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
Business Law
Mohammad Rostami; Bahram Taghipoor
Abstract
Commercial companies as legal entities consist of various departments. As in some cases the interests of members or directors of a company’s departments may develop into a conflict, disputation are duly expected. Accordingly, the attempt to propose a practical solution to solve such cases has been ...
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Commercial companies as legal entities consist of various departments. As in some cases the interests of members or directors of a company’s departments may develop into a conflict, disputation are duly expected. Accordingly, the attempt to propose a practical solution to solve such cases has been a significant concern in company Law. Among the existing solutions, arbitration has always been a well-received one because of its advantages. Nevertheless, considering the unique characteristics of companies and the multiplicity of departments, the practice of this solution has faced several challenges and ambiguities particularly as far as the concept and criteria of internal disputes and arbitrability are concerned. Bearing these points in mind, this study examines the arbitration in intra-corporate disputes in the legal systems of Iran and the England. Concepts like intra-corporate dispute, scope of arbitration, and barriers to arbitration are delineated in the first step. The findings of this study suggest that within the Iranian legel system arbitration of intra-corporate disputes is subject to the general rules of corporate law and arbitration law due to lack of specific laws while in the England the jurisprudence, in some cases, examines both the status of arbitration in a company’s internal disputes and the identified obstacles. Also, it gives the concerned parties considerable amount of authority to take advantage of arbitration. Moreover, it takes structural barriers, public policy, restrictions on the type of compensation, and conflict with the rights of third parties as the most significant obstacles to the practice of arbitration in these cases.
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.
