Comparative Law Researches
Year:2018 | Volume:22 | Issue:3 (101)|Papers Count:7

Impleader is one of the ancillary suits that parties to the dispute according to it can claim against third party. Although Iran’ s legislator in the laws related to this claim has not specified conditions of mentioned claim, according to article 17 of civil law, it should be related or have the same origin with main claim, so that the court can hear and decide them altogether. The result of being related or having the same origin of impleader with main claim is that relief of impeder can be different from relief of main claim. American’ s Federal Rules of Civil Procedure has provided different legal mechanisms for aggregation of claims that three of them are similar to regulations of impleader in Iran’ s law which are as follow: joinder (rules of 19 and 20), impleader (rule 14), cross claim (rule 13). The basis of study is Iran’ s law, even though comparative study with American’ s Federal Rules of Civil Procedure will be done as well.

Free trade is a concept that has been attempted to formulate international documents with a definite and binding definition. International commercial documents are agreements that seek to establish multilateral relations at the global and regional level. The best multilateral international trade document is currently the WTO. The provisions of this organization as well as the provisions of GATT 1947is very important to recognition of the headquarters of international trade. The environment and its protection, although not specifically covered by an agreement In the WTO system But considering it as an important exception in free trade Which is evaluated in most of the paragraphs "b and e" of Article 20 of the GATT. In addition, the trade agreements of the World Trade Organization Including the TRIPS, Gats, the Agricultural Agreement, the Technical Barriers to Trade Agreement, Agreement on Health Measures and Plant Health have specific regulations for protecting the environment and non-renewable resources. In regional trademarks such as the EU, The NAFTA and Mercosur Regulations also support the environment and sustainable development are the main goals of the custodians of those documents. This article describes the status of the environment in Both global and regional commercial documents and analyzes The strengths and weaknesses of these documents in the direction of respect for excellence acting on environmental regulations and standards in trade

The obviation rule is the most applied rule in penal jurisprudential rules and plays a significant role in the scope of specified punishments (Hudud) and other punishments. The rule significance-which coincides to global criterion of human rights, the principle of human dignity, and guarantees the fair trial-explains that whenever the committing crime, the attribution of crime to the defendant or existence of other circumstances in proving the charge lies in doubt, the judge must interpret the laws in favor of the defendants. In this article, moreover explaining the legal foundations and jurisprudential predicates of the rule, the definitions and the criterion of doubt is also studied to draw a framework for the rule. The legislator in Islamic Penal Act 2013 has stated the rule’ s significance in s. 120 & 121 that contains the doubt in committing the crime and its’ circumstances, doubt in crime’ s elements and the conditions of criminal responsibility. Some jurists, specially the Hanafi jurists, have extensively applied the rule and others, such as Zaheri and Imami jurists, for example Ibn-e-Hazm Andolosi and Ayatollah Khoyee, have shown indecisions which are signify non acceptance. It must be studied that the rule significance has other thing than innocence presumption or not, or essentially we must suffice to it up to rational principles such as innocence principle. The undue limitation in obviation rule’ s scope which arises from inherent human dignity of the defendants will have negative impacts undoubtedly, because the scope of the rule, moreover the procedural and substantive laws, establishes the right of evasion of punishment and the right of non-applying the specified punishment again for persons

There are two main approaches in the constitution of the Islamic Republic of Iran; In the first approach, equal value to the principles of the constitution has not been considered and some of the principles are in a higher position so that the hierarchy of constitutional principles is considered. In the second approach, the constitution is regarded as integrated collection and no one has superiority over another and in case of any ambiguity, all the principles should be interpreted according to the principle of popular sovereignty. As a result, two different conception of popular sovereignty is conceivable that sometimes argued as different sovereignties; dual and single. There is a meaningful relationship between the notion of sovereignty in the constitution and the people's right to self-determination. The main research question is that, which concept of the sovereignty to be recognized by the constitution; dual or single? What is the impact of the recognition of each approache on the people's right to self-determination?

There seem to be conflict of interests between protecting environment and supporting foreign investment. On one hand, expropriation is mentioned in investment agreements and arbitration practice. On the other hand, host states emphasize on states sovereignty and expropriate foreign investor by claiming environmental and natural resources protection. To solve the conflicts between foreign investment law and international environmental law, some international agreements, instruments and awards mentioned the priority of environmental protection. Foreign investment arbitration practice has a considerable approach in this regard. Arbitral tribunals assessed the claim of environmental risk as a cause of legitimate expropriation. Since compensation is a result of legitimate expropriation, arbitral tribunals mentioned it in their awards. In some cases, according to international practice or findings of the tribunal, as occurrence of environmental risks seems to be serious, the tribunal assessed the host state approach as a legal act and the compensation is excluded.

Equity, for resolving disputes by a judge or an arbitrator, is sometimes used as a general principle of law ("equity") and sometimes as the high moral principles that can put aside the law ("ex aequo et bono"). A part from the practical effects of distinction between these concepts, it is settled that they are different from each other in several aspects. The origin of equity, in its present sense, dates back in national laws to the Roman Germanic system of law to 1625, on the basis of the Aristotle's thoughts in this regard, and in international law to 1920. Equitable solution, on the basis of ex aequo et bono relates, in domestic law, under the influence of Uncitral Arbitration Rules, to 1976 and, in international law, to 1920. Equity is usually a legal norm which, in decision making, is taken into consideration as a part of law. While the nature of ex aequo et bono is a judicial discretion on the basis of which the judge, disregarding the law, decides about the matter. There is often no need to the consent of disputing parties regarding equity, but use of ex aequo et bono, in any case, requires the consent of the parties. Equity in the law of Iran, except within the context of Art. 27 (3) of the International Commercial Arbitration Act, has been used as a general principle of law, often implicitly, in the law and legal precedents.

In civil law systems, damages for breach of contract are divided into loss suffered and loss of profits. But in Common law systems, a party to the contract is regarded to have three interests: expectation, reliance and restitution. Breach of contract deprives the aggrieved party from one or more of these interests and entitles him to claim the related damages. Contract damages in proper sense include expectation damages. It has a relatively long background in Common law systems and is regarded as the most important basis for determining contract damages. In the face of expectation interest, some Common law experts attempted to support reliance interest. Although their theory could not satisfy the courts, in practice it has deeply affected Common law literature on the criterion for assessing contract damages. Following civil law approach, Iranian legal literature as well as some Iranian Acts adopted the twofold division of damages, but study of Common law approach could help in the understanding of the aims and types of contract damages too. This article tries to introduce these three interests and damages and study the position of Imamyyah fiqh and Iranian law in this regard