جستجوی مقالات مرتبط با کلیدواژه « صلاحیت » در نشریات گروه « فقه و حقوق »

Disputes arising in the context of letters of credit, similar to other international commercial contracts, are unavoidable. This internationally used instrument involves partners that are located in several nations. Hence, it is important to ascertain the appropriate jurisdictional competence to adjudicate these conflicts, as it might significantly influence the final resolution of the issue. International businessmen and merchants often incorporate a provision in their agreements to choose a certain court, with the aim of enhancing predictability, minimizing litigation expenses, and expediting the resolution of their disputes. The stance of many nations on the issue of determining jurisdiction for the court is diverse. In Iranian law, it is noteworthy that the explicit statement of this particular subject by the legislator is absent, despite the evident business exigencies that warrant the inclusion of such criteria. In the realm of European Union (EU) law, as opposed to Iranian law, the Recast Brussels Regulations of 2012 included a provision that enabled parties to confer jurisdiction to the court for the resolution of disputes, subject to certain circumstances being met. Within the legal framework of the United States of America, it is observed that various states possess distinct mechanisms for the authentication of those conditions. However, it is generally acknowledged that these conditions hold validity in the majority of instances. In the event that the contract does not include provisions about jurisdiction, the determination of which court has jurisdiction should be made by referring to the applicable national laws. This article undertakes a comparative analysis of the approaches used by Iran, the European Union, and the United States of America with respect to forum selection and jurisdiction determination in cases involving documentary credit claims in situations when no specific condition is present.

Assume that a member state of the international community has not recognized another state and at the same time, both states are members of a treaty in which the possibility of referring a dispute to the International Court of Justice is provided. Now, if one of these two states, based on its legal and political expediency, decides to file a lawsuit in the court due to the violation of the obligation(s) arising from the treaty in question, can the respondent state raise the preliminary objection of non-recognition before the court? This assumption can also be raised in the case of two states that have not recognized each other. To answer this question, the procedures of international courts, including the International Court of Justice and the International Criminal Court, have been examined in this article. The answer that can be given to the central question of the present article is that recognition is a political action with legal consequences. However, the legal consequences of recognition cannot normally lead to the declaration of incompetence or inadmissibility of the court, unless the handling of the dispute between two states depends on the examination of the issue of recognition and its consequences on the continuation of the litigation due to restrictions such as the reservation to the treaty or the lack of consent to establish treaty relations between the two contracting states.

The parties of the contract may agree on multi-tiered dispute resolution clauses. These clauses are usually negotiation, conciliation, mediation, or expert. The purpose of parties is to try to settle the disputes amicably before commencement of arbitration proceeding and avoid the costly process of arbitration, and strengthen their business-relationship. This article discusses about the validity, legal views about the nature of the multi-tiered dispute resolution clauses, its impact on jurisdiction of arbitration. There are three views about the nature of these clauses: Jurisdictional, Admissibility, Procedural. What the parties have stated in their contract indicates their intention. The nature of these clauses are closely linked to the parties’ intention at the time of their conclusion. The intent of the parties and the manner of arrangement of the clauses in the light of the applicable law, will determine the effect of these clauses on the jurisdiction of the arbitrator.

The "Certain Iranian Assets" case provided an opportunity for the International Court of Justice to examine applicability of the Clean Hands Doctrine. In its judgment, the Court explicitly stated that the Clean Hands Doctrine cannot be regarded as part of customary international law or does not constitute a general principle of law. This case study explores the Clean Hands Doctrine, its evolutions in legal precedent and doctrine, and analyzes the Court’s judgment in light of the opinions of the Court’s judges and relevant legal instruments. The study concludes that the Court, by adhereing its precedent (stare decisis), notably in the Jadhav Case, and endorsing the International Law Commission approach in the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (the ARSIWA) and the Draft Articles on Diplomatic Protection, affirmed that the Clean Hands Doctrine is not a determinative factor in the admissibility of a claim, the establishment of rights, or their denial. This judicial approach facilitates international adjudication, especially in cases where States have initiated proceedings with unclean hands and, may in some cases, exempt disputing parties from proving their clean hands.

Judicial supervision is considered as integral part of the arbitration process, which is theoretically a rule derived from the principle of competence- competence. This rule means that the supervising court, regardless of the decision of the previous court at the time of the arbitration hearing, Supervises public jurisdiction by considering the contract and the arbitral award. Given that the relationship between arbitration and the court in all legal systems has raised many issues that the law is not explicit about, it seems necessary to examine the scope and effects of court supervision of this relationship in terms of competence. Therefore, the present article, which examines the analysis of court supervision of arbitration competence, seeks to answer the question of what is the position of court oversight in terms of formation, scope and effects? The findings of this study indicate that, in order to exercise court supervision, the existence of some conditions and the absence of obstacles are necessary. In the supervisory phase, in addition to controlling the general competence, the court is also responsible for appointing the competent arbitral tribunal, and despite the legislator's silence, the court supervision also includes the annulment of the arbitrator's incompetence. In the case of supervision, according to the principle of competence- competence, the court can also enforce the annulled judgement in another country and consider the annulment judgement to have a territorial effect. The effects of the court's supervision on the annulment case are mainly reflected in the presumption of annulment of competence judgement.

AbstractThe General Board of the Supreme Court has resolved the dispute in a Unification of Judgment Decision No. 729 regarding the competent judicial authority to deal with the declared crime under the title of "Electronic Fraud". Based on this decision, in cases where the origin and destination of the money transfer are in different jurisdictions, the jurisdiction where the bank that opened the account of victim is located has been recognized as competent to handle the case. It seems that there is a difference in the elements of the crime between the fraud described in the "Case Report" and "Unification of Judgment Decision", in such a way that in the first one, it is a traditional type of fraud and in the second one, it is an electronic type. Contrary to the Unification of Judgment Decision and based on the arguments expressed in this article, including attention to the place of completion of the crime, in the mentioned fraud, whether traditional or electronic, the judicial authority of the destination of the money transfer competent to the proceedings has been stated.

One of the old problems of Iranian law is the conflict of competences that exists in practice between the organization of registration of documents and real estate and the judiciary. One of these cases, which is not ambiguous in the laws, but when it comes to an execution where disputes are considered, is when a document is executed, but one of the parties or a third party objects to the execution. In short, if the objection is about the issuing the execution, this matter is under the jurisdiction of the judiciary, but if the objection is about the execution itself, it is under the jurisdiction of the head of the local registry. The Supreme Court tried to resolve a dispute regarding the third party's objection to the execution of the document, according to judicial unanimity award number 784, but the investigation showed that the award not only did not resolve dispute, but also due to ambiguity. It may have caused more differences.If the dispute arises either from the third party or from the parties, it is related to the execution stage of the document and has an executive nature (according to the regulation of executive "operations"), it is within the jurisdiction of the head of the registry, but if the dispute is about the executive itself. or the dispute is quarrel , in this case, without a doubt, the dispute should be resolved in the court.

Article 54 of the Law on Removing Obstacles to Competitive Production, a note to Article 9 of the Law on Increasing the Productivity of the Agricultural Sector and Natural Resources, and the Ministry of Agricultural Jihad, in cooperation with the country's Property and Deed Registration Organization, is obliged to remove the interference caused by the implementation of parallel laws and regulations in national lands. government and individuals exceptions to amend the ownership documents and issue agricultural documents after resolving the disputes and according to Article 3 of the Executive Regulations, Note (3) of the Addendum to Article (9) of the Law on Increasing the Productivity of the Agriculture and Natural Resources Sector, the subject of Article (54) The Law on Removing Obstacles to Competitive Production and Improving the Country's Financial System, the Interference Removal Commission was established at the province level . Article 9 of the law on increasing the productivity of the agricultural and natural resources sector also stipulates the duty of the mentioned ministry to establish the ownership of the government and obtain ownership documents in the name of the government on national resources and favorable and state lands, respecting the privacy of the villages and removing the interference caused by the implementation of the regulations. It is parallel until the end of the fifth five-year plan of economic development. Although the cases mentioned in determining the jurisdiction of the said commission have been clear, with the description of the multitude of laws and regulations governing government lands, there have been doubts about the scope of the jurisdiction of the said commission. An example of these doubts is reflected in the disagreement of the branches of the Supreme Court of the country on the authority of the commission to enter into the case of expropriation .......

In the rulings of the Supreme Court called Unification of Judgment Decision, regarding cases where multiple injuries lead to determining the amount of blood money or atonement that reaches half of the full amount, a dispute arose as to whether the blood money for an injury should reach half of the full amount in order to be appealable in the Supreme Court or If the total quorum reaches this quorum, the jurisdiction of the court in the appeal proceedings will be realized. This dispute was resolved by the Iranian General Board of the Supreme Court in such a way that the sum of damages for the total injuries is sufficient to establish the jurisdiction of the Supreme Court and there is no need for one injury to have such an amount of damages. This Unification of Judgment Decision issued on number 808 seems to be contrary to the philosophy of matters assigned to the Supreme Court and it does not seem to have any correspondence with other issues of jurisdiction in this regard.

Taxpayers mostly wish to avoid paying or paying lower taxes. Lower payment or non-payment is sometimes done by violation of tax laws, other times not a violation. If paying lower tax don't violate the law, it will be either legitimate or illegitimate. Paying lower taxes illegitimately by using legal means is called tax avoidance, which creates a tax gap and erodes tax equality. For this reason, the rise of anti-tax avoidance rules is necessary, and in the Iranian legal system, we have not currently comprehensive rules on anti-avoidance. In this article, the authors have a study on the immature status of tax avoidance rules by an analytical-descriptive and critical approach. The present study has been done in three categories: firstly, on Rules and regulations of the Iranian legal system, secondly on Anti-avoidance rules and doctrines, and, thirdly on the challenge of creating anti-avoidance rules and the dimensions of the existence of these rules. Consequently, we have concluded that The Anti-avoidance rules have not been maturely been raised in the Iranian Legal System and this situation becomes more understandable by the study on foreign law. In addition, there are some challenges in the emergence of anti-avoidance rules which arise in two dimensions: substance and jurisdiction.

The significance of comparative study in the field of administrative law, which heavily relies on foreign legal frameworks unlike other domestic legal fields, cannot be overstated. Within this context, the examination of administrative justice, which plays a pivotal role in the establishment and evolution of administrative law in influential legal systems, becomes increasingly important. This article aims to explore the characteristics and distinctions of administrative justice models across the globe, with a focus on the legal foundations of each respective legal system and the extent to which these distinctions are reflected in the procedural components. Among the various classifications of administrative justice patterns, the classification of countries based on organizational criteria and competency appears to be the most meaningful and comprehensive. From this perspective, countries can be categorized into three models: judicial unity (English model(, judicial duality (French model(, and mixed system (Germany-Belgium model(. Key factors such as the definition of the concept of public interest, the relationship between substantive and formal rules, the nature of the judge-administration relationship, and the unity or duality of the legal framework and judicial authorities significantly influence the formation and differentiation of each justice model. These factors manifest themselves to varying degrees in the quality and manner of justice, as well as in the issue of control and the authorities of the administrative judge.

Administrative contracts are one of the main sources of corruption in public affairs. Due to the financing of administrative contracts from the public budget and the high amount of these contracts, administrative authorities are influenced by personal interests in the relevant administrative decision. Considering the increase of efficiency and productivity of administrative organizations and the necessity of protecting and guaranteeing the rights of citizens against the abuse of public officials, supervision of administrative contracts is mandatory and unavoidable. In this regard, various supervisory authorities exercise supervision over administrative contracts. One of them is the Complaints Board (law on tenders). Now, what are the characteristics of administrative contracts that need to be monitored? To what extent can the Complaints Board, as a dedicated over sight body over see and ministrative contracts? And where are the challenges facing her? These questions are discussed in this article. Findings in the article show that the monitoring of this Board, in addition to its strengths, also has disadvantages, which we will review and make a suggestion.

According to article 570 of the Islamic Penal Code, the actions of officials and officials affiliated with government agencies that lead to the deprivation of personal liberty of individuals and violations of constitutional rights can be the basis for guaranteeing criminal executions such as dismissal and imprisonment. This paper, while analyzing the above-mentioned article, explicitly raises the important question that, assuming that government officials and officials take illegal actions based on a provision contrary to the law, can judges of the courts invoke the authority provided for in article 170? Should the Constitution apply the performance guarantee specified in article 570 of the Penal Code? In the present paper, by studying cases of judicial procedure of courts and using a descriptive-analytical method, it has been concluded that the authority obtained from article 170 of the Constitution has no necessity other than non-implementation of illegal provisions by judges and in such cases the inherent jurisdiction of the Administrative Court of Justice in articles 170 and 173 of the Constitution and by using capacities such as issuing warrants for reviewing the legal aspect of the protested regulation is referred to the Administrative Court of Justice and based on the Court's decision in the above regulation, a decision is made in the criminal case.

The concept of public interest is one of the most important axes of public law. The definition of public interest in the field of constitutional law as well as administrative law is especially reflected. By definition, two general approaches can be distinguished in contemporary legal systems: the liberal system, and the republican system. In the Iranian law system, considering the theories of the government after the revolution of February 1979, it seems that the general tendency in defining the public interest is more towards the republican system, but considering the historical structure of Shiite jurisprudence on the field and concepts Private law, existing jurisprudence has lacked the necessary details to theorize the theory of government. Even with the emergence of the theory of Imam Khomeini's "absolute sovereignty of faqih", it can be seen that on the one hand the theory has no reflection in other levels of government, including administrative law, after three decades and still remains within the justification of the first person authority and on the other hand the issue of control of the state and the guarantee of fundamental rights and freedoms have not been theorized or institutionalized, and so instead of a full-fledged theory of public law.

Nowadays, by the increasing expansion of commercial contracts in the international arena, the use of multi-tiered dispute resolution clauses have been increased. These clauses have many functions for the parties compared to other judicial and arbitration methods. Identifying this issue is very useful in the practical procedure, assuming that the terms of the dispute resolution are binding, the arbitrator starts the arbitration regardless of the observance of these terms by the parties, the arbitration award is invalid due to the lack of competence of the arbitrator, or the violation of the terms is simply a matter of admissibility. A group is of the opinion that non-compliance with the condition of multi-tiered dispute resolution clauses directly affects the jurisdiction, and the arbitrator has exceeded the limits of his jurisdiction, subsequently the decision issued according to the law is null, and it has no legal effect. In contrast, some believe that this issue is related to the admissibility, which is a gentler approach and in line with respecting the sovereignty of the volition governance principle to resolve the dispute through arbitration and non-intervention of the court. Basically, their basis for supporting this theory is that the claim is merely defective in form, and the arbitration agreement between the parties is valid. Regarding the types of legal reactions to non-compliance with the conditions of dispute resolution, suspending the arbitration process at the same time as granting a deadline to comply with the pre-arbitration conditions is preferable to other solutions.

Delegating authority in public law is not a rule, but being an exception does not reduce of it`s important. According to the two-way discourse of public law -normativeism and functionalism- in addition to preventing the concentration of power, it also accelerates affairs and improves effective administrative relations. Although in the discussion of delegation of authority, the views are mostly focused on administrative rights, but in constitutional rights and especially the value system, delegation of authority is an important matter, which we call ascending delegation of authority. This issue can be investigated in modernity by understanding the critic's self-founding reason in the form of social contract theory and delegation of public power from the people to the ruling body. For this reason, this article also focuses on the issue of delegation of authority in constitutional rights and considers it the other side of the delegation of authority in administrative law. The rule of law requires that in the administrative system, the principle is based on the authority of the individual, and the delegation of authority is an exception, because every official receives his authority from the law, and its delegation also requires the prescription of the law. Also, the administrative authority who cannot delegate all his powers and only a part of the powers that are not prohibited by law can be delegated. The main question of this article is what and the legal effects of delegation in the light of the principles of public law. In this article, the conditions and limitations of delegation of authority in public law have been examined through a descriptive-analytical method. Delegation of authority is an inevitable necessity in public law, which can be examined at two levels of constitutional law based on the theory of representation and in the field of administrative law.

Note 1, Article 43 of the Securities Market Law, the board of directors of the stock exchange, along with the arbitration board, is competent to deal with damage claims in the process of the initial offering of securities; The board of directors of the stock exchange, in addition to the dignity and duties of the board of directors of public joint-stock companies, has other competences and duties regarding being a publisher and self-regulating organization. The above-mentioned regulation needs to be carefully examined in terms of the type, scope and limits of jurisdiction of the board of directors of the stock exchangeAnd by examining it, it is discovered that it is unclear about the procedure and organization of the hearing, as well as the issuance of the opinion and its implementation. In addition, the board of directors lacks any legal-judicial dignity, and the handling of lawsuits in it is faced with a fundamental problem, and due to the jurisdiction of two authorities with different organizations, the possibility of conflicting opinions issued in a single matter is very high. However, in the laws of other countries, including the United States and the United Kingdom, although other institutions other than the court are responsible for dealing with violations, creating compromises, arbitration between the injured party and the causer of the damage, and similar cases in the process of the initial offer, the judicial investigation of the issue is the responsibility of the judicial system. A detailed examination of the regulations on the topic of discussion and its adaptation to other countries makes clear the necessity of its narrow interpretation, modification and completion in the current situation where the capital market needs support; Therefore, this article aims to emphasize the necessity of amending the relevant regulations by carefully examining the existing internal and external sources and writings, while examining the various aspects of the board of directors' competence;  Especially since the preparations for amending the law have already started.

Compensation for the Iraq-Iran war of 1980-88 has been a constant issue in Iranian politics and law. In fact, from the very beginning of the war, Iran expected the UN Security Council to consider the issue of damages by determining the aggressor. In the post-war years, too, despite the endeavors of the UN Secretary-General following the provisions of Resolution 598, the choice of an alternative was never taken seriously as an objective political or legal action by Iran. It seems one of the reasons for this reluctant was the lack of awareness of the reliable jurisdictional basis for resort to a reliable legal solution such as the International Court of Justice. As we study the positions of the Iran's political authorities and the relevant scholarly writings on the subject, there is no indication to the Court to institute proceedings against Iraq. The article, while introducing the jurisdictional basis of the Court, deals with the subject of the relevant capacities and restrictions incorporated in the provisions of the treaty and the procedure of the International Court of Justice.

One of the divisions of jurisdiction of criminal courts is the division of these courts into Courts grade one and Courts grade two. Relative jurisdiction is studied as another kind of criminal courts jurisdiction beside local and inherent jurisdiction. In Relative jurisdiction, Courts grade one deal with more important crimes by multiple judges and Courts grade two deal with less important crimes by single judge. In Iranian law according to criminal procedure code 1392, Relative jurisdiction is accepted in both general and special courts. In English law, also, Relative jurisdiction of criminal courts accepted such a way that the crimes, based on importance, divided into three parts: Indictable offences, Summary offences and Offences triable and this will be heard either by Magistrates’ Court or crown court accordingly. In addition, in the law of both countries, relative jurisdiction in the retrial is also provided and these courts are divided into two categories.