مجله تحقیقات حقوقی
پیاپی 102 (تابستان 1402)

At the present time in the text of many international contracts in which one party is the State and the other party is a foreign private sector, and known as State contracts, and mainly are investment contracts there exists a condition concerned with arbitration as the means of dispute settlement. Therefore, international arbitration has become the most common process for resolving disputes regarding these contracts. Although basically the main regulations of these arbitrations are the international commercial arbitration rules of institutional and ad hoc arbitrations, some developments have been occurred in these rules in recent years due to the presence of the States. The new establishment of "amicus curiae", which is a phenomenon in the court proceedings in some countries, in the system of investment arbitration has been counted as one of the most important developments of the arbitration system. "Amicus curiae" is a third person, other than the parties, to a lawsuit who has an interest in the decision of the court, and request the court or is requested by the court to file a brief in the action. In this article, thus, it has been tried to introduce this phenomenon and to analyze the role it plays in recent investment arbitrations as well as its function.

European Court of Human Rights (ECtHR) which has been created under The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is a supervising organ for rights enshrined in the convention that belongs to the member states’ nationals. The court for more than a half century has received various claims often from individuals. This claims eventually faced states with a series of decisions that their compliance was compulsory. Thus, it is evident that court due to its position and authority always has been abled to affect member states domestic legal systems. The court has had various structural, organizational, legislative, executive and judicial effects on the internal human rights regimes of member states of the Council of Europe. However, there are some critiques regarding court’s qualitative impact on promotion of human rights in domestic level, the court has normatively been tremendously effective on the efficiency of convention rules in domestic level and has made the convention more dynamic.

In the economic analysis of civil liability, efficiency, i.e wealth maximization is the basis for justifying rules. Civil liability by reducing administrative costs, distributing losses among members of society, forcing agents to internalize external costs of their activities and taking precautions to prevent accidents leads to a reduction in total accident costs and thus increase wealth and efficiency. In this essay, the rule of joint and several liability is examined with the approach of economic analysis and efficiency criteria, the results show that applying this rule, depending on whether multiple causes of the damage are aware of each other's solvency or not, and also depending on the nature of the accident, can have different effects that lead to efficiency in only a few cases: where multiple causes of damage are not aware about the solvency of each other, in both joint care accidents and successive care accidents, joint and several liability leads to efficiency through deterrence; where one of the multiple causes is solvent and the other is insolvent, and they are aware of this situation, the exercise of joint and several liability, in addition to leading to precaution and efficiency in joint care accidents, also reduces administrative costs and thereby leads to efficiency.

Class Action Litigation in the United States and some European Countries with an emphasis on Finland, an experience for IranAbstractThe United States has adopted theClass Action litigation (CAL) on a wide range of issues and has preferred private enforcement with court supervision over public enforcement, and has applied the Opt-out system on the CAL without the right for the members to leave the group, except for litigation on any damages claims. Some European countries with civil law systems, including Finland have had a pessimistic and critical view towards the American version of the CAL. They have tried to enact the CAL, to the extent possible, to the limited issues and scope of the application. On the other hand, some of these countries have adopted the Opt-in system and have a preference for public enforcement rather than private enforcement. On the contrary, supporters of the American version believe that the opponents have not provided any empirical and practical arguments for their pessimism. The supporters of the American model believe that the main reason for not accepting this model is because of the lobbying and the compromises made by the potential defendants, namely the owners of large corporations and industries on one hand and government officials and legislators on the other. Statistics show only a small number of such claims filed in these European countries' courts. The outcome of these limited requests show the ineffectiveness of the chosen method.

The international community today generally accepts the fact that terrorism in all its forms and manifestations is one of the most serious threats to international peace and security, and that any terrorist operation, regardless of its motive, time, place and perpetrators, is criminal. The region of West Asia and the Middle East, especially Afghanistan, has been the center of terrorist operations in recent decades, and at the same time, this region has witnessed numerous international and non-international armed conflicts, and in some cases these two phenomena are intertwined to cause , What is the relationship between terrorist operations and armed conflict? Terrorist operations are subject to which legal system in cases where they are part of violence related to armed conflict? Will it be governed by international humanitarian law and international criminal law, or is it a criminal act that, although in the context of an armed conflict, is subject to the domestic law of the countries concerned and subject to the international obligations of governments in the fight against terrorism? Or will it be subject to both categories of legal regulations at the same time? Using library data and international procedures, this article has tried to prove the hypothesis that terrorist operations related to armed conflicts can be an example of multiple criminal titles at the same time and also be subject to domestic law, international humanitarian law, and international criminal law. and cause the international responsibility of the relevant government or governments and the criminal responsibility of individuals.

Legitimacy is a vague and complicated concept in international legal system; Because of the complexity of the concept there will be a requirement to find out that how legitimacy in international law should be evaluated. Legitimacy needs a fixed framework to be evaluated in the context of the international law in order to help the system to be stable. Hence, to answer the question that what is the appropriate criterion to determine legitimacy, three paradigms have been designed. At the first, legitimacy is considered as acceptability among the peoples and also among Rule - making Institutions. As it is not completely compatible with the current international law and creates some difficulties in this context, thus, creation of a paradigm that is based on the international law values and also result – orientated will be the last resort. Accordingly, the hypothesis of this article is that legitimacy means compatibility with the values of the international society.

le 30 septembre 2021 est entré en vigueur le nouveau code de justice des mineurs en place de l'ordonnance n° 45-174 du 2 févr. 1945 sur l'enfance délinquante Modifiée près de 75 fois.Le processus d’adoptiondu code de justice des mineurs n’a eu de cesse d’être critiqué.Avec lui, un nouveau droit pénal des mineurs est sur le point de voir le jour.D’un point de vue substantiel, la réforme entend apporter plus de clarté à la question de la responsabilité pénale du mineur et plus de lisibilité quant à la réponse pénale qui s’ensuit.D’un point de vue procédural, la réforme s’efforce d’accélérer le procès pénal du mineur tout en veillant à lui garantir le respect du droit à un procès équitable.L’objectif de ce code : réécrire de façon plus lisible les dispositions relatives aux mineurs, retouchées à maintes reprises, tout en redonnant un sens à la justice pénale des mineurs.

In this article, we introduce three stages of corporate insolvency and study the available proceedings in Iranian and UK laws that are most appropriate for each stage. The first stage, or ″Pre-insolvency crisis″, has been dominantly addressed via ″Scheme of arrangement″ in both countries. However, the UK additionally provides ″Company voluntary agreement″ as an alternative approach, which does not exist in Iranian laws but has compared with the closest existing matches. ″Moratorium″ can also be utilized in this stage as supplementary proceedings/help. In the second, ″final insolvency ″stage, ″Administration″ and ″Restructuring″ in the UK are compared with the ″Scheme of arrangement″ in Iranian trade law as the most relevant proceedings, and ″Ban of the termination clause″ is proposed as an additional supplementary means. Finally, for the third, ″critical insolvency ″stage, both countries propose ″Liquidation″, whereas the UK system additionally offers the ″Prepack″ procedure. The existence and diversity of available proceedings in the UK law system match closely with the degree of insolvency, whereas these choices are much more restricted in the Iranian law system, exemplifying the need for new legislation.

The purpose of the present study is to evaluate the feasibility of gender-responsive budgeting in the public law of Iran. The budget is not gender-neutral naturally; Therefore, it affects women and men differently. By gender-based budgeting, women's share of the public revenue and, consequently, their opportunity for public participation assesses and provided to the government as a tool to achieve gender equality and fill the gender gap. Gender-responsive budgeting evaluates the impact of budget items, and indeed government policies and programs, on women compared to men. The research method is dogmatic with a comparative approach. In this way gender-responsive budgeting introduces as a method of budget analysis, its context, and tool of implementation in the legal system of Iran examines. Results prove the existence of a precondition of gender-responsive budgeting, formal recognition of gender equality. Therefore, if the government has the political will to protect gender equality, it can use the existing capacities, the other countries' experiences, and the recommendations of international institutions to implement gender-responsive budgeting and attach it to the annual general budget Act. Two main capacities are the Vice President for Women and Family Affairs and Annex No. 4 of the recent Budget Law (Function-Based Budgeting).

Budget Acts are ordinary law and therefore should include items that are consistent with their title. Based on this feature, which is rooted in the principle of specialization of ordinary laws, only public revenues and expenditures should be included in budget acts. However, in some countries, such as Iran, the government and sometimes the legislature adde items to the bill that have nothing to do with budget or budgeting. Lack of knowledge of the scope of budget acts, the tendency of the government and parliament to legislate away from the control of the media and citizens, and the lack of a constitutional jurisdiction have been the three reasons for the emergence and spread of such a practice in the history of legislation. The emergence of the Guardian Council, with the approval of the 1979 constitution, provided the basis for better budget legislation. However, the findings of this study show that this institution, contrary to its model, the French Constitutional Council, could not eliminate the first two shortcomings because it could not extract, from the current budgeting laws, effective measures to identify the required, optional and prohibited scopes of budget acts.

A review of research conducted in the field of the history of drafting the Constitution of the Islamic Republic of Iran shows that jurisprudential and Islamic ideas and readings have been considered by scholars more than other effective angles in formulating the Articles of the constitution. It is obvious that achieving a correct and comprehensive understanding of the various aspects of the constitution requires a careful and meticulous study of all political, social and intellectual currents that are effective in its formulation. The leftist and the supporters of socialism were one of the most organized and popular currents in the first days of the 1979 revolution due to its strong social support, it had a profound effect on the events of the early years of the revolution, especially on Writing style of the economic Articles of the constitution. Among the many leftist and pro-socialist parties and groups that emerged after the fall of the monarchy, the tudeh party, the Union of Workers, Peasants and toilers and the People's Mojahedin Organization of Iran have played a very important role In this context. Review of notes, letters, statements and reports published in the publications of the press organizations of the three mentioned currents Shows that the content and style of writing the economic Articles of the Constitution of the Islamic Republic of Iran is greatly influenced by their orientations and thoughts.

law and technology literature has assessed the role of legislation in relation to innovation for over a decade. According to some thinkers, "we are on the verge of a change in the legal paradigm and a revolution in legislation". Others talk about replacing the rule of law with the "rule of technology".the theory of anticipatory governance by providing a forward-looking framework provides tools to monitor innovation developments and examine social, ethical and legal aspects of emerging issues of the future, including emerging technologies. Thus, foresight as a regular analysis of alternative futures pursues the mission of supporting policymakers in making more informed decisions by considering future possibilities, scenarios and consequences. Due to growth of innovation and technological developments, the legal institutions in different countries have taken strategies and tools to adapt to this transition period. In this article, while examining the actions of the European Union in line with the regulation appropriate to the innovation environment, the institutional status of the Majlis Shora in the period of transition to the digital age is explained. Considering the need for flexibility and dynamism of the laws related to emerging technologies, formalization and understanding to the co-regulatory bodies under the supervision of the legislature, Using the capacity of the Majlis Research Center to carry out interdisciplinary expert evaluations with a future research approach in the drafting process , can provide a great capacity in line with the standardization in line with the need for innovation and Prevent reckless and hasty legislations.

The legislators primarily aim to compile clear and unambiguous rules; however, it is in some cases inevitable to use equivocal and paradoxical terms. The reasons for such an occurrence are galore. In the present study, this subject was investigated in the Iranian Constitution since prior to Constitutional Revolution to the present time, and some examples were brought. In each case, the basis of the equivocality and representation in constitution was separately investigated and the motives were discussed. One of the aspects of using such terms indicated the lack of unanimity among the working groups over using the clear and unambiguous terms insofar as no conclusion has been drawn in socio-political discussions, and no unanimity over the conflicts has been reached. Therefore, ambiguity of the socio-political level has entered into a legal level and has affected the legal texts. In other words, members of working political groups haven't still come upon an agreed solution for the controversial issues, and choosing each way solely will satisfy one of the parties, resulting in an imbalance of powers in favor of one party. Hence, solving such a controversy is achieved through delaying precise expression of the will by each party and postponing the decision-making over the issue, all of which is earned by using equivocal phrases and silencing the issue; discussing such issues will result in the futility of the Constitution. The article ultimately recommended that jurists take into account the principle of silence and equivocality in constitution,

The environment has become a silent victim of armed conflicts around the world. Armed conflict, for whatever reason or justification, causes significant damages to the environment. In this regard, international humanitarian law has protected the environment in a few of its provisions. These provisions which is limited to damages by widespread, long-term and severe nature, are vague and provide only superficial protection. The provisions of international environmental law as well, as an alternative option, is less than adequate to protect the environment during armed conflict. Due to non-liquet in international law and to clarify the meaning and scope of environmental protection, in 2013, the International Law Commission (ILC) decided to include the topic in its programme of work. Six years later, the ILC adopted ‘‘draft principles on protection of the environment in relation to armed conflicts’’. In principle 12, the ILC setting out the Martens Clause in a new form. This inclusion in the draft principles, reflects the role and positon of the Martens Clause in protecting the environment in armed conflicts. The author, with a new direction for the Martens Clause, believes that implementing the Clause in this context will result in the emergence and facilitating the emergence of other principles and rules that can protect the environment during armed conflict.

Communication and effective date of electronic judicial measure are among the important issues. In electronic communication, the relevant regulations are in some ways inconsistent with the rules.The nature of this communication is ambiguous; Beneficiary of the regulations, hearing the statement of ignorance of the provisions of electronic communication is subject to proof, accepting the excuse of not being informed applies, With the silence of the existing regulations, assuming the difference in date, in principle, the date of receipt of the communication in the system, which is the first date, should be considered the date of communication, unless the addressee proves lack of access to the system. In many cases, judicial action is limited to a deadline (legal or judicial) or the passage of time. In addition to the possibility of acting outside office hours, if the beneficiary is denied the opportunity to act within the deadline due to reasons not appropriate to the beneficiary, his right will be lost in accordance with the existing regulations. This is an unfair approach and contrary to the rights of citizens.

Compensation for the Iraq-Iran war of 1980-88 has been a constant issue in Iranian politics and law. In fact, from the very beginning of the war, Iran expected the UN Security Council to consider the issue of damages by determining the aggressor. In the post-war years, too, despite the endeavors of the UN Secretary-General following the provisions of Resolution 598, the choice of an alternative was never taken seriously as an objective political or legal action by Iran. It seems one of the reasons for this reluctant was the lack of awareness of the reliable jurisdictional basis for resort to a reliable legal solution such as the International Court of Justice. As we study the positions of the Iran's political authorities and the relevant scholarly writings on the subject, there is no indication to the Court to institute proceedings against Iraq. The article, while introducing the jurisdictional basis of the Court, deals with the subject of the relevant capacities and restrictions incorporated in the provisions of the treaty and the procedure of the International Court of Justice.

Deficiencies of Environmental Regulations on Mine Exploration Law in IranAbstract A legal response to the environmental threats caused by mine exploration cannot be achieved without identification of such special threats. For the same reason, the geological studies of the environmental threats caused by mine exploration are an essential step for such a legal response by codifying appropriate rules and regulations and developing a proper legal system. This article is to, initially, identify and classify the environmental threats caused by mine exploration and then to identify and evaluate legal gaps and challenges in Iranian legal system to deal with such threats, by using the analytical method.What are the deficiencies of environmental regulations on mine exploration in Iranian legal system and what is the strategy to tackle such deficiencies? The environmental threats caused by mine exploration is identified in a very general, partial and imperfect manner in Iranian legal system. Missing details and lack of classification of threats in terms of the mine and the practical problems in this area, are some definite challenges in this domain, which in turn have seriously impeded the effective legal response.

Crime, as a human and unavoidable fact, has always been the focus of lawyers and criminal psychologists. On the other hand, the individualization of punishments as a necessary principle and its manifestation in judicial decisions requires tools, and the creation of a character file is one of the most basic of these tools. The personality file must contain a detailed and specialized report by psychology, psychoanalysis, psychiatry, and social workers, in which complete and accurate information about the psychological, social, economic, and cultural conditions of the accused or criminal. In Iran's legal system, unfortunately, despite the provision of this establishment in the Criminal Procedure Law as well as the Islamic Penal Code, the filing of personality files is done purely ceremonially and only for the purpose of classifying prisoners. At the same time, the effectiveness of the criminal trial process and the efficiency of this process with the help of filing a character file is not hidden from anyone.