فصلنامه پژوهش حقوق خصوصی
پیاپی 34 (بهار 1400)

Originality is an essential requirement for the copyrightability of any artistic and literary work. Creative works are afforded copyright protection only if they are original. Originality has yet to be defined by international or national laws including Iranian Laws. The judicial interpretation of national laws also differ from one another and there is no consensus on the concept of Originality. Under traditional approach, Originality is often referred as to "labor and effort" or "self expression " of the author, whereas the more approach is that of "creativity " and exercise of "skill and judgment ". However, all legal systems recognize that the work must be independent and not copied from another work.The main question of this Article is which approach can strike a balance between author’s rights and public interest to cheap and easy access to artistic works. This article will examine originality under different jurisdictions and concludes the Canadian definition is the more appropriate approach to the said question. Finally, it suggests that the Iranian legislature shall replace the term “creativity” with “skill and judgment” in 14 of article 1 of the copyright bill.

while illustrating and critically studying a valuable court judgment on the Lex Contractus, we try to show how Iranian courts are unfamiliar with conflict-of-law methodology. In the judgment issued by 18th chamber of Tehran Appeal Court on November 30, 2017, the Court considers the case to be governed by Article 980 of Iranian Civil Code, a the general rule relating to Lex Contractus. Based on the finding that the contract was concluded in Germany and given the fact that German BGB recognizes a 3 years prescription for contractual allegations, the Court dismissed the case. We endeavor, throughout aforesaid final judgment, to illustrate how conflict-rule-based mindset may work in a judicial process. In this regard, this we analyze the judgment into its very constituting element to illustrate the mistake committed by the Appeal Court. Although in this case the court has rightfully entered into conflict of law's wonderland, it failed to consider and apply renvoi provision. It is noteworthy that a proper application of renvoi in the said case would lead to the application of Iranian law to the merits. Undoubtedly such governance of Iranian law would be detrimental to Iranian defendant in the case.

The third party funding in international arbitration (TPF), is a new and emerging phenomenon. Despite the variety of third-party finding arrangements for international arbitration, what is being studied is a new way in which a third-party funder, if his client wins, deserves an agreed amount with his client, but failing, He has no right to refer to the client for the costs incurred. The purpose of this article is to describe and analyze the major challenges associated with using such a foundation. The validity and position of this phenomenon in the legal system of different countries , due to the lack of regulations, as well as The impact of some concepts , are the subject of discussion. On the other hand, the growing use of it requires that this phenomenon be quickly regulated, and provide clear answers to the issues and the major challenges surrounding it. Recognition of the challenges and solutions can help to identify and accept this entity in different countries, especially in Iran, and provide the ground for encouraging individuals to invest in this field, and ultimately, it strengthens the position of countries as the seat of international arbitration.

Usage of Multi-tiered dispute resolutions clauses in commercial contracts , in particular long-term contracts is very common. Theses clauses comprise different stages of ADR (Alternative Dispute Resolution) with Arbitration or litigation. Agreement or decision made in these pre-arbitral or pre-litigation stages such as the mediator`s opinion are not binding upon the parties. So the issue is if it is mandatory for parties to follow all steps contemplated in these clauses or not? And what makes these pre-arbitral or pre-litigation steps binding? In this article different relevant opinions will be illustrated. Through comparative studying the case law of ICC, English courts and other countries requirements for pre-arbitral or pre-litigation steps will be illustrated. It is concluded that parties agreement has a binding nature and arrangement must be followed as provided in these clauses and requirements that make different tiers of these clauses as enforceable are clarified. Findings show that if relevant requirements including Usage of binding words,exact drawing of each step and parties` good faith are met, judicial and arbitral authorities take agreed steps in these clauses as binding. In authors` opinions this practice which is in consistent with the principle of freedom of Contracts is correct.

Civil Procedure Act deems securable not profit claim’s object itself but its equivalent. That Act once allows the defendant’s wage (equivalent of his profits) to be secured, but, later it accepts securing from lands and gardens outcome (profit itself). This is ambiguous. Civil Judgments Enforcement Act as well repeating the possibility of seizing losing party’s wages, seizing lands and gardens and non-following of seizing profits of immovable properties from their substance, brings about more complete relevant regulations. In addition, in Commerce Act security from equivalent of dividends of defendant’s stocks or shares or seizing those equivalents as well seizing profits possessed by bankrupt person have been set before. Attached profits are not separable from substance so they are not discussed here. Separable profits can be collectable or in current. Collectable profit is deemed as substance so it by itself can be secured or seized. Legislature’s not taking notice of this matter has led to this duality. As current profit gets moment by moment vanished and substituted, it ruins by security or seizure. Albeit, seemingly despite legislature’s ignorance judgment enforcement department can change in current profit into its equivalent and secure or seize that equivalent.

Patent rights and Trade Marks are potentially substantial assets to invest in various fields of developing industries. Article 1(d) Foreign Investment Promotion and Protection Act ratified by Iranian parliament in 2002 refer to those rights that could be the subject of foreign investment agreements in Iran. The question is that if there was an international factor in a security contract of a patent right, what conflict of law rule within the framework of well-known methods could achieve a definitive and, predictable solution. It seems that if there is not neither a mutual agreement nor the most closely connecting factor financially is other than the one referred to the Article 968 of Iranian Civil Code, merely recourse to the legal methods to resolve conflict of laws could be problematic. As a governing law on security interests in patent rights, this article attempts to propose a method of the conflict of law rule corresponded to fundamental features of intellectual property rights by referring to the classical rules of conflict of laws, fundamental economic features of security interests in intellectual property rights and recent international approaches, particularly, the UNCITRAL legislative guide of secured transactions.