پژوهشنامه حقوق تطبیقی
سال هفتم شماره 1 (پیاپی 11، بهار و تابستان 1402)

In spite of similarities between franchise as a contract and agency, there are differences between them which have theoretical and practical aspects. In this paper we are discussing this similarities and differences from a comparative perspective. In many of countries, the commercial agency has regulated but the franchise contract has not this base. Because of this, using statutes about agency for resolving or analyze of problems arising from or for franchise is inevitable. This practice could endanger the rights of the parties of franchise contract. Among other things, the relationship between the franchisee and the original is not a fiduciary relationship. The franchisee does not act on behalf of the franchisor and has the right to exercise any proprietary possessions. In addition, the subject matter, obligations, degree of independence and responsibility towards third parties are different in these two contracts. In fact, the franchise contract is not compatible with the commercial agency contract and has its own nature and effects.

Parliamentary oversight is one of the most important consequences of separation of power system which has a great role in regulating power and protecting the rights of citizens. However, several factors and tools saffect this supervision. Considering the important role of political parties in the democratic life of the society and the organization of power, the role of the parties in realizing the desired parliamentary supervision cannot be ignored. Therefore, this article used a descriptive method and analyzed the reliable library sources to answer the question regarding the role of political parties in the application of political tools of parliamentary oversight. In this regard, it was found that coherent organization within the party is very important to fully exploit and direct the monitoring tools. Subjects that have been regulated in many parliaments, regardless of the type of political system and the difference in the degree of success, were able to organize the parliamentary groups, determine the direction of the flow of tools such as questions, notes, impeachment, etc. (whatever issues are raised in the spotlight for everyone), gain public support for the application of those tools, obtain the power to organize and form the composition of special commissions, moderate the dominance of the majority party, and prevent unilateralism.

Mediation is one of the well-known dispute resolution methods, and due to the increase in the use of the Internet by individuals, the transfer of most businesses to cyberspace and the conclusion of many transactions by electronic means, in many lawsuits, parties tend to use online mediation to resolve their dispute. The present study examines the challenges of online mediation and the approach of international regulations and Iranian law towards them in the following topics, so that individuals and business actors can figure out the suitability of online mediation to resolve their disputes by taking into account the above considerations: "Lack of face-to-face communication in online mediation", "challenge of confidentiality in online mediation", "general reluctance of using online mediation in some cases", "weak control of meditator over online mediation", and "the difficulty of enforcement of online mediation". Finally, this article concludes that in case of insistence of parties on face-to-face communication, due to the lack of trust in the mediator, lack of access to the required communication technologies or inability to use them, as well as the lack of confidence in the confidentiality preservation of the other party and the mediator, the parties will face serious challenges to use online mediation. According to existing international regulations. Because of the need to a specific law on mediation in Iranian law, the present article suggests the Iranian legislature to enact a comprehensive law on mediation, including the special requirements of online mediation, so that individuals can benefit from the advantages of this dispute resolution method.

In 2020, the prosecutor of the ICC requested the pretrial chamber to issue a Ruling on Jurisdiction under Article 19(3) of its statute regarding the state of Palestine. The Ruling on Jurisdiction means the beginning of preliminary investigations into the crimes committed by the Zionist regime against the Palestinians in the occupied territories.  Before examining the request of the prosecutor, the pretrial chamber requested the institutions, governments, and experts under the title Amicus curiae to state their considerations in this regard. Therefore, several bills were sent to the court's office, some of which indicated the approval of and others indicated the opposition to the ruling on jurisdiction. With a descriptive and analytical method, the present study explains the dimensions and approaches of the proponents and opponents of the jurisdiction of the International Criminal Court in the state of Palestine?” The research question asks: “What is the reason for the agreement and disagreement of Amicus curiae with the ruling on jurisdiction in the state of Palestine. The results of the research show that the approach of the supporters of the jurisdiction of the Court in terms of customary international law and the provisions of the Rome Statute is correct and in accordance with legal reasonability. Since most of the challenges regarding the state of Palestine are related to the issue of the statehood of Palestine, and the recognition of Palestine as a non-member observer state by the UN General Assembly resolution is a sure proof of Palestine as a state, the preliminary branch issued the decision of criminal jurisdiction in the state of Palestine despite the opposition of the friends of the International Criminal Court.

Nuclear-weapon states are under obligation to cooperate with non-nuclear-weapon states to transfer peaceful nuclear technology and have equal access to this technology for all states parties to NPT. The present paper has sought to deal with international collective responsibility of nuclear weapon states for omission and has scrutinized ILC articles in respect of responsibility of states for internationally wrongful acts 2001 (ARSIWA) and NPT. It has sought to have a comprehensive study on the issue by addressing the primary and secondary obligations. The library method was used in this research for collecting data through reviewing documents, books, papers, and sites related to the topic. Scrutinizing ILC articles 2001 as scientific entity for codification and progressive development of international law and NPT, the present paper has found that nuclear-weapon states has a few obligations such as the obligation regarding the transfer of peaceful nuclear technology. The paper has concluded that nuclear-weapon states have breached the obligation collectively which has been extended in time, although the obligations of non-nuclear-weapon states are more. The commission of internationally wrongful act of nuclear weapon states has not been limited to NPT obligations and some of them, such as the U.S., have continued this action regarding other obligations such as the obligations enunciated in JCPOA. Breach of the obligation in question may lead to the termination or suspension of the operation of a treaty as a consequence of its breach. Collective and continuous character of the internationally wrongful act affects the content of international responsibility, causes its cessation and non-repetition, and makes the responsible state to restitute and reparate the material and moral damages.

Issuance of negotiations instruments, checks, promissory notes, bills of exchange, their endorsement or guarantee, as well as the acceptance of bills of exchange must be according to the general rules of contracts to be considered a legal act. However, according to the international conventions of Geneva and UNCITRAL regarding negotiations instruments, the meaning is specified using a signature and seal. The definitive stage of delivery of the document after signing, which must be done with consent, is also important. Iran's law is silent on the legal effect of submitting a negotiation instrument while it is defined as the role of submission in international documents and English Law. Transfer of a document is considered as the intention to declare the will, or a declaration of the will along with the complementary and final signature.

Protecting "national security" is one of the reasons that allows governments to limit the enjoyment of civil and political rights by individuals, organizations, and parties. Compliance with the requirements of this concept, such as the need to protect the rights and freedoms of others, is a reassuring tool for governments to protect their existence, vital interests, and territorial integrity. Despite this, in those governments where national security is organized on a one-dimensional and power-oriented structure, the rights and interests of opponents, including minority groups, may be violated under the pretext of observing "national security". The main question of this article is: “How the jurisprudence of the European Court of Human Rights has interpreted the concept of "national security" in the aforementioned cases?” The present research is written in a descriptive-analytical method using library and internet sources. The author's hypothesis is that the judicial procedure has been devoted to editing and revising this concept to change and adjust it from a one-dimensional and government-oriented concept to a multi-dimensional and people-oriented concept, in such a way that the interests and aspirations of all groups and communities living in a country are provided based on the components of national security in that government.

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) is the most successful multilateral document in the field of international trade law, designed to increase the efficiency of the arbitral institution. This document, as one of the most important transnational documents on which the main framework of the international arbitration regime is based, has been created with the aim of facilitating the implementation and effectiveness of arbitration as much as possible. However, Article 5 of the New York Convention has been provided for a condition that, if fulfilled, the non-enforcement of the judgment would be arbitrated. Some of these cases, according to Article (1) 5, require citation and proof by the defendant of the arbitral award in the country where the request is made and are limited to the territory of the court that recognizes or enforces the award. Others, according to Article (2) 5, prevent the implementation of the needs required by the court of the country of identification and implementation, and cases such as public order, and the applicability of the dispute. This article examines the reasons for refusing to recognize and enforce arbitral awards to address the principle of narrow interpretation in favor of enforcement and the exclusion of the grounds for non-recognition and enforcement set forth in Article 5 of the Convention. The New York Convention and International Commercial Arbitration Act of Iran are reviewed in comparison to each other.

The principle of active personal jurisdiction, as one of the aspects of extraterritorial jurisdiction, applies to crimes committed by a citizen of a country outside the territory of that country. Based on this principle, the courts of the country of the criminal will have jurisdiction under the conditions that are agreed in the international field. In this article, by using the descriptive-analytical and library method, by addressing the legal ambiguities surrounding this principle in Iranian Criminal Law and its solutions by looking at British Criminal Law, it has been obtained that in the British Criminal Law, while the crimes under this principle only include very important crimes such as murder, intentional assault, polygamy, and such examples, all internationally agreed conditions, including the conditions of no prior trial and the prohibition of double punishment, and mutual guilt are accepted and the British Criminal Law applies its jurisdiction to all crimes covered by this principle. Hence, it has greater compliance with international standards. However, in the Iranian Criminal Law, while all crimes, even light crimes, are subject to this principle, the condition of prohibition of retrial and re-punishment is accepted only in non-Sharia crimes, and the aforementioned conditions and the condition of mutual guilt are not accepted in crimes subject to sharia limits, retribution punishment, blood money, and Sharia prescribed punishments. To solve this challenge in the Iranian Criminal Law, it is suggested to establish a balance and create a proportion of legal standards with the internationally agreed conditions and take measures regarding the duality of crimes and the consideration of punishments and previous trials for all crimes in compliance with Sharia standards in such a way that, while preventing damage to the governance of countries, the conditions for prosecution and punishment of criminals are also provided.

In this essay it has been studied that from the point of view of Iranian and Egyptian law and Islamic jurisprudence and with an analytical-descriptive method, on what basis and under what circumstances, arises the breach of the contract creates a right to compensation and the right of termination. In Egyptian law, after breaching an obligation, the oblige is free to keep the contract and receive damages or terminate it, while in Iranian law and Islamic jurisprudence, the first right available is the obligation of the obligor to fulfill his obligation. In Iranian law and Islamic jurisprudence, the right to terminate an agreement is the result of the failure of specific performance, not a confrontation of obligations or a fundamental breach. It is based on the rules of Tort, not breach of contract. Also, in Egyptian law, contrary to Iranian law and Islamic jurisprudence, one of the conditions for claiming damages or terminating a contract is to send a notice to the obligor to fulfill the obligation. Against Article 230 Iranian civil code, regarding on agreement on damages in Egyptian legal system courts have authority to adjust the agreed amount. . . . . . . . . . .

Measuring the will of the perpetrator at the time of withdrawing from committing a crime in proportion to whether it is voluntary or involuntary is one of the most important topics of attempt of crime since the main core of renunciation is the spiritual element, which cannot be easily understood. Therefore, it is necessary to make a fine distinction between voluntary and involuntary withdrawal by codification. Finally, in this article, by using the descriptive-analytical and library method, it was found that there are two types of withdrawal criteria for the existence of conditions beyond the perpetrator's will. The first category is human obstacles, which are either third parties or victims, and the second category is non-human obstacles, which are either indirect obstacles or direct obstacles related to crime. In the first type, withdrawal is involuntary, and in the second type, indirect obstacles are voluntary withdrawal, and in direct obstacles, involuntary withdrawal. The American Criminal Law has regulated voluntary withdrawal by adding the phrase "full intent to withdraw" and specifying conditions such as the presence of a third party, the severity of the crime or the victim's resistance, or changing the criminal purpose of voluntary withdrawal. In contrast, Iran's approach is only accepting the principle of withdrawal without stating the rules. Therefore, it seems that the American approach in expressing the rules is considered more efficient. However, the attention of the two criminal systems to the development of the circle of renunciation to prevent the crime or sometimes the irreparable damages of the total crime and to encourage the criminals to avoid committing the crime seems to be considered.

In the system of the Islamic Republic of Iran, despite the acceptance of the description of the republic for the system and the adoption of an important legal framework of the "Constitution", it seems that the requirements of this description and format have not been carefully and completely considered and elaborated. However, by diluting its concepts, it is thought that the necessary alignment can be easily created. A review of the Islamic Republic's forty years of experience shows that many challenges are the result of such an easy-going approach. In this article, we intend to show that the Constitution is not a neutral and flexible document at the disposal of the ruling power, and its basic and conceptual requirements must be understood and considered in the context of modern public law. Therefore, the Constitution is one of the fundamental concepts of modern public law and is therefore considered as the object or result of the "social contract", the indication of the primacy of freedom over power, and a document and text of the "present" that must be interpreted dynamically and up-to-date, taking into account public opinion. At the same time, it cannot be interpreted in a way that ignores or diminishes the basic principles of modern public law, such as the legality of crime and punishment, or the limitation of power and the incompetence of public authorities.