مجله مطالعات حقوق تطبیقی
سال هفتم شماره 1 (پیاپی 13، بهار و تابستان 1395)

Upstream oil and gas operations could have adverse impacts on the environment and society as well as the safety,security and health of people.Therefore, as a pre-condition to commence any oil and gas project,there must be a comprehensive ESHIA report, prepared and submitted by contractor to DOE, in which all necessary precautions and a concrete program are considered to avoid, control or reduce such impacts.ESHIA should not be aimed only for the stage of receiving approval for the project; it must also cover all stages during the life of a project and afterwards. Public participation for preparation of this report provides the opportunity for people who might be affected by the project to give their opinions and also monitor the programe. CSR as a part of the contemporary exercise of most IOCs supports and validates the contractual and legal obligations of IOCs to observe HSE while implementing oil and gas projects.

Once upon a time "slavery" was accepted by all human societies as a value and had penetrated in all aspects of human life incloding: ethics, culture and economic in human society to such an extent that it was impossible to deny it. However, during the ups and downs of human movement toward the respect for human and recognition of human rights, gradually, this false tradition tradition turned into illegal act. Hence, the International Community under the aegis of International Law accepted "the right not to be held as slaves" at the highest levels of international rules; international custom and international human rights treaties. However, today, the compound crime of "Human Trafficking" has become common in human societies as a modern form of slavery and is being discussed in international legal circles. Because in this framework human beings are regarded as objects and doesn’t have legal Subjectivity. In other words, according to this definition, they are considered as "slaves". Moreover, in during the writing of this article the Islamic perspective is studied in relation to this topic.

Payment order in EFT can be a negotiable instrument in two ways; it be as such an instrument based on custom and regulation meaning that whether it should be considered as new instrument or incorporates in one of the current instruments. In light of Iranian legal system and against Common law it is not acceptable that a new negotiable instrument can be created by custom because some characterizes of these instrument are opposite of the general rules or third party rights while Acts or regulations can only do it. About the second situation, creating a new instrument by regulation must be done by taking a special name, stating its conditions, characterizes and results. Although the related regulations like UCC or By-law for Issuing a Payment Order and Fund Transfer have tried to mention these requirements notwithstanding, under Common Law no custom or rule confers the character of negotiability to payment order and therefore we cannot consider it as a new negotiable instrument. In front of this, In Iranian law payment order is a special instrument having owns conditions and results in the light of the given By-law. Therefore the obligation created by this instrument is definite and after having issued and accepted by debtor who is bank, it will oblige the bank to perform. This in turn, brings this principle in our mind: unacceptable defense principle. In any way, we cannot ignore some bad consequences of this idea that led us to reject this framework for payment order.

Widespread use of internet and cyberspace in recent years changed many things including trade and commerce. E-commerce spreads around the world very quickly while there were growing particular legal problems at the same time. Electronic submissions by e-mails or videoconferencing are early harbingers of the technology-dense future of arbitration. Cyberspace with its array of new technological possibilities has already been described in legal literature as a new dimension challenge to the regime of international commercial arbitration. Arbitration tends to involve more and more diverse online techniques. Arbitration agreements are concluded, and proceedings conducted, by electronic means in online settings. The main question in this article which we try ed to answer that, is "how we can set an Arbitral agreement with electronic communications as valid" and provide "in writing" requirement in such agreements.

Most of obligations are notably derived from the contracts and torts. Quasi- contracts in their turn are another limited source to create rights and duties. Article 1371 of French civil code defines the quasi- contracts as the solely intentional human acts which produce obligations to another person or reciprocally. Benevolent intervention is one of the quasi-contracts which British law is not ignorant of. There are many authorities and regulations that govern this legal institution. In the European unity field there is a preliminary plan for the European uniform civil code called:"Draft Common Frame of Reference".
Basically no one has any authority to interfere in someone else’s affairs and assets unless he or she has any kind of agency, administration or tutorship. Any sort of intervention otherwise is a kind of usurpation. In some necessitous situations like absence or immaturity of the owner or the master of the affairs, where there is no power to get the owner’s permission and when the peril of loss or damage of the concerned person’s property or health is felt, then the intervention benevolently is required and admitted and even admirable.
The controversial aspect in this context is the legal basis for this benevolent intervention. Most of the legal systems in concern have chosen the agency theory and justified the effects thereof. One of the consequences that stems from this theory is the capacity of the intervener and his demand for costs incurred. The agency theory is inconsistent with the accepted axioms in Iranian civil law.

The cooperation principle of the parties and the judge in the settlement of dispute is new issues in the civil procedure that have been raised in recent years. The principle of cooperation is defined to mean law enforcement. In other words, the parties and the judge participate with each other to settle a dispute. Although in some of the new rules, these principles can be seen sporadically, but the principle of Transnational Civil Procedure Act 2004 provides the main foundation. By examining the laws of the country, it found that the principle of cooperation, although some of the material can be seen, But this means is not applying the principles of cooperation in the legal system and Our legal system is lacking the new principle. After studying French law, transnational civil procedure and Iranian law we can say that the principle of cooperation can be applied including determination of local jurisdiction, set a date for trial,arbitration, peace and reconciliation, how to deliver securities, How to handle the hearing, etc

Municipality, as one of the most important legal entity in the urban management, can have an effective role in providing local public services and administration of some local public affairs. The role of the municipality in urban management differs from full authority to implementation of small affairs. The Place and importance of the municipality is determined by the laws and legal systems. In Iranian legal system, the Municipal Act 1334 (1955) as the main Act, despite an increase in citizen’s political and civil awareness, with overriding many provision followed a regressive approach; in the way that the most fundamental duties and authorities of the municipality is withdrawn and transferred to the government which resulted in minimal participation of citizens in their local administration affairs. In France, from earlier decades is followed the assignment of duties from the government to municipality seriously, and special rules legislated in favor of this important legal entity. “Decentralization Act”, 2 March 1982, and “General Code of Territorial Communities” upgraded the municipality place to the most important and effective urban management legal entity. The municipality is the basic of urban management. It seems that the opinion of government on municipality is based upon the opinion of government on the people. Explanation of the place and duties, responsibilities and powers of the municipalities as the official legal entity in Iran and France which are the same in the administrative system, and also the study of the existing differences, and applying the strategies and experiences of the France legal system relating to municipality to improve the place and position thereof in Iran, are the most important aims of this essay.

The belief on the necessity of the implementation of justice in criminal proceeding process is among the fundamental principles for legal systems, which will support by creating public understanding of the proceeding process through the presence of people. In respect of this description, the purpose of public proceeding is that people can attend in proceeding sessions freely and observe the proceeding process close and also trust to the exact implementation of the laws, prosecutor s impartiality and the existence of real judicial justice. It should mention that being the practices of judges and parties visible can help the proceeding quality and issuing fair verdict in tribunals a lot. In this respect, the purpose of the article is to present a general view by observing the international evolution at international tribunals from the beginning up to now, through mentioning some of the significant cases. So, the general belief which achieves through the ad hoc criminal cases studding, shows the evolutionary process of this right for the accused.

The present article aims to explicate the difference between perception of conceptual relations governing the public in different eras. Therefore, this can be achieved through considering ancient Greece as the birthplace of western traditions and deciphering the mythological meaning of governance in that era. To this end, it takes advantage of a hermeneutical-historical point of view to review myths of ''Athena'' and ''Hephaestus'' by analyzing the personal characteristics of each god and interpreting them, trying to make a conclusion by combining the two mythical characters - from whom the first Greek king was generated. Then, this hermeneutical view is studied in a social-political context, to examine the conceptual transformation of governance in a bid to explain the move from consolidating the polis in the era of heroism (an outward-oriented governance) to maintaining it in the age of democracy (an inward-oriented governance). In the end, we will have a comparative study of the difference between perceptions of the governance in the form of a state, the concept of representation, and conceptual transformations between the public and the private in the modern era with those of ancient Greece.

After ordering to arresting on warrant the accused, its implementation requires compliance with the conditions. In Iran, enforcing to arresting on warrant by the court officers is occurred in the judicial area of the prosecution or Court of Justice, but, in England, the entire territory of the country is place that may be catching the accused by policeman. Iranian General officers in justice alone often arrest the accused, as well as citizens can help to the officers in arresting the accused, but England's citizens have the power to arresting separately. In England after following the accused if he enter into a private places, police is allowed to enter there, but in Iranian law, it is required by law or judicial authorities order clearly. In Iran, use of weapons by the judicial officers for arresting the accused is limited, but, England police could use the weapons.

Human advances in science and technology extends to libraries and has lead to the emergence digital libraries. So to study both the author and the copyright of digital libraries will help to open a new window in science and technology . It seems that need to distinguish between two types of public and private digital libraries. Private libraries and institutions should be required to satisfy the copyright owner but in the public libraries according Article 8 of the act protection of the authors and artists 1348, public digital libraries were exempt from permission of rightful owner. The explicit legislation would eliminate ambiguities and would prevent personal opinions.

Sale is the alienation of goods with all presumptive, objective and, legal rights related to them in a way that a buyer can have the goods in absolute legal possession. Any defects in seller’s ownership,such as the right of easement, usufruct or lien belonging to the third party interferes with the absolute ownership of the buyer and his rights. A kind of these rights recognized and protected by law asa result of social changes, are third party’s intellectual property rights undermining the buyer’s transaction property that may cause problem for his legal ownership and possession. Although in some laws, particularly in Article 42 of the Vienna Convention for the international sale of goods, or by likening the claim of the third party’s intellectual property rights to his other probable rights has been tried to codify same rules on this issue.However the specific nature of intellectual property rights has resulted in differences that are made the transacting parties cover the defect of law by the contractual provisions of buyer’sindemnification as a result of third party’s claim on his intellectual property rights. In this essay we use an analytical and comparative method to investigate the enforcement of third party’s probable claim on his intellectual property rights by inserting the provision of indemnification. Finally we will conclude that, considering the differences in the legal systems in respect of the intellectual property rights, inserting the detailed provisions hereof is necessary as an agreed mechanism in the international sale of goods.

implementation of the right of defence in the modern administrative law is very important. As widely recognized in the world's Important legal systems. The object of this paper is to determine the conditions of this right and Then, to compare its situation in European Union and Iran's legal system. the conditions of this right are hearing, access to file and Knowledge of the reasons of the Administrative decisions. These are the fundamental right of citizenship and component of characteristics of good administration in the Europe Union legislation and jurisprudence. In the legal system of Iran these conditions are in some of the laws and jurisprudence of Administrative Justice Court, But it is not in general and prevail over all administrative decisions.So the recognition of the right to defense and it´s the conditions by legislator is necessary.

One example of unfair competition is, competition through discredit a competitor. French doctrine and precedent has been accepted and explained this legal entity. But the richness of the Iranian legal literature on this subject is not enough. Therefore, in this paper a review of unfair competition, while explaining the concept and its variants, and based on the analysis of the resulting liability is paid. In French law, it is necessary to realize discredit, being dismissive of rival publications , as well as the possibility of identifying who is denigrate for the audience. But the accuracy of these statements is not important. in the French legal system liability caused by discredit a competitor is based on fault. The Iranian legal system is same, but the liability can be established based on the principle sans fault. It is evident that selection of base has influence on the terms and Scope of responsibility.

Cyberspace, regardless of geographical constraints, has provided the possiblity of fast and affordable communicate for all people around the world. The Increase of International electronic contracts have confronted courts with the challenge of determining jurisdiction in cases involving such contracts. Traditional rules of private international law concerning elimination of conflict of laws, are based on connecting factors which have territorial nature and are not easy to determine in cyberspace. The aim of this study is to investigate the possibility of applying the traditional rules of private international law to determine jurisdiction of courts in cases which one contract is concluded or executed via the internet. Given that The European Union and The United States are pioneer in e-commerce and solving cases which arise in this context, this study investigate the approach of these two legal systems in confronting with jurisdiction in cyberspace

Capital market activists who acts contrary to the principles, rules and regulations of the market have been placed in three categories: 1-disciplinary infractions, 2-disputes and claims, 3-crimes.Occurrence each of above derogation is inevitable and this directly affects the investment and economy activities of countries. Hence, appropriate legal procedures and authorities in order to regulate the affairs of capital market, according to the characteristics of this market, are necessary. The governing rules in judicial systems should be tailored to the requirements of the capital market. Expertise, speed and accuracy are notable characteristics of capital market. In this way, significant changes happened as to the governing rules and acts in judicial systems. Consequently, we will comparatively study the Iran and USA's legal system and determine whether there is appropriate procedures and authorities in the Iran and USA's governing legal system or not?

An action resulting from an object like human's damaging action can cause liability for those who possess them. The French civil law at its approval time (1804) had not predicted this principle and just in Articles 1385, 1386, the liability of damages resulting from two types of objects, i.e. animals and buildings due to imposing great damages by them had been predicted by French law. However, by the late nineteen century, the general principle of liability resulting from the objects was included in the liability realm based on an interpretation from the Paragraph 1 of the Article 1384 of the French Civil Law. In the Iranian law, the Articles 333, 334 of the Civil Law and also the Articles from the Law of Islamic Punishment like 511, 512, 514, 515, 518,522, 528 and 534 and article 1 of the law on compulsory insurance of civil liability of owners of motor vehicles against third-party land have dealt with the identification of this liability without dealing with the rules related to the object realms in creation of the mentioned liability. This article intends to review these rules through a comparative study. The main objective of this paper is to state that in considering object responsibility there lies no difference whether the object is animated or inanimate, hazardous or non- hazardous, movable or immovable and static or dynamic through a comparative study. Even it is not necessary for the object to be directed or managed by a person. In case of existing any elements of civil liability, the damaging action of object can pose responsibility on its possessors.