Legal Research
Year:2022 | Volume:25 | Issue:98|Papers Count:16

Indefinite Iqa’,and Unilateral Commitment,the Challenge, Evaluation, ResultAbbas GHASEMI HAMED (Professor of Law, Shahid Beheshti University)Abstract: Iqa' has legal effect through intention of one individual without harming any other party (except as explicitly mentioned in legal cases including Divorce). In Iran's civil code one category of Iqa' is nominated with especial names and has specific legal effects similar to the definite contracts, while the validity of indefinite Iqa' is subject to discussions and controversies in Iran's Law. This disagreement regarding the general validity of unilateral commitment to create legal responsibility refers to disagreement about validity of indefinite Iqa'. Now this question is raised: are there any reasons implying the general validity of indefinite Iqa' otherthan those which are explicitly included in law concerning definite Iqa'? In other words, are there any citations relating to accuracy and validity of indefinite Iqa' and unilateral commitment as well as those relying on Art. No 10 of Civil Code infavour of indefinite contracts? It seems that based on Art. 30 of Civil Code, indefinite Iqa' has legal validity in the field of Financial Rights. Accordingly unilateral commitment about Financial Rights as an example of indefinite Iqa' is correct and encompasses legal effects.

One of the challenging debates in the era of corporate law is the applicable laws in corporate groups. After the extension of the scope of the activities of the corporations in different countries via establishing subsidies, other laws than lex societatis arose to apply. The later laws are different from the law applicable to the company: the realm of execution and legal nature. From the perspective of the first viewpoint, these laws have excluded the classic principle of legislation i. e: territoriality, which means that they apply extraterritoriality. From the second aspect, the particularity of the mentioned laws is the overcoming disciplinary and public nature of these laws in comparison with lex societatis. In corporate groups, two theories of control and a single economic unit are the base of the extraterritorial application of the law. According to the theory of control, the parent company can control the subsidiaries' regulations, in addition to the management and economic dominance based on the theory of a single economic unit, the members of a corporate group, are governed by the same law, if the had economic unity. The conclusion of this research is that in spite of the fact that the laws governing corporate groups do not argue to prevent the application of foreign law like public policy, the status of corporate groups has affected the applicable laws and has obliged them to comply with a set of public and private laws including territorial and extraterritorial, the fact that indicates the increase of supervision of states on corporations.

The International Law Commission published two separate draft articles on international responsibility in 2001 and 2011. Each draft article deals with the international responsibility of one subject of international law, namely, States or international organizations,however, the two drafts contain many similar or even identical provisions to one another. Among those provisions, the two articles in each draft article that refer to the general conditions for incurring international responsibility are significantly identical. Pursuant to those articles, international responsibility arises when a legal person commits an internationally wrongful act. This paper discusses the theoretical as well as practical difficulties that would arise from applying the same general conditions for the responsibility of states to the responsibility of international organizations. Having illustrated the difference between states and international organizations as to the number and type of international obligations, the paper will then focus on the attribution of the conduct of an organ to the international organizations by discussing different judicial opinions on the issue.

In many projects, project financing has progressed beyond the feasibility study and bankability of the project. This issue is more important in project finance in comparison to other project financings. the term project finance implies that the underlying debt is non-recourse or limited recourse to the project sponsor and project finance lenders base credit appraisals on the projected revenues from the operation of the project and the revenue-producing contracts and cash flow. That is why the bankability criteria of the contractual networks in project finance need to be analyzed.

One of the areas in which the Iranian criminal legislature has dealt with criminality is culture. Ethically, the criminal law of Iran has faced theoretical and philosophical challenges. The Iranian legislature, according to its own philosophical, moral, and value boundaries, determines and interprets the limitations of the theory of criminology and appeals to criminal law through these limitations. Within the scope of government, intervention is not a sufficient behavior for criminalization, but in addition to considering the theoretical limitations of criminalization, a number of limitations in the criminalization of the field of culture, this area faces many practical challenges and on the one hand, the legislator on the issue of criminal necessity. That is, resorting to criminal law and using informal social control tools before any criminal intervention and matching and coordinating criminal titles in the field of culture with the general expectations of society and the principle of explicit attention, and on the other hand, assessing the benefits and harms of criminality in culture The possibilities of the criminal justice system, the creation of discriminatory territories and the possibility of abuse in law enforcement, the risk of weakening the moral power of criminal law, disarmament and potential criminalization of criminal law as a result of the process of labeling and shaping the conditions Due to criminalization, some criminal behaviors in the field of culture have not been considered.

Nowadays, independent directors as one of the most important institutions of good corporate governance have progressed from the doctrinal stage into a dominant concept in corporate law. These directors are capable of becoming compatible with any legal system and at the same time have the amount of flexibility and comprehensiveness to be able to accommodate the legal concerns and values of different societies. Independent directors are independent of the company, management, and controlling shareholder in terms of business and family relationships,In such a way that while emptying the maximum of conflicts of interest, it acts more justly in their decisions and more impartially in their monitoring. Considering that this institution is entering the Iranian Companies Law through the Corporate Governance Instruction of the Stock Exchange and Securities Organization and the Bill for Protection of Small Shareholders, explaining the basics of admission and especially its advancing challenges is important. Therefore, the present study with the analytical-descriptive method has concluded that the agency theory, the principle of prevention, and gaining the trust of investors, including the main basics and groupthink, achieving independence, and the elections system are the most important challenges in accepting independent directors.

The increase in litigation costs, including court costs, attorneys' fees, expert's fees, etc., has made access to justice challenging for some people. Therefore, potential claimants turn to existing tools, including third-party litigation funding (TPLF), to cover these costs. In TPLF, the third-party funder, who is not originally a party to the suit, finances the party’, s litigation costs in return for a share of the proceeds of the court verdict or settlement. Although the TPLF can meet the needs of some people to cover the costs of litigation, due to its infancy, it brings with it major challenges. Challenges have different dimensions and involve the judicial system as well as TPLF actors, including imposing a high rate of return on the funded party, funding frivolous lawsuits, control of litigation by the third-party funder, Problems with disclosure, breach of confidentiality, and Inadequacy of capital and many other challenges. The Islamic Republic of Iran is no exception to these challenges. Allowing TPLF in the absence of regulatory bodies and governing regulations, in addition to creating the above fundamental challenges for the funded party and the other party to the dispute, can lead to increase problems in the judicial system.

In addition to shaping the principle of cooperation, especially through joint agreements between the neighboring countries of the Caspian Sea, the precautionary principle as one of the important principles in protecting the environment of the Caspian Sea can be helpful. Relying on the precautionary principle and the best available scientific evidence, the environment of the Caspian Sea can be preserved and used rationally. Therefore, the question arises what are the obstacles to applying the precautionary principle in protecting the environment of the Caspian Sea? The present study has concluded with a descriptive-analytical method that this principle has a logic as a principle and the protection of the Caspian Sea environment within the framework of the precautionary principle and reasonable attention to the harmful effects of non-compliance with this principle, although it has an effective role in protecting this watershed, in practice, especially in politics and law, it is very vague and could not fulfill its promises, and due to different interpretations of the precautionary principle, and not penetrating into the domestic legislation of the Caspian littoral states, and the severity of the danger or even the existence of danger and costly application of this principle, as well as the lack of an effective monitoring mechanism and system of responsibility, has not been able to help its mission, which is to protect this water area, and therefore it will become the subject to different perceptions and powers of countries.

Cloud computing represents a delivery model for information technology (IT) services, allowing users to access and store information, and utilize software functionality, on remote servers owned or operated by third parties typically over the internet or private networks. A considerable number of contracts are the Terms of Use that are available on the provider’, s website for review by the customers and are offered on a standard-form take it or leave it basis with little or no scope for negotiation. However, In the case of large commercial or government cloud contracts, such Terms of Use will sometimes be negotiated. In this study, more than 30 foreign Terms of Use and 14 Iranian Terms of Use have been surveyed and common terms in cloud contracts have been divided into three categories, based on their subject: data handling,liabilities and responsibilities,and other terms. Then, the ubiquity and validity of each term have been explored in the legal system of Iran and in some cases from the perspective of the European Union and the US legal system. Our results demonstrated that the form of these contracts is somewhat the same in different legal systems. However, they have different approaches to cloud contracts in terms of description and validity. Furthermore, there are certain similarities between the Iranian and foreign Terms of Use and these contracts could be construed as free contracts.

Documentary law is the predominant document that is introduced as the most obvious criterion of the decision in public institutions, and most legal commentators and analysts have examined it by examining issues related to interpretation as if no variable is effective in the decision except law. However, in the light of interdisciplinary interventions, many variables have arisen and their number has increased day by day, and they have not considered decision-making based on law alone to be imaginary. It is now recognized that attitude, intellectual and philosophical basis, a mental schema, strategy or strategy, personality traits, peer behavior, etc. are among the factors influencing the decision. The weight of each of these variables in the decision needs further investigation, but most previous studies indicate that attitude has a much greater impact than other factors and is the first model that influences the decision because attitude is a firm model. Under the influence of inheritance and education, it has such power that it influences and easily overcomes other variables. Even the law and the contents of the file and documents are interpreted and evaluated from the perspective of the individual. Following the answer to why this impact and the impact of the issue was formed, what criteria and patterns and how it affect the decision of the public official from a legal perspective? In order to reach the answer of this research, the present research was formed by the library, analytical and descriptive method. Directs that the influential factors can be divided into two categories: external and internal, which include internal including genetic characteristics, personality, and attitude, external including law, conflict of interest, co-worker practice, and strategy or strategy.

Directive 790/2019 on Copyright and Related Rights in the Digital Single Market is the latest regulation in the field of intellectual property law to be adopted and recently implemented in the European region. These regulations are based on a new legal regime that introduces certain components in the field of intellectual property. In this regime, data mining and educational use in the form of limitations or exceptions with a narrow domain in the context of the digital environment and the right to news is provided for press publishers, in addition to online sharing service providers are required to fulfill obligations to filter works. Right holders will also have the authority to modify their contracts and exercise the right to withdraw literary and artistic works. The important question is what the components of the new system are. And what assessment can be made of the nature of the regulations? The present paper concludes with a descriptive-analytical method that in the new regime, a liability-based regime has been established for the basis of specific legal entities in order to establish limitations and exceptions and control the use of works in parallel with the implementation of some intellectual property law provisions. It could soon serve as a model for other countries regulations, although the added value of new exceptions will not be widespread in the consumer community.

Competition law in recent years has realized the growing importance of a huge volume of data with variety and velocity characteristics in the platform and digital markets, which are reduced to meaningful information by employing artificial intelligence and machine learning process, and sometimes serve legitimate competitive purposes and sometimes shows its potentials for violating competition law norms. Having clarified the exact concept of big data and its functions in the competition field, this paper is going to show how big data has been employed as a tool for collusion among competitors and how dominant undertakings misuse their position by taking anticompetitive practices such as unilateral refusal to share or giving discriminatory access to big data, restrict the competition for competitors, and by exploiting the potential of big data, extend their market power unduly to vertical or related markets. This paper also clarifies the important role of big data in the concentration process and critiques the extention of implementing traditional competition law criteria governing mergers and acquisitions in the field of big data. Analyzing the current framework of Iranian competition law suggests that regarding the general and ambiguous existing laws, we can’, t regulate competition-oriented challenges of big data, and in addition, the approaches adopted in the new regulations are subject to serious criticism. Regardless of the fact that advanced competition law systems are also confused in confronting some big data issues, the most important step in Iranian law to solve related competition problems arising from big data is to understand the requirements of digital markets and adopt a particular competition policy of such markets and pay attention to the role of big data.

Mediation, as one of the well-known and old methods of dispute resolution, unlike arbitration and litigation, does not have enforceable results in international cases. Notwithstanding of the ratification of the United Nations Convention on International Settlement Agreements Resulting from Mediation, due to its young age and a small number of members, it has not yet been able to overcome the important shortcoming of Mediation, namely the lack of compulsory enforceability. So one way to give enforceability to a settlement is to insert it into an arbitration award so that the executive support of the New York Convention can be exploited. On the other hand, due to the consensual nature of the mediation and the adversarial nature of the arbitration, there are questions and problems with the possibility of applying the New York Convention to the conciliations reflected in the arbitration award. These problems are mentioned in these clauses in the present article: "possibility of the non-existence of arbitration agreement", "lack of dispute between the parties", "possibility of violation of the defense rights of the parties ", and "exceeding the limits of the arbitrators' authority", "lack of seat for an arbitral award", "lack of some arbitration standards, including reasoning". Finally, this article concludes that it is certainly not possible to guarantee the enforcement of an arbitration award that reflects conciliation between the parties under the New York Convention, but it is possible to increase the chance of enforcement of such an arbitration award by applying some considerations in the proceedings.

In the Iranian legal system, economic, social, and cultural development plans are prepared in the form of “, law”,and in the form of five-year plans. Despite the assumption of three characteristics of ”, being planned”, , “, being temporary and timely”,and “, being in line”,with the goals and policies of economic and social development for this group of laws, examining the content of this group of laws shows that a significant part from the provisions of these rules, it has no relation to all or part of the mentioned features. In the form of descriptive-analytical research, while pathology of the content of the five-year development plan laws, it was concluded that the view of parliamentarians on the program laws as a suitable platform for legislating any issue that is expected of them and this factor has caused some anomalies in legislation and has undermined legislative discipline. Therefore, legislation in order to “, establish a permanent organization or organization”, , “, amend ordinary laws”, , “, provide for the rights and duties of citizens”,and “, reform the role or competence of legal institutions and authorities”,should be done in their own laws.

In this article, moral and legal requirements in terms of semantics, ontology, epistemology, logical issues, and the relationship between them from the perspective of the late Haeri are examined. Many scholars have examined Haeri's view of the moral must, but his views on the legal must and the relationship must be moral and legal have not been examined. From a semantic point of view, he considers morality requirements as a means of non-essential necessity, and he considers a legal requirement as a means of credit necessity,From an ontological point of view, he considers morality requirements as the real relation between doer of moral action and action, but he considers law requirements as a credit derived from the construction of reason to achieve social order and justice. Epistemologically, he considers moral and legal statements to be predictive, but the preceptor for conformity with reality is considered to be the moral requirements of human wisdom and the legal requirements of common sense, which are formed on the basis of collective will in order to achieve social order and justice. In logical discussions, by delivering sentences that contain moral requirements and legal requirements to predicative sentences, he transforms the subject of should and existence into a relationship of existence and existence and considers this relationship in argumentative ethics. It seems that the lack of separation of semantic issues from ontology in the late Haeri's point of view has caused a mistake in the semantics of requirements, and the lack of a complete way of explaining ontology requirements and the way of revelation recognizing in the epistemology of law requirements is deficiencies of his point of view, Paying attention to them will be useful for the relative impact of ethics on rights.

For the first time, after World War II, General Agreement on Tariffs and Trade (GATT) made effort to pursue free trade between members in the form of tariff reduction. Besides, it was tried to counter trade destructive approaches like subsidies, dumping and overt tariffs and find solution for them. In 1994, World Trade Organization was established in the UN framework as the most inclusive organization in international trade field and replaced GATT. The organization targeting expansion of world trade on the basis of work division system, has based several principles among which mention can be made to guarantee of fairness in free trade between members. WTO has followed GATT attitude toward free trade and fairness in free trade. Assuming the necessity of supporting members by the organization, fairness in free trade relations and prevention of malicious competitions, the present paper has tried to explore available approaches in the organization’, s documents and its dispute settlement body practice for reparation of damages which members incur in unfair competitions and concludes that WTO regulations and practice could succeed to make a good balance between import and safeguard measures, between dumping and anti-dumping measures, and between subsidies and countervailing measures