مجله تحقیقات حقوقی
پیاپی 91 (پاییز 1399)

Analysis of legal and economical aspects of currency derivatives and theirs effects.Derivatives are one of the financial instruments of capital market. Considering the nature of the basic asset, derivatives are categorized in three different types including :currency derivatives, securities derivatives, and commodity derivatives.Currency derivatives are the financial instruments of the money market. Money market participants are utilizing these derivatives with different purposes.Currency derivatives divided in to three main types as follows: currency options, currency swap and currency futures.One of the functions of the currency derivatives is to manage the risks of the currency price fluctuations.Although Iran economy always affected by the risk of the currency price, fluctuations which have had main effects to the economy activities during different periods and considering that the currency derivatives are useful instruments for risk management , but the legal nature , requirements and effects of this derivatives are not considered in Iranian law and therefor required mechanisms for establishment of integrated market of currency derivatives have not been formed in iran.This article argues about some legal issues related to the currency derivatives including their legal nature , basis and effects. 

Third-Party Funding In International Commercial Arbitration : Third party funding had many limitations in past legal cases. As though in common law it considered as an example of champerty. Over the time by the rising costs associated with submitting a dispute to arbitration, TPF is now one of the hot topics in international commercial arbitration. The most and the first foremost reason for expansion of TPF is that is considered a solution of increasing access to justice for a party with financial difficulties . One of the issues regarding TPF is conflict of interests. Legal principles of some arbitral institutions such as Singapor and Hong Kong considered the disclosure of TPF agreements as a way to prevent conflict of interests. There is no disclosure obligation for TPF agreements in our law system but in other hand there are some provisions that can be used to prevent the conflict of interests.

The prevailing narrative in international legal scholarship has always been that international courts and tribunals have faced objective legal rules to be applied completely to concrete cases. According to this viewpoint, the principles and rules of international law should not be interpreted through presuppositions, and that one should always adjudicate impartially. Presenting the epistemological explanation of applying abstract rules to concrete cases, the present article defends the claim that there is no interpretation without presuppositions, and that some certain extra-legal assumptions always channelize the understanding and interpretation of the norm concerned. Accordingly, the concept of ‘legal policy’ in international law can be unveiled which so far has not been a matter for consideration so much and, at best, it has been considered as an equivalence for the term ‘judicial policy’. Legal policy in international law carries the message that there is no single ‘right answer’ for each legal issue, and that international courts and tribunals cannot lay the blame upon others who create the law by a mere mechanical application of detached rules from realities of international community. One should always bear in mind that the line of demarcation between lex lata and lex ferenda is not a positive rule, but a theoretical construct and therefore, fluid.

Although the United States had pledged not to intervene in any country under the doctrine of President James Monroe in 1822, the history of its diplomacy has in fact included numerous interventions, first in neighbouring countries(Latin America) and later in other continents.With the founding of the World Trade Organization and the phenomenon of globalization, interfering policies of America in the economic field took shape and has become more widespread. What has made these policies reprehensible in the international arena in recent years is their legal approach and practice, with the enactment of the extraterritorial measures and the adoption of unilateral economic sanctions against several countries, especially the government of Iran. In the present study, in reviewing the unilateral measures of the United States in the World Trade Organization, what is more emphasized is the illegitimacy of unilateral sanctions in international law which is a clear feature of the United States policies in the current situation. In this context, the international stance of the Iranian government on the legal objections to the unilateral US sanctions is discussed.The judicial action of the Iranian government at 16 July 2018 relying on the 1955 Treaty of Amity, Economic Relations and Consular Rights, which lead to the Order indicating Provisional Measures of Protection. With this Order, the Court’s Judges indicated unanimously that the United States shall remove any impediments to the free exportation of humanitarian items to Iran. Now we have to wait for the Court’s final decision.

Research on judicial independence will subconsciously lead us to the question of how a judge, as the agent of the political system, can remain independent of this system. To what extent does the interest between the judge and the political system require the judge to follow the decisions of the political system? In this article, while expressing the authority of the judge and the judge's employment relationship with the judiciary as one of the three pillars of the nation-state as the reasons for the judge's dependence on the political system, the law and legal rules are mentioned as two-edged razor blades. It is reminiscent of the judge's dependence and the means of declaring her independence from the political system. By stating the specific nature of judicial action and distinguishing it from other actions of system agents, as well as distinguishing the behavior of agents of the political system with its whole, the way to balance for judges in protecting their independence is stated. Finally, the use of interpretive jurisdiction as well as the rule of law is the best way to balance the judge's relationship with the political system.

The crime of Enforced Disappearance is widely spread in the international arena. But because the lack of explicit codification of this crime, it still has a lot of gaps, and as a result, legal texts have not been clearly addressed it. However, the history of committing such acts has constituted a significant amount of international criminal law documents that principles and rules of law can extract from this documents and judiciary concern to this Crime. The main discussed topic is the responsibility of states to prevent the crime of Enforced Disappearance that emerged in the cases cited by United Nations Human Rights Committee under international Civil and Political Covenant. In the present paper, with focus on the judiciary, we have been discuses about this responsibility to States, which are sometimes undercover and not Specified in practical procedures. In the present paper, with focus on the judiciary, we have been discuses about this responsibility to States, which are sometimes undercover and not Specified in practical procedures.

Incitement to racial discrimination is a conflict point between freedom of expression and principle of non-discrimination which both are the main core of international human rights law. Principle of non-discrimination is fundamental in human rights law and any form of discrimination including racial discrimination effects enjoyment and fulfilment of all human rights. Historical experiences including world war 2 shows that incitement to racial discrimination creates a proper atmosphere to commit crime against racial groups. Freedom of expression is also a fundamental right and plays a key role in finding the truth, public partnership and enhancing tolerance. Although it is not an absolute right and it can be a subject of some limitation in certain circumstances. Incitement to racial discrimination is a legitimate limitation of freedom of expression which is prohibited in International Convention on Elimination of All Form of Racial Discrimination (1965). This convention asks state parties to criminalize incitement to racial discrimination in their domestic law. This article studies conditions of realization of incitement to racial discrimination and the way which these expressions must be limited. The main question is that how and up to what point prohibition of incitement to racial discrimination can limit freedom of expression. Due to importance of freedom of information and preventing unproportioned limitation of freedom of expression, there should be accurate criteria for limiting expressions. Although CRC committee tried to introduce criteria for incitement to racial discrimination, they are not accurate. Expansion of race phenomenon made it difficult to distinguish these expressions.

States still are the major subjects of international law in normalization and adherence to the international law rules.The formation of international organizations and following that the emergence and growth of non-state actors brought about tremendous changes. meanwhile, NGOs have taken a larger share of the role. The United Nations with two approaches, legitimacy and Professional utilization have played a major role in the official development of these actors. The informal role of NGOs also expanded. The General Assembly and the Security Council benefit from the consultation of these organizations beyond the UN documents, which limited the consultation with NGOs for ECOSOC. Some international bodies, such as the Council of Europe and the Organization of American States, have promoted the skill of these actors by providing a participatory status beyond the consultative status, They have the right to vote and equal representation rights in their assemblies. The mechanism of Interaction of ECOSOC with NGOs has led to systematic cooperation and the quantitative and qualitative growth of NGOs, But at the same time it has led to the rise of non-independent and pro-government NGOs. The review and adoption of this mechanism is necessary in the current context of global civil society.

The US Constitution mandates the President to sign the bills approved by the Congress. The president can, within a deadline of ten days, sign a bill approved by the Congress, which will result to a law. If the President rejects the bill within that deadline for any reason and returns to the House which it was originated, the President's action shall be considered as a regular veto. After reconsideration, the Houses may, with two-thirds of the votes of their members, insist on its previous resolution, in which case the president's veto will be ineffective and the congressional resolution becomes a law without President's sign. If the ten-day deadline passes and the president does not announce his signature or veto, while the congress is at a session, the bill becomes a law; however, if the congress is not in session, the bill will not become a law. In this case, the pocket veto has been taken. Therefore, a pocket veto is possible at the time of the intersession and final session closurs of congress, but it is not feasible and is contrary to the constitution at the time of intrasession closurs of congress. The Supreme Court has unequivocally proclaimed the partial veto of the approved bills as a constitutional violation.

"The Americanization of Criminal Approaches" is an international movement that,in keeping with the hegemony of the Western world's penalization models,shadowed the developing world and turned into a comprehensive and universal movement. Legislators and policy makers in developing countries are adopting the maximum of these policies, with the false perception that criminal policies in the UnitedStates have been based on pseudo-psychological principles and through intellectual-philosophical processes. This strategic mistake occurs in a situation where a significant part of the conventional and critically accountable explanations of criminal law in the UnitedStates consider the development of contemporary criminal policy in the country as a function of social factors, non-lethal factors not philosophical or scientific trends. Meditations on criminal policy show that among the above-mentioned social factors,the extent of the influence of "political economy" has been more than any other factor. This paper, by examining the theoretical foundations and the roots of contemporary criminal policy in the United States, proves that a significant portion of these policies not only lacked the scientific and fundamental principles of cognitive science,but also was influenced by the flow of political economy and the pursuit of political and economic interest. The image presented in this paper, using quantitative data and historical studies,explains the role of the lobbying of political parties and economic enterprises such as the arms industry, military industries,and intelligence companies in contemporary US criminal policy,and analyzes critical policies such as crime control policies, Counter-terrorism policies, non-alignment policies, and prison sentences, the American process challenges the criminal approach.

Civil disobedience in open and closed political-legal systems and societies (review of John Rawls and Hannah Arendt's point of viewsTheoretical discourses on the concept, justifications and functions of civil disobedience are challenging. In this article two point of views by Hannah Arendt and John Rawls have been studies in order to assess their functional consequences in non-democratic countries. Rawls believes that civil disobedience is an apparent, political and intentional violation of law which has taken by predicting its criminal consequences in order to persuade the majority people to make a trend and change the unjust situation to justified one. This model of civil disobedience belongs to democratic countries but in non-democratic countries, these movements follow fundamental changes. The question is whether this theory which is originally belong to democratic countries, can be applied to non-democratic countries or not?Arendt’s point of view doesn’t have those conditions. The act of a group of people has violated law without any personal benefit can be categorized as civil disobedience even if they want to make a fundamental change. This interpretation has mostly evaluated with the situation in non-democratic countries. Finally, the civil disobedience will be indicated as a concept which has two criteria: firstly, it should be coordinated with political and legal diversity within the society and secondly it can consider real developments in its concept.

In recent years, in order to expand the scope of equality between men and women in social security in international law, equalizing the retirement age for men and women and eliminating gender differences (increasing the age of men) in most developed countries has been considered. The domestic legislature is also proposing pensions and pension institutions to change the retirement age as the most important variable in parametric reform in order to overcome the current financial crisis. This explains the need to examine the impact of one's gender on retirement age. In this article, an attempt has been made to express various approaches in this field with an analytical and comparative approach and with regard to international documents and laws of other countries, and to examine the aspects of this issue in domestic laws. The findings suggest that due to the inadequacy of the existing principles, any changes in this regard should be made in order to create real equality and due to unequal employment patterns in men and women, and the legislature should change the definition-based ideas. The pattern of men's work and attention to the principle of shared responsibility of couples to moderate traditional roles for children. Achieving women's satisfaction in her retirement and taking incentive measures such as reducing the retirement age for the birth of children and calculating the children's childhood leave in the years of female employees can be considered as practical solutions by the legislature.

Children on the basis of non-perfection in their growth and development are more potent for vulnerability and need protection and attention. Disabled children based on their physical or mental impairments need more and special protections. Convention on the Rights of Persons with Disabilities (CRPD), Convention on the Rights of the Child (CRC) and Protection of Disabled Act2018 are legal documents which concerns disability in Iran. The first one is a general document which considered children in Article 7. The second one is a specialized child rights documents and its 23 article belongs to disable child. The third one also has a general approach and child-related issues are inferred by the articles’ interpretation. This article aims to analyze three documents and to find how the BIC is considered. The findings show that although the Protection of Disabled Act is ratified recently and after Iran’s accession to the CRPD, it has general and non- expert approach with many gaps in this regard. Besides, the approach of CRC and CRPD are to empower disable child while the Act 2018’s approach is solely to protect disable child.

Violence against women is an ancient and rather widespread phenomenon in all societies. More than the high rate of different sorts of physical, mental, sexual and economic violence against women, the crucial issues which demand women's support are the black figure of violence, the necessity of family member's support and violated women's treatment in order to prevent its repetition. Nowadays, regardless of the need or no need for social-based intervention, various attempts have been made to protect women at the risk of domestic violence or violated ones, by governmental organizations and NGOs. Designing "safe house" is a sample for protection. The fundamental role of safe houses in the protection of these women by presenting long and short- terms supports has not already been under the spotlight of scholars. Hence, the authors in this paper firstly have discussed the background and the features of safe houses in the countries such as Canada, USA, etc. In the second step, different responsible people in the governmental and non-governmental safe houses in the city of Tehran have been interviewed and their safety instructions are analyzed. The third step is to consider the supportive characteristics of these houses and their challenges such as the lack of physical space and the professional staff, low budget, etc. The findings emphasize the importance of safe houses in Iran, enhancing their situation by means of inclusive education, public awareness and all parts of the society's supports to present qualified programs in legal, psychological, medical, etc. aspects.

Certain norms of international law which are peremptory in nature such as prohibition of torture and genocide has been recognized as jus cognes by international society and any conflicting rule is declared as void. However, international law has its root in State wills as always. Thus, international society has not managed to enumerate examples of its peremptory rules but also to define its concept without any ambiguity. It is evident that there are some rules such as prohibition of use of chemical weapons which are not declared as peremptory rules but their general nature resample to peremptory rules and meet the criterion of peremptory rules of international law. Common feature of rule the rule prohibiting use of chemical weapons with the rules such as prohibition of torture is that all of these kind of rules prohibit heinous acts which cannot be tolerated by Conscience of any human being. This article seeks to answer the question that whether the rule of prohibition of use of chemical weapons is a peremptory rule. Although, the rule has not expressly been declared as a peremptory rule, but it is in conformity with the criterion and elements of general nature of the rule as embodied in the report of international law commission in 2017.

In modern legal systems, Ombudsman institution enjoys a non-judicial characteristic which is recognized as a modern supervision tool of the activities of the government, with its main function being focused on defending the rights of individuals. Some of the characteristics governing these institutions, shared by most legal systems, seem noteworthy compared to Commission of Article 90 and State Inspection Organization. Such issues as extensive range of competence in supervision of organizations, public authorities, reporting, informing, non-judicial procedure and functional, individual, organizational and budget independence are some of these minimal characteristics, and employing a comparative approach, the present study demonstrates that considering all the issues mentioned above, compared to State Inspection Organization, Article 90 Commission has more in common with modern Ombudsman institutions. The results of this study can be used in elimination of the shortcomings in State Inspection Organization, enhancement of the characteristics of Article 90 Commission as well as omission of parallel competences.