in nature to the old debenture bonds. The objective of the present article is to consider, firstly the mechanism and secondly the legal nature of the profit-sharing securities.