Comparative Law Researches
Year:2019 | Volume:23 | Issue:2 (104)|Papers Count:7

Since the health of the human community is very important, and on the other hand, free trade has undeniable benefits, there must be a balance between the freedom of trade and the health of the community so that people benefit from both. Therefore, in order to minimize potential conflicts between commerce and health and maximize their benefits, there is a need for greater interaction between business and healthcare policymakers in mutual awareness of the policies of the parties, as well as the establishment of codified principles to support both of them, Next to each other. This article attempts to examine the important and fundamental agreements of the World Trade Organization and the importance of the public health for the World Trade Organization. In light of the review, it seems that the World Trade Organization has tried, while respecting its principles and objectives, such as free trade and non-discrimination, to take into account public health and, in its agreements, The conditions for countries to limit free trade, if necessary, to protect the public health and health of their societies.

The broad concept of arbitrability in American law involves the inclusion of an arbitration clause on the subject of the dispute as well as referability the matter to the arbitral tribunal. The legislator forbids some claims in accordance with the political, social, and economic interests of the community from referral to arbitration. " competence-competence " principle allows the arbitration authority to comment on the issue of the discretion of the arbitrator`s jurisdiction arising from the validity and scope of the arbitration agreement. The Federal Arbitration Act does not explicitly exclude the competence-competence principle, but the court practice in america has accepted the principle of independence of the arbitration clause as a condition of arbitration and also exemplifies the authority of the arbitrators to determine their jurisdiction. By virtue of revised uniform arbitration act, the resolution of the dispute about the existence of the arbitration agreement and the inclusion of the subject in the arbitration agreement is principally within the jurisdiction of the court. International Commercial Arbitration act of Iran, while accepting the principle of independence of the arbitration clause, provide that the arbitrator can decide on his competence, as well as on the existence or validity of the arbitration agreement. In domestic arbitration, although the opponents of the principle relyon Article 461 of the Code of Civil Procedure of Iran, but the implied intention of the parties as the basis for accepting the qualifications of the arbitrators in determining their jurisdiction can be invoked.

Regarding the historical process of defamation in common law system, we find that this concept, despite of maintaining its traditional status as a crime, has also penetrated into civil rights and is known as a tort currently, and seeks to create a balance between the right of Freedom of expression and protection of right to privacy. A tension that has become a major controversy in democratic societies. In the common law system, pseudo-crime of defamation, which reflects the protection of the reputation of individuals, due to its non-overlapping with other civil crimes is considered as an independent pseudo-crime and in legal system of Iran and has been legistated in a wide range of fields. However, the main issue of this study is that the civil liability of defamation with such a wide range meaning is also acceptable? In this regard, we have decided to conducta comparative study and emphasizing on the legal and practical approaches in countries following common law legal system to review the legal capacities available to explain the concept of defamation, as well as the conditions for recognition of civil liability arising from it. Although some justifications can be found in accordance with the general rules of civil liability and concepts such as intellectual property, but the lack of distinct laws and integrated jurisprudence in this regard will undermine the scope of its admission.

Due to the particular role they play in macroeconomics and the fact that they offer a unique set of services to the general public, banks have attracted attention of legislators. Considering the bank's bankruptcy and its very negative effects, especially since the great economic crisis that began in 1929 in the United States and then spread to the whole world, began and the legislators concluded that the general rules of bankruptcy of companies to handling insolvency of banks is not enough. Therefore, in most legal systems of the world, when a business company is bankrupt, it is governed by general bankruptcy rules. But if a bank goes bankrupt, it has tried to consider specific rules for their bankruptcy considering the specific nature of banks in the country's economy and the differences with other commercial companies. The United States is one of the systems in which bankruptcy regulations of banks are completely different from corporate bankruptcy regulations. In Iranian law, though, unlike the US the bankruptcy system of banks is not completely separate from the bankruptcy system of the companies, and if the bank goes bankrupt, the rules of the bankruptcy act are considered to be general regulations and other monetary and banking regulations are specific rules, and the result is that, in the absence of specific provisions, apply the bankruptcy rules of commercial act are implemented.

Currently, in Iran's legal system, the will of the endower has a crucial role in determining the custodian of the endowment, and the Articles 61 and 75 of the Civil Code assert that no one has the right to change or restrict the power of the explicitly determined custodian, and even in the case of treason the custodian, respecting the will of the endower, the legislator according to the Article 79 of the Civil Code foreseen to add a trustee to the custodian. However, in the legal system of Iraq, the expedient of the endowment and its beneficiaries is preferable to the will of the endower and, in accordance with the Article 19 of the Nezam Al-Motevallin if the actions of the custodian are in contradiction with the material of the endowment and its beneficiaries, due to breach of trust, the privilege of the endowment is dismissed. The results of the study of documents, laws and regulations, and the analysis of the text and content indicate that the approach of the Iraqi legal system that opts for the change of the explicitly determined custodian for the expedient of endowment and its beneficiaries has more positive effects compared with the legal system of Iran while emphasize on to keep the explicitly determined custodian for the respect of the will of the endower.

Armed conflicts in each and every place of this planet have different consequences, one of the most important of which is the destruction and damage to the environment. In order to protect the environment in international armed conflicts, the rules for environmental protection in the areas of international law has been conducted and the principles and rules of international responsibility of governments have been explained the destruction of the environment in the conflict and their obligation to compensate for the damage. These areas are currently subject to the general rules of international responsibility in international public law, due to the significant progress made by international environmental law and international criminal law, in recent decades, the elaboration of specific international rules for protecting the environment in international armed conflicts is necessary. This article attempts to examine the limits and effects of the responsibility of States resulting from these violations by analyzing the rules governing international environmental law and international criminal law. Identifying the challenges and complexities associated with determining the international responsibility of governments in this regard is another achievement of this study.

In the US legal system, the courts, using the theory of vicarious copyright infringement and aiming at cultural development, impose the responsibility of copyright infringement on those who indirectly contribute of the formation it. In this system, with establishing the control of one upon another and the acquisition of the financial benefit resulting from the infringement for the person having control, the vicarious liability would established Jointly and severally. In jurisprudence and legal system of Iran, there is no general theory of vicarious responsibility, and examples of vicarious infringement are subject to the general rules of civil liability, such as the combination of direct and indirect causes which according to the doctorin of Islamic jusrist, jurisprudents' opinion, will lead to the responsibility of the direct cause, unless indirect cause, would be considered stronger cause under the custom. Given the role of the copyright system in the cultural development of societies, it is recommended that the Iranian courts, expanding the notion of being stronger cause, in some cases, provide the possibility of imposing a responsibility on those who provide copyright infringement tools. In this research, an attempt is made to explain the concept and conditions of copyright infringement in the United States and Iran through a descriptive-analytical method with hints to some civil law systems such as Germany and France.