PRIVATE LAW STUDIES
Year:2016 | Volume:45 | Issue:4|Papers Count:9

Based on section 179 of Iranian maritime Act, 1343, if salvage contract is concluded under the influence of danger or undue influence and its terms are inequitable or if the consent of one of the parties is vitiated by fraud or when the remuneration under the contract, in proportion to the services, is actually rendered too large or too small, the contract may be annulled or modified by the court at the request of the party affected. These regulations that have been adopted from section 7 of convention for the unification of certain rules of law relating to assistance and salvage at sea, 1910, and because of the accession of Iranian Government to international convention on salvage, 1989, those which have been repeated in section 13 of the Act for granting permission to the Government of the Islamic Republic of Iran for accession to international convention on salvage, 1373, are not so compatible with the principle of being obligatory of contracts, general regulation pertaining to duress and fraud in contracts and the prohibition of courts from their modification.

Development of technology and communications, especially emergence of the internet as well as states’ inclination to achieve a harmonized protection of intellectual property rights in international level in the last three decades, have brought a new perspectives on international jurisdiction and recognition and enforcement of judgments in the field of intellectual property rights. The most important international document covering relation between private international law and intellectual property law is Convention on Choice of Court Agreements 2005. Despite the significance of the topic in international arena, the Iranian legislation lacks jurisdictional provisions with respect to intellectual property disputes. This article attempts to highlight positive consequences of Iran’ s membership in the Convention, discussing the drafting history of the Convention and analyzing its provisions regarding jurisdiction and recognition and enforcement in intellectual property disputes.

Lawyers according to their routine, act as individuals or partners. Today, according to regulations of certain countries, corporations or other firms can provide legal services including handling of court cases under specific rules. Under Iranian law, there are no specific regulations governing the practice of law within a corporate structure. However, legal practitioners can form corporations, co-operatives and non-commercial firms to provide certain legal services. With respect to granting these corporations license to render legal services, it should be noted that there are no specific regulations in this regard. Due to this fact, different interpretations have been given by jurists concerning this issue. Some believe that granting such a license is not forbidden, since according to Article 588 of Commercial Act, legal persons have the same rights and obligations under Iranian law as a natural person. What is understood from Article 2 of "the Nature of Acquiring License to Render Legal Services Act, ratified in 1997" regarding qualifications of volunteers seeking license to practice law is that only natural persons can be granted such a license. In practice, to this day, the license to practice law has not been granted to corporations and firms and courts do not recognize legal persons as lawyers. So, contrary to countries such as the United States of America, practicing law in courts which is the most important function of corporations is considered illegal in Iran. But due to advantages of practicing law by legal persons and in order to fill the gaps that give rise to abuse, it is necessary, as in other countries, to organize the current state of affairs and allow such persons to practice law under specific regulations.

Iranian legal system has been established based on Imami Jurisprudence and its main sanction against violating the established rules on validity of contract is nullity. Moreover, there are other concepts such as relative nullity or null amendable in law, but not as a general rule of law. While Afghanistan's legal system, in addition to rules of null and ineffective sanctions, recognized and confirmed another general rule based on the Hanafi jurisprudence as "Fasî d" (Vitiation) that causes the Nullity in this legal system to have grades, and in cases whereby the contract is amenable, its nullification is prevented and the contractual relationship of parties continues. Such concept could also enter the Iranian legal system, not with all its consequences, however, as a rule and replacement to concepts of the specific.

In the previous article written by the author of this paper we saw that Economic Principles Governing Legislation Policy in the field of Copyright make legislator enact efficient Laws and Regulations on copyright and prevent him to enact contrary regulations in the same fields. The previous article considered three economic principles and now this article tries to examine two economic principles, i. e. Cost-Benefit Principle and Efficiency Principle, as well as general rules resulted from them and their situation in Iranian Copyright legislation. Since there is no article considering economic principles and their relation with copyright legislation policy in Iranian legal literature, this essay aims to examine the mentioned issue and tries to prove this hypothesis that Iranian Legislator has not paid sufficient attention to economic principles in enacting copyright laws and regulations.

The theory of hardship is a situation in which the implementation of contractual obligation, as a result of unpredictable events that are out of control, becomes economically difficult and expensive without being physically impossible and distorts the balance of the contract. In such a situation, the hardship theory is applied to restore the balance of the contract. This matter has various titles in several legal systems such as unpredictability theory and sever and unexpected hardship. However, the approach of different legal systems is not equal in the same situation. Even though all legal systems agree more or less that in such situation the binding nature of the contract is unjust and justify their position by various basses, the solution of these systems and their bases are different. Some legal systems tend to solve the problem by granting exemption and have adopted the dismissal resolution and some of them have adopted the adjustment of the contract. The current study aims to examine these effects and the best effect and maintenance of the best effect (adjustment of contract) which is compatible with the contract rules and principles as well as the concept of hardship theory.

Article 251 of the Commerce Act (CA), although mentioned among the articles related to the commercial documents, is the sole Article which seeks to determine the manner of reference among the liquidators of the bankrupt sureties. Although this Article has apparently disrupted a normal practice asserting that liquidators of none of the bankrupt sureties are allowed to refer to the liquidators of the other bankrupt sureties, instead it states that remnants of what has been allocated to the document holder in excess to his claim, would be reimbursed respectively to the liquidators of the bankrupt sureties who have the right of reference to others. This research shows that the legislator in promulgating this article has considered various principles and has adopted a clever and exact solution. Thus as far as the priorities and division of responsibility among the bankrupt sureties are concerned, the Article 251 CA acts as a bedrock.

Altering nationality is a right for persons. According to rule 588 of commercial law, legal persons can have the complete right and duties of persons, except rights and duets that only human can have due to his nature such as rights and duties of fatherhood, sonny etc. In Persian law, unlike persons, there is not any rule about altering nationality for legal persons especially companies and there are some texts only about ltd and stock company altering nationality. Regarding reference of right and duty of legal persons to natural persons in addition to especial characteristic and mandatory nature of nationality, limited texts exist on whether altering nationality in Persian law with respect to absence of special law on form of nationality altering, is permitted or not. The way of doing that is vague in Persian law, an issue which is addressed in the current article. In comparative law, this issue is addressed as border mobility of companies and accepted as a principle in Treaty establishing the European Economic Community; moreover, prohibition of altering nationality or acceptance of new nationality cited in some internal laws is modified, but in Persian law, altering nationality is a mandatory rule and altering that is not permitted.

Biogenerics production has been done in lots of advanced industrial countries since last decades and its legal aspects are adequately addressed. On the other hand, the need of our country to these drugs is inevitable and its production in recent years has begun without taking its legal aspects into account. We don’ t have any legal system to regulate biogenerics production and commercialize them in markets in a legal way except Domestic Common Law. Notably, improper products can give rise to unforeseen side effects and cause different kinds of damages. So, it is necessary to study them more.