مجله حقوق خصوصی
پیاپی 37 (پاییز و زمستان 1399)

Under Iranian legal regime, investment of private sector including Iranian and foreign companies, in upstream oil and gas activities is only allowed through conclusion of contracts with National Iranian Oil Company (NIOC). As petroleum contracts could be divided into concessions, production sharing or service contracts and each also has its varieties, this question arisen whether Iranian law has allowed a specific form of contract or not. In this paper, with regard to governing laws and regulations we conclude that the legislator has not recommended any specific upstream contract and it vested selection of the appropriate forms of contract in Ministry of Petroleum which shall conclude upstream contracts based on legal conditions.

In the revision of French Civil Code on February 10, 2016, a third type of duress was accepted, according to which it is an abuse of the status of dependence. In the emergence of this type, regardless of the human phenomenon, external events and conditions also play roles. The state of dependence may be economic, informational, technological, and psychological. This kind of duress is known as economic duress. However, our civil law does not state the issue of whether or not the abuse of the status quo is annexation to duress. However, efforts have been made by the doctrine to justify it which is not enough. Therefore, the fundamental question is whether the economic duress enshrined in French civil law can be accepted in our legal system. The authors of this paper concluded that in addition to the fact that there is no obstacle to the acceptance of this institution in our law, it is even considered as one of the gaps in our civil law, which is required to be considered in future revisions.

Determining the scope of the proprietor protection on the one hand and preventing potential misuse of this legal protection on the other hand with the aim of establishing a fair and equitable balance between the interests of the investor and the entrepreneur and the interests of competitors and the public Consumers in the market, are challenging trademark rights issues. This article, while emphasizing the need to restrict this right and the need to strike a reasonable balance between the interests of entrepreneurs and third parties, seeks to demonstrate through a comparative study along with an analysis of domestic and foreign case law, the design of a system of appropriate restrictions and exceptions. The most effective legal mechanism is to achieve this. The results of this review and analysis suggest that trademark law has a fundamental underlying principle, namely, the nullity of trademark exclusion. In pursuit of this fundamental principle, firstly, the legislative support business creation and prosperity by investors and entrepreneurs. Secondly, this protection should not prevent the proprietor competitors from doing business without justified reason.

Based on the type of debt due to be based on rial or foreign currencies and also due to be documented by cheque or not, the late payment damage is divided into four categories. Among them, the case of late payment compensation of foreign currency debts documented by cheque is ambiguous. On one hand, the late payment damage has been assigned absolutely in the code of “issuance of cheque” and on the other hand, the calculation method of this compensation which is based on the announced index of central bank cannot be applied to the cheques that have been issued with foreign currencies. There’s a judgment within which the drawer is sentenced to pay the late payment damage in the way that the sum of cheque is changed from a foreign currency to rial. As to review the judgment, in this article it’s proved with several reasons that there’s no legal basis in Iranian current legal status for the late payment compensation of foreign currency debts whether documented by cheque or not.

One of the most challenging topics in acquisition of person's real estates is the recognition of full and equal compensation right with the aim of balancing between expropriation and indemnities. In this article, with an analytical-comparative method in Iranian and British law, we response the question of whether full and equal compensation has been identified in these two systems? By what criteria can be maintained the balance between compensation and expropriation? In English law, by accepting to receive full and equal compensation right, it is determined by open market value. Therefore, compulsory occurrence of acquisition, illegal and immoral use by the owner and price increase resulting from legal objectives are not effective. In addition, if the property does not have a market value, an equivalence reinstatement is provided. In Iranian law, a fair value is a suitable criterion for perfect compensation, but the rules for determining it, are not precisely defined, and in addition, different laws have different criteria that may be in conflict with the perfect and equal compensation right. To sum up, accepting the principle of perfect and equal compensation, the lack of effect of the scheme and legal objectives of the acquiring authority and the actions of the owner after the realization of acquisition in compensation and determining the exact time of the assessment are proposed acquisition laws amendments.

In recent years, revival of small satellites, especially CubeSats, has attracted many private companies and startups to the new space Industry. Like any other activity, launching these cheap and popular satellites is a high-risk activity and may cause damages on the surface of the Earth, to aircraft in flight or in outer space. Due to surge in launching small satellites by private companies and startups, this study tries to find the conformity of the liability for damages caused by launching small satellites by the private sector with the requirements of Outer Space Treaty and the Liability Convention through examining these Treaties, the practice of States where there has been an increase in the private missions of Small Satellites, and the regulations of the Islamic Republic of Iran.

Classification societies are important and impressive entities in maritime industry which play significant roles in safety of maritime activities including carriage of goods and passengers. In spite of their roles and functions in maritime sphere, the analysis of their liabilities limits has been overlooked. Due to the surge of commercial relationships complexity and recurrence of accidents, more attention to the role and function of classification societies is being paid by injured parties.  Therefore, the injured parties have brought an action against them in order to recover the incurred loss and damage.  With regard to the importance of the classification societies and their various functions in different cases, various judicial systems have decided about the liability of these entities differently which causes the complexity of the liability regime governing them.

Role of negligence in establishing the causal relationship is not limited to cases of indirect damages (causation), but in cases where several direct factors have played a role in the negligence, the factor, to which the damage is attributable, can be determined by negligence. Developments resulting from the adoption of the law on compulsory insurance for damages to third parties due to accidents caused by vehicles adopted in 1395 and the Islamic Penal Code adopted in 1392 and providing various criteria in the distribution of liability, the fundamental question arises as to the place of fault in distribution of liability in these cases. Comparing the answer to this question with the answer to the same question in the British legal system will lead to a comparison of Iran's legislative and judicial policy with the United Kingdom. Analysis of the relevant laws and regulations in both countries indicates that in cases where pedestrian action cut the causal link, driver liability would not arise but where both have a significant role in causing the accident, they will be equally responsible, and in cases where the driver is at fault and the pedestrian is not at fault, the driver will be responsible.

Nowadays, the implementation of principle of equilibrium in joint stock company is equal to the realization of maximum utility. However, the demands of shareholders and their differences to the structural shortcomings of a corporation, along with non-equilibrium partnership models have caused the accumulation of multiple economic actors in the form of corporations to optimize the exchange and distribution of ownership. In addition, contrary to the expected philosophy of establishing a company, the balance between the parties and the society should prevail. This analytical approach analyzes the relationship between the principle of equilibrium with the supply and modern rights of shareholders (compulsory buying and selling rights), the principle of equilibrium in the structure and limitations of policymakers and administrators, and also examines the appropriate model of responsibility doctrine for shareholders and managers. Hence, this paper aims to answer this question that how the conflict between the rights of a joint stock company and the principle of balance can be resolved. Moreover, the non-cooperative game restored the members and pillars to equilibrium. In this regard, this research, in light of analyzing and expressing the capabilities and shortcomings, will propose the expected reforms.

Capital market or stock exchange has been considered in different countries of the world and many laws and incentives have been set out for its improvement and to motivate people to enter it. Meanwhile, people or companies need a sense of trust to enter this market. They want to be confident that they can easily invest their capital and that all the issues and information they use to make a profit will be confidential. The principle of confidentiality of information in the capital market has been examined in Iranian law regarding stock exchange. This paper aims to examine the impact of confidential information disclosure on transactions and also the measures and sanctions set out by the legislator in this regard.

Fairness in the sphere of law, which is used, by a judge or an arbitrator, in resolving disputes, in general, refers to one of two concepts of "equity" or "ex aequo et bono". The first concept is a general principle of law, itself consists of three types with different kinds of functions, all three of which are legal norms and, in deciding a case, is considered as part of law, recourse to them often does not require consent of parties to a dispute. Depending on the type of defect in the norms, infra legem by providing an interpretation in accordance with existing facts, the function of moderation, praeter legem which through the filling of legal gaps, has a supplementary function and contra legem by abandoning the governing law when conflicting rules, plays the replacement role of legal rules. Despite the important role of principles of law in the settlement of disputes and its application in international law, this principle has not been addressed in domestic law.

According to the traditional approach to contract law, autonomy of will is considered as the main basis, and parties' agreements are considered as the law of parties in contractual relationship, and given that it is the result of the free will of parties, so it will be necessarily just and fair. Nevertheless, the autonomy of the will in unequal contractual relationships, in which one party is in a position of weakness, has unfair effects and in effect makes a contract an instrument for securing the interests and realizing goals of a powerful party. Hence, in French law, the need to consider the weaknesses and inequalities between parties in contractual relations led to the emergence of the theory of contractual solidarism which provides a social concept of the contract and, instead of establishing the law of contracts on the freedom and equality of parties, is based on the existing inequalities between parties. The emergence of this theory dates back to the late nineteenth century, but after a relatively long silent period, in the late 20th century this theory was restored and played an important role in the new reform of the French Civil Code in 2016. In this paper, by examining the various aspects of the theory of contractual solidarism in French law, we will examine the necessity of changing or at least modifying the principle of contractual freedom, as the main rule of the contract law, in the light of the theory of the theory of contractual solidarism.