دانشنامه حقوق اقتصادی
سال بیست و چهارم شماره 1 (پیاپی 11، بهار و تابستان 1396)

Introduction The main purpose of the law regarding the consumers’ rights is to create equality in the relation between producers and suppliers on the one hand and the suppliers and the consumers on the other hand. The applied commutative justice takes the relationships and the differences in the contractual power into account without abusing the weaker party rights by considering the state intervention in the relation between producers and consumers justifiable due to the importance of economic liberalization, the expansion of mass production, the increasing number of multinational companies, and the unequal power of the parties in consumption. Thus, the established commutative balance or justice requires both parties’ agreement. Accordingly, the law on consumption is formed with the idea of establishing balance and regulating the relations by imposing certain conditions on the stronger side (producers and suppliers) and identifying legal rights for the weaker party (consumers).
Theoretical Framework In the Iranian statutory law, the consumer rights faces many challenges such as the lack of clarity of consumer concepts, the lack of access to information, lengthy legal proceedings, heavy costs of litigation, and the producers’ dependence on state-owned as well as quasi-governmental institutions. Thus, what will be focused in this essay is merely the role of a class action in solving the challenges posed by the cost of the proceedings, the length of the proceedings, and the lawyers wages,.many of these challenges have been solved by class action while at the same time class action increasing the efficiency of consumer reparations methods. In so doing, firstly, the class actions are described and secondly, the legal challenges of the proceedings in the realm of consumers’ rights will be explained. Ultimately, the role of the class actions in solving these challenges will be addressed. At the same time , some Opposition regarding the necessity of the class actions are mainly based on the foreign countries proceeding and legal systems. therefore , We do not explain these views and only considering the barriers of brining a class action in Iranian law and how to apply this method of procedure suffices.
Methodology This study attempts to find an answer to questions above by using an analytical-descriptive approach. To this aim, the present study seeks to examine the existing challenges of protecting the consumer rights in Iran while reviewing the class action lawsuit to ensure their rights.
Results and Discussion Consumers’ rights have two main correcting the product defects and protecting the consumers’ loss. The present study showed that the identification of class actions is the complementary factor and the final circle of providing the desired goals since the goals of class actions system are increasing judicial efficiency, reducing the costs of court proceedings, saving the costs of bringing the dispute, increasing the parties access to the legal solutions, preventing the conflicting decisions over time, and predicating the judicial processes which promotes the consumers’ rights on the one hand and improves the production processes on the other hand. However, this research additionally showed that the use of class actions in the realm of consumer rights requires reducing the workload of the courts, the cost of proceedings as well as preventing the conflicting views which can lead to gaining one of the most important goals of consumers’ rights namely deterrence. The consumer rights can be accomplished if the producers are more careful in terms of complying with the product standards and informing the consumers about a defect or deficiency in the products. This may be done slowly or may not be accomplished in the absence of a solution such as a class action. This issue highlights the importance of using this solution namely ‘resorting to the class actions’ in completing the substantive efforts to support the consumers.

World trade organization (WTO) introduces “ trade in services” as the most dynamic segment of international trade. Developing countries and transition economics have played an increasingly important role in this area. The WTO’s General Agreement on Trade in Services (GATS) is the only set of multilateral rules covering international trade in services. While services account for an overwhelming share of overall economic activities, “offshore outsourcing” in the service sector being, formed many decades ago, seems to be an important issue for lots of countries. This article concentrates on surveying “offshore outsourcing” mode of supply in comparison with four modes of supply that are mentioned in GATS. Empirical analysis on the mode of supply in offshore outsourcing is very limited.
Theoretical Framework Business structures and economic entities responded to change in technology by relying on outside entities to perform various functions. In the past years, only the manufacturing and manual labor-based functions were susceptible to outsourcing in foreign countries. Today, advancement in communications, technology, transportation, and free trade has widened the range of functions that can be sent to the overseas vendors. Lawmakers have acknowledge that offshore outsourcing may involve issues related to privacy, labor rights, intellectual property, immigration, environmental protection, taxation, export controls, and national security. One of the important issues in the field of service sector of economy is the mode of supply in service.
Methodology At the very early stages of the emergence of “offshore outsourcing” phenomenon, professionals from different areas of science were attracted to the impacts of this process on the world economy. The Organization for Economic Co-operation and Development (OECD) has published different works on offshore outsourcing aspects. In this research, the descriptive method has been used in defining and introducing offshoring and trade in separate services as well as an integrated economical processes. However, at the core of the research when the writer is developing new concepts about the modes of supply in offshore outsourcing and re-interpreting the existing modes of supply, the conceptual analysis as the, method of research is used. In both parts, the documentary and publication research method is used to gather data.
The way or modes of supply in offshore outsourcing is not exactly according to one of the four modes of supply in GATS. It has different reasons, some of them I think refer to the economic theory called “ the three-sector theory, while some others are related to” the integrated nature of this economic process. GATS identifies four different ways or “modes” of supplying services. As for many services, remote supplying is impossible, the first mode is not often taken but in offshore outsourcing of financial services, telephone centers and some other services that can transfer via the wire or wire less technology and do not need to face to face connection, offshore outsourcing is possible and quite common. The second mode is the most liberalized one in terms of commitment, while the third mode is more open and has the largest share in global value chains. However, offshore outsourcing in manufacturing has more similarities with mode (3).Mode (4) that refers to presence of persons of one WTO member in the territory of another for the purpose of providing a service is not common in offshore outsourcing. Mode of supply for offshore-outsourcing in the service sectors seems a lot more complicated than the four existing modes of supply of services in GATS. For a service to be effectively produced or delivered, the proximity between the consumer and the supplier is often a necessary condition.Thus, in addition to cross-border supply (mode 1), GATS also covers cases where consumers move outside their home territory to consume services (mode 2- consumption abroad), and cases where suppliers move to the territory of the consumers to provide their services, whether by establishing a commercial presence abroad (mode 3), or through the presence of natural persons (mode 4).
Conclusion Our studies and findings in this research show that the intervention of contractual relations and outsourcing of business activity or other services from one company to another across countries define the special and synthetic nature of the mode of supply.
The most simple way of supplying services in “offshore outsourcing” is in accordance with the first mode of supply. However, in the proposed offshore outsourcing production, the mode of supply is more complex and synthetic.
In fact, the service provision in offshore outsourcing, specially, in producing sectors, is partly the result of consumption in the country of origin and partly the exportation of the offshore destination country. This is the distinction between the offshore outsourcing from foreign investment and the reason of complexity of the mode of supply of services.
As a result, studies on the different factors of the offshore outsourcing of services will be critical and fruitful for the future of the economy and its regulations

The use of containers as a means of moving cargo has rapidly increasing over the last decades and has given rise to the concept of multimodal transport. This mode of transport takes place by at least two different modes through one single contract from a place in one country where the goods are taken in charge by the carrier to a place designated for delivery situated in a different country. This way of transport has many advantages such as overcoming many of the technical problems as well as reducing loading and discharging time. While a new convention related to multimodal transport is expected but all efforts in this subject have failed for some reasons as unfortunately there is neither any uniform international law on multimodal contract nor is one expected in the near future. To solve this problem, some solutions have been proposed among which using network system for ascertaining the applicable law is one of the best possible options. The network system links existing sets of unimodal convention to the substantive rules. Under the network system, the multimodal transport agreement is divided into parts and the law applicable to each separate stage is determined as if it were a separate contract. So, all applicable unimodal international conventions are applied only to the related multimodal transport. It means that the convention on the contract for the international carriage of goods by road (CMR, 1956) on the road leg, the convention concerning international carriage by rail (COTIF, 1980) and its amendments (1999) on the rail stage, the convention for the unification of certain rules related to the international carriage by air (Warsaw Convention, 1929) and its amendments (1955), the convention for the unification of certain rules for international carriage by air (Montreal Convention, 1999) on the air leg, the Hague Rules as Amended by the Brussels Protocol (Hague-Visby Rules, 1968), the United Nations Convention on the Carriage of Goods by Sea (Hamburg Convention, 1978), and the United Nations Convention on Contracts for the international carriage of goods wholly or partly by the sea (Rotterdam Rules, 2009) on the sea leg will be applied.
Anyway, there is a considerable overlap between mandatory provisions of different unimodal conventions and the multimodal transport. These overlaps will lead to problems in governing law on multimodal transport. In order to solve this problem, sometimes theses conventions have created their own conflicts with the rules. The aim of this paper is to explore the possibilities of legal overlaps between the provisions of Hamburg Rules and Rotterdam Rules (as two international conventions related to the sea leg) in multimodal transport by relying on the descriptive-analytic research.
This essay shows Hamburg Rules contain a specific reference to multimodal carriage. In Article 1(6), the scope of application of convention is established concerning the situations where the carriage by sea is a part of a larger contract. Nevertheless, Hamburg rules don’t apply to the whole contract but are restricted to the international sea stage. Rotterdam Rules are intended to provide a modern uniform law which can regulate all international carriages of goods including an international sea leg, while the convention regulates parts of the wet multimodal transports. There are various possible situations in which more than one carriage may apply. Most of the potential conflicts resulting from the multimodal carriage are created by the multimodal articles in the unimodal carriage regimes which means that the articles extending the scope of the regimes beyond the type of carriage are primarily intended to regulate. Fortunately, some conventions contain rules that can solve some conflicts. In fact, they have conflicting rules. Following the overview of some conflicts among Hamburg Rules and Rotterdam Rules regulations, the essay shows that Article 25(5) of Hamburg Rules is conflicting with some other conventions such as Article 2 CMR and Article 3(1) COTIF convention which indicates that these rules should prioritize the Hamburg rules. In this regard, it is necessary to pay attention to Articles 26 and 82 of Rotterdam Rules. Although Article 26 of Rotterdam Rules does not prevent all possible conflicts with the international conventions on carriage other than by sea, it solves a lot of potential conflicts by incorporating the provisions on the carrier liability, the limitation of liability and time for the suit of other conventions. Article 82 deals with the relationship between Rotterdam Rules and other conventions regulating carriage by air, road, rail or inland water ways. According to Article 82 first paragraph, nothing in the Rotterdam Rules affects the application of any unimodal convention when the Rotterdam Rules enters in force regarding the liability of the carrier for the loss of or damage to the goods. Nevertheless, this general step-back rule is only applicable to the conflict with the international conventions on carriage of goods by air. In other cases the step-back rule is restricted to certain situations in Articles 82 (b) to (d).

One of the basic issues in the economic analysis of contract law is the position of remedy enforcement concerning the specific performance along with its connection to the termination of contract and payment of damages which are presented in this study. In fact, the common law and civil law systems have predicted a set of different regulations in this regard. in common law, damages are taken into account as a general remedy for the breach of contractual obligations where in some exceptional cases, an execution of the specific performance is possible. Nonetheless, in civil law systems, a public remedy for breaching contractual obligations is equal to the execution of the specific performance and the termination of contract as well as considering damages as exceptions.
A group of experts in economic analysis of contract law emphasize the efficiency of the precedence of executing the specific performance. To prove their theories, they have cited the neutrality principle and the reliance on the contract as well as the moral obligation of adherence to the obligation. To explain these reasons, it must be pointed out that (1) according to the neutrality principle, the legislator must foresee the remedies of breach of the contractual obligation in a manner that the promisee would remain absolutely neutral between the execution of the specific performance and its termination, in which the precedence of the former on the latter could place the promisee in such a situation; (2) Given the principle of reliance on the contract, both parties would trust the execution of obligation by one another and consequently, various costs would be at stake. Hence, with the precedence of executing the specific performance, such a reliance can be supported while wasting the costs of trusting a contract can be avoided as the execution of obligation is prioritized; (3) According to a common view, morality requires both parties to remain faithful to the obligation and a contract breach is frowned upon. As a result, the precedence of executing the specific performance can terminate motivations toward the breach of contract.
In return, the most important reasons put forth by the advocates of the efficiency in the precedence of termination of contract against the specific performance include the principle of promisee’s self-reliance in the remedy of contractual obligations as well as the fact that such contractual remedies lead to motivation. Consequently, (1) according to the self-reliance principle in contractual remedies, both parties should foresee the probability of the breach of contract with regards to the contractual conditions and states, hence, the contractual remedies must provide self-reliance to both parties when faced with a breach of contract; (2) Based on the principle of providing motivation via contractual remedies, they must be predicted in a way that both parties’ motivations would remain intact in case of perform or breach as well as the payment of damage; meanwhile, with the precedence of executing the specific performance, the promisor would not be motivated to perform or breach the obligation as it must be performed in any case, and the promisee also would not have any motivation to mitigate the damages inflicted upon himself in case of a contract breach.
Considering the methodology of the present study, the authors will employ a combination of methods including explanatory (stating the reasons put forth by both parties regarding the efficiency of the precedence of executing the specific performance or termination of contract), analytical (presenting the selected theory, given the examinations and expressed reasons), comparative (comparison between Iranian and American Law), and formal (difference between the characteristics of contracts concerning the priority of executing the specific performance or the termination of contract). Albeit, given the requirements of the main approach in this paper, first an economic analysis must be employed and eventually, its results must be explained using the aforementioned analysis.
An impediment expressed toward the reasons put forth by the advocates of the precedence of the execution of the specific performance or the termination of contract and the payment of damage is that, overall, the precedence of the execution of the specific performance or the termination of contract cannot be accepted unless it is done according to the contracts’ characteristics such as being regular, consumable, or commercial. The result obtained from the comparative theory is a combination of the reasons put forth by the advocates and the opponents of the precedence of executing the specific performance over the contract termination which is more compatible with the economic components such as efficiency, efficient specification of resources and their optimal usage, increase in social wealth, and the internalization of foreign expenses resulted from the breach of contract.
According to the formal theory, in regular contracts with the subject of transporting present goods, the precedence belongs to the execution of the specific performance; however, in regular contracts with orders on manufacturing goods and providing services, the promisee must be able to choose between the necessity of executing the specific performance or termination of contract. Furthermore, in consumable contracts, the precedence should also belong to the execution of the specific performance, while in commercial contracts, the termination of contract is prioritized.
Given section 2 of Article 716 in the Uniform Commercial Code presented by American legislators, the execution of the specific performance is not accepted as a general remedy of the breach of contractual obligation and, the precedence of executing the specific performance over the payment of damages are taken into account with regards to the certain conditions and states of both claims, leaving the final authority to the judge. As a result, contemporary legislative developments are inclined toward accepting the formal theory on the precedence of executing the specific performance or the termination of contract.
In addition, the factor proving the efficiency of the formal theory is that contractual remedies of necessitating the execution of the specific performance and the termination of contract are closely connected to the majority of legal institutions such as the civil liability of a third party intervener in breach of contract, efficient breach of contract, the rules of the game concerning contract execution/breach, and the ability to accumulate contractual remedies. In this regard, the precedence of executing the specific performance would prevent the realization of these institutions. Meanwhile, accepting the formal theory would provide the context to the Iranian law in which such institutions are realized.

In Iran, the civil liability insurance of employers for employees is issued on the basis of the regulation no. 80 dated 22 January 2013 of the supreme council of insurance. This regulation was approved according to the article 17 of the law of establishing the Central Insurance of Iran and insurance matters. The title of this regulation is "general conditions of the civil liability insurance of employers for employees" with 24 articles and 4 notes that is an essential step towards the documentation of regulations in the field of liability insurance.
Prior to the enactment of this regulation, general terms used by an insurance company were prepared by them. Of course, Central Insurance of the Islamic Republic of Iran would appearantly supervise them. In practice, however, there was a significant difference between operating conditions in insurer companies. Approval and issuance of this regulation, in addition to regulating the general conditions of insurance policy, have some critical consequences from the standpoint of economic analysis.
Nowadays, in the field of work-related accidents, discussions have passed from the causes of accident and employer's responsibilities and reached the stage of full compensation.
The tendency of legal systems to compensate for the maximum damage has led employers to insure the whole or a major part of the risk of these incidents through the employer's liability insurance policy towards the employees. Bearing this in mind, the Supreme Council of Insurance has also sought to draft regulation No. 80. In this regulation, traditional concepts are preserved and some unnecessary rules are mentioned, yet some other rules do not conform to the maximum compensation and sometimes it seems to be in conflicts.
The regulation’s major issues as follows: The use of non-specialized concepts such as "professionalism" that affects reinsurance issues and makes insurance companies pay more to central insurer. ambiguity in some of the concepts like the insured which does not include some individuals or insurance coverage Or this inclusion is in doubt. Since employer's liability insurance is set up to provide mployee’s damages, it is necessary to provide a clear definition of this concept Because the term of workers and employees may be used in different meanings. In particular, the labor code defines the worker by the "haghosay" term and regulation no. 80 with "hagholamal".
From the point of view of insurers’ obligations, the regulation No. 80 has been termed "main" and "Diyah" or "Arsh", which has different meanings and realms. The concept of bodily defect is current in accident insurance and does not cover all types of physical harm while the "Diyah" is related to physical incidents and any damage sustained by the court, after the inquiry from Forensic Medicine and determination of the type of injury.
The right of subrogation is an option for insurer and not obligation to claim but in the case of Regulation No. 80, subrogation is one of the obligations of insurer which does not have good economic results. The duty to declare an incident and the rules to intensify the risk are also incompletely explained and sometimes controversial. The issue of double insurance and the one that should be refered in the case of multiple insurers and what is the order of reference for purification of damages, is not properly described and can affect the economic performance of claims and costs of insurers to refer to each other.
It is common for all insurance companies to take out some incidents or losses from insurance coverage (insurance policy exceptions). This is the case in Regulation No. 80, but there are also problems in this regard. For example, the concept of insurance incident has been questioned about occupational disease, and insurers do not accept the disease as an insurance incident. However, in jurisprudence, courts will compensate for the loss of occupational disease if they are caused by a failure of an employer and the employer is virtually deprived of insurance coverage or will be forced to bring a lawsuit against the insurer. Clearly, in this case, the cost is significant.
As for the limitations, it was better not to mention it because limitation has been abrogated in all types of insurance and by referring to it in the Regulation No. 80, Legal disputes will resume and as a result, It causes conflicts and loses of economic benefits of injured person.. The subject of this study is to review the aforesaid regulation with an economic approach.
This paper consists of five subjects. In the first speech, we will examine the basic concepts (definitions and terms) used in Regulation. The second is related to the duties of the insurer and the third is related to insurer's duties.damage outside the insurer's liability is in the fourth speech and in the fifth speech, it will discuss about limitation.

“Punitive damages” is a concept versus “compensatory damages” which are not awarded in order to compensate the plaintiff unlike compensatory damages, but they are a reaction to the intentional behavior in the event of malice that the defendant of a civil liability lawsuit has been acted. These kinds of damages have been recently absorbed the attention of analysts and courts especially in Common Law system because of the two major reasons: high costs of proceedings and the incompetency intentions observed in some fields of civil liability. Thus, they benefited from the necessity of defendant to pay a price that has not purely the compensatory characteristic.
In this study efforts have been made to explain the objectives, applications and justifications that have been presented for the punitive damages. Punitive damage consists of two widespread social purposes that the law-makers are more interested in the goal of punishment and the economic analysts are more interested in Economic Analysis of Law in order to execute its deterrence. But the aim of deterrence is to prevent the commitment of intentional harms or those of harms that defendant is able to escape liability against them.
In the aim of deterrence, we intend to impose liability to the defendant due to his previous performance, he and other people who are in the same condition in order to stop them from committing a harmful incidence. Therefore the goal of punishment is resulted from the intention of people to punish the blameworthy people. Thus, we assume that the goal of punishment finally results from the enjoyment or satisfaction that people gain from seeing the perpetrators being punished.
Methodologically, in this article beside the law perspective, the perspective of Economic Analysis of Law has been additionally used. In the Economic Analysis, the economic tools are used in evaluating this damage. That’s why aims which are in consideration of authors in this specific model of liability in the Economic Analysis of Law are explained. In the approach of Economic Analysis of Law, the law rules are tools to reach the important social goals; in other words, based on the economic perspective, the law sanctions are tantamount to prices and when these tools are incomplete in establishing our aims, they could be modified. As a result, since the people respond to the prices, they will respond to the sanctions too and to the stronger sanctions with less commitment of related activities as well.
Theoretically, in the punitive damages which are a type of extra-compensatory damages due to the higher price of compensation from the perpetrators, the cost of action for activists in that field goes up and brings about a stronger preventive force in contrast to the compensatory damages so that he should exercise caution more than a person in normal environment. Thus, if the punitive damages are mandated excessively, it will cause a problem so-called over deterrence.
For Professor Cooter, the punitive damage should involve the goal of deterrence and this goal is recognized according to three policies that the punitive damages consist of. Three policy conclusions follow from this analysis: punitive damages should be restricted to intentional faults; a criterion for identifying intentional fault is that it is gross or repeated; and punitive damages should be computed to offset the injurer’s illicit pleasure from noncompliance or exceptional cost of compliance. In this respect, the players receive behavioral incentives from the civil liability. It is connotatively assumed that if a tort perpetrator brings about harms for which he will be liable, he will be liable too. Therefore, he will face all the negative externalities caused. However, there are many conditions that the probability of making the perpetrators liable is under 100%. In other words, those perpetrators should be known liable may try to escape the trial. Under these conditions, the use of punitive damages is useful.
In general, it should be noted about the internal law condition that the Iranian writers in the case of civil liability mostly pay attention to the traditional aims of this mechanism and in facing the punitive damages know its punishment and trial aspects so that they feel it is inappropriate for their restorative system. The deterrence aspect of punitive damages in the writings of foreign-authors possesses stronger aspect and the Economic Analysts have mentioned logical justifications which generally have been designed to internalize all the harmful effects of individual’s behavior. In sum, based on the punishment perspective, punitive damages are not justifiable in our internal law because they have restorative essence but from the deterrence perspective, all theories such as escaping liability, encouraging market transactions and removing the illicit benefits are somehow trying to internalize the damages that the individual has brought in to the society and the harmed person and is very close to the restorative essence. If the deterrence perspective and justifications are accepted in Iranian Law, no reason will be existed for accepting the punitive damages due to having non-restorative nature and the principle of full compensation because we will utilize the punitive damages for compensating all the damages that the perpetrator brought in to the society. This is exactly the aim that the Economic Analyses of Law expect from the civil liability, so as to be expressed in these types of analyses, the aim of the civil liability system is internalizing the external effects caused by the perpetrator. In other words, the punitive damages finally possess the compensatory essence because of the deterrence perspective.