Legal Research
Year:2009 | Volume:- | Issue:SUPPLEMENT 1|Papers Count:16

The most -favored nation clauses used to be inserted in the friendship and commerce treaties between states. Within the last three decades, the number of bilateral investment treaties has been increased between states whether developed or developing. The MFN clauses have been included in these treaties.The extent of such clauses primarily concerned substantive protections. However, as to number of the bilateral investment increased and the possibility of direct action by investors against the host states at the international level arose, the question has now arisen as to whether the clauses can have a jurisdictional operation too? Namely can the investor by relying on the clauses benefit from the privileges of the settlement dispute clauses contained in third bilateral investment treaties? Or that operation of this clause (MFN) is only to apply to substantive standards of protecting foreign investment.This subject analyzes in this article in respect of international arbitration proceedings. The analyze clarifies this concept in international investment law and shows the jurisdictional operation of this concept.

In the Present article, Conversions of administrative Law in Perspective of redefinition of government role and its relationship with society, economy and citizens, will be studied. At the beginning, three historical conceptual Periods and contributions of each period for administrative law, and then the idea of new governance and its influence on the administrative law would be explained. This study indicates that primary paradigms on which, classic administrative law is based, have been collapsed, but other paradigms have filled these gaps. In continuation of our study, good administration doctrine with respect to fundamental concept of discretionary power and the necessity of codifying administrative procedures will be deliberated. Moreover, requirements of good administration, in the light of national and international instruments, would be described. Finally, Judicial Review of discrete Qnary power. As well as, new methods and grounds of judicial control is going to be explained.

Nowadays, the principle of personality of punishment is one of principles that is accepted by different countries, This principle requires that each kind of social reaction will be applied only to the perpetrator of crime, who takes part in criminal phenomena as principal offender, aider and abettor, or counselor and procurer. Therefore, those who do not participate in the crime occurrence must never encounter such reaction. Confiscation is one example of social reaction to crime. Although it may apply as civil forfeiture, its punitive nature is admitted by most jurists and lawyers. For this reason i.e. penal nature of confiscation, it is compulsory that such a penalty is infected merely on the perpetrator of crime him/her self. So, it is necessary that as a result of enforcement of such a punishment, third parties that have no participation in crime should not be affected. But, in some cases, the application of this reaction is in opposition to the third parties rights.In this article, our aim is to analyse the circumstances of this opposition, and the possible rights of third parties in the confiscation's process, and to find the methods and techniques to assert and protect the third parties' rights in juridical and law systems in Iran and England.

Foresee ability is a matter of considerable significance in legal and proximate _causation analysis. In criminal law the defendant cannot escape liability if intervening cause (or act) was reasonably foreseeable, whereas an unforeseeable intervening cause (or act) is superseding in nature. On these bases criminal law tends to distinguish between "responsive", (or "dependent") and "coincidental"( or "independent") intervening causes , as this concepts are clarified in this article. A responsive intervening cause _that is normally foreseeable_ is an act that occurs in reaction or response to the defendant's prior wrongful conduct. Generally speaking, such cause dose not relieves the initial wrongdoer of criminal responsibility, unless the response was not only unforeseeable, but highly abnormal or bizarre. This outcome is justifiable. The defendant's initial wrongdoing caused the response. Since he is responsible for the presence of the intervening force, the defendant should not escape liability unless the intervening force so out-of-the-ordinary that it is no longer fair to hold him criminally responsible for the outcome. But a coincidental (or unforeseeable) intervening cause is forces that do not occur in response to the initial wrongdoer's conduct. The common law rule is that a coincidental intervening cause relieves the original wrongdoer of criminal responsibility, unless the intervention was foreseeable.

The Modem concept of criminal law include the Participative approach because today we cannot even imagine a criminal policy system without the Participation of society on the other hand the criminal policy includes many aspects and the way they are organized can lead of to are goals. In this respect the Participative prevention is considered as one of the main means that guaran tees the Participative criminal policy. This article focuses on a new definition of criminal policy and the rule of preventive plans in actional and reactional forms from theory to practice. It also emphesises it's application in judicial bill presenting imperilment to be approved. By bing approved it would become applicable and enjoy objective aspects.

In this article, it has been attempted that participation criminal policy in Iran to be described by two structure of council of settlement of dispute and arbitrator these two structure is discussed along the side of participation criminal policy and diversion. According to law of council of settlement of dispute, this council has two performances which practically every one of this structures deny the other structure these performances are peace and agreement and investigation. At first peace and agreement and then in case of lack of conclusion, penal investigation the first performance change this structure to a structure parallel to ministry of justice.Therefore, council of settlement of dispute is critical. The other subject which is described in this article is the judgment of a council that meaning of its superior quality is council of settlement of dispute which is dominant system of decision makers member plurality, and should be qualified for courtesy characteristic.But since majority of members are elected by dominance or government, this council has no such characteristic. So, although it has produced theoretically and along the side of courtesy participation, but has no complication of participation criminal policy. Arbitrator which is going to be revived in the future has the same characteristic.

The best judges might also have mistakes in their rulings deliberately or erroneously. Perhaps the only way to control and review court rulings without interfering in trials and proceedings is to grant the appeal right by statutes to the incurred from the rulings. Therefore, in addition to be a reason for reviewing the rulings and preventing the violations of the rights, provision of this right is also useful for providing judicial guarantees and encouraging the judges to care about their rulings. If the judges know that their rulings reviewed by other judges, they will be more careful in their decision-makings and consequently, the ground for a fair trial will be provided.

"Regulations on paragraph c, article 15 of the law of the fourth economic, social and cultural development plan of the Islamic republic of Iran concerning the investment of foreigners in Stock Exchange" which was passed on 31 may 2005, made it possible for foreign investors to invest in Tehran Stock Market. But unfortunately few foreign investors have been inclined to invest in this market. Observing the above-mentioned rules would help us to realize if they are suitable enough to promote foreign investment or they need amendments. In this article the foregoing regulations especially restrictions will be recognized and also the relevant rules will be considered.

The intention of contracting parties of each contract is to perform the obligations arising from it. Thus, it is obvious that had some damages being caused are due to delay or not performing the contractual obligations, the responsibility falls on the default party. The question is concerning the extent of the responsibility: whether or not this responsibility includes all the damages, including either those which their emergence had been foreseen as a result of breach or those which had not been, and in either case why and how. In none of our country's law text, there is no word on foreseeing damages as a principle in realizing contractual obligations or as one the requirements for legal action to demand damages. Despite this, logical analysis of qualification of damages, forbiddance of possession to other's properties, necessity of partial knowledge in the extent of legal effects resulting from breach of contract and reliance of conclusion and to be obliged to the content of the contract on the parties will, justifies its existence.This article tries to show that in our law, the default party is only due to compensate foreseeable damages arising from breach of contract. So, with a look on foreign law, it has been tried to extract the legal fundamentals of this requirement and state its features.

Arsh and compensation of damages are monetary remedies for not doing of obligation. The question is what connection there is between these two remedies. Remedies are in two categories: remedies for failure to perform an obligation, and remedies for breach of contract. What category reduction of price belongs to?Arsh In quotation of holly Imams is a kind of contractual responsibility for defect of goods and it is determined by subtraction of the price of defective good from the price of non-defective good. But, recent jurisprudents have invented a formula in which a portion of price is returned, they have tried to find the part of the price that is consideration of quantity and quality that is not obtained. Such price Reduction had been also in Roman law and has entered in the French and German's law.But, this remedy with this specification is not recognized in Common- Law.In the process of development of the international conventions about contract law important discussions about this remedy and connection with contractual responsibility was brought up. Consequently, reduction of price was recognized as common remedy for failure of performance of contract and breach of contract. In this documents reduction of price is for quantitative or qualitative non-conformity of goods with terms of contract. In excused non-performance, aim of price reduction is to prevent unjust enrichment of obligor with respect to consideration of obligation that has not been performed. But, when there is breach of contract the aim of all remedies is placement of the obligee in the position that he could have had if contract was correctly performed. Since, in most cases reduction of price alone dose not achieve this aim, it is possible to claim the remainder of damages. The theoretical unsolved problem is the Revue de Recherche Juridique, numero special (1) special cases where reduction of price causes the obligee to be in a better position of complying with the contract.

This article refers to one of the controlling instruments of the governments, which is applied to encounter with any imbalance and unfairness in contractual relationships, arising out of producing, manufacturing and distributing of dangerous industrial goods and services, i.e inspection of goods and services.In the first chapter, the author refers to the historical background of inspection, specially in Islamic Laws and Iranian Civil Law, and explains how internal and dependent inspection entities such as quality control departments were established and the problems which they were faced. Then by rendering a new definition for inspection, discusses about the position of inspection of goods and services in International Trade and also in legal systems of countries, specially in Iranian Legal System and Common Law.In the second chapter, the field of activities and services rendered by such entities, including pre- shipment inspections and inspection for special purposes are studied.In the final chapter, the author refers to the objects of such inspection form the point view of parties to the sale contract and of the governments and also point of view of other entities which are somehow benefited form inspection.At the end, establishing balances in the contractual relationship of the parties involved is introduced as final purpose of such inspection.

In the context of modern commerce, franchise agreements is a mode of distributing goods or services based on network of independent partners, whose distinct but combined efforts have proved that franchising can increase the power and efficiency of this distribution.In developed countries almost everyone is familiar with the term franchising, or has at least had some contact with the products or services offered by franchises. But in our country this term 'only is unknown for people but also for majority of trader and lawyer is too strange. What is franchising? How does it work? And why, over the last 10 to 20 years, has franchising become the fastest growing way of doing business in developed countries? This article in, first section, endeavours to answer the questions posed above and provide the reader with a basic understanding of haw franchising works. It will discuss the benefits given by a franchise, and some disadvantages of this almost new legal phenomenon. In second section of this paper franchise agreement would be consider in perspective of EC competition law.

Theory of undisclosed principal is a particular theory of law of common law system. This is accepted in the Law of common Law system against some of lawyers dissented with it. In the passing regulations of agency of Geneva international sale dated 1983 was effective and the foregoing convention is subject to this regulations. This theory is not consistent with fundamental and basic principles.In the law of common law, undisclosed principal have right to intervene in contract of agent which is concluded for his or her without writing his or her name. This intervention is subject to election of third party. Also until when undisclosed principal is not appeared, all payments and receivements to agent, is payment and receivement to principal. This theory have little analogous with 196 article of Iran civil code in the respect of the intervention , altogether both are from two adverse law system, Notwithstanding in the Iranian law system the right of election in the agent contract by the third party is not recognized. Because Iranian commercial law is subject from roman - Germany law system, theory of undisclosed principal cannot accepted and the undisclosed principal have not the right of intervention.Articles of 5 and 6 insurance act and articles 357 and 367, 388 commercial Code in the foregoing debates denote this object.