Journal of LEGAL RESEARCH- Number 52

Journal of
LEGAL RESEARCH

Number 52

Vol. 21 ● No. 52
Winter 2023

Managing Editor: Vahid Eshtiagh

Editor-in-Chief: Seyyed Ghasem Zamani

CONTENTS

Confrontation between Economic and Security Interests in Caspian Sea Current Legal Regime

Dr. Jamchid Momtaz – Dr. Massoud Alizadeh – Dr. Shahram Zarneshan

Consequences of Sanctions on International Commercial Arbitration

Erfan Mirzazadeh – Dr. Seyyed Ghasem Zamani – Dr. Mohsen Mohebi – Dr. Fatollah Rahimi

Applying the Principle of Universal Jurisdiction to Crimes Against Cyber Security in International Aviation

Mahsa Sadat Zavarei – Dr. Sadegh Salimi

The Impact of Human Rights on the Evolution of the Nature, Structure, and Norms of International Law

Dr. Hajar Raee Dehaghi – Dr. Amir Maghami

The cooperation of governments in the exchange of tax and banking information in international tax agreements with emphasis on the situation in Iran

Majid Pournaji – Dr. Dariush Ashrafi – Dr. Mansour Pournouri

Ultra Vires Doctrine in the Legal Framework of the United Nations Organization

Kiana Daryabeigi – Sima Moradinasab

Developments of the Interim Order of the International Court of Justice: From Precaution to Protection, The case of the Gambia v. Myanmar 2020

Farhad Karimi – Dr. Saber Niavarani

Good Faith in the Judgments of the International Court of Justice

Abdul Majid Mehdizadeh – Dr. Mohammad Hadi Suleimanian

Conceptualization of Delimitation of Marine Areas from Legal and Technical Perspectives

Dr. Somayeh Rasoulpour Nalkiyashary – Dr. Afshin Jafari

Development of Interdiction to Examples from Today’s Societies

Dr. Shahla Miralvandy – Dr. Zahra Fehresti – Dr. Ebrahim yaghouti

The Effect of Personality Traits (Brain / Behavioral Systems) on Committing The Crime of Theft (Case Study; Lorestan Province)

Ghasem Moradi – Dr. Hooshang Shambiati – Dr. Jafar Kousha – Dr. Ali Saffary

The Application of the Strategic Principles of Sentencing in the Islamic Penal Code of 1392 )2013( and its Challenges as Reflected in the Judicial Procedure (A Research Sample of Criminal Courts Branches)

Dr. Hossein Gholami – Nadia Bagheri

Realistic Interpretation in Criminal Procedure (With Emphasis on Article 79 of Criminal Procedure Act)

Dr. Iman Yousefi – Saeed Yousefi

Analyzing Expediency in Article 414 of Criminal Procedure Code (Enacted in 2013) With Minimum Approach to Formal Criminal Justice System

Dr. Azam Mahdavipour –Zahra Abdolhosseinqomi

The Role and Duties of Operating Party in JOAs from the Perspective of the USA Oil & Gas Industry and Legal System

Atefe Ghasemi – Dr. Alireza Hasani

The Elements of Issuing a Non-Payment Check Through The Court

Dr. Majid Banaei Oskoei – Seyed Hamidreza Jalali

The Position of “Variation” Clause in The Legal Order of Construction Contracts with Emphasis on Sample Contracts of Iran, FIDIC and England

Dr. Abbas Ghasemi Hamed – Ali Heydari

Articles

Confrontation between Economic and Security Interests in Caspian Sea Current Legal Regime

Dr. Jamchid Momtaz

Professor, Department of Public Law, Faculty of law and Political Science, University of Tehran, Tehran, Iran.

Member of the International Law Institute and former head of the United Nations International Law Commission, Tehran, Iran.

Dr. Massoud Alizadeh (Corresponding Author)

Assistant Professor, Department of Law, Faculty of Social Science, Payame Noor University (PNU), Tehran, Iran.

Dr. Shahram Zarneshan

Associate Professor, Department of Public and International Law, Faculty of law and Political Science, Allameh Tabataba’i. University, Tehran, Iran.

ABSTRACT:

The establishment of the legal regime of the Caspian Sea is basically the result of the will of the new States  were created as a result of the collapse of the Soviet Union. This new legal regime, formulated in the form of the “Aktau” treaty, attempts to balance the concerns of these states from the security point of view. In this regard, the arrangements of this treaty try to neutralize the threats that could come from inside and outside. In other hand and from the economic point of view, the articles of the said treaty reflect the will to guarantee access to the sea for the states without a coastline in the Caspian Sea region. In addition, the distribution of the mineral resources of the largest lake in the world, as well as their management constitutes one of the assets of the new regime the gray zone which persists for various reasons.

Keywords: Legal Regime of Caspian Sea, Aktau Convention, Boundary Waters, The Rights of Border Lakes, Convention on the Law of the Sea.

 

Consequences of Sanctions on International Commercial Arbitration

Erfan Mirzazadeh

Ph.D. Student in International Law, Faculty of Humanities, North Tehran Branch, Islamic Azad University, Tehran, Iran.

Dr. Seyyed Ghasem Zamani (Corresponding Author)

Professor, Department of Public and Internatinal Law, Faculty of Law and Political Sciences, Allameh Tabatabai University, Tehran, Iran.

Dr. Mohsen Mohebi

Assistant Professor, Department of Public and International Law, Faculty of Law, Science and Research Branch, Islamic Azad University, Tehran, Iran.

Dr. Fatollah Rahimi

Assistant Professor, Department of International Law, Faculty of Humanities, North Tehran Branch, Islamic Azad University, Tehran, Iran.

ABSTRACT:

Following the expansion of trade oversight intensified in recent years by the United States and the European Union; Private settlement of cross-border trade disputes has faced new problems and challenges. One of these measures is the imposition of international sanctions, which have been used repeatedly in our country. The existence of these sanctions, of course, overshadows the contracts and agreements between the sanctioned parties and other individuals, and in many cases makes their implementation difficult or even impossible. In the present article, according to the arbitration rules of international commercial arbitration institutions, including; The Arbitration Court of the International Chamber of Commerce, the Arbitration Court of London, as well as related international conventions, in particular the Convention on the International Sale of Goods, will answer the question of what kinds of effects do sanctions impose on international commercial arbitration. The conclusion of the present study is that sanctions affect international commercial arbitration in five ways: the effect on arbitrators, international arbitration centers, implementation of international arbitral awards, contract law, and contractual parties. Sanctioning states have also generally invoked unilateral sanctions as a rule of “public order” in international commercial arbitrations in order to legally justify sanctions.

Keywords: Sanctions, International Commercial Arbitration, Public Order, Arbitrability, human rights.

Applying the Principle of Universal Jurisdiction to Crimes Against Cyber Security in International Aviation

Mahsa Sadat Zavarei

Ph. D. Student in International Law, Faculty of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

Dr. Sadegh Salimi (Corresponding Author)

Associate Professor, Department of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

ABSTRACT:

Cyber- malicious activities in international aviation industry is a combination of two crimes: hijacking and cyber terrorism, which transnational and international nature can damage not only public order of the state, but it can also infringe upon international public order. Universal jurisdiction due to its loose connection to the state where the crime is committed and the state claiming  jurisdiction, allows the states  to seek protection of their credibility and security,  and regardless of the state hosting the criminal(s)or the nationality of the perpetrator or the victim of the crime, allows them to prepare themselves for punishing perpetrator(s) and to identify and  to hold malicious actors and their hosting countries accountable for cyber attacks against the aviation industry. Therefore, in this descriptive-analytical study, we seek to answer the question of what role and effects the exercise of universal jurisdiction has in the fight against cyber crimes related to aviation. And by studying the relevant documents and sources, we came to the conclusion that the application of the principle of universal jurisdiction as a deterrent mechanism will guarantee the fight against cyber security crimes in the field of aviation and the impunity of the perpetrators of this crime.

Keywords: Universal Jurisdiction, Cyber Security, International Aviation, International Crimes, Terrorism.

 

The Impact of Human Rights on the Evolution of the Nature, Structure, and Norms of International Law

Dr. Hajar Raee Dehaghi (Corresponding Author)

Ph.D. in Public International Law, Faculty of Law and Political Sciences, University of Allameh Tabataba’i, Tehran, Iran.

Dr. Amir Maghami

Assistant Profossor, Department of Law, Faculty of Administrative Sciences and Economics, University of Isfahan, Esfahan, Iran.

ABSTRACT:

Following the disasters of World War II and ratification of the United Nations Charter in order to maintain international peace and security, “human rights” became an international legal issue, thus new approach create in international law. The current descriptive-analytic study sought to understand the effects of this approach on the evolution of the nature, structure and norms of the international law over the past seven decades. From the point of nature, acceptance of human as the subject and consequently humanization of international law and placing human beings as the beneficiaries have been the most fundamental important influences. From the point of Structure, the government’s relationship with individuals (especially its citizens) is out of the monopoly of national sovereignty and the international community is also held accountable for protecting fundamental rights. In addition, the scope of international legal norms has also evolved, including developments in the areas of treaties, diplomatic protection, consular access, and humanitarian law.

Keywords: Human rights, international law, national sovereignty, responsibility for protection, reservation, consular access, humanitarian law.

 

The cooperation of governments in the exchange of tax and banking information in international tax agreements with emphasis on the situation in Iran

Majid Pournaji

Ph.D. Student in International Law, Faculty of Law, Islamic Azad University, Central Tehran Branch, Tehran, Iran.

Dr. Dariush Ashrafi (Corresponding Author)

Assistant Professor, Faculty of Member, Department of International Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

Dr. Mansour Pournouri

Assistant Professor, Faculty of Member, Department of International Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

ABSTRACT:

The purpose of governments in concluding tax agreements In addition to preventing double taxation, cooperation is aimed at preventing tax evasion. One of the most obvious examples of this cooperation is the exchange of tax information between the contracting governments. At the present, the process of cross-border transfers, including capital, labor, technology, and to some extent the trade of goods and services between countries, is accelerating and the importance of borders between countries as a limiting factor in communication and trade is constantly decreasing. Due to the huge size and volume such transactions, it goes without saying that they constitute an important source of tax revenue for all countries. Therefore, under these conditions, reviewing and analyzing the provisions of Article 26 of the OECD Agreement and the cooperation of governments in the exchange of banking and tax information and its impact on tax revenues of governments is of particular importance.

Keywords: Tax agreement, Avoid double taxation, Exchange of tax information, Global Account Tax Compliance Act, Tax evasion.

 

Ultra Vires Doctrine in the Legal Framework of the United Nations Organization

Kiana Daryabeigi

Ph.D. Student in International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

Sima Moradinasab (Corresponding Author)

Ph.D. Student in International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

ABSTRACT:

The doctrine of ultra vires denotes that legal institutions must function in the preconditioned framework of competences which have been envisaged for them. This doctrine has a well-established place in the law of international organizations. In this realm, the legal superiority of the United Nations has been the dominant discourse since middle of the 20th century. By considering this legal status, fears of transgression of authority and competence by the principal organs of the United Nations (General Assembly, Security Council, Economic and Social Council, Trusteeship Council, International Court of Justice and Secretariat) will exacerbate in a way that is quite incomparable with any other international organization.

The purpose of this essay is to carry out an in-depth analysis about the application of this doctrine in the legal realm of the United Nations, which involves library research process of collecting information and legal dogmatic approach in way of analyzing the issue. The particular essence of the ultra vires doctrine has a direct nexus with relative legal personality of international organizations, including the United Nations with the absolute rule of international law over their acts and decisions.

Keywords: the ultra vires doctrine, international organization, the United Nations, principal organs of an international organization, international legal personality, competence.

 

Developments of the Interim Order of the International Court of Justice: From Precaution to Protection, The case of the Gambia v. Myanmar 2020

Farhad Karimi

PhD Student, Department of Public International Law, Faculty of Law, Theology and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran.

Dr. Saber Niavarani (Corresponding Author)

Assistant Professor, Department of Public International Law, Faculty of Law, Theology and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran.

ABSTRACT:

The International Court of Justice (ICJ), the institution for resolving disputes between states, issues an interim injunction in accordance with its mandate in specific circumstances at the request of each party. It owes its mandate, in accordance with the Charter of the United Nations, to the application of international law and the attainment of the purposes of the Charter, where necessary. The issuance of orders and the determination of interim measures are based on the criteria of urgency, necessity, irreparable damage and insane competence. The main question of the present case is how the Court of Justice issued its interim injunction in the case of the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v. Myanmar) on 23 January 2020 and what changes in the type of obligations arising from the interim injunctions Created on human rights? By expanding its jurisdiction, the Court has paid more attention to human rights issues and has contributed to the human-centered development of international law. Examining the interim order of the Court in this case, it can be seen that the approach of the Court in issuing an interim order in the field of human rights has changed from a precautionary aspect to a protective aspect.

Keywords: Interim Order, International Court of Justice, prima facie Jurisdiction, Human Rights, Genocide, Myanmar.

 

Good Faith in the Judgments of the International Court of Justice

Abdul Majid Mehdizadeh

Ph.D. Student in Public International Law, Faculty of Humanities, Hamadan Branch, Islamic Azad University, Hamadan, Iran.

Dr. Mohammad Hadi Suleimanian (Corresponding Author)

Assistant Professor, Department of Law, Faculty of Humanities, Hamedan Branch, Islamic Azad University, Hamedan, Iran.

ABSTRACT:

Good faith, as one of the fundamental principles of international law, indicates the need for fairness, honesty and reasonableness in international relations. And the International Court of Justice and other international judicial authorities have been repeatedly cited. The judges of the Court have also discussed and cited the concept of good faith in their separate opinions on various occasions. The International Court of Justice, citing the principle of good faith in the settlement of international disputes, has played an effective role in objectifying some manifestations of the principle of good faith in international law and in the process of interpreting the law, creating the law, replacing the law or removing ambiguity International law – sometimes from general principles such as good faith, has made effective inferences that are helpful in understanding the content of the manifestations of good faith and its legal criteria. In the first part of the present article, we examine the principle of good faith and its various manifestations, and in the second part, we analyze some of the cases that have been invoked in the procedures of the Permanent International Court of Justice and the International Court of Justice.

Keywords: Good Faith, International Court of Justice, Judicial Procedure, Fairness, Staple.

Conceptualization of Delimitation of Marine Areas from Legal and Technical Perspectives

Dr. Somayeh Rasoulpour Nalkiyashary (Corresponding Author)

Ph.D. in International Law, Faculty of Social Sciences, Payam-e-Noor University,Tehran,Iran.

Dr. Afshin Jafari

Associate Professor, Department of Law, Faculty of Social Sciences, Payam-e-Noor University, Tehran,Iran.

ABSTRACT:

Boundary delimitation is a complex political- legal and technical process and it is of such a great importance in indicating the jurisdiction of the coastal government over marine spaces that any unilateral delimitation leading to the violation of the rights of other states are not legally valid, and therefore legal and technical conceptualization of delimitation of marine areas has played a significant role in clarifying the principles and rules affecting delimitation. Therefore, this descriptive-analytical study has briefly examined the conceptualization evolution of some concepts of maritime law while relying on governmental and judicial procedures. The results of this paper show that the issue of national governance and legislative jurisdiction of the coastal state over different maritime areas adjacent to its territory has long attracted the attention of experts and over three centuries, prominent jurists have developed various theories in this regard. Moreover, judges of international courts have relied on the guidelines of hydrographic and geological experts and technicians to pass judgements and procedures that are the basis of legal and technical conceptualization of the principles and rules of delimitation. Therefore, conceptualization is regarded as one of the effective strategies for defining and determining maritime boundaries fairly.

Keywords: Delimitation, The Law of the Sea, Jurisdiction, Marine areas, Conceptualization.

 

Development of Interdiction to Examples from Today’s Societies

Dr. Shahla Miralvandy

Ph.D. in Law and Jurisprudence, Faculty of Literature and Humanities, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

Dr. Zahra Fehresti (Corresponding Author)

Assistant Professor, Department of Fiqh and Islamic law, Faculty of Literature and Humanities, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

Dr. Ebrahim yaghouti

Assistant Professor, Department of Fiqh and Islamic law, Faculty of Literature and Humanities, Central Tehran Branch, Islamic Azad University, Tehran, Iran

ABSTRACT:

Today, societies are facing various mental illnesses. Patients with those diseases do not have a proper understanding of the facts. At the same time, they are not recognized as part of any of the guilds interdiction. Given the current scientific issues that have created a new legal situation, some of these diseases can be spread to a group of inmates who have a single criterion. For example, if a person is in a coma or becomes unconscious, she is neither insane, nor immature, nor silly, while she is not interdiktion by law. Analyzation method: This article is based on qualitative (library) research with descriptive-analytical method, by accepting the principle of interdiktion, to pay more attention to its examples. Therefore, to analyze the nature of emerging diseases and the possibility of including those diseases in the interdiktion, it has been dealt with by logical method and rational reasoning.conclusion: By recognizing some of the emerging diseases, more examples of interdiktion are retrieved. What is the consequence of many of those diseases is the lack or weakness of will and the inability to protect personal interests. Therefore,it seems that they can be interdikted.

Keywords: Sickness, Prohibition, Lackof Will, Mental Disorders, Legal will.

The Effect of Personality Traits (Brain / Behavioral Systems) on Committing The Crime of Theft (Case Study; Lorestan Province)

Ghasem Moradi

Ph.D. Student in Criminal Law and Criminology, Faculty of Law, Theology and Political Sciences, Tehran Branch of Science and Research, Islamic Azad University, Tehran, Iran

Dr. Hooshang Shambiati (Corresponding Author)

Assistant Professor, Department of Criminal Law and Criminolog, Faculty of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

Dr. Jafar Kousha

Associate Professor, Department of Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

Dr. Ali Saffary

Associate Professor, Department of Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran

ABSTRACT:

Introduction: Personality traits are one of the most important factors in the occurrence of criminal behavior. The aim of the present study was to investigate the effect of personality traits (brain / behavioral systems) on committing the crime of theft.

Method: The method of the present study is correlational. The statistical population in the present study includes all those convicted of theft. Who were imprisoned in Lorestan province in 1398. Among the statistical population, because of the comprehensive information on the number of criminals available for theft, to select the sample size, G. Power software was used and a sample group of at least 200 people using the sampling method. Available (because access to the target sample group is possible in certain prison and justice environments, etc., and access to such places in such places is to be representative).

Results: The results showed that the hypothesis is confirmed, ie in general, personality traits affect the rate of theft. The results showed that the behavioral deterrence system is effective in committing theft, ie people with a more active behavioral deterrence system are more likely to commit theft.

Keywords: Personality Traits, Brain / Behavioral Systems, Behavioral Inhibition System, Behavioral Activation System, Fight and Escape System, Theft.

The Application of the Strategic Principles of Sentencing in the Islamic Penal Code of 1392 )2013( and its Challenges as Reflected in the Judicial Procedure (A Research Sample of Criminal Courts Branches)

Dr. Hossein Gholami

Professor, Department of Criminal Law & Criminology, Faculty of Law & Political Sciences, Allameh Tabataba’i University, Tehran, Iran

Nadia Bagheri (Corresponding Author)

Ph.D. Student in Criminal Law & Criminology, Faculty of Law & Political Sciences, Allameh Tabataba’i University, Tehran, Iran

ABSTRACT:

Under the influence of recent comparative and criminological studies, new criminal approaches titled sentencing guidelines in the form of Article 18 of Islamic Criminal Act entered the legal and judicial literature of Iran that would promise to change the attitude of the legislator in the context of legislative criminal policy. Accordingly, it was expected that the legislature, by proposing a strong definition of Guideline Principles and likewise providing the necessary grounds, could provide the necessary conditions for the utility of this individualization institution and prevention of the judges’ votes being depressed as a result of the sentencing powers delegated to the judges. Therefore, the overarching question is whether the provisions relating to individualization have been predicted in a way that leads to the realization of systematization in punishment and suitability of punishment with the defendant’s characteristics. To this aim, the authors reviewed 150 related judgments and then conducted in-depth semi-structured interviews with 12 available judges. The results showed that the application of Article 18 and the subsequent sentencing stage has faced numerous challenges. These challenges can fall under two general categories: (a) “The lack of a specialized commission of punishment” and (b) “disagreement between the legislative criminal policy and available judicial and legal facilities and infrastructure. Consequently, it can be claimed that such challenges are a function of the legislative imitation of the strategic principles of other criminal systems without localization, and at a macro level, and development of the necessary organizational culture through providing its executive biases.

Keywords: Sentencing, Specialized Commission of Punishment, Sentencing guidelines, Discretionary powers of judges, Judicial Procedure.

Realistic Interpretation in Criminal Procedure (With Emphasis on Article 79 of Criminal Procedure Act)

Dr. Iman Yousefi (Corresponding Author)

Ph.D. in Criminal Law and Criminology, Faculty of Law, Tehran University, Tehran, Iran

Saeed Yousefi

M.A. in Criminal Law and Criminology, Faculty of Law, Shiraz University, Shiraz, Iran

ABSTRACT:

Two methods of formalist or Aristotelian and the realistic interpretation stem from different law theories. In the former method of interpretation, the interpreter, with the character  of a mathematician, interprets in a mathematical way and draws conclusions from the previous rules.  In fact, in this method, the former rules are the sacred permissible image, and the application of the minor to the logical cobra brings the result to the mind of the judge. In fact The result is not obvious from the beginning.  Whereas in the latter interpretation, the interpreter knows the result from beginning by legal intuition or any other approach, and then, for his result, he or she uses  the old rules.  So in the first method, moving is from the rule to the result and in the second method, moving is from result to the rule.  Applying these two methods in relation with prosecution abandonment in criminal procedure will undoubtedly lead to two different results.  The first method, with a serious concentration on Article 79 of the Code of Criminal Procedure, considers the issuance of this warrant  to be one of the exclusive duties of the prosecutor and regardless of the result. While in the second method, the interpreter is fair and because he consider  the warrant as good, he accept that in criminal procedure.

Keywords: Realistic Interpretation, Aristotelian Interpretation, Criminal Procedure, Prosecution Abandonment Warrant, Criminal Law.

Analyzing Expediency in Article 414 of Criminal Procedure Code (Enacted in 2013) With Minimum Approach to Formal Criminal Justice System

Dr. Azam Mahdavipour

Asistant Professor, Department of Criminal Law and Criminology, Facaulty of Law and Political Science, Tehran branch, Kharazmi University, Tehran, Iran

Zahra Abdolhosseinqomi (Corresponding Author)

Ph.D. Student in Criminal Law and Criminology, Facaulty of Law and Political Science, Tehran branch, Kharazmi University, Tehran, Iran

ABSTRACT:

Surely, two cases of children’s fair trial principles are secrecy of the hearing, child knowing from itself status of proceedings and having ability to defend of its right. It seems, the legislator enacted article 414 of Criminal Procedural Code to supply these two rights. Given that, children don’t have suitable understand of rules and whether its guardian decide to participate in hearing at legislator discretions or not, then many questions are raised to supply the purpose of legislator. What the position of children expediency is in pattern of litigation? What is the legislator mean from mentioned interest in recent article? Does the interpretation of judges about the concept of expediency is favorable to legislator mean? Does the expediency is preventive here? The legislator a few steps ahead towards child-centered litigation with acting delinquent child expediency, Since the expediency is unclear in criminal procedural code and the role of delinquent child in court is passive, several files and researchers imply that this purpose could not be fully fulfilled.

Keywords: Expediency, Benefit, Necessity, Juvenile Delinquency, Non-Public Hearing (Absentee).

The Role and Duties of Operating Party in JOAs from the Perspective of the USA Oil & Gas Industry and Legal System

Atefe Ghasemi (Corresponding Author)

Ph.D. Student of Oil & Gas Law, Kish International Campus, University of Tehran, Hormozgan, Iran

Dr. Alireza Hasani

Assistant Professor, Department of Private Law, Damghan Branch, Islamic Azad University of Damghan, Damghan, Iran

ABSTRACT:

The USA has extracted its very first oil reservation in the late of 19th century and it caused the notable change of political and economic position of the USA in the world. from the legal perspective the USA also faced with essential change in the contractual system and it was because of the common usage of joint operation agreements that is one of the most popular contacts in the USA oil & gas industry and legal system. The parties of this kind of contract are divided into operating party and non-operating party. This article has analyzed the reason why this kind of contract is popular in the USA oil & gas and legal system, the role and duties of operating party and the method by the rights of non-operating party might be preserved to make sure that the rights of the non-operating part is preserved and the expectations of the contract will be fulfilled.

Keywords: Contracts, Good Faith, Joint Operation Agreement, Oil &Gas, Operator Party.

The Elements of Issuing a Non-Payment Check Through the Court

Dr. Majid Banaei Oskoei (Corresponding Author)

Assistant Professor, Department of Private and Economic Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran

Seyed Hamidreza Jalali

M.A. in Private Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran

ABSTRACT:

Among the legislative measures in the law amending the issuance of checks in 1997, is the creation of a new method, in addition to guaranteeing previous performances, to receive the amount of returned checks; However, the holder of the check applies for enforcement by presenting a certificate of non-payment to the competent court, and the court, without substantive consideration and merely fulfilling some apparent conditions, this document, like other final court rulings previously Has been judged and judged and at least two stages have been considered, issues an executive order. Although the necessity of creating this special solution, in addition to guaranteeing other performances, is questionable, but benefiting from this new privilege, has several drawbacks such as: inaccurate determination of executive authority, ambiguity in the concept of “holder”, lack of compliance certificate The signature by the bank is the possibility of bringing the executor against without substantive proceedings, the impossibility of claiming compensation for delay in payment even if a legal condition is included in the check and a summary such as the “check amount deficit” clause, which is exceptional and may not be interpreted. Extensive has caused ambiguities in the adoption of this new strategy. In this article, in addition to the legal analysis of the mentioned article and the review of the elements of executive issuance, an attempt has been made to give a clear answer to the various ambiguities.

Keywords: Checks, Pillars, Document Holder, Enforcement, Execution of Judgments and Courts.

The Position of “Variation” Clause in The Legal Order of Construction Contracts with Emphasis on Sample Contracts of Iran, FIDIC and England

Dr. Abbas Ghasemi Hamed

Professor, Department of Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran

Ali Heydari (Corresponding Author)

Ph.D. Student in Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran

ABSTRACT:

The variation clause is one of the common conditions in domestic and international construction contracts. Given the executive realities of construction and industrial projects, the application of this clause seems appropriate and sometimes necessary. The subject of this clause is change in the works. Changes depending on how the clause is written, including removal, increase or decrease, replacement, change of sequence and method of construction, and any changes to what the contractor has undertaken in the initial contract. Work is also a permanent and temporary work that is required to build and complete the project and is included in the contract documents such as Service description, employer requirements and technical specifications. Variation clause is the positive condition under which the contractor undertakes to execute a unilateral change order issued by the employer without the need for another agreement. It is very important to examine the variation clause in terms of limitations due to the subject and time domain as well as the legal effects of its implementation or violation. But before that, a detailed study of the legal meaning and nature of the mentioned clause and identification of its position in the legal order of constuction contract is necessary. The present article deals with the latter.

Keywords: Variation Clause, Construction Contracts, Contractor, FIDIC, Scope of Work.

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