مجله مطالعات حقوق تطبیقی
سال سیزدهم شماره 2 (پیاپی 26، پاییز و زمستان 1401)

Expansion of international commercial and economic relations has led to the majority of commercial transactions being carried out by commercial agents.In the majority of transactions which are held out by commercial agents plenty of legal relations between principal, agent and third party are created. It may be ended to civil liability between principal, agent and the third party.The question of civil liability in contracts held by agents gets complicated when contracts that are held according to apparent authority of agents and in the case that agents have concluded the contracts apparently in his name, but actually on account of the principal.In this research the basis of principal's liability in such contracts have been compared in law of Iran, England and International documents. in sum, both the legal system of Iran and England have accepted civil liability of principal in such cases but with different approaches. Also under the convention on Agency in the International Sales of Goods 1983 this liability has been accepted.

It is necessary to expand the safety on the roads and prevent the damages resulting from the defects of the cars, to know the process of recalling the cars and the necessity of following its rules. Car recall has a special place as one of the after-sales services. Vehicle recall may be issued for defects during production or design, or for defects created after use. Analyzing and interpreting the recall of the car and examining its legal dimensions raises issues such as what is the legal nature of this entity? What authorities can initiate a car recall? The present article proceeds with a descriptive-analytical approach and by applying the existing regulations on the car recall phenomenon, and finally, after analyzing the issue, it concludes that there are several assumptions regarding the legal nature of the recall. Analyzes in the form of warranty, Unilateral contract, additional contract and gloss are proposed, despite this, the hypothesis of independence and specificity of the legal nature of the recall of the car is closer to its nature and nature. In addition to the manufacturer, related government agencies and courts and private lawsuits can initiate a vehicle recall. The purpose of this research is to provide the best practical process that helps the Iranian society to achieve high standards of success when performing car recalls.

One of the topics of private international law, which is constantly increasing in importance due to the development of political and economic relations between countries at the international level, is the need to identify and enforce judgments issued by foreign courts. The Hague Conference on Private International Law has adopted The Hague Convention 2019 to standardize the rules governing the recognition and enforcement of foreign judgments. In Iranian law, the conditions for recognition and enforcement of foreign judgments are stated in the Civil Judgments Execution Law. However, harmonizing the rules on the issue with international standards can promote effective access to justice, trade facilitation, and cross-border investment. Therefore, the present study aims to investigate the possibility, necessity, and effects of the adoption of the 2019 Hague Convention Judgments in Iranian law, considering the similarities and differences between the two in terms of territory, conditions, and obstacles to identifying and enforcing foreign Judgments. By combining the two, take a step towards the legal development of the country. Studies have shown that the flexibility of the rules and regulations of the Convention has facilitated Iran's accession to the Convention, and the political and economic effects of accession to the Convention have necessitated its ratification in Iran. There are many similarities between the two in terms of conditions and aspects of refusing to recognize and enforce foreign judgments.

Bailment is one of the means of creating commitment in the common law that has been accepted by the judiciary. The limits of the bailment obligations and effects are disputed by the common law jurists, but there is agreement in some aspects. If we compare this institution with the institutions of Iranian law, perhaps the most similar one to it is the institution of Yade Amani, although there is no exact equivalent for it, especially since the criticism of the institution of Bilment in common law and its rejection by some jurists has been added to its ambiguity and some of them believe in the limited circle of examples of this institution. In a comparative study of the effects and obligations arising from the bailment, it is necessary to compare the examples of this institution with Iranian law. Because this institution does not have a specific equivalent in Iranian law and is relatively consistent with the broad theory of Yade Amani, but the examples of these two institutions are not the same, so it is necessary in addition to the general matching of the two institutions, partial comparison in the examples.

The underlying technologies embodied in autonomous vehicles (AVs) underpin the transportation industry to experience remarkable advancement. Technologies enabling vehicles to function autonomously encompass tangible and intangible components, many of which have already been advanced. The legislature should grant intellectual property (IP) protection to the owner of the said technologies to balance the interests of both individuals and society, encouraging development and responsibility. The Iranian IP regulations might pose challenges when protecting intangible components of AV technologies (such as artificial intelligence and software in sensors) and particularly algorithms; the challenges might lead to increased reliance on trade secret regulations and confidentiality contracts, neglecting benefits for society in the disclosure of algorithms. Exploring IP protection for algorithms, facing challenges, and suggesting solutions inspired by the US and EU practices, this research studies current Iranian IP-related regulations, legal literature, and a newly reviewed bill on industrial properties, which has been passed back to the Iranian Parliament for amendments. Following are the findings (1) The wording of the Iranian patent laws with pro-innovation interpretation supports the argument that algorithms are patent-eligible and patentable in principle; (2) considering that the idea of an algorithm is protectable, not merely the expressed form of it, and the originality criterion of a subject matter is a presumption, algorithms might fall within the ambit of the Iranian copyright laws; (3) algorithms attract more protection under trade secret provisions of the new bill than previous regulations in Iran. Lastly, after reflecting on the protection costs and individual-society conflict of interests in the three IP systems, the research concludes by proposing legislation on copyright laws in preference to open source. Document Type: Research Paper.

In the property of the physical assets, the legal interests that individuals can have in relation to assets, as well as its methods of conveyance are in limited numbers and specified molds. The issue, referred to as the principle of the Numerus Clausus, has been accepted in both civil law and common law systems. In our country, without mentioned principal under this title, its nature has been accepted. In recent decades, propertization is one of the impressive developments in the field of intellectual property rights and the question is whether, in this area, such as the property of physical assets, the principle of Numerus Clausus is applied or not? Therefore, in this research, while explaining the principle of Numerus Clausus and its justification, the necessity and method of its application in the field of intellectual property rights were investigated by descriptive-analytical method based on library studies and determined that the principle is not uniformly applied in the field of intellectual property rights and the standardization of intellectual property rights interests will be useful to the extent that there is a balance between the costs of restricting intellectual property owners in creating new property interests and the benefits of applying the Numerus Clausus.

Can monist theories that address tort law's philosophical foundations, such as corrective and distributive justice or optimal deterrence, manage the enormous diversity of circumstances that tort law now handles? The answer appears to be no. In the normative phase, monist theories seek to assure us that all laws must be designed to achieve a certain goal, while in the descriptive phase; they seek to demonstrate that all components of tort law are grounded on a single logic. This poses substantial obstacles for these theories, to the point that it appears we cannot accept monist theories philosophically or practically, suggesting that resorting to plural theories is the final option given the variety of circumstances that tort law must deal with today. In this study, we examined and analyzed four pluralistic theories in the realm of the philosophical foundations of tort law after assessing their explanations and premises. Each of these ideas has some beneficial traits that contributed to their success as a plural theory, but they also have some severe defects that render them insufficient when used as a coherent and effective theory. While embracing the plural approach, the authors of this essay suggest that present pluralistic approaches to the philosophical underpinnings of tort law have numerous severe shortcomings. A cohesive, effective plural theory could yet be created, in our opinion. Finally, we sketched out the outlines of such a theory and will go into further depth in another essay that will be published to our legal community in the near future.

Arbitration has become more complex following the spread of this method of resolving commercial and investment disputes, especially with the growth of multi-party disputes, leading to several problems, including parallel and different proceedings. Some legal systems have recognized the consolidation of arbitral proceedings to avoid the issuance of conflicting awards and thus protect the rights of multiple but relevant parties to the arbitration on the one hand, and to increase the efficiency of arbitration by reducing costs and duration of proceeding on the other hand. The consolidation, as the case may be, is contingent on satisfaction of requirements including the consent of the parties, the equality of the arbitration agreement, the uniformity of the parties and the basic legal relationship, the legal authority to issue a judicial order to consolidate, and also its desirability. Nevertheless, disadvantages of the consolidation of arbitration proceedings into the constitution of a new arbitral tribunal, namely prolongation of the proceedings and violation of confidentiality and the principle of party autonomy, have also been considered. This article, while analyzing the above issues, examines other aspects of the consolidation, such as its kinds and position in arbitration laws and regulations, obstacles to the consolidation, the governing law, and the competent authority for consolidation. Considering the lack of a specific provision under Iranian arbitration law, the consolidation of arbitrations can be sufficiently justified by the rule of wisdom and through relying upon the criterion of the combination of related court proceedings.

After conclusion of upstream agreement, the International Oil Company (IOC) may be required to carry out upstream operations with the participation of the National Oil Company (NOC). As a result, after the conclusion of upstream agreement, a joint operation agreement is concluded between the NOC and the IOCs and a participating interest is allocated to the NOC. By allocating a stake to a NOC, one should expect the obligations and risks of the IOC in the upstream agreement to be transferred to the NOC, which in fact means a reduction in the IOC’s obligations under upstream, but this is contrary to the upstream agreement. Since NOC’s cannot participate in operations as a real partner like a petroleum contractor, it is a question of how financial arrangements should be designed so that a NOC can accept participating interest in the joint operating agreement without accepting a commitment or risk. Accordingly, the participating interest of NOC is in the form of a carried interest, meaning that the NOC’s share of costs up to a certain point (often commercial discovery) is borne by the IOCs and after that point the NOC reimburses all previous expenses in cash or the expenses are recovered from NOC’s entitlements.

In most legal systems of the world, the execution of a will requires the observance of certain requirements. These requirements, which traditionally deal with paper wills, have given rise to formal, holographic, and secret wills in Iranian law, and to formal, holographic, and notarized wills in American law. An important question that arises with the advancement of technology and the development of electronic communications is: if the testator wants to execute a will in the electronic space, what place will these traditional requirements have in it? In other words, are traditional requirements followed in executing an electronic will or not? In this article, an attempt is made to provide an answer to this question through the library method. In this regard, while reviewing the traditional requirements of executing a will, the hypothesis is proved that in Iranian law, traditional requirements are followed in electronic will-making; requirements that, due to some shortcomings in the field of legislation, have prevented the electronic execution of formal and secret wills. In American law, however, there is a disagreement: on the one hand, the famous Castro and Horton cases in judicial proceedings and the Uniform Electronic Wills Act imply that electronic wills follow traditional requirements. On the other hand, the Nevada Statute, after deviation from traditional requirements, has introduced new requirements for executing electronic wills.

Arbitration is a contractual arrangement of dispute settlement. The core of arbitration as a mechanism is 'agreement' of the disputing parties. As opined by some scholars, the backbone of any procedure for dispute settlement, including arbitration, is cooperation of opposing parties. The state courts are empowered to enforce the parties' cooperation through conduct of default process in case of respondent non-participation. However, once arbitration is concerned, parties' cooperation is more important because the tribunal conduct the arbitration based on the powers conferred thereto by the parties. If one of the parties, specifically for the purpose of this article 'the respondent', decides to not participate in arbitration due to any reason, which is not ultimately considered as justified excuse, the arbitral tribunal would face with two important conflicting questions. 1) How to respect the respondent's right of due process. 2) How and to what extent the respondent's arbitrary decision not to participate affects the claimant's contractual right of access to justice. Both courts of recognition and enforcement and annulment review of a default arbitral award encounter with a number of requirements in their course of proceeding as well.

Federal courts are the chief guarantors of individual constitutional rights under the Federal Constitution. As such, they have a duty to protect citizens from state laws that criminalize or chill constitutionally protected activity (overbroad laws), or that subject citizens to unclear or arbitrary exercises of state power (vague laws). With these doctrines in mind, a federal court might view itself as the last bulwark of protection against overreaching state legislatures, and therefore decide that only complete invalidation will suffice. Thus, in this research, at first introduced and explained the nature and goals of the doctrine. Then, due to the connection and closeness of this void for vagueness doctrine, the opposition of the two in practice has been dealt with by focusing on the opinions of the US Supreme Court in a descriptive-analytical procedures. The results of this study indicate that; This doctrine is a good way for protecting fundamental rights in the field of freedom of expression enshrined in the First Amendment to the United States Constitution .This doctrine investigates law in a facial review. A law may be both overbroad and ambiguous at the same time. If a comprehensive law is not overbroad, but at the same time provides the defendant with a fair notice that the conduct is criminal, the defendant cannot challenge that law under the void for vagueness doctrine. On the other hand, if the law lacks sufficient explicitness, it can be invalid according to the vagueness doctrine. States can interpret laws in a limited way to reduce the scope of that law in order to protect their laws from the scrutiny of the face of the over breadth doctrine. In examining whether a law is invalid in face, the Court should consider any restrictive interpretation proposed by a state court or executive agency.

n Iranian and French law, deviation from local criminal jurisdiction, according to some criteria and aspects, is prescribed through the transfer of proceedings and under the exceptional title of " Referral ". Although the mentioned directions have different titles in the two countries, but in many cases they are compatible with each other, so that the residence of the accused in another area, ease of adjudication in a closer area in Iranian law, under the factor of better administration of justice in French law. Public order, as another thematic aspect of the transfer of proceedings in the regulations of these countries, doesn't refer to the type of crime committed, but in the case where the disturbance of urban order is due to the effects of the proceedings or there are serious threats against the persons involved in the case. However, despite the aforementioned commonalities of the studied countries, they have differences in terms of predicting the notification provisions in the French origin and identifying the referral jurisdiction in the Iranian origin. While the latter jurisdiction in Iran precludes the granting of a referral by a constituency without such jurisdiction, in France the said prohibition will be annulled, just as in the case of public order in Iranian law a secondary referral without such jurisdiction would be considered. What is left silent in the regulations of these countries is the permission to deviate from the referral if the barriers to the proceedings are removed in the constituency, which in the opinion of this abolition doesn't grant permission to cancel the referral, so returning the case to this constituency won't be possible except in the referral regulations.

The principle of independence and impartiality of judicial proceedings are two significant components in criminal procedures and a key constituent in a fair trial, which can be seen as natural law and primary requirements of human societies.The concepts of independence and impartiality are regarded as two independent and separate legal-judicial institutions, though they have been used together and overlapped. An important and basic condition for realizing judicial independence, the independence of the judiciary as a whole from other governmental institutions can be met with the observance of the principle of separation of powers. On the one hand, the realization of judiciary independence involves assurance of the structural independence of the Judiciary, and, on the other hand, it calls for a mechanism for ensuring judges’ individual independence. Similarly, impartiality in the litigation process suggests the absence of improper partiality in the Judge’s mind toward either of parties or the main disputed subject, which is a constituent of fair trial and a necessary condition for realizing it. Accordingly, independence is an essential precondition, and impartiality is an essential prelude to this purpose, which is regarded as an essential feature, obligation of the judge, and the central depiction of the Judiciary. The two fundamental principles can be observed in Iran’s and China’s Constitutions and penal codes. However, this does not necessarily suggest a complete and desirable judicial independence in these two countries, as it is criticized by lawyers in such cases as the Judiciary’s financial dependence on the government and the manner of judge selection and election. Iran’s legal systems have ensured the Judiciary’s structural independence more reliably than that of China,but there are some deficiencies in guaranteeing the individual independence of judges in both countries.In order to safeguard citizenship rights in the subset of judicial independence in these two systems, two aspects of judicial security and judicial supervision are also examined.China has performed better than Iran in compensating for its legal system damages, but Iran has been more observant of human rights issues regarding detention. The idea of the rule of law is a relatively new one in China. When the imperial system fell apart at the turn of the 20th century, the idea became the center of attention. In contrast to the prevalent idea in the rest of the world, its goal with Chinese characteristics is to implement a certain level of social and economic development and social stability.

There is no consensus on the nature of copyright in legal systems; Theory of Personality rights (in German law), theory of debt, theory of natural right and as property (in Britain and the United States in the 18th century and some of the Paris Court of Appeals), property theory (some of the French courts and some of the Egyptian doctrine), the theory of dual nature (in Quebec law, Lebanese law, the Berne Convention and French intellectual property law), the theory emphasizing the economic benefits of intellectual property, the theory of labor law, Special right theory and as a kind of intellectual rights and privilege theory have been proposed and analyzed. Egyptian law is as silent as Iranian Law. In Iranian law, the term intellectual property is often used (property theory), as a result, the theory of two dimensional nature (independence of the nature of material rights from the morals rights of the author and the specific nature of each one) is more correct. So, the property theory is flawed; because it does not include moral rights that are non-financial and related to the author's personality. The type of this article is Academic / Scholarly.

One of the basic principles in the field of property rights is publicity. The publicity principle implies the awareness of third parties of real rights and justifies the absolute effect (erga omens’) of these rights against them, which has been neglected in the Iranian legal system. In this article, questions about the concept, foundations, function and finally its tools in the field of collateralization of assets and the need to transfer of possession of mortgaged property in the Iranian legal system have been answered,with of descriptive-analytical method and desk research study of Western legal systems. In the end, it was concluded that the publicity principle is an essential component of the collateralization of assets system; the basis of awareness and creating transparency and, consequently, preventing the appearance of false wealth justifies it. It also has several functions such as increasing access to secured credit, preventing fraud and manipulation of transaction time, reducing transaction costs, and so on. Transfer of possession of collateral is not a matter, but is tool of publicity that it is also ineffective in provide the foundations. This is also true in the Iranian legal system and about the need to transfer of possession in the mortgage contract. Registration of security rights is a good tool for publicity and it should be possible to replace transfer of possession. Therefore, a distinction should be made between collateral with publicity and without it and Attention Of transfer of possession must be set aside.

The CMR convention is a significant international document in the field of transportation of goods that defines special principles and regulations regarding the international carriage of goods by road. One of such principles and regulations is the consignee’s obligation to check the goods and declare any damages to the carrier so that the latter can be asked to compensate. This matter has been considered in article 30 of the convention and some assumptions and conditions have been provided in this regard. The Iranian law has ignored to consider a role for checking the goods and has just briefly set the negation of the right to recourse as a sanction of non-declaration of damages. As Iran has joined the CMR convention and due to the significant role of this international document in the field of carriage of goods by road, the current study intends to analyze the principles of the convention in terms of checking the goods and time limit of declaring damages by consignee while comparing with Iranian law.

The issue of 'enforcement of annulled arbitration awards' is one of the major challenges which international commercial arbitration is facing with. Many Legislation attempts have been made to regulate such a process, which according to the contractual nature of 'international commercial arbitration', does not make sense anyhow. In this regard, the 1958 New York Convention on the Recognition and Enforcement of International Commercial Arbitral Awards and the UNCITRAL Model Law on International Commercial Arbitration are two notable sets with maximum global acceptance that can be obtained with the help of their applicable regulations offered appropriate solutions to prevent the recognition and enforcement of annulled international commercial arbitral awards. 'Public Policy' is a unique concept in this field, which is considered either 'annulment of arbitral awards' In national law and UNCITRAL Model Law and according to the 1958 New York Convention, which can be considered by the Arbitration awards enforcement location Courts for the lack of identification and implementation of foreign business arbitration awards. The same subscription in the abolition and lack of identification and implementation of business arbitration awards can be considered in accordance with the argument of the origin court in the use of a joint examples or similar to domestic public policy to annulle the arbitration awards with the international public policy and even the domestic public policy of the court of award enforcement location as a functional solution in direction to reduce the possibility of identifying and implementing annulled arbitration awards in the country of award enforcement.

Although the priority of secured rights seems absolute and inviolable, the study of new approaches of legal systems shows that the priority is also affected by economic or legal interests. In this view, by separating the effects of secured transactions into two levels of parties and others, in some special circumstances, the contract is effective only in the relationship between the parties and is considered unenforceable to others or the Hierarchy of priority is adjusted and changed by law. This article intends to explain the reasons and basics for this deviation from the rule in other legal systems and then examine the jurisprudence of Islam and some Muslim countries to examine the position of Iranian law. As a result, it is safe to say that despite the existence of some theoretical capacities in jurisprudence, the approach of Iranian law with the issue is simple and far from macro-legal measures. The subject of this article reveals another consequence of not paying attention to the validity of official documents and making it mandatory in legal relations. Therefore, the only advantage of the Secured transactions law in legal system of Iran is the ease of analysis and implementation of criteria; without special measures being taken for their efficiency.

Civil liability of the state in the matter of legislation, contrary to the executive and judicial acts, is still supposed to be far-fetched; while general legislative decisions might be faulty or mistaken and violate the principle of full compensation of citizens' damages. This article seeks to consider the theories and conditions upon which the liability of legislative bodies to compensate for harmful general decisions is admissible. Based on our findings, risk theory against fault theory could provide more legal protections in the civil liability of the lawmaker. According to the principle of equality to carry public burdens, we can defend the state's absolute liability, which is more efficient to access restorative justice and more compatible with the requirements of good governance. Civil liability does not necessarily indicate the illegality and invalidity of decisions; however, the illegality of decisions definitely proves the fault of public bodies. Implications of civil liability in the legislative and quasi-legislative acts include promoting self-control, preventing statutory inflation, and reducing unnecessary intervention of the state.