مجله مطالعات حقوق تطبیقی
سال ششم شماره 1 (پیاپی 11، بهار و تابستان 1394)

Although the subject-matter of cargo and ship mortgage are similar (providing financial security for creditors),the regulations of these contracts, differ from each other essentially with regard to the conditionality of taking possession in concluding the contract, the possibility of endorsement and cession in mortgage document, the creditor s kind of real right, the preference of prior or latter creditor in vindication of right and the effect of mortgage loss on the contract and the possibility of recovery of claim. Moreover the cargo mortgage regulations are, in some regards and aspects, contrary to general legal rules and hence subject to criticism.

One of the non- judicial enforcements which is addressed by some legal systems in order to preserving rights of a contracting party against breach of obligation of other party, is the right for sale of goods in self-help type by the damaged party. This enforcements was predicted and addressed in both Vienna Convention for international sale of goods and Iranian legal system. But it is still unknown and strange in Iran’s legal system. In this paper we will try to study this judicial institution comparatively. Author believes that if all requirements are fulfilled for using self-help sale, this institution has potential ability to be addressed in other contracts other than the contracts which is written by law and this enforcement can be used in a vast area.

Apparent agency is one of the new and practical kinds of agencies that have been considered in both legal systems – common law and civil law- and in most laws of different countries in the world – regardless of level of economic and social development - and also in some international documents. Its applications have been increased in different field of agency such as legal entities, new employment relations, hospital liability, bank cards, joint venture contracts …In this article has been tried to study this theory on the legal and economic aspects with analytical – descriptive way and in legal aspect has been referred to comparative study in laws of different countries that show different models of legislating in this field.Findings of this study show that explicit acceptance of this theory, according to several legal and economic benefits in field of agency, is necessary and. ..

The idea of supervising the conformity of statutory law with constitutional law, is due to necessities rooted in two essential principles: the supremacy of constitution and the hierarchy of the law. Constitution as the supreme law in the sense of status and legal value, is placed at the top of the legal pyramid of every political system and therefore requires a special organization and discipline that will act as the sanction of the principles and the main content incorporated in this legal instrument. this special organization and discipline known as Constitutional justice in legal Literature now and have studing in two main patterns. Firs pattern based on Supervision of courts on rules and other pattern is Apply by Emphasis on role of Political Institutions in Supervision on rules. This two patterns have common purpose but have different backgrounds and methods.

The doctrine of piercing the corporate veil fascilitated holding directors liable for corporate debt. Nevertheless, the doctrine is not a seperate cause of action. Directors are bound by fiduciary duty, duty of loyalty and duty of care and skill to the corporation and its shareholders. However, there is not such a contractual relationship between directors and creditors. Thus, requiring directors to compensate creditors should be justified on tort law. In the Iranian, French and American legal systems, fault-based liability is the cause of action for director's liability. The author found that in piercing cases, director's liability follows the traditional rules of fault-based liability unless specified otherwise by statute as strict liability.

“Pacta sunt servanda” is one of the most fundamental principles in the common law and Iranian legal systems, which have been exposed to exceptions in the process of time. These exceptions are part of general doctrine of frustration. Iranians exceptions to this rule are named as “Ta`azzor” and “Ta`assor” rules. Doctrine of Frustration in Common law includes three subdivision theories: “impossibility of performance”, “frustration of purpose” and “impracticability” (hardship. All of these theories applied where a supervening event occurs. In English courts, only first two theories are accepted but third one is applicable in American courts. In imamieh Jurisprudence and Iranian law, “Ta`azzor” rule in most aspects is similar to Impossibility and “Ta`assor” rule is somehow like Impracticability. Some Iranian lawyers are said that we have no rule like “Frustration of Purpose” but I believe we can find traces of this theory in Imamieh jurisprudence and according which it is part of “Ta`azzor” rule.

Financial fines are regarded as a powerful implement in the hand of Competition Authorities which apply in the way of ceasing anticompetitive practices and hindering undertakings from entering into monopolization activities. Having regarded the nature and main function of this sanction, this paper in comparative study is going to clarify executive domain and primary stages of fine determining and also the fundamental factors which should be accounted in such process. Results derived from comparative study manifest that Iranian competition law's approaches as to pecuniary fine suffer from serious deficiencies and its general, ambiguous and unusual regulations need fundamental review and attending to notions and measures which may be unrecognized or ignored in our law framework. This situation indicates the increasing importance of pursuing the most efficient solutions of other legal systems.

NAFTA and ASEAN were concluded topursue certain goals. ASEAN,being developedas for political reasons, gradually expanded its work scope intoeconomic, trade, security, and cultural extents. NAFTA on the other hand has been able to form anintegrated economic and trade system. According to documents regarding the observation of human rights within ASEAN and NAFTA frames,it is clearly indicated that they have persistently considered the issues related to such issues. The present paper tries to analyze ASEANand NAFTAdegree of commitment tothe improvement of human rights in the region, and to compare these two regional agreements efficiencyon the above mentioned issue. Therefore, the performance of each agreement is studied separately in order to determine its strengths and weaknesses.The results of the study show that ASEAN, due to its region-specific complexity and particular difficulties, has underperformed NAFTA concerning itscommitment to the observation of human rights.

Positivism is an empirical approach for understanding of human communication and phenomena, which raised firstly French famous thinker “August Comte”. Human and social Sciences were under domination of positive thought for a long time. In criminal law inter alia Italian famous thinkers sought to analyses the crime problem with a positive approach. However, some of their point of view such as born criminal thesis was not respected by penal scientist, but was affected by their idea was assumed that experiment is the only scientific criterion and basis of criminal law. They thought that value judgments and normative sentences have not scientific character. The positivist approach, developed the abstract thought of classic criminal fundamentalism which was before this, the dominate approach of penal policy towards of objectivism at etiology of crime on the basis of separation of objectivism and subjectivism. But it faced with insufficiency in both methodology and efficiency, so that somebody talked about returning punity approach of classic fundamentalism.

This work examines the legal consequences of prohibition of "performance requirements" in foreign investment agreements. Performance requirements have been the significant instruments of control and management of foreign investment operation within the territories of host States. Its prohibition is one of the developing legal phenomenons of the 21st century. The conflicts between general international obligations and investment specific obligations of host States is the main problem of this legal change. Although the prohibition of performance requirements reduces the conflicts of the members’obligations within the framework of free trade relations, it causes new challenges in particular from the corner of States’international responsibility. The author shall consider the aspects of this new coming phenomenon and its legal vacuum in a comparative and critical analysis.

While traditional points of law are based on centralism and formalism, in the last decades contrasting approaches emerged that deny the traditional role of government in law. “Soft Law” is one of the main concepts in this viewpoint that is completely controversial. Although soft law has evidently a great influence in practice, it is still a relatively unstudied topic in Iran. This article is an attempt to consider the arguments of opponents and proponents of soft law, its core characteristics, benefits and instruments. The article argues that both of soft law and hard law should be used to make legal development.

For decades, the approach of legal systems towards private arbitration in competition law has been characterized by a certain mistrust or suspicion. Initially, this attitude may somehow have been linked to the uncertainty as to the arbitrability of competition law issues, in view of the fact that, in competition law matters generally, public interests are heavily at stake. In fact arbitration is a mechanism for pursuing a balance between the conflicts of parties’ demands. However during the time, more gates have been opened for arbitration and it got not only a private means but a way in which both private and public interests are secured. The public interests so are factors that shall be precisely considered to prevent the situation in which courts rejecting award in reviewing stage due to the fact that the public policy aspects of the case are not complied. In this article we scrutinize the challenges arbitration may encounter especially in respect of competition law in an international environment in respect of application of mandatory laws.

The Letter of credit as a method of smoothing international payment is a conditional security and obligation to pay the customer bank (issuing bank) to seller (applicant). For this purpose, the letters of credit may be considered as the most usual method of payment of goods price in international trade. The classic form of letters of credit is the commercial letters of credit whose financial obligation is rooted in the documents that demonstrates the making of transaction by the beneficiary and it is used as a mechanism of payment and financial security in international transaction of goods. Contrary to commercial letter of credit which is a payment document, standby letter of credit has been taken into account for protection of beneficiary in case of default of payment to perform obligation or payment.Standby letters of credit are equal to bank guarantee and issued as performance and obligation security and in the form of letter of credit. This article with cmparison of commercial letter of credit and standby letter of credit is to review the similarities and differences of these two documents and the most important legal aspects of both are compared in order to answer this question that when and in which form each of these means are used in international trade by the parties.

In a contract of carriage, parties have a right which arising out of the contract to give orders to carrier about stopping goods in transit, delivering the goods to a person other than the consignee shown in the consignment note and etc.This right mostly belong to consigner but sometimes it’s transferred to consignee. It’s possible for the consignee when an entry to this effect made in the consignment note and for exercising his right of disposal, he should already present the copy of the consignment note. This right is also provided in Iran commercial act with some similarities and differences. In this article we’ll explain the beneficiary of right and rules of application in CMR and Iran commercial act either.

The public domain of copyright which considers the end of protection period, attempts to cause balance among the rights of authors, society and third parties. So at the end of financial rights of author’s protection period the possibility of free utilization of these literary works will be possible. But in this situation one of the controversial difficulties is the nature of these kinds of literary works which, according to some scholars, after belonging to public domain, they will change in to the Allowable. To approve their idea, they focus on common features existing in these literary works(works relating to public domain) and the Allowable. On the other hand it is believed that literary works after belonging to public domain essentially works after belonging to public domain essentially due to lacking of scarcity element are not considered property at all.

Contemporary international law introduces a notion of peremptory norms comparable to hierarchy of norms in national legal system. A jus cogens is a norm of international law considered so fundamental that it overrides all other sources of international law. A rule of jus cogens has a specific process of emergence that will be essentially different from other sources of international law which reflected in Article 38(1) of ICJ Statute. Unfortunately, there is not a precise definition of jus cogens norms. The vagueness of the definition and thereby its instances is one problematic issue that harden realization of ideals of the international community.

The propagation of utilization of arbitration as a method of dispute resolution depends on the public confidence in the method. In this regard, the independence of arbitrators and their impartiality are necessary conditions for the realization of such confidence. Independence and impartiality of arbitrators ensure a fair trial in arbitration and the lack of aforementioned features makes it impossible to trust the fairness of the dispute settlement process and its result. The importance of confidence in the health of the dispute settlement system is to the extent that many international instruments have frequently emphasised on the necessity of the two above-mentioned features. In the recent decade, contemporaneous with the incredible development of arbitration, the debate over independence and impartiality of arbitrator has become important and controversial because neither national laws nor international provisions provide a clear difinition of the said concepts. This article set out to explain the exact point that the independence and impartiality are distinct concepts and are not interchangeable with each other; Independence is concerned with the relationships between the arbitrator and disputing parties, while impartiality considers the arbitrator's conduct over the equal treatment with the parties. The aforesaid distinction includes such a legal effect that each of these two concepts shall be considered as an autonomous and separate cause for challenging arbitrators.