نشریه پژوهش های حقوق تطبیقی
سال بیست و ششم شماره 4 (پیاپی 118، زمستان 1401)

Consent and party autonomy, along with the neutrality of arbitral tribunal, are the most featured distinction of arbitration vis a vis other dispute resolution methods. These fundamental features, however, might be affected by the application of unilateral economic sanctions of regional organizations (i.e. European Union) which is indeed for protecting their foreign security policy frameworks and fundamental interests. In one hand, the arbitral tribunals have to respect the parties’ choices, namely the applicable law (which might be against the sanctions), and in the other hand, the courts are obliged to recognized the European Union sanctions as public policy and overriding mandatory provisions and accordingly, set aside or annul the arbitral awards contrary to these provisions. Therefore, the main aim of this research project is to study of the effect of European Union economic sanctions on commercial arbitration disputes, as well as the approach of pertinent courts. The key result is that arbitral tribunals in confrontation with such sanctions as jus cogens, rely on their authorities particularly in term of applicable law, recognition and enforcement of the arbitration award.

The flow of accurate and reliable information is critical to enhance market transparency and efficiency as well as investor protection. However, it is not possible to achieve this merely by requiring the executives to report financial information, and corporate governance should inevitably devise a mechanism to monitor the accuracy of the information contained in financial reports. Therefore, along with the internal control process, parties, known as gatekeepers, have been designed outside the issuer’s organizational structure to evaluate the accuracy of the information disclosed.. In the capital market, there are some gatekeepers who do not perform  gatekeepingfunctions, as a matter of principle, but implicitly verify the accuracy of the issuer’s financial information and provide the basis for investors to have confidence and make informed decisions only while performing their primary duty. These parties are therefore referred to as indirect gatekeepers. Securities analysts, equity underwriters, attorneys and legal advisors are among this group of gatekeepers. This article has attempted to examine the concept, function, and effectiveness of examples of these types of gatekeepers in Iranian and American law. For this purpose, information was collected in the Documentary and library form and then evaluated in a comparative method. The results of the analysis show that because these persons inherently are not gatekeepers, they naturally encounter conflicting situations when performing their primary duties and gatekeeping functions, which weakens their effectiveness in achieving gatekeeping objectives. As a result, requiring certification based on the explicit assurance of the accuracy of the information is one of the most important suggestions that have been made to improve their efficiency and effectiveness. However, in order to better ensure the quality of financial information, the capital market should use, in addition to indirect gatekeepers, other professional persons created in principle to perform gatekeeping functions in the market, known as direct gatekeepers.

The "caveat emptor" rule, which has been introduced as one of the basic rules of contract law of traditional common law, does not hold the seller liable for defects in the goods or non-compliance with the terms of the contract, and holds the buyer responsible for inspecting the transaction. On the other hand, Islamic law considers the buyer to be entitled in such positions and gives him the option of defect or the option of incorrect description or the option of unfulfilled condition and the like.In recent decades, with the emergence of many problems in implementing the "caveat emptor" and considering the violation of buyers' rights if this rule is applied, we face the emergence of the opposite rule called the "Caveat venditor" rule, which seeks to amend the previous rule and the main area of emergence That is the rules governing consumer rights.In this article, while comparatively studying the institution of "caveat emptor" and similar Institution in Iranian law, we seek to explain the strengths of each of the two establishments and offer a correction proposal to correct the weaknesses of domestic law. However, in general, we will see that what has been achieved nowadays in the common law system, was explained concurrent with the formation of the independent legal system of Islam in the time of the Holy Prophet.

In most legal systems, direct derivative claim has been accepted. The shareholder can thus sue on behalf of company against director, executive manager, inspector and even third parties that damaged the company. In Iranian law, the action is just possible in joint stock company and against director and executive manager. In multiple derivative claim, parent company’s shareholder can bring an action against the same persons in subsidiary or sub-subsidiary. Contrary to standard derivative claim, there is not consensus about multiple derivative claim in legal systems even among scholars. This advice was criticised on reasons such as separation of legal entity from its shareholders, separation of shareholder’s property from company’s property, the exceptional nature of derivative claim. Conversely, it has been accepted on the standing of parent company’s shareholder to file a lawsuit, meeting the interest, the necessity of external supervision on managing the corporate. It has been apparently aknowleged in English law and the shareholder is able to bring such an action. This mechanism has not been accepted in Iranian law, while it can play a role in inducing individuals to invest in companies and securing deterrence, so it deserve to foresee it in Iranian law.

One of the main questions in contract theory is the justification of the binding nature of contract; That why the legislator intervenes in this private field and determines some sanctions and remedies. In response to this challenge, in the common law three major theories have been offered: moral theory, economic theory and the rule of will theory. In Iranian law, legal scholars have based their theories on moral, social, economic and religious grounds. This article, while examining and evaluating these theories with an analytical-descriptive method, despite the support of most Iranian legal writers for theories based on social interests, defends the principle of autonomy of will and claims that other values can be unified with this principle. The main idea of ​​this article is that the most important and direct goal of the legislator from enforcing contracts should be to enforce the cooperative will of the parties to the contract, which is in line with supporting the higher value of autonomy. Also, efficiency as an economic value is included under autonomy and as an instrument plays a central role in formulating detailed regulations and the structure and how to support the contract.

commonly, in the third party funding arrangments, the parties undertake not to disclose the contractual information. On the other hand, some legal systems consider transparency and access to the information of these contracts necessary in order to prevent the abuse of the third party funding, including the prevention of Champerty. Consequently, it appears that the contractual obligation of non-disclosure is in conflict with the mandatory obligation to disclose the TPF arrangement. The main question that this article deals with is the relationship between these two contractual and legal requirements and how to balance them. In order to resolve the conflict between these two obligations, it seems that the scope of the obligation to disclose information should be narrowly interpreted and considered to be exclusive to the disclosure of the existence of theTPF contract. On the other hand, the obligation of non-disclosure includes contract details and those types of information - such as trade secrets - that are not legally required to be disclosed. Another question is whether, like the international investment arbitration, Iran's legal system also deems it necessary to disclose the TPF contract. In response to this question, it should be said that in Iran's legal system, the principle is to prohibit the disclosure of private information of persons without their consent, which includes TPF contract information. However, in cases where there are legal reasons for disclosing information, including suspicious transactions, according to Article 7 of the Anti-Money Laundering Amendment Law, the parties to the TPF contract must disclose contractual information.