Journal of Comparative Law
Year:2022 | Volume:8 | Issue:2 (16)|Papers Count:12

The reparation of damages and access to an effective remedy is one the most important method of international law for protection of human rights. On December 16, 2005, the United Nation General Assembly has adopted the resolution on “ Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims ofGross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” , which is a comprehensive document on the right of remedy and reparation of damages for violation of human rights. In Iran’ s legal system, the reparation of damage is in the framework of civil liability and so this question arise in what extent the Iranian mechanism for reparation of damage is consistent with the international norms, recognized in the resolution of basic principles and what is its role for providing an effective remedy and reparation. Addressing such issue can be beneficial either for better understanding of international mechanism and also for enrichment of national legal system. Regarding the fact that international norms in reparation have roots in national laws, finding the similarities between national and international mechanism is predictable.

Nowadays, theft of nuclear material and devices to commit terrorist acts is the most important nightmare for the international community. In this way, the activists of the international law system criminalized nuclear theft, to combat offenses related to technology, in the 1979 Convention on the Physical Protection of Nuclear Material. Considering the aforementioned instrument and the Convention on Nuclear Terrorism 2005, the terrorist and non-terrorist aspects of nuclear theft were specified. Thus, the Iranian legislator, despite the appropriate measures, such as the criminalization of not declaring the theft of radiation sources, has not still established a strong criminal policy, especially for nuclear theft in its terrorist aspect. On the other hand, the Federal legislator of the United States has criminalized nuclear theft in both terrorist and non-terrorist aspects. Hence, the accurate explanation of the subject of nuclear theft, the proportion of criminal sanctions, and the recognition of the universal jurisdiction are important measures that are based on the United States Criminal policy. Accordingly, the present paper aims to analyze the nuclear theft policy in Iran and the United States of America and to introduce a deterrent criminal policy against nuclear theft.

"Ehsan" rule is among Islamic jurisprudence rules that in order to support good Samaritans, knowing excluded the tortious liability arising from their actions. Similar to this rule, is the doctrine of Good Samaritan Immunity that has formed in common law with a 2000-year history and like “ Ehsan” rule and Good Samaritan will be considered exempted from liability. Each of these rules is considered some conditions for good Samaritans that that agree in two conditions: acting based on good faith and no consideration for action. Aside from the exemption of good Samaritans that have been investigated in numerous books and articles, significant issue is the exemption of good Samaritans from liability that is not unqualified and absolute. Good Samaritan also is liable for losses resulting from his actions although the action is motivated by charity and gratuitous. Among these are creation of intentional damages, more losses and any legal or contractual duty in helping others and with harm in from of loss, which will be studied in this paper.

New stem cell technology is one of the most advanced technologies in the present world has put many challenges to policymakers. Despite many efforts in the framework of formal and informal arrangements have done, unfortunately the rules in this issue also require a serious plan and effective enforcement guarantee. In this case, modeling and reviewing comprehensive laws and the judicial process of developed countries can be effective in drafting the required country code, by that, while localizing the relevant components and cultural and moral values which are in line of the country, by expressing the existing challenges and the ways to get out of them. Accordingly, present study in a descriptive-analytical study by using library and documentary method while analyzing the concept of England laws have been applied criminal law system strategies of the above-mentioned country in the field of stem cells technology and observed significant standards in the field of stem cells punishment. According to the result of the present research it has been suggested to policy makers in order to legitimize researches of stem cells technology to formulate "stem cells law" and determine banned behaviors against relevant crimes and guarantee of criminal offenses for crime offenders and also emphasis on the formation of legal entities in order to control and supervising mentioned activities.

The punishment of multiple offenses, due to the need to strike a balance between the two main principles of punishment, justice and correction, faces fundamental challenges to justification. By leaving aside the comparison of multiplicity of T'azir crimes with the Hudud and the amendments to Article 134 of the Islamic Penal Code, the rational justification of this kind of punishment has become necessary. Therefore, this article by using a descriptive-analytical method, in an attempt to reconcile the institution of crime multiplicity with the philosophy of punishment and in the light of a comparative study of this issue in the three legal systems of Egypt, Germany and the United Kingdom, intends to ask the question that "what are the desirable principles and models for determining the punishment of real multiplicity of T'azir crimes? " The British legal system, striking a balance between the two goals of justice and correction, has proposed a model of the relative aggregation of punishments, which is a combination of the model of the real and judicial aggregation of punishments. German and Egyptian law follow the real aggregation model and have limited this model. The punishment of multiple crimes in Iranian law due to ambiguity in purpose has followed all models and this has caused in some cases, the severity of the penalty for multiple offenses and sometimes less than other legal systems. This hesitation has been against both apparent and real justice and against the correctional purpose of punishments.

Today, pioneering economic factors have caused interactors to advance their economic and business goals conclude contracts in different ways which are unusual with the known traditional legal rules. By including these ways are the conclusion of multiple or mutually interdependent contracts, whether they have a common purpose or a similar subject, known as the "Contractual Group". This contractual way, because of the many surrounding parties are involved in and required great contracting operations in the local and international deals, and sometimes it is possible lead to conflict of interest, termination, or cancellation between those involved. It requires increasing scrutiny that have given two considerations about: First, contracts affect each other and the cancellation or termination of one affects the validity of other contracts, and second, contracts are independent of each other despite mutual contractual interdependence and have separate effects on contractual relations. The present article attempts to provide a preliminary analysis of this legal phenomenon.

Nowadays through the bulky extent of body allegations to each other in the courts, make legal systems confronting with many problems, like much longevity of cases prosecution, pay attention to some substitutionary options instead of formal courts procedures. As example can indicate, is amiable resolutions which today, more or less, use to being utilized. In the way, the most important to notify, is courts roles in encouraging of parties to compromise with each other completely or partially through the amiable resolutions, out of engaging courts time. The present contribution by the prospect presented, after conceptualizing the amiable resolutions, tries to outlines courts roles in encouraging of parties in triangular legal systems; common law, civil law and Islamic Iranian law. As the contribution conclusion, it would be so amazing to know that all these triangular legal systems by their basic rules have been paying attention, much more than can be imagined, to the judge roles in encouraging parties to amiable resolutions. However, through the vacuum of Iran civil procedure law in the present case, although, in presence of some other laws indicating the matter like; criminal procedure law & family law, Iranian today judges through the lack of acknowledgement because of civil procedure law vagueness, have no colorful role in the indicated field that is necessary to be reformed.

The purpose of this study is to identify the degree of transparency of information on the environmental requirements of upstream oil and gas contracts in Iranian and American law. In addition to the library and documentation study, with emphasis on the Delphi method, a questionnaire containing 24 questions was used that assesses the transparency of the phases in the life cycle of the hydrocarbon project, including approvals, operations and closure. This questionnaire is developed by the British Company Worley Parsons in partnership with API and is approved by the jurisdictions of ten countries. The statistical sample consists of 12 experts. Acquiring of an approval in both countries, an environmental assessment is required. Gaining this approval in Iran costs $75000 employing less than 10 people, but in the US, it costs $2000000 employing 50 to 100 people. There is no law of freedom of environmental information in Iran, while such a law is enforced in the US. In the phase of operations, the environmental requirements in the US are more obvious. Contrary to the US, the project closure plan is not available to the public in Iran. Totally, Iran has 9 scores and the US 26 scores at the level of transparency, so in the life cycle of a hydrocarbon project, the United States are more transparent than Iran.

In order to complete provisions of Articles of association and corporate bylaws, shareholders set up a series of ancillary agreements on the structure and operation of joint stock company, such as agreements on management of the company, voting methods in general meetings, share transfer methods and the like. In comparison with corporate documents, shareholders side agreements own different characteristics and status in Joint Stock Companies. However, relevance and reciprocity of these documents in practice is undeniable. According to the general rule of Article 975 of Civil Code, in order for the agreements of the shareholders to be enforceable, their provisions must not violate mandatory rules relating contracts and commercial companies. Shareholders parties to the agreement or the joint stock company, if is a party to the agreement, can request fulfillment of the obligations arising from the agreements form the obligator. In addition to legal sanctions provided for breach of contractual obligations, shareholders may provide for additional contractual sanctions such as penalty clauses and liquidated damages, suspension of voting rights, or expulsion from the company. Due to the lack legal provisions in Iranian laws, shareholders are not obliged to disclose shareholder agreements before Company Registrar Office. Moreover, shareholder agreements cannot be invoked to the detriment of third parties such as non-agreement shareholders, company creditors or the government.

According to the theory of the autonomy of the will, human freedom and equality guarantees that the contract is fair and no one can refuse to execute the contract on the pretext that it is unfair or unjust. However, the proliferation of unequal contracts, such as labor and consumer contracts, has questioned the generality of this presumption and has led to protective regulations for protecting the weaker party of the contract. One of the important rules for the protection of consumers in the consumer acts of different countries is the possibility of removing unfair terms from the contract in order to re-establish a relative balance in the contractual relationship of the parties. However, the prohibition of unfair terms only in the consumer contracts is debatable, and It is a question that If there are such inequalities in the contracts between businesses, whether such terms should also be prohibited, or on the basis of the principle of contractual freedom and because of the commercial nature of these contracts, the contract should be binding on the parties, despite its unfair terms? In summary, it seems that prohibition of unfair terms should not be confined to consumer contracts, and if there are inequality in the bargaining power between the parties in commercial contracts, it seems necessary the prohibition of such unfair terms in these contracts too.

The most important mechanism for achievement the truth in international commercial arbitration is opting out the type of governing system on arbitration process. In this regard, the arbitrators should select the appropriate system among the adversarial, inquisitorial and hybrid systems. Flexibility of international commercial arbitration process as a private solution for dispute resolution and the specific needs of each case in this area required that the arbitral tribunal takes into account the conditions governing in the cases of international commercial arbitration and chooses the efficient system for arbitration process. This article in parallel scrutinizing and studying the difficulties of each approach of for recognition the appropriate system in international commercial arbitration process analyses the types of governing system on arbitration process the approach of the Prague Rules on the Efficient Conduct of Proceedings in International Arbitration that approved in December of 2018 tries to introducing effective mechanisms in discovering the truth.

The Amiable composition is a system for resolving disputes and is recognized in international arbitration. In The French legal system, the judge can be entrusted with a mission of amicable composition by the parties. In ancient Iran, villagers argued with Kadkhoda, but as governments came to power, traditional methods of resolving disputes replaced government judicial systems, resulting in litigants trying to prove themselves right; Whereas in traditional methods of resolving disputes, such as an Amiable composition, the dispute was tried to be completely resolved in order to achieve eternal peace. Unfortunately, the dispute resolution councils could not reach a compromise In order to achieve an amicable composition, the rule of law must be abandoned He realized that guaranteeing legal rights was not the only way to resolve disputes. Contrary to the judgment, that seeks the winner and the loser, in an amicable composition one must look for a way that may not be legal but resolves the dispute. An amicable composition requires creativity, training and experience, so the best place to develop it is the courts. This article, based on French law, suggests a mission of amicable composition