نشریه پژوهش های حقوق تطبیقی
سال بیست و نهم شماره 1 (پیاپی 127، بهار 1404)

The land utilization allocation contracts of the Industrial Estates Company are adhesion contracts, whereby applicants, by signing them, adhere to the terms and conditions contained therein—including the arbitration clause. In the event of contractual non-performance (such as failure in construction, operation, or installment payments) by either party, the Industrial Estates Company refers its claims regarding contract termination, eviction, and demolition to the Iran Small Industries and Industrial Parks Organization, designated as the arbitral authority for appointing a representative. Subsequently, the representative of the mentioned organization issues an arbitral award, which often becomes the subject of judicial annulment claims in courts. This article provides a critical analysis of the arbitration clause in land utilization allocation contracts of the Industrial Estates Company, with a focus on the approach of the judiciary. The clause is examined in light of compliance with the legal requirements of Article 139 of the Constitution and Article 457 of the Civil Procedure Code of the Public and Revolutionary Courts (2000), as well as principles of arbitrator independence and impartiality (being a third party, being independent, not being subordinate, etc.). It also explores the clause’s subordination to the contract, and the issue of unfair arbitration terms, based on a descriptive-analytical method using library resources and analysis of judicial decisions. The findings of this research emphasize the necessity of complying with Article 139 of the Constitution and Article 457 of the Civil Procedure Code in such contracts, ensuring the independence and impartiality of arbitrators, recognizing the subordination of the arbitration clause to the contract (especially in cases of contract dissolution), and the need to adjust arbitration clauses to make them fair and reflective of the parties’ intentions.

Several factors play a role in the realization of conflict of jurisdiction in judicial proceedings and arbitration. In this study, with the aim of examining the role of the aforementioned factors, a comparative study of the approaches of the legal systems of England and Iran has been conducted using an analytical-descriptive method. Based on the studies conducted, it can be said that the arbitration clause or agreement, ADR agreement, unilateral and multilateral clauses, tactics used by the litigants in the proceedings, public order, and issue preclusion are the most important factors affecting the conflict of jurisdiction that can cause major disruption in the arbitration and proceedings process. In the English legal system, by examining the existing judicial practice and legal regulations, it is concluded that an attempt has been made to deal with the aforementioned factors in a way that reduces the impact of these factors on the realization of conflict of jurisdiction. In the Iranian legal system, there are no specific legal regulations in this regard, and the judicial practice approach in this regard is not clear, which makes the challenge of realizing conflict of jurisdiction more difficult. In this article, by examining the aforementioned factors in the legal systems of England and Iran, while explaining the role of the aforementioned factors in creating conflicts of jurisdiction, an attempt has been made to explain the gaps in the Iranian legal system.

In case of breaching the contract, the injured party is entitled to receiving the compensation that places him in a status similar to full performance situation. However, if the injured party has a role to increasing the damage, either by failing to take reasonable action to mitigate the loss or by acting in a way that aggravates it, the principle of full compensation will be defected and the Amount of compensation will be regulated based on this role. This article, titled "Conditions and Causes for Obligation to Mitigate Damages and the Effect of Negligence in It under Iranian and German Law," Addresses this question that how is the scope and conditions of the injured party's obligation to mitigate and how to claim the relevant costs. Using a descriptive-analytical method and library resources, the research findings show the obligation to mitigating the damage is limited to reasonable and acceptable measures, and also substitute contract formation with a third party could fall within this framework. Moreover, the incurred costs to mitigate damages are receivable, and injured party's negligence is considered as one of the main basis to mitigate the amount of compensation.

One of China's most important tools for achieving economic reform goals, both at the policy-making and legislative levels, has been the use of special economic zones. China's successes in this area have made the study of this significant tool remarkable. In this context, studying the special economic zones of Shanghai and Shenzhen is particularly considerable. This is because, first, the regulations of other special economic zones in China have been influenced by the regulations of these two regions, and second, the economic successes of these two zones have been more remarkable. Therefore, this article aims to explain the background of the establishment of special economic zones in China, review the governing regulations of these two regions, and elucidate their similarities and differences. This research shows that the formation of these zones is based on political and economic reforms of the People's Republic of China in the last quarter of the twentieth century. Likewise, according to the constitution, the 'State Council' is the related responsible institution in this regard. In both regions, the legislature has granted various facilities to foreign investors to protect foreign investment and has deemed the principle of " Pre-establishment National Treatment " essential. Moreover, foreign investors are required to comply with the "negative list for foreign investment." However, significant differences in the policies and regulations governing these two zones can also be observed. For instance, legislators in Shenzhen have emphasized "attracting foreign investment", while legislators in Shanghai have focused on "protecting foreign investment".

In the modern law of contracts, special attention has been paid to the economic effects of contracts. One of these effects is the emergence of the theory of efficient breach, according to which, in cases where the execution of the contract is harmful, by creating a right of termination for the obligee, the breach of the contract has been protected. But on the other hand, a different approach to the breach of contract has been proposed under the title of gain-based damages, which not only does not support the breach of contract, but tries to deal with it by returning the benefits obtained in this way. Due to the apparent inconsistency, this suspicion has been created among some theorists that these two theories are in conflict with each other, one is seeking to support the breach of contract and the other is trying to deal with it. But these two theories are not only not in opposition, but also aligned. Because efficient infringement applies to “loss-Avoiding” infringements and benefit-based damages apply to “Gain-Seeking" infringements and in addition to the different functional areas, they also have a common goal because both seek to implement the contract in a correct economic path to provide the economic interests of the society.

In the legal systems of Iran and United States, the indemnity clauses against third parties are used in order to manage risks related to the contract, and in the assumption of damage to the third party and Filing a claim for damages on his part, these clauses change the rights and duties of the parties to the contract. Since the determination of the scope, nature and effects of the indemnity clause largely depends on the agreement of the parties and the way the clause is set, the parties' understanding of the concept of this clause has a significant effect on determining the nature, effects and ultimately enforceability of this clause in judicial authorities. In this analytical and comparative research, while examining the concept of the indemnity clause against third parties, we try to deal with the nature, effects and the methods of execution of this clause in private contracts in Iran and United States’ legal systems. According to the terms of the indemnity clause, one of the parties of the contractual relationship or both of them can accept the risk of final responsibility for the loss and damages imposed on the other party due to third party claims and the indemnifier's obligation is commitment to results. Although the indemnity clauses against third parties are valid between the parties, but , in order of protect the rights of third parties, they are non-opposabillity against them.

Under Paragraph 9 of the “Declaration of the Government of the Democratic and Popular Republic of Algeria” (or the General Declaration) the US undertook to transfer Iranian properties to Iran. The Iran-United States Tribunal interpreted this paragraph of the Declaration in Partial verdicts Nos. 529, 601, 604, and 382. Generally speaking, the Tribunal interpreted the term “Iranian property” in Partial verdicts Nos. 529, 601, and 604 as tangible properties solely owned by Iran. To determine the ownership criterion, the Court considered the United States Uniform Commercial Code as the standard of practice, according to which the transfer of ownership as a general rule is subject to the delivery of the subject matter of the transaction to the buyer or customer. With this interpretation, the Court stated in Partial verdict No. 604 in many cases that due to the failure to transfer ownership of the disputed properties to Iran, the United States' obligation to transfer them to Iran was not enforceable. Given the thematic similarity of Case B-61 with Case A-15 (Two: A), the second stage of which requires the issuance of an verdict, assuming the applicability of the findings of partial verdict No. 604 in making a decision in Case B-61, the answer to this question becomes important: what arrangement can be considered to prevent this