Comparative Law Researches
Year:2019 | Volume:22 | Issue:4 (102)|Papers Count:7

Nowadays, the arbitrator can issue various protective orders in the arbitral process in international commercial arbitration. Some of these orders are so important that if the arbitrator makes decision incorrectly about the order, the award on the merits will be ineffective for winning party. The order of security for costs in arbitration is one of the above-mentioned orders. The respondent in the claim or the respondent in counter-claim requests the arbitrator to grant an order against the plaintiff for paying the sum of money. If the arbitrator’ s final decision on the merits is not favor of the plaintiff, the costs of respondent for defending the frivolous claim will compensate from money. There are both advantages and disadvantages for ordering security for costs, but the advantages of this order are so much that the possibility of granting this order whether expressly or implicitly is accepted in most arbitration laws. With considering non-mentioning of security for costs in Iran’ s International Commercial Arbitrations Law, the essay first is trying to study the concept and nature of security for costs order and second survey the possibility of ordering of it under Iran’ s International Commercial Arbitrations Law.

The article deals with a semantic scrutiny into the meaning of "restitution" of illegally possessed property and its relation to similar concepts. Here "restitution" has been used in its absolute meaning, i. e. "dispossession of a person from property obtained without legitimate and legal cause", and not limited to "returning of the object to its legal owner". Based on this, to establish the truthfulness of the concept of "restitution, there is no need for a private plaintiff to exist-contrary to whose interest such illegal possession runs, rather, the Substitute Asset is classified under the concept “ restitution” . The Arabic rule "حرمت اکل مال به باطل" (meaning: prohibition of eating the wrong property) and wide scope of concept of “ مال حرام” in the Islamic jurisprudence also supports this Opinion. In British Law, according to the most recent viewpoints, in order for the "restitution" to take effect the illegal possession should not necessarily be to the detriment of the plaintiff or any other third person; rather the axial fact is that nobody’ s property is expected to increase unduly. In the Iranian and British legal texts, this meaning of restitution (dispossession of a person from illegally obtained property) has been mixed with similar concepts especially "confiscation", and has created a kind of Semantic confusion. Relying on the priority of meaning over the apparent wording, the article seeks a suggestion to this existing confusion and disparity.

In Legal Terminology, Collateral is as back of loan repayment or for obligation responsibility. Despite that Collateral in economics has different functions. In this paper we focus on Economic functions of Secured Transaction, and its role in Microeconomics and Macroeconomics. The Economic efficiency of the collateral is cleared by economic analysis and the theory of efficient breach that comprehensive secured transaction is able to make efficiental location of goods and services and finally strong economic functions. In studying this collaterally Institution we get that this formality can effect on positive role in economic development by access to credit easily. So for increasing Economic officiency of secured Transaction, we need to revise our laws and regulations that have been mentioned in international reports about this approach.

Collective litigation is a proper tool which can empower vulnerable people by collecting the power of numerous and affected but disempowered people against a powerful party. Before importing the procedure in our legal we need to respond some theoretical problems. First is the dependence to group and disappearing personal autonomy in a collective litigation, however the procedure can ensure the litigant interests in the best way. Second is the promotion of unfair compromises-or in other words-legalized blackmail. It's really a defect in the procedure, but Shiite's Fiqh validates a conciliation that based on an untrue claim. Finally, the third is the intervention of an unauthorized representative. We may solve this problem by the concept of adequacy of representation on the context of a functional red of unauthorized representative. Explanation of these main problems shows us that using of the procedure still is better than ignoring. The peper concludes that utilizing this procedure need to promote the groups' position in our legal system.

Most legal commentaries consider the rule of 'prompt application of new law' as an exception to the traditional doctrine of 'law is prospective and not retroactive' with regards to the procedural rules and conclude that any new procedural law has the retroactive effect. The Iranian Supreme Court opted the same view in its unifying judgment No. 743. However, the prompt application of new law is a part of the rule of 'law is prospective and not retroactive' (as formulated in article 4 of Iranian Civil Code) and cannot be considered as an exception to the latter accordingly. The distinction between the two parts of the rule is to be taken into account: i) law is prospective which refers to the prompt application of new law on all situations of the same nature and ii) law is not retroactive which means the new law would not govern the past legal relations. These topics are mainly discussed in a branch of law called 'transitional law' (Droit Transitoire). In this article the unifying judgment No. 743 of Supreme Court is commented from the view point of transitional law having a view on French legal system for the purpose of comparison.

Due to the increasing growth of the software industry and its financial value, the issue of using software as collateral has been taken into consideration by the laws of the countries for financing. Security interest in software as a financing instrument in the UNCITRAL Legislative Guide on Secured Transactions (Supplement on Security Rights in Intellectual Property) and Article 9 of the US Uniform Commercial Code is adopted. However, effectiveness against third parties, is subject to registration. if registered, must be filed in the Federal Copyright Office, otherwise the security right must be filed in the secretory State’ s Office. In the case of invented software, the current procedure is the dual registration of security interest in the secretory State’ s Office and the Federal Patent and Trademark Office. In Iranian law, collateralization of software has been questioned Because of the intangible nature of it. Some regulations such as Securities Collateral Directive, dated 6/19/2010, securities and shares considered as tangible asset and collateralization of them has been possible. Also, software Proprietary Bonds are securities under the Directive of deposition and transaction of intellectual property bonds. Thus, these securities, like all other securities, are objective, and it is possible to collateral them with physical delivery or prediction of a security right registration system.

The typically covered prison’ s nature in the one side, and in the perspective of authorities of these settings, insignificance or at least being low importance of people held within there in other side, creates some type of sense of immunity that sometimes expose the basic rights of detainees in an irrecoverable risk. Lack of an independent mechanism of oversight of prison/custody as well as inmates’ complaints, led to expansion of natural tendency of these settings to remain at anonymity and non-transparency. On the contrary, trying for transparency and accountability of prisons’ authorities through regular & independent oversight of their treatment with detainees, decrease the risk of power misuse in this settings, use of force within them (sometimes in serious and even fatal degree), Sense of immunity and being immune of punishment and guarantee the basic rights of who deprive of their liberty. In prison system of Iran, despite of some efforts for oversight of detention settings, most acts stayed at a level of within-system oversight and in fact had also been done in a reactive not active or regular manner, generally after media disclosing of some event within them, in response to public opinion and after numerous formality and most degree of restrictions. Using the related sources about oversight of prison/custody and inspection of them, this paper meanwhile examining the international standards in these issues, studies the challenges and solutions of US and UK tries to along with examining the accepted mechanism in Iranian prison system tries to analyse the content of documents and formal discourse in these issues, examine the applying of these mechanism in fact.