Public Law Research
Year:2018 | Volume:20 | Issue:59 |Papers Count:9

The concept of power has always been controversial and disputed between political thinkers and philosophers. Modern paradigm of power has taken shapearound the idea of Hobbes where power is based on the concept of sovereigntyand understanding in relation to the government. This concept of power hasbeen persisted in the views of other scientists in this field. In postmodernism, new paradigm of this concept was developed by Foucault's ideas about power.From this perspective, power is not concentrated in the hands of the governmentbut is plural in society and does not operate negatively, instead it has a positive, productive, and ultimately shapes the identity of human subjects. Two issues ofpower and public order are related in modern legal and political thought andtheir connection in the relationship between State and society can be understoodclearly. In the postmodern condition, perception and understanding of societyand government has changed and work order in such a society, unity andequality in a nation-State is not monolithic, but rather post-modern social orderis based on the principle of difference and specificity of individuals and groups.The present paper after the introduction of postmodernism has tried in light of itto explain the concept of power and public order which are the foundations of public law.

It took humankind a long time to realize its inability to understand different aspects of environmental risks and find that it would bear irreversible damage if such a risk occurs.Knowing the vulnerability of the environment and the limitations of science to accurately predict threats to it, led to emerging the precautionary principle. This concept has stemmed from domestic legal systems and is being developed in international law. Various Formulations of the principle and its including in binding and nonbinding international instruments in varied fields have resulted in controversial discussions between states, Tribunals and Commentators on Its legal status in International law. They are at least divided into two groups: some who are on customary status of the principle and some who entitle it as a general principle of law.This paper examines different views towards the legal status of the precautionary principle in International law and try to give a reasonable opinion at the end.

Recently, the resource-rich countries by adopting a variety of policies hasintended to increase their shares in petroleum operations. The law enactment asto the requirement for local content utilization is a way through employing theworkforces, equipment and products locally provided in the territory byincreasing the value-added to the country’s economic other than the extractionproject. Upon oil exploration in Iran, especially after the nationalization ofpetroleum industry and also the Islamic revolution, different rules andregulations have been enacted in respect of local content. Currently, the “Lawon Maximum Utilization of Manufacturing and Service Rendering Capabilitiesto Resolve the Country’s Requirements and Strengthen them in the Course ofExport and to Modify the Article (104) of Direct Tax Act” is the most importantinstrument which reflects the local content requirements including: projectassignment to Iranian companies, Iranian-foreign joint venture or foreigncompanies, performance requirement, respecting minimum percentage (51%), information requirement, monitoring and controlling requirement and refers tothe sanctions of defaults and exceptions.This article attempts to explain each of the mentioned requirements, sanctionsand exceptions and refers to the existing gaps by considering the characteristicsof petroleum industry and proposes respective recommendations as to the case.

Challenge of arbitrators is a controversial issue in international arbitration ingeneral and in ICSID Arbitration in particular. There is a consensus that thelack of impartiality and independency leads arbitrators to be challenged.However, there is a duality of standards for challenging arbitrators. Ininternational commercial arbitration and international investment arbitrationwhich are not based on the Washington Convention, the standard is based on thestandard of "reasonable doubt". By contrast, ICSID Arbitration adheres to thecriterion of "lack of manifest" by virtue of Article 57 of the WashingtonConvention. The majority of ICSID Tribunals make a distinction between ICSIDArbitration and non-ICSID arbitration, which is unsatisfactory and could becriticised. By evaluating pertinent ICSID Arbitration cases, this Article arguesthat ICSID regime is ambiguous in terms of the challenge of arbitrators. Itconcludes that for the purpose of adopting a unitary standard for the challengeof arbitrators in international arbitration, ICSID Arbitration Rules as amendedin 2006 and some ICSID cases have provided the basis for invoking the standardof "reasonable doubt".

Recent armed conflicts have confirmed that the use of explosive weapons is amajor cause of civilian death and injury and destruction and damage of civilianresidences and critical civilian infrastructure. Although there is no dispute thatany use of explosive weapons in populated areas must comply with the rules of IHL, there are divergent views on whether these rules and principles sufficiently regulate the use of such weapons, or whether there is a need to clarify theirinterpretation or even to develop new rules.

The strategy of government for facing with music concert is examined fromviewpoint of either intervention or supervision. In the intervention strategythrough security forces, the government enforces artists for receiving priorpermission and license for holding music concerts. In fact, applying licensingsystem limits the artistic rights, especially the right to freedom of artisticexpression and the government may supervise over music concerts before, during production and before presentation and only upon issuing license, themusician is able to present the show on live stage concert. In the secondstrategy, it is focused on the principle of freedom and the government uponproduction of music and only in case of confronting with crime and violation oflaw, may intervene in a music concert. According to positive law in Iran, a verystrict licensing system in the Ministry of Culture and Islamic Guidance isestablished that apart from its fundamental weaknesses, refers to selecting the“intervention strategy”. But also in practice, the second strategy is appliedthrough police force and the Judiciary. Thus, it refers to a chaotic mixed systemof intervention and supervision with different approaches that in addition to beillogical, may lead to wasting the capital, time and energy of musicians. Thepresent article examines this issue and offers the following solutions: establishment of administrative courts by maximum partnership of music guildsystem (unions) at Ministry of Culture and Islamic Guidance and appealjurisdiction of court of administrative justice in single stage for all plaintiffseither musicians or the government.

After Islamic revolution in Iran, principle 171 of the Constitution made avery serious change in civil liability of State and judges. The State became liablefor the mistake of judges though the act of judges is an act of State authoritywhich did not cause liability for State according to article 11 of Civil LiabilityAct. That principle was on the favor of victims but in reality there were rarely anaward to compensate them. In new Islamic Criminal Code and the new Code ofCriminal Procedure, there are some new articles relating to the liability of Statefor issuance and enforcement of judicial decisions. The question is whether thesenew articles made any changes in bases, conditions and effects of liabilityderived from issuing and enforcing judicial decisions and whether these changesare in accordance with the Shia jurisprudence or not. In this article, thesequestions are discussed and in addition, focus has been put on the problems ofthe new Acts.

During the Naseri era, both Amir Kabir and Sepahsalar had reforming plansfor the judiciary system. The most significant challenges of their administrationperiod included the religious versus conventional courts, the extent to whichclergymen could intervene in judiciary affairs and a change of attitude in thescope of judiciary affairs. This study has investigated the relationship betweenthese two reformative plans. The results indicates the major reformsimplemented by Amor Kabir as follows: the reformation of the religious court, establishing the court of justice (house of justice), revoking the convention ofsanctuary and a pay cut for the clergymen, whereas Sepahsalar executed thefollowing reforms: publishing the guide booklet of the judiciary power's courthouse, enacting laws to support the proletariat rights, restricting the ruler' sauthority and creating a new judiciary structure. Both reformers tried tostrengthen the conventional court against the religious court. It seems that, regardless of similarities, they were following different approaches. Amir musthave intended to perform justice through some reforms influenced by Occidentaltrends, whereas Sepahsalar tried to use the law as a driving force for othersectors of the society to move toward development.

This paper attempt to review the biases of taking costs of proceedings in the administrative litigations. the 1392 administration and rules of procedure in Iranian administrative court tribunal act in Article 19, has been appointed that the cost of proceedings in the lower branches was one hundred thousand Rials and two hundred thousand Rials in appeals chamber. In the appendix of this article is provided on the sum of the inflation rate announced by the central bank of the Islamic Republic of Iran, corrected every three years with the proposal of the president of administrative court tribunal, confirmation of head of the judiciary and then approved by the cabinet. Therefore, litigation in administrative court tribunal is required to pay costs of proceedings. the main hypothesis of this article is based on the belief that except for some exceptions, the 1932 act Is moving towards accepting the theory of taking costs of proceedings in administrative actions.