مجله مطالعات حقوق تطبیقی
سال چهاردهم شماره 2 (پیاپی 28، پاییز و زمستان 1402)

The best effort (conventional maximum effort) clause is the result of innovation in international commercial contracts, which is of particular importance in order to influence the interpretation of the contractual provisions and achieve the desired result. This clause is seen to be more effective among other similar clauses such as the reasonable care clause, and due diligence, because the obligor must use all his ability and expertise to fulfill the obligation. The best effort clause has different meanings in common law and civil law systems. The best effort clause in the civil law obliges the obligor to do everything in his power to fulfill his obligations, even if spending unlimited amounts of resources will cause him loss or bankruptcy, but in countries subject to common law, this clause has It is more flexible and means a conventional and appropriate effort, and therefore the obligor is not obliged to cut himself off from existence to fulfill the obligation. There is no mention of such a clause in Iranian law, but according to written laws and in the form of the traditional concept of commitment to means and results, accepting such a clause can be justified.

Under French law, it was necessary to enter multiple contracts in order to carry out a group operation, and there was ambiguity regarding the sanction and its principles in the event of the disappearance of one of them. Sanction sometimes entailed nullity, termination, or lapse. The reform of the French Civil Code on 10 February 2016 has opted for the sanction of lapse for the interdependence contracts in Clauses 2 and 3 of Article 1186. Regarding principles, pre-review jurisprudence sometimes relied on theory of cause, the indivisibility of obligations, and condition and accessory to justify the lapse of interdependence contracts, which have introduced ambiguity in the principles legalizing reform of contract law. Three conditions are required under which the lapse of an interdependence contract applies: 1) realization of the group of operation, 2) disappearance of the contract which is the prerequisite for the next contract or impossibility of the next contract, and 3) the contractor's awareness of the unity of the operation. Given these three terms, if the central contract is annulled, terminated, or lapsed for any reason, other contracts related to the original one will lapse. The Iranian legal system's approach to the lapse of interdependent contracts is unclear, the doctrine addresses it without due attention, and jurisprudence does not provide a sensible judgment. This article attempts to introduce this new concept (lapse of interdependence contracts) and its principles, scope, and effects.

A consumer who has purchased a defective car will have rights and privileges after the car is recalled. The car manufacturer is obliged to repair the car, replace the car or refund its price during the transaction. But does the consumer have the right to choose between these three categories of rights? If there is a need to change the car from the manufacturer, will the replacement car be a new car? By researching and pondering the laws of the United States, Australia, and Iran, it is concluded that the consumer does not have the right to choose between the rights resulting from the car recall and cannot choose one of the performance guarantees at will, and in the laws of the United States and Australia, in the case of a car exchange, a new car with zero kilometers will not be delivered to the consumer, or if a new car with zero kilometers is delivered, the difference in the mileage of the defective car must be returned to the manufacturer. Of course, Iranian law is silent on this matter and we do not have an explicit or legal text in this regard that would clarify these issues.

It is impossible to legislate for every feasible situation. Therefore, in all legal systems there are silences and gaps, issues and matters as to which it seems to regulate. This is also true of the Iran’s legal system, and perhaps particularly true of the international legal system due to the slow legislative process and its normative and institutional weaknesses. This paper provides an analytical framework to develop a comprehensive understanding of non liquet in both systems, with an emphasis on the range of possible solutions. The author is of the opinion that, rather than being a complicated issue, non liquet and its solutions which have significant consequences for any legal system, goes back to the very heart of our understanding of that legal system.In Iranian legal system which is based on Islamic jurisprudence (figh), the Islamic Consultative Assembly (the legislator) has not only enacted general principles and rules in order to fill gaps in the system, but also on the adoption of reference to authoritative Islamic sources or authentic fatawa and legal principles that are not contrary to the Shari’ah, the judge has to deliver his judgment and settle disputes based on sources other than the law. But in the international legal system, it is necessary to distinguish between two issues. The International Court of Justice cannot refrain from delivering judgments in contentious cases. By resorting to the source-based (general principles of laws, equity, Martens Clause and the residual principle), or method-based approach (analogy, a contrario reasoning) the ICJ can take steps to avoid non liquet. However, in advisory proceedings, it is possible to face non liquet without being necessary to fill it. As a result, the court shall not be held to be in denial of justice and convicted, even by making a non liquet declaration to the effect that the law is non-existent or unclear on a particular issue.

The appearance and aesthetic aspects of the products can be protected as an industrial design under design law. In addition to the positive substantive requirements for protecting industrial designs, such as novelty, originality and individual character, another requirement is also provided under the title of "Non-functionality", which is described as a negative requirement in different legal systems. According to this requirement, a design that is solely dictated by functional aspects of the products and is made to solve a technical and functional problem of the products cannot be protected as an industrial design. Considering the lack of adequate research in this field on one side, and lack of clear law provisions in Iranian Law Design on another side, this article aims to answer the following questions through a comparative study in pioneer legal systems: why is the functional industrial design not to be protected? And how is the functional industrial design to be identified? And at the end, although this requirement is justified on the bases of different criteria such as the alternative solutions and causative approach the authors propuses that the main basis of this requirement is the separation of the industrial design system from the patent system, after which efficient competition is also maintained, On the other hand.

In this article, the civil liability caused by asbestos has been studied comparatively in French and American law, to provide models to solve the shortcomings of Iranian law, with  a descriptive-analytical research method. The main question was about the bases and elements of the responsibility caused by asbestos and the effective solutions to support asbestos victims. The result was that in terms of the basis of responsibility, in American law, the responsibility is based on strict liability. French law bases the responsibility on the system of employer's responsibility towards the employee, and by establishing the safety obligation of the type of obligation of result and the unforgivable fault of the employer and the assumption of his knowledge, only force majeure is excluded. In terms of the conditions and elements of civil liability, both countries have supported asbestos victims by developing the concept and scope of compensable damages and the assumed relationship of responsibility. In order to guarantee and speed up the payment of damages, in French law, a "special compensation system for asbestos victims" has been established and by creating an independent fund, the cases of reference to the fund and the amount of damages that can be compensated by the fund, with certain mechanisms, has been established. American law has also taken the same steps. It is suggested that our legislators should establish a special compensation system for asbestos victims by leaving aside fault as the basis of responsibility and facilitating the proof of causation.

The status as a quality that the legal system of any country has determined for a legal entity is one of the important issues for monitoring legal entities. In this regard, the existence of an integrated system of "monitoring and identification of legal entities" in Iran and the international system is one of the mechanisms that have been put forward in order to solve the aforementioned challenge and promote transparency, increase awareness and gain public trust. In such a system, although the existence and scope of the legal entity's competence can be identified by third parties; But legal entities, like any other legal phenomenon, do not always have a fixed "legal status" and may undergo changes after they are created. In the process of monitoring and identification of legal entities, the distinction between the status of legal entity and the status of ID has been considered due to the effective relationship between the two, both in Iran and in the Global Legal Entities Identifier System(GLIES); And he has raised the question of what effect the change in the "legal status" of legal entities will have on their "validity of ID". The current research is in the light of a comparative study between Iran's national ID system and Global Legal Entities Identifier Foundation (GLIEF) using desk study in the method of information collection and descriptive-analytical research method, has explained types of relationship between the status of a legal entity and the status of the national ID in the current system of Iran - based on the type of influence that the status in the first sense has on the status in the second sense. Then, in the context of the principles governing the legal entities ID system, has criticized each of the existing categories in terms of the type of influence and has provided solutions to solve the challenges of the national ID system.

The physical and mental health of workers and operators of hazardous jobs is directly related to their occupation Therefore, most countries have considered a special support system to support and maintain the health of those who work in hazardous jobs, and the most important and common way to support those who worker is early retirement. Comparing the factors of the legal system to support hazardous jobs in Iran and the member countries of the European Union is the main question of the present research, which has been investigated by descriptive and analytical methods. Considering the bankruptcy crisis of pension funds and in line with economic austerity policies, it can be seen that in the last two decades, the list of hard and unprofitable jobs has been revised and most countries have taken steps to eliminate or reduce support for the hazardous jobs. In Iran's legal system, according to the procedure established by the Administrative Justice Court, the system of supporting hazardous jobs for those subject to the labor law and the employees of executive bodies in terms of the authority for determining the hazardous jobs, the number of retirement years, the way to provide for the financial burden of retirement and ... Is different. With regard to the study of European models in Iranian law, amending laws with the approach, requiring employers to reduce and remove environmental pollutants, eliminating discrimination, and creating a balance between the protection of those subject to the labor law and the employees of executive bodies, not imposing a financial burden on pension funds in order to maintain the rights of For a generation, reducing the years of friendship, determining the list of the hazardous jobs by a centralized institution with specific quantitative criteria and with the requirement of periodic and continuous revision seems necessary.

Problem; the liability for contractual consideration is one of the most important issues in synallagmatic contracts. The truth of “Exchange Liability” exists in all legal systems and it is discussed under a special title. Among these titles are "Theory of Cause" in the Civil Law system and "Exchange Liability" in Imamiyah jurisprudence. Exchange Liability and theory of Cause are both liabilities for contractual consideration, and they are rooted in agreement, but maybe, the conditions, jurisdiction and their effects are somewhat different in these two legal systems. The main issue in this research is what are the similarities and differences between “Exchange Liability” and "Theory of cause" in terms of conditions, scope, and effects?Aim; Therefore, the aim of this research is a comparative study of the conditions, jurisdiction, and effects of “Exchange Liability” and “The Theory of Cause.Method; This will be done in a descriptive and analytical method.Findings and conclusion; According to the findings of this research, despite the similarities between these two theories in the mentioned aspects, in terms of some works, including the amount of compensable damage, as well as the conditions and jurisdiction, significant differences between them are observed. For example, "Exchange Liability", unlike "theory of cause", is specific to synallagmatic contracts.

It is of special importance to distinguish legal matters from factual ones in the interpretation of contracts in order to clarify the scope of the (first instance) judge's authority and the jurisdiction of the Supreme Court. The court judge enjoys absolute authority in the process of interpretation to ascertain the intention of the parties, and the Supreme Court cannot restrict such authority. However, there are exceptions where the Supreme Court can intervene and overturn a judgment. For example, when a judge distorts a contract under the pretext of interpretation, the Supreme Court may overturn the judgment. It merits mention that the Supreme Court is responsible for supervising the proper enforcement of rules in courts; in other words, it controls the legal issues of interpretation. To put it simply, when a judge makes a mistake in aligning a judgment with the facts, the Supreme Court will overturn the judgment. Comparing Iran’s legal system with that of France, this descriptive-analytical study aims to distinguish the legal aspects/matters of contracts from their factual aspects/matters. This will clarify the scope of the Supreme Court's intervention and the authority of the court of first instance in interpreting contracts, considering that the Iranian legislature expresses no opinion in this regard. Typically, in both Iranian and French legal systems, the Supreme Court can only exercise jurisdiction over legal matters.

As organized crime increasingly spread through drug crime in the 1980s and became an international problem; the ineffectiveness of existing legal tools to deal with it emerged; because the conviction of several organized criminals behind bars and the exploitation of the benefits of their crime after their release could not have had a tangible effect on defeating organized crime. In this respect, the system of confiscation of property to fight international organized crime was recognized as a fundamental principle in international and national legal systems and grew and expanded significantly in terms of type and scope; One of its modern and progressive forms is "extended criminal confiscation" Among the international organizations, the Financial Action Task Force and the European Union, and among the European countries, the United Kingdom has the leading systems of extensive criminal confiscation. Therefore, in this study, with the aim of pathology and optimization of the legal system governing the confiscation of property related to crime in the Islamic Republic of Iran, with a comparative view, the components of the extended criminal confiscation system in the leading legal systems are described and based on the legal system approach. Iran is assessed and pathologically evaluated In order to provide effective suggestions for reforming the laws governing property related to crime; Extensive confiscation in leading legal systems has four components: criminal offenses, legal presumptions, reduction of the value of proof and litigation revolution. In Iran's legal system, although extensive criminal confiscation is provided for in the Anti-Money Laundering Amendment Law approved in 2017; But it lacks the first and second components, and regarding the third component, although suspicion is close to science, it has been legislated; But it lacks objective and quantitative criteria; Therefore, it is suggested that the legislator, like other leading legal systems, formulates the component of predicate crimes and legal assumptions in the legal system governing extended criminal confiscation and, like the English legal system, establish objective criteria such as "criminal lifestyle" and "period of criminal activity" to study suspicion. Legislate with science.it should be noted that this research has been done by descriptive-analytical method and in the collection of resources, the library method has been used.

Today, with the advancement of communication, defamation claims have crossed the national borders, it is possible for several foreign elements to be involved in a claim. In this situation, several courts may apply jurisdiction based on their relationship with those elements. This issue is problematic where there is a little connection between those elements and the jurisdiction. Therefore, legal systems must provide jurisdictional rules that prevent such a challenge. In this research, it will be investigated what jurisdictional criteria are used by the legal systems of Iran, England and the European Union in these claims. Can these rules meet the legitimate expectations of private individuals and at the same time have the necessary flexibility in view of the evolution of technology? In the English legal system, the legislators have adopted special rules for defamation which provides that, the courts can hear the lawsuit if England is the most appropriate place to file that claim. therefore, the English courts should examine the connection of the lawsuit with other jurisdictions. In the European Union, in addition to the general rule of the defendant's place of residence, the place of damage where the defamation was published also has jurisdiction. In EU law, the center of the victim’s interests will be competent in internet defamation. However, there are no specific rules for defamation in Iranian law, and the general jurisdiction rules will be applicable in the case of defamation. This Iranian approach is ineffective for defamation and will cause difficulties for litigants.

The development and facilitation of new payment manners for transactions according to the current business requirements is an integral part of economic dynamics and it is closely related to the banking laws. Preauthorized debit, also known as Direct Debit, is one of the most common banking payment methods available to users worldwide, especially in case of recurring transfers. Its flexibility and safety are grounded in the agreement between the account holder and the beneficiary, who is mostly the creditor. A contract of adhesion applies to the case in many ways, and the account holder (the consumer of goods and services) as the weaker party should be legally supported. However, the lack of comprehensive regulations to specify the parties' framework of rights and duties, especially concerning the adhesive nature of this type of contract, is what has to a great extent slowed down the use of this common and widely used method in internal transactions. With the development of the internet banking system, a specific regulation has been introduced into the American legal system to support holders of consumer bank accounts against beneficiaries who are mainly vendors. Since these rules conform to the Iranian law in many ways, studying them can be constructive. Therefore, the present paper attempted to analyze the most important aspects of this issue in both legal systems.

In some disarmament treaties, assisting, encouraging, or inducing prohibited activities is declared illegal. Prohibited activities are actions that States are prohibited from doing according to the disarmament treaty.However, the exact scope of this prohibition is still debated by experts.The basic question is: what is the extent of the prohibition of assist, encouragement and inducement? what it's boundaries? For this purpose, the provision of assistance in the five main disarmament treaties has been investigated and two important findings have been obtained by using library data and the application of the analytical descriptive First, although the lack of a consensus definition for assistance, encouragement or inducement and the States' lack of interest in explaining the issue In the domestic and international pactice, it has led to continuation of ambiguity in the scope of this provision, but this ambiguity also has benefits. Second, the views of the States in the preliminary negotiations and their subsequent practices confirm the narrow interpretation of the assisting provision. Therefore, any action that contradicts the purpose and subject of the treaty and is done knowingly with the intention of facilitating the commission of prohibited acts or incitement to commit them is considered as prohibited assistance or encouragement.

Research Article                Environment damage is considered the most significant factor of encroachment that causes weakening of the right of human life and always been needful to be protected and supported in any way. For this reason, determining the codification of the environmental damages indexes is considered one of the main concerns for compensation for these damages, and the necessity of compensating the environmental damages crimes in both legal systems under the general and special laws is approved. Many supervisors point to the reality about China that the significant economic growth in this country has had great costs relevant to this growth, especially in terms of environmental costs. In the legal systems of Iran and China, despite some differences, there are some similarities in the background of compensation solutions as well. Among the cases; in both legal systems, the basis of compensation for damage is based on civil liability from the general laws, an issue that is criticized by jurists of both countries. Nevertheless, the liability basis in Iran is the theory of fault and hazard, and in China is a pure liability, and the burden of proving the claim and causation is on the offender.

Sentencing studies in drug offenses show a consistent pattern of the vulnerability of the lower-class offenders and the immunity of the high-class offenders from severe punishments. The current study seeks to answer how the socio-economic status of offenders as an extra-legal factor affects the criminal process of drug offenses eligible death penalty. In this qualitative study, the content of documents, including 74 cases of drug offenses convictions between 2010 and 2020, have been analyzed. In-depth interviews with judicial activists, drug lawyers, Drug Control Headquarters officers, and convicted drug offenders (37 cases) were also used. Our Findings indicate that defendants in criminal prosecution are faced with discriminatory enforcement of Crime detection laws and drug weighing control. Also, Institutional discrimination in the judicial process (the significant differences in performance of Court-Appointed Lawyers and private lawyers), more importantly, Drug-related judicial Corruption and, as a result, charge movement or charge reduction of high-classes offenders (The collection of all these factors) dramatically reduce the probability of prosecuting and convicting high-level traffickers and increase the probability of sentencing low-level drug offenders to the death penalty. In addition, the lack of transparency and discrimination in the clemency process is an opportunity to prevent high-level drug offenders from execution.

Nuclear power plants are among infrastructure projects and provide public services that play a vital role for communities in the path of sustainable development. Since building and upgrading nuclear power plants has many technical and financial challenges, it is very important to select and use suitable contract models that can solve the challenges in the construction and operation stages of the mentioned power plants. Uzbekistan and the United Kingdom are looking to build, develop, and upgrade nuclear power plants in their territories, respectively, focusing on the engineering, procurement, construction (EPC), and regulated asset base model (RAB) models. Now the question is, which of the existing contract mechanisms in the field of construction and upgrading of nuclear power plants has a better performance? As a hypothesis, the technical complexities and the high cost of building and upgrading nuclear infrastructure projects require the use of appropriate contractual mechanisms such as the regulated asset base (RAB) model that could encourage the capable private sector as well as enable the advancement of several public service projects by the public sector in tandem. However, the paper aims to evaluate the aforementioned contractual models by relying on the descriptive-analytical study method, so as to draw the framework of a suitable contractual mechanism in the field of the aforementioned projects.

Private information of individuals is always exposed to attack by different individuals. Therefore, while providing a criterion for identifying the concept of private information, by strengthening the guarantee of the enforcement of the violation of the rights of individuals to their private information, a way should be found to prevent the violation of information privacy. The main question is whether the civil liability resulting from the violation of privacy is recognized in British and Iranian law or not? If the answer is positive, how is this supported? In English law, there was no independent form of civil liability claim arising from a breach of informational privacy and due to the formality of the British civil liability system, a lawsuit that directly protects privacy was not acceptable until after Campbell's lawsuit was filed in 2004, the grounds for accepting an independent civil liability lawsuit known as misuse of private information was provided. Also, in the Judicial procedure of this country, the standard of reasonable expectation of privacy (objective standard) has been used to determine whether information is private. In Iranian law, privacy violation is in any form, regardless of whether it is in a specific format. If there are conditions of civil liability, in this case, the defendant is responsible. Of course, the appearance of the Executive Regulations of the Law on Publishing and Free Access to Information only uses the phrase "expectation of privacy" without the condition of "reasonableness" in recognizing the existence of privacy, and this issue apparently confirms that a subjective standard is accepted in Iranian law. However, considering the advantages of the objective standard, this appearance should be ignored and the objective standard should be recognized in Iranian law. Anyway, the mission of this article is to analyze the standard of reasonable expectation of privacy in an analytical-descriptive way and with a comparative view, while examining the conditions of creating civil liability due to misuse of private information.

Due to the relation between arbitration and adjudication, arbitrator’s actions could cause responsibility for them because it may exceed the limits of law and justice. In American law, on the base of equity, if the arbitrator’s acts blemish the path of fair result, regardless of the provisions in law and precedent, in addition to incurring him responsibility it may cause his award to be annulled. Also in Chinese law, as it will come later, the arbitrator and his judgment can face the same fate. However, it seems in Iran according to article 489 of civil procedure law and principle of finality of the arbitrator’s award, we should limit ourselves to the provisions of law and the timeline that it entails. But this apparent argument is against the principle of fair trial, because firstly it’s not right to dismiss the actions of a responsible arbitrator (either disciplinary, criminal or civil responsibility) that can cause uncertainty to fairness of his award and second, it’s possible e.g., receiving a bribe by him get stablished years later and it’s not just to stick to the provisions of article 489 and its timelines and declare his award correct. So, in this article, comparatively, we are trying to analyze the American and Chinese approach to this matter so in this way with comparing and assessment of existing legal capacities in Iran, we could find a resolution for this legal gap and present an alternative. This will be done in a descriptive and analytical method.

Rapid progress in neuroscience and neurotechnology has provided new tools and techniques for monitoring, controlling, decoding, sharing and even manipulating the information of the human brain. The development of neural technologies and the growth of its use creates moral and legal consequences for the misuse of this technology.The main question is whether the existing laws in the field of human rights have sufficient and effective protection of humans in the face of this technology? Some researchers believe that the existing laws are sufficient to protect humans in the face of neurotechnology, but the scope of these rights should be extended to issues arising from neurotechnology. New rights should be added to the existing rights. The present research has come to the conclusion with a descriptive and analytical method, by examining international and regional human rights laws, that no law explicitly protects the human brain and mind as the most important and private part of the human body. The new human being includes the right to mental privacy, the right to cognitive freedom, the right to mental integrity, and the right to psychological continuity.

In this article, it is argued that the teachings of the New Haven School (NHS) of International law, provide the best theoretical framework for the promotion of international electoral norms. The article argues that there is no inexplicable mystery in component elements of the state and sovereignty. It also maintains that the idea of the inconsistency of national sovereignty with the promotion of international electoral norms is based upon a distorted conception of sovereignty. As a legal concept, national sovereignty has long been invoked by states to obstruct the promotion of international norms and standards on free and fair elections. Demystification of the elements of the state reveals that international scholars may convincingly overcome the theoretical challenges of sovereigntists through the deconstruction of the concepts of state and sovereignty. For the New Haven School, all legal concepts and arrangements (including Sovereignty) are designed to achieve human dignity. For all practical purposes, if international law scholars want to understand a different view on the relations between sovereignty and people, they must promote a deeper understanding of New Haven’s epistemological and methodological apparatus. Taking a contextual-functional approach to sovereignty, the New Haven School of international law subordinates sovereignty to the recognized international standards of humanity.