EXAMINING THE PROVISIONAL ORDER IN ARBITRATION IN DOMESTIC LAW, EXPLAINING THE NEEDS, GAPS, AND HARMS OF THE CURRENT SITUATION

Main Article Content

ALIREZA ABIN, ZEINAB HAGHTALAB, HADI GHORBANI

Abstract

Iran’s legal system is encountering numerous ambiguities and gaps due to evident and unavoidable weaknesses in the field of legislation and the existence of a dual structure of laws, which has caused inadequacies and challenges for the arbitration institution. As a result, the public desire to refer claims to arbitration has decreased. One of the most critical legal weaknesses in arbitration can be the failure to determine the independence and impartiality of the exclusive arbitrator, conflict in jurisdiction and arbitration, and the creation of an arbitration institution in the case of divorce in a faraway from the existing conditions. The current conditions of the philosophy of arbitration, the gaps about the law regarding the expert opinion issued by the arbitrator, and the legal ambiguity regarding the issuance of a provisional  order and the fulfillment of the request, at the same time, many laws seem obsolete and old when it comes to arbitration. In addition to the legal system's weaknesses regarding the arbitration institution, the educational system does not work properly to improve the level of knowledge of the people and law students, especially lawyers and judges, and the judicial system deals with the content of any protest with many interventions. In this way, it has taken the strength of the arbitration institution and its votes. On the other hand, it has caused the accumulation of arbitration votes in the judicial system, while this possibility exists in most of the world's legal systems. A kind of judicial supervision of the arbitration award is foreseen in the form of the possibility of protesting the arbitration award. This is only limited attention to a part of the decision issued by the arbitrator. Also, on the other hand, courts, in many cases prevent the implementation of arbitration decisions for many reasons, and all these issues have caused the lack of development of arbitration.

Article Details

Section
Constitutional Law
Author Biography

ALIREZA ABIN, ZEINAB HAGHTALAB, HADI GHORBANI

1ALIREZA ABIN, 2ZEINAB HAGHTALAB,3HADI GHORBANI

1Assistant Professor, Department of theology and religious studies, University of Sistan and Baluchestan, Zahedan, ,Iran;  

2Masters in private law, Neyshabur Branch, Islamic Azad University, Neyshabur, Iran;  

3Department of law, Birjand Branch, Islamic Azad University, Birjand, Iran;  

References

Bordbar. Mohammad Hassan (2005) Jurisdiction in International Arbitral tribunals: Iran-United States Claims Arbitral tribunal / Tehran: Phoenix, 1384.

Jafari Langroudi, Mohammad Jafar, Expanded on Legal Terminology, Ganj Danesh Publications, 4th edition, 3rd volume, 2018.

Jafari Langroudi, Mohammad Jafar; 2017, Legal Terminology, Tehran, Ganj Danesh Publications, 20th edition. 1

Jafari Langroudi, Mohammad Jaafar, Legal Terminology, Ganj Danesh Publications, 6th edition, 1983.

Junidi, Laiya, Haqparast, Reza 2013, gaps in the civil procedure law in the issuance of a provisional order by the arbitrator, Private Law Journal of Tehran University, Volume 11, Number 2, pp. 411-435

Junidi, Laiya. (2013). "Gaps of Civil Procedure Law in Issuing Provisional Order in Arbitration", Journal of Private Law

Haeri Esfahani, Mohammad Hossein bin Abdul Rahim. 1404. Al-Fusul al-Gharawiyyah in Islamic jurisprudence. 1 c. Qom - Iran: Dar Ahyaya Uloom al-Islamiya.

Rafiei, Ali (2012). General principles of arbitration in Iranian law. Thinkers Publications.

Rafiei, Ali (2012). General principles of arbitration in Iranian law. Thinkers Publications.

Seif Elahi, Arman, Jam, Farhad (2010). Non-judicial methods of resolving administrative disputes. Khorsandi Publications.

Seif Elahi, Arman, Jam, Farhad (2010). Non-judicial methods of resolving administrative disputes. Khorsandi Publications

Seif Elahi, Arman, Jam, Farhad (2009). Non-judicial methods of resolving administrative disputes. Khorsandi Publications.

Shahbaz Niya, Morteza, Elami, Hossein, Isai Tafarshi, Mohammad (2012), Research Paper on Comparative Law, 16th period, 4th period, p. 128.

Shiravi, Abdul Hossein, International Commercial Arbitration, 2nd edition, Tehran: Printing and Publishing Organization affiliated to Awqaf and Charitable Affairs, 2013, p. 8.

Safai, Seyyed Hossein (1986). International law and international arbitration. Publication of Mizan.

Omid, Hassan, 1980, Farhang Farsi Omid, Amir Kabir Publishing House, 18th edition.

Fallah, Mohammad Reza (2015), Lectures on International Arbitration, Master's Course, Shahid University, Faculty of Humanities p. 3

Arbitration Rules of Tehran Regional Arbitration Center, Legal Magazine, International Legal Affairs Center Publication of the Legal Vice President and Presidential Assembly Affairs, No. 36, Spring and Summer 2016, Pages 329-356.

Laiya Junidi, the loopholes of the civil procedure law in issuing a provisional order in arbitration", Journal of Private Law.

Leia Junadi, the loopholes of the civil procedure law in the issuance of a provisional order in arbitration", Journal of Private Law.

Mafi, Homayoun, Parsafer, Javad (2013), the intervention of courts in arbitration proceedings in Iranian law, the scientific-research quarterly of perspectives on judicial law, pp. 130-105.

Mohammadi Sohri, Mohammad (2019). Arbitration in Iranian law. Behnam Publications.

Moin, Mohammad, Farhang Farsi, Amir Kabir Publications, vol. 1, fourth edition, 1971.

Nahrini, Provisional Order in Iranian Law and Research in Comparative Law, Ganj Danesh Publications, first edition, 1981, p. 65.

Nahrini, Fereydoun, Haqparast, Reza (2012), the loopholes of the Civil Procedure Law regarding the expert opinion issued by the arbitrator, Private Law Quarterly, Faculty of Law and Political Sciences, Volume 10, Number 1, p. 33 -58

Nikbakht, Hamidreza, (2009) International Commercial Arbitration, Arbitration Rules, Tehran, Institute of Business Studies and Research, first edition, p. 126.

Nikbakht, Dr. Hamidreza (2019). International Commercial Arbitration "Rite of Arbitration". Business Studies and Research Institute.