Comparative Law Researches
Year:2018 | Volume:22 | Issue:2 (100)|Papers Count:7

The Contract of Sale as one of the most exchanged contracts requires each parties to perform The Obligations against the other Party. According to the Vienna Convention, the Seller is required to perform the Obligations against the Buyer. The question is that whether Usage is effective in determining of The Obligations of the Seller based on the Convention on the International Sale of Goods? Parties to the contract are not required to predict and specify all details of the contract, It is sufficient to reach an agreement on the elements of the subject matter of the contract and Usage and Supplementary law determine other details and the effects of contract (specifying the rights and obligations of the parties about it). Article 220 and 225 of the Civil Code confirms this claim. Usage also have an important role based on the Vienna Convention 1980, because, in the Convention on the International Sale, in addition to being, the parties are bound by any usage to which they have agreed and by any practices which they have established between themselves, are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned. In this Research will examine the effect of Usage and Practice in determining the Obligations of the Seller. By induction under the provisions of the Convention, we get the general result that, in the assumption of the absence of an agreement on the determination of sellers obligations, according to Article 9 of the Convention, Usage and Practice will undoubtedly determine the sellers obligations. Therefore, in the absence of an agreement between the parties on the commitment to certain Usages and the lack of Practice among them regarding the Sellers obligations, if the conditions of the Usages referred to in paragraph 2 of Article 9 of the Convention exist, the seller will be obliged to comply with it. Finally, in the absence of decisive rules, the Seller is bound to fulfill its obligations, In accordance with the Supplementary Provisions of the Convention. The same situation exists in the Iranian law.

The inherent flexibility exists in the administration of proof in arbitration has led parties and arbitrators to reaching an agreement on the best possible solution to this process, which has resulted in approaching various legal systems together in this regard. Concerning this subject, the parties of arbitration usually endeavor to apply the best practices in the field of rendering proof, and the arbitrators are tending to evaluate the evidence provided in a coherent manner, regardless of the nationality and origin of the parties. This function, although typically performed and written, has never been a requirement as a result of conflict with the description of flexibility. However, the enforcement of guidelines in a manner consistent with the institution of supplementary rules in the legal system of law seems to be the appropriate solution that will ultimately make arbitration more predictable and more favorable. This paper has considered the international efforts made to standardize administration of proof, which have not yet been mandatory. Thereafter, it has been explained that these guidelines, if agreed by the parties, kept silent, or being brief, and not explicitly, implicitly, or customarily objected to the guidelines in the contract, govern the administration of proof. This function seems to create a kind of coherence in the administration of proof, and is not in conflict with the description of flexibility.

Corporate governance has defined as a set of regulations and assessment of corporate operation to balance between stakeholder's interests and to guide company's policies toward maximum level of efficiency and profitablity. In this broad sense, corporate governance complies with rules governing running firms. in the narrow sense, corporate governance refers to requirements for governing and accounting public companies that has been introduced after major American corporates scandal which resulted to ratification of Sarbanes-Oxley Act in 2002. Studies show, corporate governance requirements can be categorized in three groups: requirements for governing corporation, requirements for accounting and requirements for protection of minority shareholders. In this study, we introduce requirements for corporate governance (in the narrow sense) and compare Iranian laws and regulations with US and UK. As a result, we found that although there is some regulation for registered public companies in Iran's capital market in this issue, but Iranian law hasnt fulfilled all necessary requirements for better corporate governance. Hence, we suggested some modifications in Iranian commercial code.

Observance of fair trial principles in the competition infringement proceeding is one of the most important issues in procedural law. The importance of the issue lies in the fact that the process of investigation and prosecution held by the sovereignty and the accused economic undertaking does not play a role in it; hence, in most legal systems, in competition proceeding, the accused party has some rights including the right to access to the file, the right to be heard and the right to have legal representative and the competition authority has some duties as wellº such as the duty to confidentiality, the duty to act within reasonable time and the duty to give reason. Using the experience of other legal systems and the observance of fair trial principles by Competition Council can help to promote the competition law in Iran. This article reviews the procedural rights of economic undertakings and the duties of competition authority in two separate parts.

General average which is against particular average ý expresses a concept that any loss or damage has been intentionally and ý reasonably made or incurred for the common safety to properties in a common maritime ý adventure should have been contributed among all those who have been benefited from this act. ý General average adjustment concludes recognition of general average act, adjustment of losses and finally contributing of ý the loss among others. After that General average act occurred and the Adjusting work granted to the ý Adjuster, he shouldþ þ issue the General average adjustment after certifying thatþ þ the General ý average act had been occurred. For setting up the General average adjustment, he should first ý adjust the Losses. Losses would cover both damages and losses. ý properties which are subject to damage are the ship, cargo and freight that their loss is investigated. loss of freight in this chapter will be included in losses to cargo.

Following the emergence of transnational phenomena, societies and norms, these relatively new phenomena organized and articulated by a group of theoreticians under the term of "theory of transnational law". The theory of transnational law as a theory with not a long history has raised many issues. While evaluatting the results of this theory pursuant the presenting the concept of transnational law, one of the most important issues, and perhaps earliest one is to study the theoretical basis which are necessary and help the scholars in describing how to face the normative products of transnational law in existing legal orders. The theoretical foundations that explain how transnational law is conceptualized can be regarded as the most recent theoretical achievements of law, an attempt to wear the law new camouflage by transnational law. The richest and most powerful of these theoretical foundations can be considered in two schools of legal philosophy-legal positivism and legal sociology. In this paper, while examining the views of these two schools on how to transpose international law into the existing legal order, it has been attempted to determine the status of each in the field of study of transnational law by extracting the distinct aspects and achievements of these two in this regard.

Letter of credit, since its emergence, has undergone various transformations regarding doctrines and legal procedures, the majority of which revolves around the domains of autonomy from the underlying contract and exceptions to these rules. The principle of autonomy of letter of credit aims to facilitate and build trust for the international trades, it is, however, one aspect of this principle. On the other hand, this principle can be subject to abuse. It is possible that the beneficiary hands in forged documents to banks, or maybe the underlying contract itself is illegal and therefore null which can lead to an unjust enrichment. To limit the abuse of this principle, the first step is to recognize the exceptions of fraud and illegibility. However, its stipulations are not limited to this domain. Emergence of new exceptions l, like ‘nullify’, has raised controversies in legal procedures and doctrines.