Liability of Supervisors for the Illegal Acts of MinorsAn Analytic and Comparative EssayWhile according
سیدحسین
صفایی
استاد بازنشسته دانشکده حقوق دانشگاه تهران و استاد دانشگاه آزاد اسلامی - واحد علوم و تحقیقات تهران
author
text
article
2014
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Liability of Supervisors for the Illegal Acts of MinorsAn Analytic and Comparative EssayWhile according to article 7 of the Iranian Civil Liability Act, a legal or contractual supervisor's liability for indemnifying acts of the minor is based on the supervisor's fault, in the laws of many countries there is either a strict liability of parents which is based on commission of a tortious act by the minor or a liability based on the presumption of fault, with a possibility of rebutting that presumption. Furthermore in countries in which tort law is based on equity, parental liability accompanied by the liability of the minor is seen as a joint liability. This attitude is compatible with the conclusion that the supervisor's liability ensures compensation to third persons for damage caused by minors. Keywords: Civil liability, Supervisors, Minors, Fault, Tort, Strict liability
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
1
34
https://lawresearchmagazine.sbu.ac.ir/article_56199_3272f29c02a2505c0c730e28ae170641.pdf
Writing Requirement of the Arbitratio Arbitral Awards 1958 n Contract in the Convention on the Recognition and Enforcement of Foreign
حمیدرضا
نیکبخت
استاد دانشکده حقوق دانشگاه شهید بهشتی
author
فرهاد
پیری
مشاور حقوقی سازمان بورس و اوراق بهادار
author
text
article
2014
per
ng> The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (known as the ‘New York Convention’) deals with recognition of arbitration contracts and the recognition and enforcement of arbitral awards. The decision of a court on the recognition of arbitration contracts and the recognition and enforcement of arbitral awards, is subject to arbitration contracts compliant with the formal provisions set forth in the Convention. Although the formal provisions of arbitration contracts are mentioned in article II(2) of the Convention, nevertheless the States Parties to the Convention have not interpreted this article in the same way. Nowadays specific approaches in the interpretation of this article are emerging which attempt to coordinate the application of the Convention with current commercial practice. Keywords: New York Convention 1958, Writing requirement, Signature, Exchange, UNCITRAL.
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
35
66
https://lawresearchmagazine.sbu.ac.ir/article_56200_067b7b95eddca84c5abca1eef061d6eb.pdf
Mercenaries in the International Law System
سیدعلی
هنجنی
دانشیار و عضو هیأت علمی دانشکده حقوق دانشگاه شهید بهشتی
author
علی
نواری
دانشجوی دکتری حقوق بین الملل عمومی دانشگاه علامه طباطبائی.
author
text
article
2014
per
Abstract: One of the issues raised in the law of armed conflicts is the use of mercenaries by parties to conflicts. Analysis of the global situation indicates that mercenaries have been used for a very long time in the past. However, although the use and recruitment of mercenaries has been usual for a long time, the practice of mercenaries especially in Africa during the period of decolonization lead to a change international approach towards this phenomenon. The United Nations General Assembly and Security Council has passed resolutions against the use of mercenaries according to threats resulting from their activities. States in international society have also adopted a regional Convention and a universal Convention to combat this phenomenon while international humanitarian law has been no mere spectator and has also laid down rules in this area, although very briefly. In parallel with these measures, some States have adopted regulations in their national legal systems concerning mercenaries. Despite existence of rules regulating the use of mercenaries in the international law system, it seems that the existing rules have not been much welcomed by States. For this reason and according to appearance of private military and security companies, it seems necessary to codify new and comprehensive documents in this area. Keywords: Mercenary, Armed conflict, Use of mercenaries, International law, Convention
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
67
104
https://lawresearchmagazine.sbu.ac.ir/article_56201_ecf6d703cd6ae15c50178aad924cd76a.pdf
An Economic Analysis of Mozarbeh and Mosharekat Contracts
محمود
باقری
استادیار دانشکده حقوق و علوم سیاسی دانشگاه تهران
author
مصطفی
بستانی
دانش آموخته کارشناسی ارشد حقوق تجاری و اقتصادی بین المللی دانشگاه تهران.
author
text
article
2014
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An Economic Analysis of Mozarbeh and Mosharekat Contracts in Islamic Banking: The Imbalance of Information and Ensuing InjusticeAbstract After half century from the launch of Islamic Banking, it is now the right time to evaluate and assess this method of finance and banking in the light of economic analysis and theories of justice. In the current model of Islamic banking which is based on the elimination of interest and avoidance of Reba, the sharing of profit and loss is the cornerstone of Islamic banking. However, both in practice and theory the application of the above contractual frameworks to modern financial and economic conditions faces challenges. While in a world where there was no money on credit, corporations or securities, the use of above contract forms between parties with equal information and bargaining power would not lead to any major injustice, the use of the same contracts in a modern financial world which is based on financial credit, corporations and securities has lead to injustices in the allocation of the losses and profits of financial transactions. This failure to achieve justice has been proved both by the practical record of Islamic banking and also as a result of theoretical analyses. Keywords: Mozarbeh, Mosharekat, Islamic banking, Profit-loss sharing system, Economic analysis of Law, Imbalanced information, Efficiency.
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
105
134
https://lawresearchmagazine.sbu.ac.ir/article_56202_40953b9da3cfbed9f951d31a4651f708.pdf
A Survey on the Narrative Evidences of the Demarcation of Hadd- Ta’zir (Prescribed-Discretionary punishments
رحیم
نوبهار
پژوهش گر حوزوی و عضو هیأت علمی دانشکده حقوق دانشگاه شهید بهشتی
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text
article
2014
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ng> In Islamic Criminal Jurisprudence, the demarcation between hadd (prescribed punishment) and ta’zir (discretionary punishment) is almost unanimously accepted. As a maxim, this division has also been used as a foundation for many other jurisprudential verdicts and rules. This article critically evaluates the narrative evidence which supports the dichotomy. The author concludes that there is sufficient evidence in the narrations of the Prophet (p.b.u.h.) and infallible Imams (a.s.) which acknowledge the demarcation itself. However, due to the ambiguity of the related textual narrations, jurists are not unanimous on the numbers of hodoud or their specific verdicts. According to some reliable narrative evidence, the early Muslim community used to have a more flexible understanding of hadd than they have today and, moreover, criminal sentencing had a strong dimension of political and social governance. It is therefore hard to believe that the Holy Legislator intended to exclude hodoud from all rational developments in our understanding of punishment and social condemnation when they are based on an authentic methodology and acceptable legal reasoning. Methodologically speaking, since jurists themselves categorize Islamic criminal teachings under rational aspects of jurisprudence (Ahka’m va siya’sa’t) rather than purely revealed knowledge (ibadat) there are, in fact, legitimate means of accepting some kinds of developments and new rational institutions in hodoud which would lead to a less differential system of punishment. According to this view, which can be called ‘the theory of dynamic punishment in Islam’, a proper punishment by which divine values are protected could be established based on the nature of the crimes and considering all relevant circumstances and conditions. Keywords: Hadd (prescribed punishment), Ta’zir (discretionary punishment), Inflexible punishments, Islamic Punishments, Islamic criminal jurisprudence.
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
135
164
https://lawresearchmagazine.sbu.ac.ir/article_56203_8c8a085b83c9f3705c580bd4600e2a26.pdf
Analysis of Undesirable discrimination with emphasis on the judicial precedent of General Assembly of Administrative Justice Court
محمدرضا
ویژه
استادیار دانشکده حقوق و علوم سیاسی دانشگاه علامه طباطبائی
author
text
article
2014
per
ng>Prohibition of undesirable discrimination is well recognized and guaranteed in international documents and international and regional judicial precedents and, finally, in the Islamic Republic of Iran’s Constitution. To investigate and analyze this, we first need to understand the concepts of “undesirable discrimination” and also “equality” and their criteria for identification. In addition, the other important question is how this concept is guaranteed by the judicial precedents of the General Assembly of Administrative Justice Court as one of its main practical fields of application. Also, what are the criteria for identification of “undesirable discrimination”? Through an analysis of judicial precedent, it seems that the General Assembly of Administrative Justice Court does not have a solid judicial precedent for identifying “undesirable discrimination” and, sometimes, we observe contradictory judgments in this matter. Also, the criteria for identifying this discrimination are both unclear and scattered and this Assembly has used various and sometimes totally different criteria in different judgments. In addition to all these factors, the Court did not distinguish between the identification of “undesirable discrimination” and its implementation and this has led to the interpretation of the Court of such “undesirable discrimination” being fully objective and not getting into details. Finally, in most of the cases the Court has obtained “undesirable discrimination” in terms of a legal corpus where this approach has become an obstacle for a dynamic interpretation of this concept and applying new criteria in this regard. Keywords: Discrimination, Undesirable discrimination, Positive discrimination, Equality, General Assembly of Administrative Justice Court, Judicial precedent
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
165
188
https://lawresearchmagazine.sbu.ac.ir/article_56204_f67311e04bbf943ec1fe6b3ee3000cfd.pdf
Litigation against Multinational Enterprises: Corporate Social Responsibility and its Challenges
mohamad jafar
ghanbari jahromi
استادیار 'گروه حقوق بین الملل، دانشکده حقوق، دانشگاه شهید بهشتی، تهران، ایران.
(نویسنده مسئول)
author
Rahim
Bagheban
دانشجوی دکتری رشته حقوق بین الملل عمومی، دانشکده حقوق، الهیات و علوم سیاسی، واحد علوم تحقیقات، دانشگاه آزاد اسلامی، تهران، ایران
author
text
article
2014
per
Over the last two decades, a wave of private litigation has been raised about the activities and treatment of multinational enterprises. Much of this litigation has been initiated in their home countries, such as the US, UK and Australia; some has occurred in host countries against their subsidiary branches. With an emphasis on the practical and theoretical features, the present article studies and analyses some of the most relevant cases at the national level, identifies the important challenges facing litigation against these enterprises, and proposes some guidelines. Some of these challenges are the doctrine of the corporate veil, the piercing of the corporate veil, different perspectives about the theoretical basis of civil liability (such as control and negligence), third party omission, and the duty of care. Another challenge considered in the present article is the doctrine of forum non-convenience. Having analyzed some national judgments and judicial procedures, some solutions have been offered for these challenges. One solution is that developing countries should develop their own standards by reference to values underlying contemporary labour law, environmental law and human rights and should try to adopt common policies in this regard. Another solution is to develop stricter supervisory mechanisms to monitor the activities of multinational enterprises. Such supervision can be done through WTO and UN specialized organizations. At the national level, enacting anti-bribery laws and laws for compulsory transparency, reforming traditional corporate law and removal of jurisdiction barriers would also be vital. Keywords: Multinational enterprises, Transnational corporations, Litigation, Corporate scial responsibility, Subsidiary branch, Home corporation
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
189
214
https://lawresearchmagazine.sbu.ac.ir/article_56205_6d720614daa63a097d61a13659ef555b.pdf
Sources of Aviation Insurance Law
مرتضی
عادل
استادیار دانشکده حقوق و علوم سیاسی دانشگاه تهران
author
مجتبی
اشراقی آرانی
دانشجوی دکتری حقوق خصوصی دانشکده حقوق و علوم سیاسی دانشگاه تهران.
author
text
article
2014
per
ng> Acquaintance with the rules and regulations governing new fields of law requires the availability of and research in those domains. Aviation insurance law is one of the newest fields whose sources have been formed in the international domain. International Conventions, aviation insurers’ customs, and regional and domestic regulations are the most important sources of aviation insurance law which are analyzed in this article in order to reach a better comprehension. Keywords: Aviation insurance, Aviation law, Sources of law.
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
215
234
https://lawresearchmagazine.sbu.ac.ir/article_56206_46e4451a7e0b14d529761208737c2fbf.pdf
Right of Foreign Investors to Sue Directly against a Host State Base on Mechanism of Dispute Resolution in theEnergy Charter Treaty
نادر
مردانی
عضو هیأت علمی دانشکده حقوق و علوم سیاسی دانشگاه شیراز
author
حمیده
بهمنی بهلولی
کارشناسی ارشد حقوق بین الملل، دانشگاه شیراز
author
text
article
2014
per
ng> International arbitration as an accepted method of mediating between a host state and investor, has encountered a major drawback, namely that the foreign investor is required to resort to diplomatic protection of the subject State against the host State. This may make it difficult to use such a method. The Energy Charter Treaty, as the most important multilateral treaty in energy sector, has provide a solution to the aforementioned fault by giving foreign investors the right to bring a claim directly before international tribunals without resorting to the diplomatic protection of the subject State. In this study, an attempt has been made to analyze this right, its advantages and effectiveness legally. Such a right has prevented disputes between an investor and host State becoming a dispute between States. So the Charter has removed resort to international arbitration dependent on diplomatic protection as an unreliable method for investor finally leading to the legal resolution of a dispute. Additionally, recognizing principles such as not obliging an investor to bring a suit before the domestic courts of the host State with the purpose of ensuring non-discriminatory treatment, freedom of choice in using the method of dispute resolution, allowing foreign investors to enjoy the highest privileges granted to domestic nationals and foreign nationals and suggesting different methods, including negotiation and compromise, prior to bringing a suit before international arbitration may result in greater reliability for investors and an increase of investment in the host State’s territory. Keywords: Energy Charter Treaty, Investment, Arbitration
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
243
268
https://lawresearchmagazine.sbu.ac.ir/article_56207_5ab732c5e2282ae0b27ec6dee20a0aba.pdf
ng> The system of international criminal law (ICL)
علی اکبر
سیاپوش
دانشجوی دکتری حقوق بین الملل دانشگاه شهید بهشتی
author
text
article
2014
per
ng> The system of international criminal law (ICL), within the constellation of international systems deviates from a sovereignty-oriented model and shows some aspects of unity, solidarity and generality thanks to its proximity to the most important concept of modern international system, namely human dignity. However, one cannot say for sure that it is now completely free from the effects of its previous aforementioned characteristics. Through a systemic study of ICL, each of different logics of international law―equality, cooperation, and power―are identified and clearly show their own effects. Equality is transformed into the classification of international crimes and the denial of impunity, while cooperation forms the basis of international institutions and power forces itself through bilateral agreements concluded outside the system of ICL that guarantee impunity for nationals of warlords. As a result, though there is a hope to open up a horizon of unity in ICL it is, admittedly, still teetering on the brink of credibility between the rule of law and sovereignty. Keywords: International criminal law, Sovereignty, Rule of Law, International cooperation, Systemic study.
Legal Research Quarterly
Shahid Beheshti University
1024-0772
17
v.
67
no.
2014
269
293
https://lawresearchmagazine.sbu.ac.ir/article_56208_cd9e2d0c5884b41484bc79b33fe56f16.pdf