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Journal of Legal Research – Number 40

Journal of
LEGAL RESEARCH

Number 40

Vol. XVIII ● No. 4
Winter 2020

 

Managing Editor: Vahid Eshtiagh

Editor-in-Chief: Seyyed Ghasem Zamani

 

 

CONTENTS

Articles

Challenges of International Criminal Law in Fighting against Terrorism
Dr. Saeed Farhadnia & Dr. Seyyed Ali Hanjani

Impact of Accession of Islamic Republic of Iran to the World Trade Organization on Maritime Transportation Services (Shipping)
Dr. AmirHoshang Fathi Zadeh & Aghil Esmaeili Ataabadi

Stick and Carrot Approach in Protecting Authors’ Rights in Cyberspace
Dr. Mohammad Hadi Mirshamsi & Fatemeh Mehdibarzi

The Right to a Fair Trial in the Mirror of the European Court of Human Rights, Relying on Abdullah Ocalan’s Case
Zahra Hajipour

Nature of the Certificate of Innocence and Its Effect on the Civil Liability of Physicians and Medical Institutions
Ali Khaledi

Reflections on the Structure and Situation of Government-owned Corporations in the Legal System of Iran
Akbar Barari

Evolution of International Labour Organization’s Standards toward Night Work
Dr. Azadeh Sadat Taheri & Zabihallah Rezazadeh

The Nature of Organized Cybercrime Groups
Soheyla Mohammadi & Eisa Mouneskhah

The Dynamics of Enforcement of International Law
Mohammad Reza Mellat

The Role of Arbitrator in Issuing Security Measures in Commercial Arbitration
Hossein Ghorbanian & Atousa Rahimzadeh

The Effect of Civil Debts (Non Commercial) on the Realization of Bankruptcy
Dr. Sam Mohammadi & Omid Jamshidi & Madeh Jamshidi

The Etiology Analysis of Rape Crime from the Perspective of Psychology
Dr. Nabiollah Gholami & Mehrdad Rahnavard Vaghef & Dr. Sakineh Soltani

Legal Review of Damages in Non-Refundable Transactions in Iranian and French Law
Iman Karkani & Dr. Mohammadreza Sherafatpeima

The Civil Responsibility of Physician and Paramedic due to other’s Action in Iran and France Law
Mohsen Khanipoor & Dr. Zohreh Rahmani

Situational Prevention of Cybercrimes: Functions and Achievements in Electronic Procedural & Cybercrimes Procedural Codes
Seyyed Mohammad Jafar Razavi Asl & Dr. Shahrdad Darabi

Social Environment as One of the Factors Causing Offense and Its Impact on the Lifestyle (with an Emphasis on Virtual Social Networks)
Dr. Ghodratallah Khosroshahi & Nasrin Ghadami

Investigating Anti-Corruption Strategies in Government Biddings
Leyla Hoseini & Parvin Pourfakhrian

Ignoring Objections Principle and One of This Exemption and the Exemption of the Next Direct Beneficiary on it
Ali Bozorgpour & Simin Solhi

An Assessment of Iran’s Legal Capacities and Loopholes regarding Non-Tariff Measures in Pharmaceutical Industry, in Case of Accession to World Trade Organization
Maryam Farhang

Point De Vue Propriété Intellectuelle et Semences: Les Moyens du Contrôle des Exportations Agricoles par les Entreprises Multinationales
Author: Marcelo D. Varella, Translators: Dr. Alireza Mohammadzadeh Vadeghani & Mina Sadat Razavi

Articles

 

Challenges of International Criminal Law in Fighting against Terrorism

Dr. Saeed Farhadnia
Ph.D. in International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran
&
Dr. Seyyed Ali Hanjani
Associate Professor of International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran

Abstract:
Terrorism as an international crime does not have been defined yet and states supported perspective dominated on it in the past. But with expansion of terrorism, getting transnational aspect and more independence from states, international community seeks to fight against this phenomenon in the context of international criminal law. Some writers believe international community is somewhat unable to fight against it because of the lack of terrorism definition. Even though, there is this idea that international criminal law largely has fought against terror in the context of sixteen conventions against terrorism and statute of international criminal court. But, actually, these criminalization are limited and there is no comprehensive solution for solving terrorism problem basically. This article pursues to consider this reality.
Keywords: Terrorism, International Criminal Court, Crimes against Humanity, War Crime, Core Crime.

Impact of Accession of Islamic Republic of Iran to the World Trade Organization on Maritime Transportation Services (Shipping)

Dr. AmirHoshang Fathi Zadeh
Assistant Professor and Faculty Member of the Institute for Business Studies and Research, Tehran, Iran
&
Aghil Esmaeili Ataabadi
M.A. in Private Law, Islamic Azad University, Isfahan (Khorasgan) Branch, Isfahan, Iran

Abstract:
Islamic Republic of Iran is in process of accession to the World Trade Organization. Accession to the WTO requires a long time and complicated negotiations with the members of the Working Party to give commitments in the several sections which the Working Party is interested in. Negotiations on the Services are one of the most important aspects of negotiation in terms of wideness, complexity and influency. It is one of the sections that needs lots of consultation and discussions. The working party is negotiating to open up and liberalize the services sector of the acceding country as much as they can. As maritime transportation services has an important role in business, this study concentrates on the experiences of some of the acceding countries such as, Peoples Republic of Korea, United Kingdom (European Union), Indonesia, Malaysia, Ukraine, Russian Federation, Montenegro, Peoples Republic of China, Cambodia, Oman, Kyrgyz Republic, Kingdom of Saudi Arabia etc. to clarify the essence of commitments in the maritime services. The services such as transportation of cargo and passengers, vessels chartering with crew, maintenance and repair of vessels, pushing and towing services, maritime cargo handling, storage and warehousing, Customs clearance, Container station and depot, Maritime Agency, Forwarding Services, Brokerage Services (Shipping – Customs – Freight) and other additional commitments are the relevant services that these countries have given commitments and it is expected that the same commitments will be requested from I.R.Iran. In the other words these are the commitments that I.R.Iran will open up in the process of accession to the WTO.
Keywords: World Trade Organization, Liberalization, Services, Maritime Transportation, Shipping.

Stick and Carrot Approach in Protecting Authors’ Rights in Cyberspace

Dr. Mohammad Hadi Mirshamsi
Assistant Professor Affiliated with Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran
&
Fatemeh Mehdibarzi
L.L.M. in Intellectual Property Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran

Abstract:

Easy and quick access to the copyright content in cyberspace has increasingly exposed the authors’ works to piracy and plagiarism. Accordingly, copyright traditional protection fails to fulfill the requirements of protecting the authors’ rights in the state-of-the-art environment of digital world. In order to protect the authors’ rights in cyberspace, it is needed to benefit from all possible strategies and social cooperation in addition to updating the rules and regulations in line with technology improvement.
To find a comprehensive template to protect the authors’ rights in cyberspace, this article reviews the existing related approaches in particular in the legal system of Iran, the United States and the European Union. In addition to preventive and punishing strategies such as sanctions, obligations for cyberspace active players and technical measures, the possible approaches may include persuasive and social strategies like collective management, revenue share between the host of the content and the right holders, information dissemination in cyberspace and social campaigns.
Keywords: Authors’ Rights, Cyberspace, Sanctions, Monitoring Technologies, Collective Management, Digital Rights Management (Digital Lock).

The Right to a Fair Trial in the Mirror of the European Court of Human Rights, Relying on Abdullah Ocalan’s Case

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

Abstract:

The right to a fair trial as a procedural right contains a set of guarantees to protect the rights of the defendant in hearing. This right is mentioned in many international instruments. The European convention on human rights, among these instruments, has particular importance because of its special features. The judgment of the European court of human rights on the case of Abdullah Ocalan, is one of the important judgments of the court in this regard. Abdullah Ocalan, the leader and founder of the Kurdistan Workers’ Party were sentenced to life imprisonment by the Turkish national security court on charges of separatism and leadership of terrorist groups on October 2002. For breach of some articles of the convention, Ocalan’s case brought in the court against the republic of turkey on February 1999. In this case the court ruled that the right to a fair trial in Ocalan’s trial was breached by Turkish national security court and considered retrial as an appropriate way of redressing the violation. Regarding the judgement of European court to retrial Ocalan as well as Ocalan’s request, turkey denied judgement of European court. Given the importance of this right and the case, this article with analyzing the judgement of European court will try to determine the right to a fair trial in the Ocalan’s trial at the Turkish national security court.
Keywords: European Court of Human Rights, The European Convention on Human Rights, The Right to a Fair Trial, Ocalan.

Nature of the Certificate of Innocence and Its Effect on the Civil Liability of Physicians and Medical Institutions

Ali Khaledi
M.A. in Private Law, Shahed University, Tehran, Iran

Abstract:

Patients and doctors and medical institutions in their relations can be done about Civil Liability of health care the nature of decision-making in terms of innocence obtaining a contract is a lack of responsibility. Getting to the nature of the presumption of innocence because losses are not entitled to sick-it cannot be release in this case “Ma Lam Yjb” release and will be subsequently revoked. The legal nature of blood money as a compensation by way of damages behalf of the patient’s body and private aspects, and makes clear the nature of the damage of the blood money the legal nature of the relationship between patient and physician obtaining innocence and health institutions considered behalf a contract of liability. Contracts to receive the acquittal of the pillars of civil liability of physicians and medical institutions have the effect, destabilize and change pillar concept will be harmful act and the lack of realization of civil liability.
Keywords: Satisfaction, Obtaining of Innocence, Medical Regulations, Technical Standards.

Reflections on the Structure and Situation of Government-owned Corporations in the Legal System of Iran

Akbar Barari
Ph.D. Student in Public Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran

Abstract:

These days, Government-owned corporations play crucial role in economical and political relations of the governmental so they have a great importance but that is their structures which command the attentions. It means they act like a merchant (trader) which concerns about its benefits as an economical enterprise while it has the responsibilities of presenting some public services at the same time. This twofold role makes these kinds of companies more complicated and consequently it leads to having an unclear position in the legal Structure of the state. Meanwhile such companies should follow the specific regulations which are regulated by lawmaker for society confronted the sudden proliferation of such companies which obviate the public services, although they pursue the regulations of trading companies. It is deemed wise by lawmaker that government’s organization should not be covered by private law to the extent that the only resemblance of such company with trading one is only in theory.
Keywords: Government-Owned Corporation, Trading Company, Public Services, Public Interest, Governmental Economy.

Evolution of International Labour Organization’s Standards toward Night Work

Dr. Azadeh Sadat Taheri
Assistant Professor, Faculty of Humanities, Semnan University, Semnan, Iran
&
Zabihallah Rezazadeh
M.A. in Public Law, Faculty of Humanities, Semnan University, Semnan, Iran

Abstract:

After industrial revolution and in light of its effects, hours of work have been changed and night work became common. Considering consequences of night work on worker’s live especially the most vulnerable among them (children and women) ILO (International Labour Organization) focused on it and attempted to protect workers by adopting many instruments in which protection measures has been introduced. This article aims to study the evolution of ILO standards towards night work at various time periods. Results show that the International Labour Law has adopted different approach to protect workers toward night work and finally by adopting a convention (convention No. 171) related to all workers, seeks to ensure a set of standards to realize this goal.
Keywords: Night Work, Labour Law, International Labour Organization (ILO), Worker, Employer.

The Nature of Organized Cybercrime Groups

Soheyla Mohammadi
Ph.D. Student in Criminal Law and Criminology, Faculty of Law, Theology and Political Sciences, Islamic Azad University, Science and Research Branch, Tehran, Iran
&
Eisa Mouneskhah
Master of Arts in International Law, Razavi University of Islamic Sciences, Razavi Khorasan, Iran

Abstract:

If, we ignore the stereotype and repetitive discussions, regarding to cybercrimes and their importance in the third millennium, the issue of checking the matter of involved groups in cybercrimes, including important problems and less discussed cybercrimes field. Checking the matter of involved groups in cybercrimes, theoretical and experimental challenges regarding to cyber criminals, the role of organized groups in cybercrimes, presentation of known evidences and samples which represents individual and social manner, and also checking the motivation of cyber criminals. For instance we can enumerate official government as research objective. In this article trying to describe different Kinds of cybercrimes and different species of organized formations of criminals according to different typological like typology presented by Mack Gayre and Chabinski. It’s obvious that wide range of formations and organizations are involved in cybercrimes. In the field of Partnerships and profitable activities, specially committed cyber Crimes by government officials, is need more leadership organization and expertise. However it seems that actions in practice with weak leadership and organization are done in this field.
Keywords: Cybercrimes, Cyber Criminals, Organized Crimes, Organized Groups.

The Dynamics of Enforcement of International Law

Mohammad Reza Mellat
Ph.D. Student of International Law, Faculty of Law, University of Qom, Qom, Iran

Abstract:

Today, international law plays a main role as a supervisor on the behavior of the subjects in international society. The enforcement of international obligations is one of the important challenges of this law. The enforcement of international law is one of the related conditions that helps its effectiveness. Therefore, it should be considered within this framework. Undoubtedly, the sanction of the enforcement of international law is not comparable to of internal law. However, it does not mean lack of sanction for the enforcement of international law. International law is dynamic and evolving. Therefore, its sanction follows these characteristics. This evolution direction covers three periods including self-help, self-limiting and self-contained systems that few studies have been conducted in this area. The existence of each period is not considered as a barrier for other periods. They gust indicate evolution direction in the enforcement of international law. However, government’s will affect the enforcement of international law.
Keywords: Enforcement of International Law, Self-help, Self-limitation, Self-Contained.

The Role of Arbitrator in Issuing Security Measures in Commercial Arbitration

Hossein Ghorbanian
Assistant Professor of Department of Law, Islamic Azad University, Shahrood Branch, Semnan, Iran
&
Atousa Rahimzadeh
Graduate Student in Private Law, Faculty of Law, Islamic Azad University, Damghan Branch, Semnan, Iran

Abstract:

The existence of legal vacuums has raised questions in the possibility or impossibility of issuing order for provisional measures in arbitral courts and tribunals. Because of the general interpretation of the Article (311) of Civil Procedure which states that issuing security measures is generally under the scope of competence of the court in which the original claim is under discussion and non-issuance of these measures, assuming disagreement of the parties and stipulation by the legislator, waives this right from the arbitral tribunal; since they don’t have power to issue order in these cases and have limited powers and the courts have exclusive dominative powers to practice competence in this field. This case has not often been considered in an arbitration agreement. The essential question in arbitration is determining the authority that has the competence to practice provisional and security measures – the national court, arbitral tribunal or both of them. The next question is that the provisional measures dominant in arbitral rules may be in dispute in terms of different kinds of measures and especially their execution by the board of arbitration. Even though the arbitrators don’t have inherent jurisdiction for issuing provisional and security measures but the parties can empower the arbitrators; since issuing these measures by the court is not refraining from arbitration but it is for facilitating the arbitration procedure.
Keywords: Security Measures, Arbitral Tribunal, National Court, Competence, Arbitration Agreement.

The Effect of Civil Debts (Non Commercial) on the Realization of Bankruptcy

Dr. Sam Mohammadi
Associate Professor of Faculty of Law and Political Sciences, University of Mazandaran, Mazandaran, Iran
&
Omid Jamshidi
Ph.D. Student of Private Law, Faculty of Law and Political Sciences, Shiraz University, Shiraz, Iran
&
Madeh Jamshidi
Ph.D. Student of Private Law, Faculty of Law and Political Sciences, Kharazmi University, Iran, Attorney at Law of Iran Bar Association, Tehran, Iran

Abstract:

Whether the nature of a debt affects the realization of bankruptcy is among ambiguities having been left unaddressed in Article 412 of Iran Commercial Law due to the lack of new legislation in this respect. Given that commercial debts may realize conditions for an order of bankruptcy to be issued; this study was intended to explore the effect of non-commercial debts in this regard.
The issue in question has been raised due to Iran Commercial Law’s absolute (unconditional) use of the term ‘debts’. Some believe that debts, regardless of their nature, may serve a cause for bankruptcy, while others grant such an effect only to commercial debts. This disagreement in jurists’ orientations has led to the lack of concurrence among court decisions: courts advocating either of these notions operate diversely in their decisions.
The scrutiny and analysis of these notions led us to the conclusion of non-commercial debts exerting no effect on bankruptcy realization. Performing a critical analysis of the scientific literature in favor of civil debts’ effect, this study also provides other relevant arguments to reinforce its position.
Keywords: Trader, Default, Commercial Debts, Bankruptcy.

The Etiology Analysis of Rape Crime from the Perspective of Psychology

Dr. Nabiollah Gholami
Ph.D. of Criminal Law and Criminology, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran
&
Mehrdad Rahnavard Vaghef
Ph.D. Student of Criminal Law and Criminology, Faculty of Law, Tarbiat Modares University, Tehran, Iran
&
Dr. Sakineh Soltani
Ph.D. Faculty of Education Sciences and Psychology, Ferdowsi University of Mashhad, Mashhad, Iran

Abstract:

After many period that studies about the rape, merely were considered to victim of this crime, in recent decades and in the light of the development of medical sciences, psychiatry and their relation to criminology, according to the understanding of causes of crime and criminal behavior in terms of personality traits it has been paid. Typology of Grath and MTC two well-known patterns of typology of perpetrators of rape that are provided in this article and with analysis them besides some theories about causes of perpetration of rape by sexual offenders, tried to explain the most factors to this crime from perspective medical and psychology Science.
Keywords: Rape, Androgens, Testosterone, The Theory of Evolution.

Legal Review of Damages in Non-Refundable Transactions in Iranian and French Law

Iman Karkani
Attorney at Law, M.A. in Private Law, Islamic Azad University, Bandar-e Anzali Branch, Gilan, Iran
&
Dr. Mohammadreza Sherafatpeima
Assistant Professor, Department of Law, Islamic Azad University, Bandar-e Anzali Branch, Gilan, Iran

Abstract:

It is necessary to refund the transaction price and if the customer is ignorant of the corruption, the vendor should afford to pay the customer the compensation. There is a lack of consensus on the basis and precise definition of these compensations. Regarding the basis, some invoke that the corrupt sale has no effect on the acquisition and that is why the perception liability created is not a result of the contract, while it can be said that the perception liability is a kind of implied warranty in the relationship between the ignorant customer and the vendor and can have the effect of the contract. Also, there is a disagreement about instances of paying the compensation. The reason for this disagreement is an understanding of the concept of usury and depreciation of money. Depreciation of money means reduced purchasing power of money due to economic conditions and means that the customer could not refund more than a nominal price they paid as the transaction price. However, to be fair, total reduced value should be paid to the ignorant customer. Now, with a change in attitude in the judicial procedure, the reduced purchasing power of the property can be calculated as compensation for the depreciation of money.
Keywords: Perception Liability, Contract-Based, Compulsory, Compensation, Depreciation of Money, Delayed Payment.

The Civil Responsibility of Physician and Paramedic due to Other’s Action in Iran and France Law

Mohsen Khanipoor
M.A. Student in Private Law, Islamic Azad University, Bandar-e Anzali International Branch, Gilan, Iran
&
Dr. Zohreh Rahmani
Assistant Professor of Department of Law, Islamic Azad University, Bandar-e Anzali International Branch, Gilan, Iran

Abstract:

All of us know the rule that in the compulsory liability if the individual provides the ground to cause a loss to other peoples or due to her/ his action the loss is caused, he/ she is liable for the fault caused by his/ her subordinates.
One of the most important rights of the individuals in the society is the constitution of health protection any deviation from this right creates liability.
Liability of physician in these issues and compensation for the loss created by the physician is not a new issue one of the evolutions in these cases is that sometimes medical practice is performed in group and determination of the liable for loss compensation in the medical events has a particular importance. The major issue is that if at the result of surgery or health care practices, a loss is caused on the patient or even lead to the death, who is liable? It surgeon is solely liable or the team accompanying him/ her in the treatment procedure are similarly liable?
Keywords: Paramedic, Physician, Civil Liability, French Law, Health, Compensation.

Situational Prevention of Cybercrimes: Functions and Achievements in Electronic Procedural and Cybercrimes Procedural Codes

Seyyed Mohammad Jafar Razavi Asl
M.A. in Criminal Law and Criminology, Islamic Azad University, Qom Branch, Qom, Iran
&
Dr. Shahrdad Darabi
Assistant Professor of Islamic Azad University, Qom Branch, Qom, Iran

Abstract:

Because situational prevention limited by tools in the cybercrimes, is better than the other prevention methods and its performance stops increasing range of cybercrimes. So finding situational preventions is statutory articles and amplifying them and removing their blind spots in more important. One important point is that technology especially in computer and cyber field has an updating metamorphosis. So coordinating statutory laws and principles by such a rapid change, needs a more careful planning than other fields. In this article we review electronic procedural law and cybercrime procedural law to find new way for risk intensification committing cybercrimes which is part of situational prevention policies.
Keywords: Situational Prevention, Cybercrime, Risk Intensification Committing, Electronic Procedural Law, Cybercrimes Procedural Law.

Social Environment as One of the Factors Causing Offense and Its Impact on the Lifestyle (with an Emphasis on Virtual Social Networks)

Dr. Ghodratallah Khosroshahi
Assistant Professor of Law, Faculty of Economics and Administrative Sciences, University of Isfahan, Isfahan, Iran
&
Nasrin Ghadami
Master of Criminal Law and Criminology, Faculty of Economics and Administrative Sciences, University of Isfahan, Isfahan, Iran

Abstract:

Criminal phenomena involved in the production of various factors. One of these factors is sociological factor. In the present study the social environment as one of the sociological factors have been analyzed. This study aimed to identify how social networks influence on the lifestyle and achieve a theoretical model to provide practical solutions applied to be managed to reduce the role of social networks on the lifestyle of a criminal. It is also edited the research questions: What impact social media has on family life style? Is it should be stated that strengthen or weaken family life style is influenced by the use of social networks? Is it in principle possible to imagine a relationship between lifestyle Iranian families and social networks? The outcome of this research suggests that lifestyle affects not only the social environment, particularly social networks, but these adverse effects and provide context deviance. New technologies have dominated life of Iranian society. This social phenomenon has been so effective that even Iranian culture has been replaced by an emerging culture.
Keywords: Crime-Causing Factors, Social Environment, Lifestyle, Social Networking.

Investigating Anti-Corruption Strategies in Government Biddings

Leyla Hoseini
M.A. in Public Law, Semnan University, Semnan, Iran
&
Parvin Pourfakhrian
M.A. in Accounting, University of Isfahan, Isfahan, Iran

Abstract:

Financial corruption is amongst those phenomena with which different countries in the world are faced and by which different economies are touched. This phenomenon has also been considered as crime-stricken and damaging point in bureaucracies of the countries that lay the grounds to financial corruption in public contracts which cover a significant volume of governments’ financial operations. Therefore, all countries, including the Islamic Republic of Iran, are seeking solutions preventing emergence of corruption in such contracts and fighting against it. To this aim, some countries enjoyed some developments which resulted in their exit from financial corruption, some other countries, however, still lag behind this phenomenon. Taking into account the fact that Iran is a developing country, many public contracts and agreements are needed for development and implementation of them has been regarded as a corruption-prone area.
The current research is an attempt to shed light on bureaucratic solutions to prevent financial corruption in public contracts and find an answer to question of “what solutions hamper corruption in public contract and if these solutions are proved effective to this aim?”
The research has concluded that transparency and reinforced monitoring helps supervisory regime to perform their duty unified and proper. Electronic tender offers and informing bases can also prevent corruption in public contracts to a great extent.
Keywords: Financial Corruption, Public Contract, Tender, Transparency, Electronic Government.

Ignoring Objections Principle and One of This Exemption and the Exemption of the Next Direct Beneficiary on it

Ali Bozorgpour
Ph.D. Student of Oil and Gas Law, Faculty of Law, University of Tehran, College of Farabi, Qom, Iran
&
Simin Solhi
M.A. in Intellectual Property Rights, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran

Abstract:

This article attempts to explain one of important principles of Iran’s law. This principle states that courts ignore all protests about bill of exchanges. But this principle like the other one has an exemption that states court should confirm protest that belong to the next direct beneficiaries.
Has been attempted to explain clearly the concept and scope of this principle and its exemption with reference to international laws. We use International Geneva Convention to reach better conclusion. This principle has no legitimate reason in Iran’s regulations, so we should refer to doctrine as the only proof of this principle. At the end, we try to gather court votes in Iran to prove this principle has an important place in the judge’s minds.
Keywords: Protest, The Next Direct Beneficiary, Commercial Documents, Endorser, Joint Liability.

An Assessment of Iran’s Legal Capacities and Loopholes regarding Non-Tariff Measures in Pharmaceutical Industry, in Case of Accession to World Trade Organization

Maryam Farhang
M.A. in Law, (LL.M.) in International Trade Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran, Legal Counsel of International Affairs, Social Security Investment Company (SSIC), Tehran, Iran

Abstract:

Since Iran is in the process of accession to World Trade Organization, our legislators should consider the new necessary legal requisites and requirements to be incorporated within our codes. One of the main challenges in this regard is reduction of Non-Tariff Barriers to Trade which is the main subject of many WTO agreements. Considering the fact that Pharmaceutical legislation is a crucial domain, as it impacts on public health on one hand and on the other hand. This essay attempts to clarify Iranian legislator’s prospective approach toward Non-Tariff Measures in Pharmaceutical Trade, with a comparison to legislative methods of other WTO members in this field.
Keywords: Non-Tariff Measures, Non-Tariff Obstacles, World Trade Organization, Pharmaceutical Industry.

Point De Vue Propriété Intellectuelle et Semences: Les Moyens du Contrôle des Exportations Agricoles par les Entreprises Multinationales

Author:
Marcelo D. Varella
Professeur au Centre Universitaire de Brasilia, Chercheur au Conseil National de la Recherche Scientifique (CNPq). L’auteur Remercie Énormément Marie-Angèle Hermitte, pour les Discussions Intenses à Propos du Présent Article. Il Remercie Également les Collègues du Groupe Intégré de Recherches en Droit International Économique (GIDE) du Centre Universitaire de Brasilia
Translators:
Dr. Alireza Mohammadzadeh Vadeghani
Professeur Associé, Faculté de Droit et des Sciences Politiques de l’Universite de Tèhèran, Téhéran, Iran
&
Mina Sadat Razavi
Étudiante Mastere du Droit Privé, Faculté de Droit et des Sciences Politiques de l’Universite de Tèhèran, Téhéran, Iran

Abstract:

Cet article raconte comment une entreprise multinationale américaine a réussi à imposer un produit discuté, les semences de soja génétiquement modifiées, sur les marchés de pays en développement. L’exemple de la situation au Brésil est plus particulièrement étudié. Cette domination, réalisée en violation du droit international et du droit brésilien, va contre les intérêts agricoles du Brésil à long terme.
Afin d’étudier ce scénario, il faut comprendre les droits de propriété intellectuelle sur les semences et leur rapport avec les normes internationales pour, ensuite, analyser comment s’est passée la rapide conversion des productions brésilienne et argentine de soja en soja génétiquement modifié.
Avec ce panorama, il sera possible de réaliser une brève analyse d’une part de la domination du marché brésilien et argentin par une seule entreprise agrochimique, et d’autre part l’exigence de paiement de taxes par les agriculteurs pour l’emploi de la technologie, sans contrôle de l’État, et enfin, les réactions des agriculteurs et de possibles actionsdes pouvoirs publics afin de résoudre de tels conflits.
Mots Clés: ADPIC, Propriété Industrielle, Droit D’obtenteur, Brevet, Plantes, Gènes, OGM.

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