Arbitration Law
Marzie Dabiri; Feyzollah Jafari
Abstract
In law of iran, it is impermissible to refer a bankruptcy litigation to arbitration.(article 496 of civil procedure code) in some countries this prohibition has been created by recognizing the exclusive jurisdiction of special bankruptcy courts. But, there isn’t be an specific legal provisions ...
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In law of iran, it is impermissible to refer a bankruptcy litigation to arbitration.(article 496 of civil procedure code) in some countries this prohibition has been created by recognizing the exclusive jurisdiction of special bankruptcy courts. But, there isn’t be an specific legal provisions regarding the arbitrability of bankruptcy related lawsuits that may be litigated during liquidation. In order to answer the question of whether such claims are arbitrable or not, the origin and reason of the non-arbitrability of the bankruptcy claim must be known. In this case, various reason such as conflict with public order or protection of creditors’ rights have been mentioned it seems that the main root of this prohibition is in the inherent limitation of arbitration. Arbitration doesn’t have possibility to solve bankruptcy cases effectively. This article by descriptive analytical method concludes that should be distinguished. So if the claims of during liquidation period were derived from the binding rights and duties in the bankruptcy laws and to enforce the bankruptcy order and correct explanation of creditors’ rights to comply of bankruptcy claim, it can’t be referred to arbitration. But other lawsuits, which orginate from other laws other than bankruptcy are arbitrable.Arbitrability, Bankruptcy Liquidation, Law Suit, Eligibility, Dispute Resolution
Arbitration Law
Mohammadali Bahmaei; Ehsan Solhi
Abstract
The New York Convention of 1958 as the major international instrument about arbitration, despite its title, does not entirely concern recognition and enforcement of arbitral awards, but also deals with the recognition and enforcement of arbitration agreements. It was dealt with this later subject in ...
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The New York Convention of 1958 as the major international instrument about arbitration, despite its title, does not entirely concern recognition and enforcement of arbitral awards, but also deals with the recognition and enforcement of arbitration agreements. It was dealt with this later subject in Art. II which was, at the initiative of Dutch delegation, included into the text at the closing date of the Conference and led to various ambiguities before Doctrine and inside the case law of member states and it can be said that Art. II is one of the thorniest provisions of this international instrument. The issues ranging from arbitration agreements covered by the Convention, the applicable law to arbitrability of the dispute, and compliance with formal requirements, inconsistent with international trade, to conclude arbitration agreement, to the issues regarding the ambiguities of Para. 3 of this Article concerning process, conditions and obstacles to the enforcement of arbitration agreements, caused the application of Art. II of this instrument to be viewed as Achilles' heel in the case law of member states to the extent that even some old proponents of the Convention have insisted on amendment of this instrument, including Art. II, and proposed for a so-called Miami Draft. In conjunction with examination of the ambiguities of Art. II, this essay examines its application in the case law of the member states and as well as the Miami Draft. It is hoped that this enriched case law could help Iranian courts in harmonized application of the Convention in the stage of recognition and enforcement of arbitration agreements.
Private Law
saeed habiba; zahra shooshtari
Abstract
Obstacles and objections are likely to arise at different stages of the arbitration process of disputes, particularly from the loser party. Defenses such as “encounter an agreement or arbitration clause with public order” or “basically not being arbitrable under the governing laws” ...
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Obstacles and objections are likely to arise at different stages of the arbitration process of disputes, particularly from the loser party. Defenses such as “encounter an agreement or arbitration clause with public order” or “basically not being arbitrable under the governing laws” are used as the ways to escape from being defeated. Given the ambiguity of the concepts of public order and arbitrability, especially in intellectual property law, and the differing views of other countries on these issues, we sought to examine what is the relationship between the concept of public order and arbitrability in the intellectual property disputes referred to arbitration. The result was that there was a split. Some have supported the theory of conformity of public order and inarbitrability. In contrast, other writers have arguments about the fundamental difference between the two.
Private Law
ahad khakpour; Rabiya Eskini; Mohammadali Bahmaei
Abstract
AbstractNowadays, Arbitration is an effective framework for resolving international commercial disputes. Most of the issues related to the international arbitration process allocate for the status, rights and obligations of disputant parties and the arbitrator. The Arbitration Agreement which is the ...
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AbstractNowadays, Arbitration is an effective framework for resolving international commercial disputes. Most of the issues related to the international arbitration process allocate for the status, rights and obligations of disputant parties and the arbitrator. The Arbitration Agreement which is the legal basis of the arbitral proceedings only creates the legal relationship between disputant parties, therefore it does not deal usually with the legal relationship between the arbitrator and disputant parties that is effective in their mutual rights and obligations. The authority and position of the arbitrator empowers him to agree on his rights and obligations with disputant parties and whenever the expectation of the parties may endanger the arbitration process he will stand against the unreasonable demands of them and will organize their rights and obligations within a legal formal framework. The best framework accepted in some jurisdictions is the establishment of a separate contract known as the “arbitrator's contract”. The contents of this agreement include the most important rights and obligations of disputant parties and arbitrator which affect their position.
