نشریه پژوهش های حقوق تطبیقی
سال بیست و ششم شماره 1 (پیاپی 115، بهار 1401)

In the scope of global trade, the implementation of international contracting contracts is facing some challenges and issues. One of these issues is providing the conditions for implementation of these contracts and the obligation of the employer in this regard. The main and crucial point is to determine the basis of employer's general obligation to provide the conditions for implementation of international contracting contracts which makes defensible why of the task and in other words, the employer's general obligation in this scope; because the existence of any obligation must be based on a foundation that in absence of that foundation, imposing the obligation will be eliminated. In this article, we intend to examine the issue with a comparative study of Canadian and Iranian law. The research method is descriptive-comparative with a "contextual" approach. The focus of this research is on "international contracting contract". The method of collecting research resources is a library, which is done by using written sources, documents and if Necessary, online information. The research finding Suggests that in Canadian and Iranian Law, the Main foundation for Liability arising breach of the employer's general obligation is the “Risk Management Theory”, with explanation that the prevailing risks that occur in the scope of international contracting contract are often in conflict with the employer's interests in the performance of the contract, he must in order to avoid these risks and the resulting damages, manage and control.

After the issuance of the bankruptcy order, the general rules are disassembled; for example, the bankrupt does not have the right to intervene in the property, and raise an action regarding his debts, claims and property is done by the trustee and the response to the claims is also done by him. It is also possible to continue the bankrupt business by others. One of the important questions raised by the total regulations governing bankruptcy is how to justify the legal relationship between the merchant and the creditors with the property, as well as the legal status of debts and claims.Various theories have been proposed in response, one of the most important of which has been noticed in American law is the theory of granting legal personality to the property (property, debts and claims) of the bankrupt at the time of issuing the bankruptcy order. According to this theory, it becomes possible to justify "the rule of prohibition of intervention", "the legal position of the trustee institution", “the possibility of continuing the bankrupt business after the issuance of the bankruptcy order without creating a conflict with the rights of creditors” and “the fall of excess debt over assets". Examining the rules governing bankruptcy in Iranian and American law shows that although some legal rules can be justified based on this theory, they have not been accepted by the legislator.

One of the conditions included in many service contracts, is the condition of termination without cause or optional termination. Since Art. 401 of the Civil Code considers the condition of termination without a period of time to be null and void, at first it’s thought that the above condition is also challenged in Iran's legal system; However, the mentioned condition has different bases in different service contracts, depending on the case. In governmental or administrative contracts, the basis for termination is the act of sovereignty, which according to international custom, governments have the right to exercise their sovereignty in all contracts; However, in contracts between private individuals or government employment contracts, the basis for termination must be evaluated in the light of the above article. If the contracting contract is considered special, the termination of the contract will be the termination of the contract; Otherwise, it should be included in the Art. 10 of the Civil Code and naturally it should not be against jus cogens. In any case, since the basis of voiding the contract in the mentioned article is the jeopardy rule, if the jeopardy/peril is resolved by appropriate measures, all the costs of the contractor (express consideration) must be compensated.

Although natural law has a deontic essence and function in the paradigm of modernity, and thus prompted the passage of the traditional structure, the conceptions and analyses reconcilable with tradition are also evoked throughout the history of thought and it seems that Aristotelian natural law thought, the most famous one, is a gaze that reflects natural law based on the nature of things being the symbol of realism. Perhaps Montesquieu belongs to legal historicism and thus one cannot find a relationship between his thought and natural law, but the fact is that Montesquieu is not outside the paradigm of modernity. His concern is natural public law and why is the nature of things in his idea not another expression of spontaneous and social rationality and the freedom based on this rationality? By analyzing and critiquing Montesquieu's various conceptions of natural law, this research tries to present a conception that is reconcilable with Montesquieu's natural public law anxiety and thus makes it possible to understand his thought in the paradigm of modernity.

The IPO on the stock exchange, as one of the professional activities, requires the role of several individuals. s. 43 of Iranian Market Law, although seeks to emphasize the responsibility of these individuals in order to protect the rights of investors and consequently the capital market, but this regulation not only failed to address this issue, but in some cases made it more difficult to realize the lost rights. Is. No change in the basis of civil liability, deadline for filing a liability lawsuit, counting responsible persons, creating parallel jurisdiction for the board of directors and the role of detecting and declaring infringement Damage by the injured party is one of the points to be considered in this article. A study of British and American law, however, reveals that litigation in that country is highly regulated and that existing regulations provide maximum protection for investors. Changing the basis of liability from fault to fault without liability, creating joint and several liability for the perpetrators of multiple losses in a single loss and reviewing the competence of the board of directors in handling litigation are some of the solutions that can provide maximum protection to the investor and the capital market.

Project-oriented financing as a method of attracting capital - unlike other methods of financing - does not rely on the credit and guarantee of the investor and requires the bankability of the project, and this bankability itself is affected by the performance of the project and the production of liquidity of the project. In this regard, the sale’s contract as a legal and credit instrument, with a prominent role in generating project liquidity, is considered a key component of the project's bankability, therefore, it is necessary for the lender to be sure of the sale of the product according to the expected conditions. But the implementation of the sale’s contract is also associated with risks, and bankability is realized only on the condition of optimal management of these risks and establishing special contractual conditions for allocating them to actors who have a higher ability to manage risk. In this manner, the design method of the sales contract plays a direct role in attracting capital from the financier for the implementation of industrial projects.