PRIVATE LAW
Year:2016 | Volume:5 | Issue:16 |Papers Count:6

Model Law on International Commercial Arbitration has been a source of inspiration for numerous countries. In choosing a legal structure، there is a strong tendency towards adopting a monist legal regime based on the Model Law. In Iran، as a result of the ratification of Iranian International Commercial Arbitration Act (ICAA) in 1997، Iranian arbitration law has changed its structure from monism to dualism، that is، the Civil Procedure Code is applicable to domestic arbitration، whereas ICAA applies to international arbitration. The duality of the system is not an appropriate legal structure. This article argues that Iranian arbitration law should be based on monism. It concludes that not only should Iranian arbitration law be in consistent with the Model Law 2006، but it should also extend beyond the Model Law by providing a more comprehensive legislation.

The concept of equity has been existed for a long time in all cultures as well as different fields of knowledge particularly law and morals. Elaborating this concept، legal systems and commentators from different legal scholarships have pointed out to some common elements enabling the maintenance of the dynamic nature of equity and its various functions in the field of law، and more accurate identification of its main core as well as theoretical and practical recognition of equity’ s function، bearing in mind its capabilities، in the realization of human society. Some of the issues discussed in this paper include historical development of the concept of equity from the very past to its current situation، the concept of equity in the Islamic law، introducing the most outstanding studies conducted globally by legal scholars about equity، and assessing different theories expressed in favour of or against the employment of this concept in law. Based on these discussions، specific conclusions on the inter-relation of equity and law is presented which I hope would properly benefit the Iranian legal scholars.

In accordance with the Law on Protection of Rights of Authors، Composers and artists، Act of 1348، protection of literary and artistic Work and identification of author ownership right، starts after publishing. From this time onward these rights can be transferred through succession or testament. However، Article 65 of the Civil Law Enforcement، Act of 1365; allow the successors of the author to publish the unpublished work of their testator after his death and benefit the 50 years support. In other words، a literary and artistic work can create two materials right: One، after publishing till the author’ s death، which is profitable for the successors until 50 years after his death، the other is the right provided after publishing the work by the successors and after author’ s death. This creates an unreasonable result، First، ''unpublished (by the Author) works can be protected by law (whit publishing by the successors)''، and second، "The decision to publish the work، one of the moral rights، can also be inherited''!

Take-or-Pay clause (T-o-P)، as an essential element of long-term off-take and supply contracts in energy sector، particularly in Gas Sales Agreements. The philosophy of T-o-P clause is based on the importance of the fact that the seller will receive a level of revenue guaranteed under the agreement that covers massive financial commitments and debts arising from the upstream project. Although T-o-P clause is frequently considered in GSAs، the validity and applicability of this condition is subject to controversy among different legal systems. Some lawyers have treated this provision as a penalty clause which is invalid and unenforceable. However، others regard it as a valid and enforceable liquidated damage clause. This paper first focuses on uncertainties and ambiguities regarding the legal status of take-or-pay provision، particularly in English legal system. Then، it discusses the issue by considering the fundamentals of Islamic contract rules and jurisprudence، particularly Iranian legal system reflected in the Iranian Civil Code.

Although “ Data” do not in principle come under exclusive protection and are subject of data-sharing principle، certain occasional benefits may necessarily make them to be protected on an exceptional and sui-generis basis. “ Test data” fall within the scope of such exceptional cases. Protection of test data carried out by countries are based on their largescale policies and in proportion to their extent of development. This has caused a remarkable diversity in forms of protection. Protection of test data has been considered in international instruments. The most significant one is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Article 39. 3 of TRIPS، in particular، deals with protection of test data. This article first attempts to define test data and to review necessity for tools of test data protection based on Article 39. 3 of TRIPS. Then، it proposes a suitable form of protection for Iran as a developing country.

The high level of confidentiality is the most important feature of mediation. In fact، confidentiality is at the heart of mediation. In this article، the safeguards of confidentiality in mediation is examined from international perspective by comparing UNCITRAL Model Law on International Commercial Conciliation 2002، The European Directive on Certain Aspects of Mediation in Civil and Commercial Matters 2008، WIPO and relevant ICC rules. This study demonstrates that the main principle of mediation is based on confidentiality and therefore، its exceptions should be limited and interpreted narrowly. To promote mediation، it is necessary to provide rules dealing with the confidentiality of information exchanged in the mediation process in the best possible manner. At the same time، the advantage of confidentiality should not be misused by opportunists.