دانشنامه حقوق اقتصادی
سال بیست و نهم شماره 1 (پیاپی 21، بهار و تابستان 1401)

This paper, from the point of Economic Analysis of Law and by the descriptive-analytical method, has studied the effect of the prevalence of pandemic diseases such as Covid-19 on the performance of contractual obligations. Since many different contracts may be affected by pandemic outbreak, the effect of pandemic outbreak cannot be assessed under one subject and with a specific sanction. Therefore, the legal status of contracts affected by this disease has been examined under the "impossibility to performance the obligation", "hardship" and "frustration". Considering to the possibility of a new purpose for contract law in the contemporary world, entitled "economic efficiency", some principles related to economic analysis of law, such as "efficient allocation of risk" and "efficiency criteria", especially the Pareto efficiency and Caldor-Hicks efficiency, have been considered in order to select a proper and efficient sanction. Also, some applicable sanctions including "legal deferral", "fair deadline", "Suspension of contract", "modify the contract", "Revoke" and "dissolved", has been reviewed separately; so that while observing the legal principles, the most economically efficient sanctions has been considered for each specific situation. The possibility of sharing damages, under the title of "efficient allocation of risk" between the parties, is also one of the issues under consideration in some special sanctions.

Contrary to popular belief, "central bank independence" is a legal issue that has economic implications. Because the determination of the powers, duties and responsibilities of the central bank is done by law and the government can not impose anything other than what is provided in the law to the central bank. Therefore, most studies on the independence of the central bank, from an economic point of view, deal with issues such as measuring the degree of independence, the effects of this independence on macroeconomic variables, etc. and examine the issue from a legal perspective and pathology of existing laws or the legal vacuum has not been addressed. Therefore, if the independence of the central bank is considered desirable, the best possible tool to achieve this is to provide for it in the law, which is examined in this study. This study is applied in terms of purpose and descriptive-analytical in terms of method and nature.He results of this study show that despite a law that gives the government broad powers over how the central bank is run and interferes in its decisions, in the current situation, talking about the independence of the bank can only be a political slogan. Hence, however, the mere existence of a law that emphasizes the independence of the central bank is not sufficient for its independence; but it can be seen that the existence of such a law is a precondition for the practical independence of the central bank. As a result, the independence of the central bank is related to various issues and has several criteria; Meanwhile, the interventionist role of the government (whether directly or by submitting a bill to parliament or enacting executive approvals) has the greatest impact on undermining the independence of the central bank.

Letter of credit, as an international payment instrument that is now widely used by traders in the international trade, has always been used as a reliable means of safeguarding the interests and rights of contract parties. Despite the widespread use of this payment instrument, businessmen and activists in the international trade pay less attention to its nature and source of the obligations in this international payment instrument. This Study examines the legal nature of Letters of Credit and views on this subject in light of the regulations in a descriptive-analytical manner. Legal scholars have offered different views on the legal analysis of the nature of the letter of credit and the source of its obligations. Although, some authors, considering the differences between the nature of letter of credit and contracts and negotiable instruments, believe that letter of credit should be analyzed as an international payment instrument with an independent and unique nature, however, Most of these views are based on contract law and have analyzed the nature of the letter of credit in the contract nature, that this view is more consistent with the accepted principles of the Iranian legal system.

With regard to the subject’s show up in Civil Code, Commercial Code and the Act on Manner of Enforcing Pecuniary Convictions, there are different views and ambiguities about the legal status of kinds of bankrupt’s fictitious and with conspiracy transactions. Insight in contents of the related articles of above Acts shows that from the Legislature’s view transactions are not fictitious unless otherwise is proved. Fictitious transactions whether concluded by bankrupt or not are null and void. Non-fictitious transactions are divided into two categories of with conspiracy and without conspiracy. In this connection too transactions are not with conspiracy unless otherwise is proved. Transactions with conspiracy would as well be null and void or revocable whether concluded by the bankrupt himself or not; as well whether the bankrupt has concluded these kinds of transactions before or after interruption of payments. But transactions without conspiracy are principally valid though according to Act on Manner of Enforcing Pecuniary Convictions they may result in punishment of the person transacted for evading debt or harming creditors. These kinds of transactions may exceptionally due to other causes become revocable or null and void. The legislature has ultimately chosen the method selected in the Commercial Code with a little difference to apply in all cases in the Act on Manner of Enforcing Pecuniary Convictions. In general, the Legislator, contrary to the expectations, has not adhered complete coordination between the causes of bankrupt’s transactions nullity and the causes of culpable bankruptcy.

As a new generation of financial technologies, cryptocurrencies have been the source of change in the world for several years, and governments face different challenges in organizing them. It seems that Iran, despite the high financial transactions in this regard, is one of the countries that has not yet reached a precise and coherent decision to deal with this emerging phenomenon. On the other hand, the United States, as a country that has addressed this issue from different dimensions, has been considered by various researchers.Therefore, the authors' question in this article is "What is the legal nature of cryptocurrencies in the legal system of Iran and the United States and how to manage it in the national monetary-banking system?" In this article, with a descriptive-analytical method, an attempt has been made to study the documents, legal principles and laws and regulations related to cryptocurrencies in the Iranian and American legal systems, to examine how this phenomenon is regulated in the two mentioned systems.According to the achievements of this article, some cryptocurrencies are financial assets and some are money, which require different policies. On the other hand, the monetary-banking system must take the necessary measures to support the extractors of cryptocurrencies and to respect their rights in international currency transactions and exchanges, by observing certain requirements, including the prevention of money laundering.

In oil and petroleum contracts, unexpected events causes drastic changes in the original terms and conditions of contracts and balance of interest of parties will be adversely affected and interrupted. Various conditions need to be foreseen for these clauses such as forecasting contractual mechanisms for renegotiation, revisit and adaptation of economic equilibrium which accordingly would substitute the preliminary agreement with new conditions in such contracts so that the interests of the parties continue to be balanced. Undoubtedly, one of the most important developments in the field of petroleum contracts is the modern approach to contract terms for the continuation of the contract through a compromise between the interests and legitimate expectations of the parties under the terms of the modification of the contractual obligations of those actors changed in the circumstances. Thus, what is the mechanism of contractual equilibrium in oil contracts? This is a question that this article seeks to answer by examining and analyzing the terms of the contract and its achievement is ‘‘The mechanism of contractual conditions for balance is a new approach to coexistence and a combination of renegotiation conditions and stability conditions to increase contract the versatility and reduce the hardness of the contract to create a balance of benefits and increase the efficiency and performance of the oil contract’’

Although privatization is one of the most important strategies for good governance and reducing corruption, the amount of transferable financial resources in this process has always made it an opportunity to commit a crime. In Iran, a number of companies have been taken out of government ownership under the guise of privatization, but these measures not only did not reduce corruption, but also turned into a corrupt process and the ineffectiveness of preventive surveillance became apparent. The fundamental issue of this article is related to explaining the reasons for the defeat of monitoring plans to prevent the influence of corruption in the privatization process. This paper has concluded that policies based on privatization are basically inconsistent with the characteristics of the Iranian economic system using library resources and descriptive analytical method. This incompatibility has led to the failure of the economic goals of privatization on the one hand, and on the other hand, it is not possible to apply effective surveillance to prevent the penetration of corruption in this process. Therefore the effectiveness of policies based on the transfer of the economy to the private sector, as well as the exercise of preventive surveillance over its process, depends on changing the fundamental approach of the government toward the nature of the economic system.

In the current era, the emergence of various types of Corporation and the expansion of their activities, has underlied the way for new legal issues regarding these individuals. One of these issues is the use of arbitration in intra-corporate disputes. Although arbitration in intra-corporate disputes is accepted in the legal system of most countries and is used in practice by many corporations, in some cases, this issue is associated with many complications due to the multiplicity of elements or around the differences. One of the things that complicates the arbitration of internal disputes is when the arbitration is multiparty. For this reason, the present article examines multiparty arbitration in intra-corporate disputes. In this regard, after explaining the challenges in multiparty arbitration, the conditions for merging existing disputes have been examined. The findings of this study, based on a comparative study, indicate that in most legal systems, not only the use of general arbitration rules due to the specific characteristics of corporations, does not solve the existing challenges, but also there are not comprehensive laws and sufficient jurisprudence regarding these disputes.

Although the provision of the penalty clause in monetary obligations is common, its promotion has not made its nature and rules acceptable to lawyers without any difference. According to the essence of these obligations, the root of the disputes goes back to the nature of money and the sanctity of loan usury. While the need for new banking has led the legislature to allow for claiming the excess of the amounts paid in the usury-free banking law under certain conditions, disputes over the permission to the provision of such conditions have persisted in other cases. The disagreements have caused the divergence of courts so that the Supreme Court, in line with its duties, issued the procedural unity verdict no. 805. The present study used a descriptive-analytical research method to examine the penalty clause in monetary obligations by analyzing the procedural unity verdict no. 805 of the Supreme Court and relying on judicial procedure. The results show that the penalty clause is valid even if it is higher than the inflation rate.

Arbitration for international investment comes at a high cost to both the investor and the government in question. One of the new phenomena in international investment arbitration is the financing of litigation by a third party investor. This investor is not interested in the issue of arbitration, but enters it with the hope that it will be profitable from resolving the dispute. International arbitrators have, in principle, no jurisdiction to review a third-party investment agreement because their jurisdiction is limited to litigation between the foreign investor and the host government. The investment agreement, therefore, has nothing to do with the legal relationship between the foreign investor and the host government. It will also point out that the existence of an investment agreement is subject to transparency rules to ensure that the principle of equality is respected, and that a third-party investment investor is an investor in financial claims and claims that acts before a court or arbitral tribunal. With the participation of a third party investment investor, the plaintiff (claimant) may use the necessary resources and intervene in the litigation or arbitration. Instead, the third-party investor is promised a portion of the profits if the lawsuit is successful. If the lawsuit is unsuccessful, the third-party investment investor will bear the costs of participating in the lawsuit or arbitration instead of the plaintiff.

Nowadays surface runoff pollution as a crisis of human societies, has forced most countries to seek legal solutions to solve this phenomenon, the most important of which is the establishment of civil liability in this area. Although, according to economic analysis, compensation can not have much effect on optimal deterrence, nevertheless, its effect on reducing water pollution can not be denied.This study, after a comprehensive review of available sources and then analyzing the findings, has concluded that the mere existence of pollution causes harm, so it is sufficient to determine the causality relationship between the pollution and its actor in order to establish civil liability; In addition, the government can be held liable for damages, both in terms of supervision and ownership, and by providing a broad interpretation of the concept of "beneficiary", it can be said that NGOs are considered "beneficiaries" in making such claims and assuming victory in litigation, compensation can be used for sustainable development.Finally, according to the model of sustainable development in the economy, the production of goods is not only a subordinate of labor and capital, but must also be considered in the production process, materials and environmental goods such as water. Therefore, from the perspective of environmental economics, water pollution is considered as a cost of production or consumption, and the higher this cost, the optimal production and economic growth will not be a subordinate of sustainable development.

The foundation of the driver compensation system has been established in legal systems based on logical, social and economic interests. On the other hand, paying attention to the legal security and financial resources of the insurer and the bodily injury indemnity fund shakes the foundations of the idea of absolute protection of the victims of traffic accidents. Exaggeration in identifying the responsibility of these two social institutions in relation to compensating the driver who caused the accident will weaken the efficiency of the insurance industry and reduce public resources. Identifying the liability of the insurer and the bodily injury indemnity fund in the driver compensation system for damages before and after the adoption of the new insurance law requires reviewing the law, legal and economic foundations in order to achieve the goal of protecting the victims of traffic accidents and taking into account the social and financial interests of the insurer and the fund, to provide an effective interpretation of the idea of compensating the driver who caused the accident.

The method used in this research is descriptive-analytical.

Law and legal justifications in the new insurance law indicate the obligation of the insurer and the insured to conclude a driver accident insurance contract. Although driver accident insurance is independent of third party insurance, the violation of the legal duty in issuing driver accident insurance by the insurer imposes a mandatory imposition of legal obligations on the insurer. Utilizing the foundations of the social welfare system or considering the fault of society as the broadest organization, justifies the responsibility of the government and society to the driver who caused the accident without insurance, and the bodily injury indemnity fund as an alternative to insurance is the most effective source of compensation. It does not make sense to extend the liability of the fund and the insurer to the uninsured driver for damages before the adoption of the new insurance law, and the resources of these two institutions are severely lacking.

Law and legal basis justifying the liability of the insurer and the fund According to the new law, does not include the past bodily injuries of the driver who does not have accident insurance and in addition, the lack of economic efficiency and rational justification excludes the insurer and the fund from the resources of the driver compensation system causing the accident. Keywords: The driver who caused the accident, Driver Accident Insurance, Insurer, Bodily injury indemnity fund.