A Comparison between Compulsory Arbitration and the Principles of the Constitution and Legal System in Iran

In the general concept of arbitration-which is called voluntary arbitration-the two sides willingly take to arbitration for the settlement of disputes, and due to the existence of “will”, the personal and private interests of individuals are more fully served, while in compulsory arbitration, the personal will of an individual is replaced by the legislator‟s will and, taking into regard public interests and mediation of the legislator, the two sides are obliged to go to arbitration. Of course, the amount and intensity of compulsion is not the same in all types of compulsory arbitration, and in some cases, public and private interests are equally considered. The very compulsion in referring to arbitration has led some to hold that it is contrary to Article 34 of the Constitution and individuals‟ right of going to court, and the most important reason for rejecting it may be the Guardian Council‟s approval of the laws governing the types of compulsory arbitration; because, according to the Article 72 of the Constitution, the Guardian Council is the official authority for ensuring the compatibility of the pieces of legislation passed by the Islamic Consultative Assembly with the Constitution. On the other hand, with the existence of compulsion while referring to arbitration, the overall concept of arbitration is still in effect and many of the advantages of arbitration are gained, including pursuit of investigation by technologists and professional experts, completing investigation in a short time, easy way of making arbitration decisions. However, the necessity to recognize and justify compulsory arbitration arises from the fact that it is not a mere abstract concept and not only used in laws-and that decrees on the compulsion of individuals to refer to arbitration have been legislated-but, also there is an explicit reference to it in judicial decisions under the title and the nature of “Executive Arbitration Board”