A Survey on Adversarial and Inquisitorial Models in International Commercial Arbitration
Mohsen
Mohebi
نویسنده مسئول، استادیار دانشکده حقوق و علوم سیاسی دانشگاه آزاد اسلامی، واحد علوم و تحقیقات تهران
author
Shahab
Jafari Nadoushan
دانشجوی دکتری حقوق خصوصی دانشگاه تهران
author
text
article
2015
per
In the absence of any provision by the parties regarding the active or passive role of the arbitrators in international commercial arbitration (which is often the case), the arbitral tribunal enjoys absolute discretion to how to organize the arbitration procedure including the selection between the adversarial or inquisitorial approaches. The crucial point is that the foregoing discretion is not tantamount to the arbitrary application of adversarial or inquisitorial methods in dispute settlement procedures. Despite what may be perceived at first glance from the abovementioned point concerning the absolute discretionary power of arbitrators in procedural matters, the nature and the characteristics of commercial arbitration is mostly consonant with the adversarial practice and the application of inquisitorial method in commercial arbitration should be considered as an exception. When it comes to the details and subtleties of the arbitration procedure, most of the arbitral tribunals are inclined to apply a mixed of adversarial and inquisitorial techniques.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
9
34
https://www.cilamag.ir/article_15746_748b871fe65035ac28f09f837dadbbf2.pdf
dx.doi.org/10.22066/cilamag.2015.15746
Party to Arbitration Clause in Contractual Group
Mohammad-Ali
Bahmaei
نویسنده مسئول، استادیار دانشکده حقوق دانشگاه شهید بهشتی
author
Fahimeh
Moradi
کارشناسی ارشد حقوق تجارت بین الملل، دانشگاه شهید بهشتی
author
text
article
2015
per
Complexity and specialization of economic activities at current time have resulted in the fact that the realization of a single economic operation requires the conclusion of multiple and various contracts among different parties. Reciprocal relationships and economic interdependence among these contracts and the obligations arising therefrom have led to the recognition of the concept of “Contractual Group” in law. This concept demonstrates that the law takes commercial and economic realities into consideration along with the legal structure of contractual relationships. In a contractual group whose contracts pursue a common objective, similar arbitration clauses are included, or in some of the said contracts, arbitration clauses are inserted, while, other interrelated contracts belonging to the same group lack the dispute resolution clause, and also in cases that the contracts within a contractual group contain different or inconsistent dispute resolution clauses, this question arises whether the arbitral tribunal may consider the parties to other interrelated contracts in a contractual group as the parties to an arbitration clause embedded in one of these contracts and consequently, extend the scope of the mentioned arbitration clause to them. Giving a positive answer to this question will pave the way for resolving the disputes of all parties to interrelated contracts through single arbitration proceedings and it will not only lead to a more efficient and effective settlement of disputes, but also refrain from parallel proceedings and issuance of contradictory awards. In such cases, the Theory of Autonomy and the Principle of Privity of Contracts require that in order to determine the party to an arbitration clause, the arbitral tribunal discovers the common and mutual intention of all the parties to interrelated contracts within a contractual group.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
35
60
https://www.cilamag.ir/article_15747_ceb223a3a6789575492b2673b12f933e.pdf
dx.doi.org/10.22066/cilamag.2015.15747
The Legal Concept and the Nature of Punitive Damages
Mehrab Darabpour
Darabpour
نویسنده مسئول، دانشیار دانشگاه شهید بهشتی
author
Saied
Soltani Ahmadabad
کارشناسی ارشد حقوق خصوصی و وکیل پایه یک دادگستری
author
text
article
2015
per
This paragraph would be formatted as ranged right (justified) text.
The punitive damages awards are pragmatic forms of redress and intermediate sanctions against anti-social misconduct of the defendants. These kinds of awards do not have compensatory character, but extra-compensatory ones. They will be given, in addition to the punishment and tort compensation, to the claimant in order to deter the members of the society from creating further damages towards the others, especially when the case of wealthy and powerful individuals and entities who undertake such misconduct is in issue. The present article explains that the Iranian Legal System did not deploy punitive damages against the defendants (people, entities, and foreign states) before 1999, to punish their misconduct. It only used to confine itself to the application of criminal, civil and tort laws. In the first part, after introducing backgrounds of punitive damages in foreign countries, and how it might work in international scale, the article describes the reasons by which this theory came to the attention of Iranian government. In other parts, the article explains the structure of punitive damages and clarifies the comparative advantages or disadvantages of punitive damages vis-à-vis other remedies and mechanisms available in Iranian Legal System. Finally, not only the article analyses the verdicts of U.S. courts against Iranian government and vice versa, but also considers whether the awards of punitive damages make sense to be issued by one state against the other or not.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
61
90
https://www.cilamag.ir/article_15748_3c1f3cc51f9c23c369ee05d0dc987db3.pdf
dx.doi.org/10.22066/cilamag.2015.15748
The World Bank and IMF Accountability in Human Rights
Seyyed Ghasem
Zamani
نویسنده مسئول، دانشیار مدعو دانشگاه آزاد اسلامی، واحد علوم و تحقیقات تهران
author
Peyman
Bolouri
دانشجوی دکتری حقوق بین الملل دانشگاه آزاد اسلامی، واحد علوم و تحقیقات تهران
author
text
article
2015
per
This paragraph would be formatted as ranged right (justified) text.
The World Bank and International Monetary Fund (IMF) are supranational organizations whose functions revolve around the economic development of states. While the mandate of each of these institutions as defined by its charter is unique, one common thread is the non-specific mention of human rights in their Articles of Agreement. Consequently, anomalies in the legal position of these International Financial Institutions (IFIs) regarding human rights have appeared to enable them to operate without being subjected to any effective legal control. Therefore there is a need to expand international human rights protection against these non-state actors. This article while examining the existing capacity of independent and quasi-independent institutional accountability toward human rights for the World Bank and the IMF, investigates those international legal principles they comply with and how they should be implemented.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
91
120
https://www.cilamag.ir/article_15749_f97c9fbb45d85fba81b03f73557b7f34.pdf
dx.doi.org/10.22066/cilamag.2015.15749
Iran and the United States Freedom of Navigation Program
Amirhossein
Ranjbarian
استادیار گروه حقوق عمومی دانشکده حقوق و علوم سیاسی دانشگاه تهران
author
Sassan
Seyrafi
نویسنده مسئول، دکتری حقوق بینالملل دانشکده حقوق و علوم سیاسی دانشگاه تهران
author
text
article
2015
per
Since 1979, the United States has conducted a program named the U.S. Freedom of Navigation (FON) Program that seeks to counter the supposedly excessive maritime claims of coastal states around the world. These are maritime claims that the United States considers inconsistent with the law of the sea as reflected in The United Nations Convention on the Law of the Seas (UNCLOS). The FON Program combines diplomatic protest and so-called operational assertions by U.S. naval air forces to challenge excessive maritime claims. Among the coastal States that have been challenged by FON operational assertions, Iran has been targeted most frequently. FON operational assertions can, in some cases, make permissible the defensive use of force. It is also necessary that Iran lodges a diplomatic protest against the United States each and every time such assertions are carried out against her.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
121
158
https://www.cilamag.ir/article_15750_917a969371a19552097dd8982780dc09.pdf
dx.doi.org/10.22066/cilamag.2015.15750
Obligations of Conflicting Parties to the Rules and Principles of Humanitarian Law in Syrian Internal Crisis
Ali
Tavakkoli Tabasi
نویسنده مسئول، استادیار دانشگاه پیام نور تهران
author
Farangis
Mansouri
دکتری حقوق بین الملل دانشگاه پیام نور تهران
author
text
article
2015
per
Syrian protests for political and economic reforms in the country started in January 2011. However, after a while of course and due to external interventions, and international humanitarian criteria, the crisis has been transformed into internal armed conflict, which resulted in the death of more than thousands of people and displaced millions of Syrian citizens. According to the rules governing on internal armed conflicts, parties to the conflicts must observe some minimum obligations regarding the protection of civilians as well as applying tools and methods of the battle. The violation of these obligations will lead to responsibility of the violating party. The main issue is the basis of obligations of parties to the crisis and the application and enforcement of rules of international humanitarian law. In this paper, Syrian crisis and crimes which occurred therein such as chemical attacks are analyzed and parties’obligation to apply humanitarian rules are considered.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
159
204
https://www.cilamag.ir/article_15751_14b685452fcfd578e20701d14c5467bc.pdf
dx.doi.org/10.22066/cilamag.2015.15751
Desuetude of International Treaties, Beyond 1969 Vienna Convention
Masoud
Raei
استادیار دانشکده حقوق، الهیات و معارف اسلامی دانشگاه آزاد اسلامی واحد نجف آباد
author
Seyyed Ali
Hosseini Azad
نویسنده مسئول، کارشناسی ارشد حقوق بین الملل دانشگاه علامه طباطبایی
author
text
article
2015
per
Desuetude of treaties in International Law means that a treaty is useless in specific periods of time and there appears a contrary custom against the treaty. Since the said treaty and the contrary custom cannot be performed simultaneously, the treaty will no longer be in use and the treaty will such be terminated. Although the Vienna Convention on the law of treaties, 1969 has not considered the desuetude of treaties as a way of termination, legal doctrines, case law and the state practice have added this to the causes of termination. Since the custom as one of the sources of international law bears the same position as treaty, it seems that, if the custom is formed correctly and in conformity with the required conditions, the treaty can be challenged and incapacitated encountering with such a customary rule. This may be justified with the implicit consent of the relevant subjects of international law.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
205
226
https://www.cilamag.ir/article_15752_ce1b60eb07df1ecadddf01e9c0296bf3.pdf
dx.doi.org/10.22066/cilamag.2015.15752
The Status of Human Rights in the Fight against Cyber-Terrorism
Gholamali
Ghasemi
استادیار دانشکده حقوق دانشگاه قم
author
Sajjad
Bagherzadeh
نویسنده مسئول، دانشجوی دکتری حقوق بین الملل دانشگاه آزاد اسلامی، واحد علوم و تحقیقات تهران
author
text
article
2015
per
By the development of communication, the exchange of information through efficient tools with maximum speed, accuracy, minimum time and cost allocation is inevitable. Cyberspace plays this role well but complex risks such as cyber-terrorism may arise in such a popular environment. In order to achieve its goals, cyber-terrorism as a form of international terrorism may impose serious harm on the vital infrastructures of the targeted state including nuclear threats or anything which bears the potential to become weapons of mass destruction. On the other hand, the observance of human rights, particularly providing the right to freedom and security, even for the terrorist suspects and offenders are among the inherent duties of states. To protect the public interest in combating terrorism, states have attempted to impose restrictions which are considered as violation of their obligations regarding the privacy policy. Nevertheless, the obligation to preserve and protect the public rights are not only the duty of states, but also the criteria to measure their compliance with the obligation to prevent the violation of human rights. States have also been restricted in the exercise of these rights and obligations.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
227
254
https://www.cilamag.ir/article_15764_b7c5bdd07746dd0d4073703b338d1c52.pdf
dx.doi.org/10.22066/cilamag.2015.15764
Effects of Victimology on Victim’s Right to Participation in Preliminary Examination Stage in Light of International Criminal Court’s
Javad
Salehi
عضو هیئت علمی دانشگاه پیام نور تهران
author
text
article
2015
per
The rights of victims are considered as significant issues in the new system of criminal proceedings. This organization tries to promote victims' standing. One of the reflections of such promotions is the victim’s participation in the International Criminal Court hearing. Although this participation is permitted under article 68(3) of the Rome Statute, but it only belongs to the hearing phase. Preliminary examination chamber of International Criminal Court for the first time allows victims to participate in preliminary examination stage. This procedure of International Criminal Court is a turning point in victim’s access to justice and fair treatment based on assistance-oriented victimology. Judges of International Criminal Court with maximal interpretation of article 68(3) of the Rome Statute accept achievements of assistance-oriented victimology for the more participation of victims in preliminary examination stages.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
255
276
https://www.cilamag.ir/article_15765_69e41d0eed7c76503fd24b87a317745a.pdf
dx.doi.org/10.22066/cilamag.2015.15765
A Case Study of Anzali Lagoon in the Framework of Ramsar Convention:Challenges and Solutions
Farhad
Talaei
نویسنده مسئول، عضو هیئت علمی دانشکده حقوق و علوم سیاسی دانشگاه شیراز
author
Ehsan
Daryadel
کارشناسی ارشد حقوق بین الملل دانشگاه شیراز
author
text
article
2015
per
Wetlands are among the most valuable ecosystems on the Earth. The need for protection of these ecosystems has made the international society to conclude the Ramsar Convention for the Conservation of International Wetlands in 1971. This convention as one of the most important environmental treaties and the only existing particular treaty concerning the protection of wetlands, urges all member states including Iran, to use wetlands wisely. Anzali Lagoon is one of Iran’s wetlands of international importance included in the Ramsar List. Despite this commitment, Anzali Lagoon is exposed to eradication and degrading due to various reasons such as the discharge of urban, agricultural and industrial wastes, fluctuations of water levels in Caspian Sea, introduction of alien invasive plant species of Azula, and construction of bypass road in the Anzali Port which resulted in the inclusion of this wetland in the Montreux Record (list of endangered wetlands). While this paper pays close attention to the environmental challenges facing the Anzali Lagoon, it examines and analyzes legal and non-legal mechanisms to resolve such issues in the framework of the Ramsar Convention. These mechanisms include, but not limited to, realization of sustainable development, environmental impact assessment, wise use of Anzali Lagoon wetlands, and ecosystem-based approaches. This paper concludes that for sustainable conservation of the Anzali Lagoon, it is necessary to implement these mechanisms completely.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
277
312
https://www.cilamag.ir/article_15766_f34c54e03d16d3de9a844b7fd9ead5cf.pdf
dx.doi.org/10.22066/cilamag.2015.15766
The Status of International Law in International Relations Theories
Hossein
Karimifard
استادیار دانشکده علوم انسانی دانشگاه آزاد اسلامی واحد اهواز
author
text
article
2015
per
Keeping in mind that International Law and international relations are intertwined in a relationship, this essay elaborates and analyzes the status of International Law in international relations theories. These theories can be grouped into four intellectual movements as follows: Part I constitutes "classical legal thought" which generally believed that power and coercion could become far less prominent in world affairs through the development of International Law. Part II analyzes Realists’ reaction to Classicism. With Fascist aggression in the late 1930s, realism emerged to launch an epistemological, heuristic, and normative attack on classical approach. While realism generally views International Law as a reflection of the interests of the powerful states, and structural realism- at its core- denies that International Law is consequential, realists display a range of views from those who find International Law meaningless to those who find it crucial to understanding state behavior. Part III includes the elements of this reaction; early efforts to use sociology or the social science more broadly, rationalist institutionalism's demonstration that of the liberal theory, usually in conjunction with institutionalism, to show how law affects the behavior state, rulers, groups, and individuals. In Part IV, Constructivism sees interest and identities as intrinsically inseparable from social group and the International Law both reflects and reinforces identities and interests. Finally we understand that any function in international relations is essential for International Law to evolve and function.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
32
v.
شماره 52 (بهار- تابستان)
no.
2015
313
337
https://www.cilamag.ir/article_15767_65b8a288f38a99dc4fa791bff2c73a7e.pdf
dx.doi.org/10.22066/cilamag.2015.15767