Conditional Guarantee in International Trade Law and its Comparison with Domestic Law Institutions; with Emphasis on the Regulations of the International Chamber of Commerce

Javidi, Mojtaba; Haghighi, Abdolkarim

doi:10.22106/jlj.2025.2054227.6225

Conditional Guarantee in International Trade Law and its Comparison with Domestic Law Institutions; with Emphasis on the Regulations of the International Chamber of Commerce

Document Type : Research/Original/Regular Article

Authors

Mojtaba Javidi ¹

Abdolkarim Haghighi ²

¹ Associate Professor, Department of Jurisprudence and Islamic Law, Faculty of Theology and Islamic Studies, Shiraz University, Shiraz, Iran

² Ph.D. Student in jurisprudence and foundation of Islamic Law, School of Theology and Islamic Sciences, Shiraz University, Shiraz, Iran.

10.22106/jlj.2025.2054227.6225

Abstract

The prevalence of guarantees in economic transactions has led economic institutions to enter this field in order to obtain profit. Such guarantees, due to having the characteristic of independence from the underlying contract, move away from the traditional guarantee contract; however, in the field of trade, non-independent and secondary guarantees may also be issued, in such a way that the International Chamber of Commerce has enacted uniform regulations. The secondary nature of these guarantees brings them closer to the guarantee contract in domestic law and makes them more similar to traditional and jurisprudential guarantee; in such a way that both lack the characteristic of independence and are based on the prior existence of a debt. This research, using a descriptive-analytical method on the subject of guarantee in international trade and the law of Iran, concludes, in distinguishing between conditional and traditional guarantee, that the former is a tripartite contract and the latter is concluded between the guarantor and the beneficiary. In conditional guarantee, the suspension condition is accepted, whereas traditional guarantee is one of the few contracts in which the legislator has considered suspension to be void. Finally, the traditional guarantee contract is one of the prominent examples of benevolent contracts, while conditional guarantee is entirely based on commutative exchange and reciprocal consideration.

Keywords

International Chamber of Commerce

International Trade Law

the Law of Iran

Conditional Guarantee

Contractual Guarantee

Subjects