فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال دهم شماره 1 (پیاپی 35، بهار 1402)

The establishment of regional organizations is one of the most important tools for the economic and trade development of the commonwealth of independent States. The expansion of economic relations requires the use of tools of wealth circulation, i.e., international commercial contracts such as sale, transportation, and insurance between allied countries. In the event of a dispute between the parties over the implementation of these contracts, filing a lawsuit in the courts of each of the interested countries is a traditional and, of course, not very efficient solution. In contrast, the growing tendency of merchants to include the clause of choosing a court in contracts and agreeing on the jurisdiction of one of the competent and even incompetent courts is a relatively new and efficient method. However, the question is which regional organizations have taken steps to recognize this business practice? Also, what conditions do the instruments of these organizations provide for the validity of the mentioned agreement and the resulting jurisdiction? Finally, what is the solution to regional instruments in the event of a conflict of resources? Recognition of the status of consensual jurisdiction can be a good model for those regional organizations to which Iran is a member. In addition, identifying credible instruments in this area will assist Iranian courts in dealing with cases of enforcement of foreign judgments based on consensual jurisdiction.

In an era when governments are not considered the only actors in the field of public administration, regulation is considered as one of the most important functions of new governance. For this reason, many countries have turned to the establishment of regulatory institutions, especially economic regulation.recruiting a descriptive-analytical design, the study shows that the negative and unsuccessful experiences in this field in some countries, including Iran, indicate that the concept of economic regulation is closely related to the political structure of governments, the prevailing economic approach and the reason they have their general management; so that regulatory goals cannot be achieved in any political system with any management method and simply by creating institutions and enforcing regulations. The prerequisite for any economic regulation is the existence of at least three components of the minimalism of governments in economic affairs, the existence of a free market and regulatory governance. It seems that the main causes of regulatory inefficiency in Iran are rent-seeking economy, government intervention and domination over the economy, and the implementation of sovereignty instead of governance along with other structural and normative flaws of regulatory institutions. Therefore, unless fundamental changes are formed in the economic foundations and the type of management of public administration, mere structural reform and determination and replacement of powers of regulatory bodies and the adoption of various laws and regulations are not only ineffective but also lead to a strong bureaucracy that encourages more governmental intervention.

Securitism, as an intellectual point of view, makes it possible to maintain the order and security of the society through the strict control of the ruling powers and extensive intervention in the scope of individual freedoms and privacy of people, and does not attend to endogenous security and relying on the civil society. The result of securityism in the criminal justice system, especially in the crime detection stage, is the granting of wide powers to officers and investigation authorities, in such a way that maintaining security is preferred over individual freedoms and privacy. Recruiting a descriptive-analytical design and analyzing the laws and regulations and the judicial procedures of Iran and the United States in relation to the challenges of security and privacy of individuals in the stage of crime detection, it was revealed that the criminal justice system of Iran is transitioning from the traditional security-oriented system to the citizen-oriented justice system. This transition period can be clearly seen in the Criminal Procedure Law approved in 2014. On the other hand, despite the long history of the United States in protecting privacy, with the events of September 11, 2001, relying on laws such as the Patriot Act and under the pretext of ensuring the security of society, the police and the judicial system of the country considerably violated citizens' privacy; to the extent that this approach has caught the American criminal justice system in the vortex of a kind of new securityism.

The study examines a relatively novel legal presumption called "Unexplained Wealth Orders" (UWRs). According to this legal rebuttable presumption that is accepted in some countries, including England, a person is required by court order to explain about the legal origin of his wealth and assets- which is considered as extraordinary wealth, with regard to his/her known and legal income; otherwise, it is assumed that these properties and assets are illegal and must be restituted. The study argues for the adoption and development of this assumption in the Iranian legal system through a descriptive-analytical design, citing the laws and judicial procedures of the Iranian legal system, as well as examining some Hadīths. Findings, with regard specifically to the jurisprudence of Special Courts of Article 49 of the Iranian Constitution, suggest that accepting such assumption could be one of the effective steps in fighting financial corruption.

Venture capital is one of the new methods of financing, the operating mechanism of which is done in the form of a “venture capital fund”. The subject of this method of financing is investing in assets based on innovative ideas and financing investable companies. The necessity of explaining the nature of this financial institution is important because understanding the rulings and their effects is influenced by knowing its nature. Meanwhile, looking at the systems ahead in this field can pave the way for the internal legal system. To this end, the present study, with an approach to the British legal system as one of the pioneers in this field, has investigated the nature of a venture capital fund. Recruiting an analytical-descriptive design, findings revealed that the nature of the financial institute is in the comparative dimension of the type of partnership- in contrast to other common organizations and business structures in that country- and among the types of partnerships, it also falls into the category of limited partnerships; however, from the domestic law perspective, it is one of the examples of non-commercial for-profit organizations and institutes.

Whereas contracts are the legal tools for the substantiation of economic transactions, in order to respond to the needs of economic actors in accordance with the evolution of economic approaches, they have changed. Developments in economic schools can be classified in one sense in the form of classical, neoclassical and behavioral schools. The main purpose of the study is to examine the developments of contractual justice from the perspective of economic developments in the context of these schools. Recruiting a descriptive-analytical design, the study revealed that commutative and distributive justices are the foundations of contractual justice and complement each other. Commutative justice has always been the basic principle of contract law; however, its scope has expanded beyond the concept of fair pricing in the pre-classical era. Distributive justice, after the advent of neoclassical economics, became more prominent at the same time as the need for government intervention in the economy to address the side effects of a free economy. The school of behavioral economics, by questioning the hypothesis of rational choice and the neo-classical school of economics, raised the need to pay attention to the cognitive biases of individuals in decision-making, especially in the consumer market and in terms of standard terms. It has, despite the optimization of the concept of justice in contracts, at the same time, created fears of excessive government protectionist interventions in contracts. In general, commutative and distributive justice complement each other in establishing contractual justice.

Independence in responsibility is considered as requisite by reason and justice; hence, it has been identified by many legal systems under different titles. Of course, its existence in the legal systems, does not mean the sameness of its extension in all of them. Independence in responsibility implies that each person is responsible for the action he has committed. In the absence of international criminal responsibility for the states, independent international legal responsibility is based on its own requirements. The study investigates independent responsibility by “vizr rule” in Imamiyyah jurisprudence and independent responsibility in the International Law Commission of the United Nations, as a scientific body for the gradual development of international law that it makes the teachings and ideas of Islamic law play a far greater role in the development of international law. This way, not only would it contribute to the enrichment of international law and make the international legal system more efficient, it would also help the spread of Islamic countries profits, specially, Iran.

Judgment in the Iranian law will be civil if the perpetrator commits a mistake or unconventional negligence by refusing to hear the case, but if he makes a mistake, he will be responsible for compensating the government. Recruiting an analytical-descriptive design, the study is aimed at clarifying the commonalities and differences between Imamiyyah jurisprudence and the common law system in this regard. Findings indicate that in addition to Article 171 of the Constitution, the State of the Islamic Republic of Iran recognizes relative immunity under the influence of Imamiyyah jurisprudence in order to protect the independence of the judge. They knew absolutely. In general, by anticipating the principles of ethics to monitor the misconduct of the judiciary along with appealing their decision to the extent that the US government believes in the principle of "exercise of sovereignty" is derived from the federal system, refrain from making decisions in the US. He was acquitted and the judiciary in this country, by insuring itself, found a certain limit for possible problems.

One of the main factors in the formation of thought system in international litigation and arbitration is the cultural considerations pertaining to judges and arbitrators. That is to say, due to their educational and cultural backgrounds, judges and arbitrators obtain a particular legal culture, which leads them to consider legal matters through the prism of their cultural background. Cultures may have close similarities with each other or may be distant from one another. The intersection of opinions and actions of judges and arbitrators with each other and with other actors, contributes to a form of cultural diversity or similarity in international judicial practice. The present article– in explaining this concept and analyzing its role in international arbitration and in the proceedings of the International Court of Justice- attempts to suggest that diversity of legal cultures leads to formation of a specific language in its own turn, through which actors in this field engage in various communicative exercises. Awareness and knowledge of this common language can lead to a better understanding of relevant legal issues in theory and practice.

The compensation for custody and the guarantee of its implementation, including criminal and civil law in Islamic jurisprudence, the laws of Iran and the United States of America, is discussed in the present study, which is addressed through an analytical-descriptive method. Findings indicate that the prominent Imamiyyah jurists believe that paying the compensation for custody is considered to be primarily the responsibility of the father, and in case of the father's incapacity or death, it is the responsibility of the paternal ancestor. Regarding the mother who is the guardian of the child, there are different views in two cases before and after the divorce. This matter has different aspects before divorce, and it may be in the form of conditions during and after the marriage, or there may be an agreement on its termination. The payment of custody compensation after divorce depends on the fact that if custody is regarded as an obligation, then it is not appropriate to receive a wage in return for it, but if custody is considered a right, it is possible to receive wages for custody and there is a clear position in Iranian Criminal Law. There is no objection to the payment of custody wages by the non-custodial parent, and it can hardly be included in the criminal provisions of the Family Protection Act, and in the criminal laws of the United States at the federal and state levels, there is a guarantee of criminal execution such as imprisonment and reduction from the salary of the working parent.

Human Rights treaties which contain derogation clause, albeit allowing the derogation of some rights and freedoms in states of emergency, have provided some principles that must be observed by the States Parties for the derogation clause to be applicable. The purpose behind the prevision is the prevention from abuse of derogation right and gross violation of human rights by States under pretext of the existence of emergency situations. These principles can be divided into two general categories: substantive and procedural. The substantive principles are: the principle of exceptional threat, the principle of proportionality, the principle of observation of other international obligations, the principle of non-discrimination, the principle of good faith and the principle of non-derogable rights. The procedural principles are: the principle of proclamation and the principle of notification. Strict implementation of these principles requires their entry into domestic systems, especially in the constitutions of countries. Article 79 of the Constitution of the Islamic Republic of Iran also deals with the application of necessary restrictions in times of war and similar emergencies. In the study, the issue of the status of emergency situations in the Constitution of the Islamic Republic of Iran and its compliance with the provisions of the International Covenant on Civil and Political Rights (ICCPR) relating to the suspension of human rights in emergency situations has been examined comparatively. Findings indicate that Article 79 of the Iranian Constitution is slightly in line with Article 4 of the ICCPR and could be amended in a possible future revision.

The legal system of the Islamic Republic, as the name and content suggest, is based on the duality of republic and Islam. The republic has modern tools and foundations, the most important of which are rationalism, humanism, secularism, libertarianism, egalitarianism and democracy. None of these principles necessarily appear to be fully and absolutely compatible, at least with the current conception in the West, with the Islamic principles of the current state. In addition, the quality of analysis and expectations of Islam is not immune to debate and theoretical pluralism, so that always in response to the possibility of merging Islamism and republicanism, another important question that immediately arises is which reading of Islamism with which model of Republic? Also, in addition to the mentioned difficulty, the distance between idea and action in the Islamic Republic should be considered, so that the emerging practical features in the legal system of the Islamic Republic of Iran indicate or result from the special historical course and the quality of the personal role of the founders. It is a complex and special image of the system. In the study, I intend to show that as a result of the special course that the constitutional rights of the Islamic Republic have gone through, a special and historical model of the combination of republic and Islam has emerged, which can be considered as a kind of Theo-aristo-democracy.