PRIVATE LAW STUDIES
Year:2018 | Volume:48 | Issue:1 |Papers Count:12

“Investment Contract” which is also known by the name of “State Contract” or “Economic Development Contract” is the prevalent method of making enormous investment projects especially in the developing countries. This type of the contract embraces a vast array of subject matters and includes disparate type of agreements. The main feature of an investment contract is that one party to the contract is essentially a “State Entity” or a “Public Law Entity” and the other party to the contract is a “Private Law Entity”. Following the conclusion of an investment contract, the legal framework of the rights and obligations of the parties and the enforcement mechanism closely resemble private law paradigm. The usage of the term “State contract” in Iranian legal literature shows two distinct applications, one of which conforms to the concept of “investment contract” as we delineate its features and nature in the present article.

According to Fiqh and Islamic law, Waqf is defined as allocating part of one’s possession for a certain good purpose. In other words, waqf is supposed to be free from narcissism and profiteering and devoted to altruistic activities. In some cases, however, Waqif (founder) signs waqf contract so that he benefits from it. Now the question raised here is whether the mentioned waqf is correct or not The present study revealed that self-endowment, paying waqif’s debts and expenses out of Mawqufa’s benefits, waqf for Nafagha and the condition under which al-Mawqufa (the property given as waqf) can be given back to waqif are voided while waqf on public beneficiary, waqf on offspring and parents, and waqf allocating the interests for a given period and the interests for waqif’s lifespan is correct.

The waqf of the property of the Islamic Azad University, in spite of political discussions, has some jurisprudential and legal challenges that can be considered about truth of this waqf and the similar waqfs of the future. The main issue in this research is to examine these challenges and find answers for each one. The legal personality of the the Islamic Azad University has the capability to perform legal acts like waqf as a genuine person, but the person do the waqf and the managing director can only take possession of the property within the limits of the competency of the university (carrying out educational and research matters), and act outside of specialty such as godliness and gratuitous affairs and without regard to the interests of a legal person, it would invalidate action. The condition of ownership has done -except on these lands that has done waqf or in mortgages or university land that are disputes- because the property of the university is private. Under the conditions of doing waqf, the intention just for Allah can be based on the acceptance of criminal liability for a legal person and the possibility of supposed intention of it, but the condition for the acceptance of the waqf by the ruler of the Islamic scholarship regarding the Azad University has not been observed.

Merger among undertakings attaining IPs has had increasing trend in the last two decades and as well competition law has been more sensitive and has enforced more effective control on them. Although competition law applies same general rules governing on mergers in IP domain but their characteristics require particular attention to the specific elements which make possible exact examining the competitive situation of merger in a regulated framework. Having analyzed U.S and EU merger law approaches, this article is going to explain the particular aspects of mergers involving IPs and their effects on Innovation and technological progress and finally specify their competitive situation. While the complexity of the issue and increasing developments have directed legal systems to review merger evaluating criterions and more focusing on the features of changing Innovation and technology markets, the current competition rules and attitudes of Iranian merger law in the absence of specific competition policy relating to IPs has caught in deficiencies, ambiguities and wrong approaches that demands serious modification and providing a transparent and comprehensive legal framework.

In French law, there arise controversies about legal notion of proceedings’ relationship (lien d’instance). Some authors addressing on proceedings’ connection as real riddle. Some other qualified this relationship as contractual or quasi-contractual and refer to it as judicial contract- as formerly described in reference to, especially during the classical period in Rome. Some authors believe that best leave the contractual qualification of the proceedings’ relationship unto Roman Law, because the litigants’ obligations have only the legal origin. Despite the aforementioned criticisms, very principles of civil procedure law may authorize qualifying as contractual, the concept of civil proceedings.

The principle of "the responsibility of the employer to pay the premiums," is an accepted principle in contributory social security systems. The principle in the Social Security Act, together with the legal principle of "responsibility and commitment of social security organization in front of insured for non-payment or delay in payment of premiums" have been proposed. Apparently, these two principles are in conflict, but knowing of their legal basis and solutions can allow for compensation due to non-payment of premium. Review of previous research in this area shows that recovery of premiums, especially in cases such as lack of access to employer and lack of recognition of him is not considered. This paper through on analytical and comparative approach shows, the bases of employer's liability is "the distinction between debt and obligation to pay" and the basis of organization s liability is principle of "supporting" in the social security system and implementation of this tow rules is possible by establishing a comprehensive system of "business registration" and a "guarantee fund for damages resulting from non-payment of premiums.

International investment law now recognises the right of foreign investors to bring a claim directly against host states. This right is often provided in multilateral or bilateral investment treaties. However, this principle is now under threat by measures known under the term of "Treaty Shopping" taken by investors to take advantage of investment treaties between host states and countries other than national states of investors.in order to benefit from these treaties, investors have devised means to acquire the nationality of states that have signed the target treaty with host states. These conducts are sometimes taken by ingenious investors as well. Host states have designed various means to confront treaty shopping. One of these solutions is drafting treaties in a manner that prevents wrongful benefit of investors without the nationality of states that have signed favourable treaties with host states, before any dispute arises and be taken to arbitration. The insertion of "Denial of Benefits Clause" in investment treaties is one of these methods. This paper studies the concept, history and evolution of this clause in light of practice in order to determine its level of efficiency in preventing treaty shopping.

Using celebrities' name and other characteristics in commercialization of goods and services is a feature of modern marketing. The exploitation of celebrities' name, image and likeness is protected as publicity right in the American legal system which is governed by special rules. In Iran, the executive order on the use of artists, actors and athletes' image 2014 has, for the first time, protected the publicity right, but it only deals with its generalities and is not enough to meet the society’s needs. This descriptive-analytic paper proves that publicity has economic value and is considered as property. There authors believe recognition of this right is necessary given the economic and commercial progress and development of today’s society and is not in contradiction with foundations of imamia jurisprudence and Iranian law. Yet, the balance between individual and public interests in the form of preventing the excessive spread of publicity right is an important issue which must be considered in determining subjects, persons protected and the limits of this right.

Legal analysis to causes and commands of resort to court for election of joint stock companies’ temporary inspector or comparative explorative analysis of the legal questions on companies’ temporary inspection had not so far been approached by the specialists perhaps because of its extraordinary scientific complexity. This research shows that there are many differences between the law governing the directors’ board members and the executive manager on one side and the law governing the inspectors on the other side. Besides, there are considerable differences between the laws governing the main and temporary inspectors. These differences show that for the Legislature the inspection is more sensitive than management and considering the appointment of the temporary inspector by the court is a reason as well a consequence of this sensitivity. Seeing a company for a few months does not have a board of directors or an executive manager is comparatively easier tolerable for the Legislature than seeing it without having an inspector or sufficient number of inspectors. As well, decisions and operations of disqualified directors’ board’s members and disqualified executive managers are tolerable for the Legislature, whereas the reports of a disqualified inspector are never acceptable.

In common law punitive damage is a renowned institution. The traditional approach is that punitive damages are unavailable for breach of contract. The dominant elements (basis) of this approach are non-recognizance the possibility of deterrence and punishment in contractual liability and that punitive damages and efficient breach are heterogeneous. In this article we consider and study that how could justify awarding punitive damages in contractual liability and is there any theoretical justification for this view in French and Iran legal regime? We argue that in these legal regimes in additional to reparation of damages, deterrence and punishment are desired objects. The authors argue that punitive damages are accommodated with defendant conduct. the conduct which has an element that necessitate punishment whether that misconduct accompany with breach of contract or a tortious act.