International Law
Abbasali Kadkhodaei; Mohammadreza Mohammadi
Abstract
The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process ...
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The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process occurs to take advantage of a process with different intentions in order to disrupt proceedings. Abuse of rights is an issue that is related to the substantive part of a case, while abuse of process is a non-substantive issue in most cases and is raised in the admissibility. This study's main objective is to examine the practice of the ICJ in relation to the abuse of rights and abuse of process. The research method of this research is descriptive-analytical by using library-documentary sources. Despite the refusal of the court to state the status of abuse of rights and process, today these concepts can be referred to as general principles of law in international law. This article proves that the court considers a high threshold to accept the realization of the abuse of rights and process, and so far it has not been able to confirm such abuse.
Public Law
Abbasali Kadkhodaei; Mahdiyeh Firoozi
Abstract
IntroductionLaw has been a central concept throughout different periods of pre-constitutional reforms, reflecting the different stages of Iranian constitutionalism. The evolution of this concept illustrates the development of reformist ideas in Iran, highlighting its significance. The initial phase ...
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IntroductionLaw has been a central concept throughout different periods of pre-constitutional reforms, reflecting the different stages of Iranian constitutionalism. The evolution of this concept illustrates the development of reformist ideas in Iran, highlighting its significance. The initial phase of Iran’s legal reforms occurred during the Naseri period, influenced by the reforms in Russia and the Ottoman Empire. The first efforts by Iranians aimed to limit autocratic and unlimited power. In the early stages of reform, the concept of order emerged as a criterion for assessing the state of society, shaping Iranians’ understanding of the concept of law. The current study aimed to examine the relationship between the two concepts of law and order, focusing on the views of Mirza Malkam Khan Nazim al-Dawla.Literature ReviewMany studies have taken political and historical perspectives to analyze the events leading up to the constitutional revolution in Iran and the associated thinkers. However, legal researchers have paid less attention to how Iranians during the Naseri period initially understood the concept of law, an understanding that was influenced by their desire for order.Materials and MethodsThe present study employed a descriptive–analytical approach. The methods of library research and note-taking were used to collect data from historical sources.Results and DiscussionAny reform or revolution that occurs in different regions is influenced by its specific requirements. The traditions of each society stem from the ideas of a nation developed over many years of social existence, and their impact on changes and revolutions in society is undeniable. Iran’s constitutional movement is no exception. A notable aspect of Iran’s political situation prior to the constitutional revolution was the lack of order that could organize relationships. The absence of order, which reached its peak during the Qajar era, significantly influenced political relations. The lack of order can be seen as the reason contributing to the centrality of the concept of law in all developments during the Qajar era. The evolution of the concept of law during the Qajar era illustrates how Iranian reformist thought transitioned from the era of Tanzimat to parliamentary constitutionalism. Analyzing the writings from this period reveals that during the initial reforms of the Naseri period, the concept of order took on significant meaning and became a standard for evaluating Iran’s situation. At that time, Iran was often described as lacking order compared to other countries, with tyranny identified as its most prominent manifestation. Malkam Khan was the first pre-constitutional thinker to try to develop a specific understanding of the concept of law. His works suggest that the defining feature of the concept of law during the pre-constitutional era was its focus on curbing tyranny and absolute power—seen as the primary causes of disorder—by limiting the power of governors to the law. This law was not envisioned as opposing monarchy per se, but rather as opposing tyranny. Therefore, if a monarchy was orderly, it could coexist with this conception of law. In such a context, law was not a democratic principle aimed at overthrowing the monarchy; rather, it was very centralist. Through the establishment of new institutions, it sought to transform traditional governance into one characterized by order. In addition, the concept of law was understood in a pragmatic and objective manner, akin to substantive law, with little emphasis on the cultural and social foundations or traditional origins of laws. This led to a strong inclination toward imitating the laws of other countries, and any consideration of the relationship between law and Sharia was regarded as irrelevant.ConclusionWhat stands out in the works of the Qajar thinkers is the association between the concepts of law and order, with each term frequently mentioned in relation to the other. This relationship influenced the interpretation of law as a system building concept for establishing order in the chaotic situation of Iran. The most critical aspect of the lack of order in Iranian society was the presence of absolute and arbitrary power, which operated without any restrictions. Consequently, the concept of law emerged as an alternative to tyranny. Malkam Khan, a prominent intellectual of the pre-constitutional period, explored this idea in his works. Although this conception of law ultimately proved unsuccessful in politics and faced serious criticisms of its theoretical foundations, it marked an initial and significant shift from the tyrannical governance to the legal governance.
Public Law
Mohammad Sadegh Farahani; Abasali Kadkhodaei; Vali Rostami
Abstract
1. IntroductionThe expansion of the Internet and its ever-increasing rate along with the rise of smart mobile phones have made Internet-based businesses one of the inseparable sectors of today's economy. The part that this type of business plays in today’s world economy is so much that now the ...
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1. IntroductionThe expansion of the Internet and its ever-increasing rate along with the rise of smart mobile phones have made Internet-based businesses one of the inseparable sectors of today's economy. The part that this type of business plays in today’s world economy is so much that now the top companies in the world, in terms of capital and market value, are companies in the field of digital economy. This is a reality that Iran will also face in the not-too-distant future; then, companies in the field of digital economy will take a significant share of the market. So, today, it is especially necessary to pay attention to the issue of competition in digital platforms and to set the appropriate rules to govern them. Literature ReviewUntil the writing of this article, most of the issues raised in Iran's competition law are devoted to the examination of rules governing competition in traditional markets. Only one article titled "Competition Council and Internet Businesses" by Zarei et al. (2019) has been written in relation to platform markets, and this work is also based on the traditional rules of competition law and regardless of the specific challenges of this field. Analysis of the vote number 306 of the Competition Council. Therefore, it can be claimed that the explanation of the characteristics and challenges of platform markets and its effect on the regulation of competition in this field, which is examined in this article, qualifies as innovation. MethodologyIn order to correctly set the new rules applicable in the field of digital platforms’ competition, it is necessary to go through a three-stage system: first, we must get a correct understanding of the prominent features of the digital platform markets that affect the issue of competition. In the second stage, the competitive challenges arising from these characteristics, with which the traditional rules are not able to fully deal, should be examined and evaluated; and finally, new rules of competition in the field of platform markets based on the aforementioned characteristics and challenges should be put in place.As the title of the article suggests, the purpose of this article is to explain and analyze the first and second stages of the aforementioned process to show the deficiency of traditional rules in response to the competitive challenges of the field of digital platforms and the necessity of revising them. For this purpose, after explaining the meaning of "platform" and its conceptual evolution over time (the first part), the prominent features of digital platforms that affect the issue of competition are counted, identified, and evaluated (the second part) and finally, the challenges due to the aforementioned characteristics and the inadequacy of the traditional rules in response to them will be explained (part three) to prove the necessity of revising the traditional rules of competition law in the field of platform markets. ConclusionBased on the findings of this article, the main economic features of digital platforms are such as "the network effect", "reduction of transaction costs", "replacement of ownership with access", "fragmentation of supply and demand", "economy of scale and economy of significant scope", "simultaneous improvement of economies of scale and personalization" and "fundamental importance of data". Although they are not entirely new and traces of them can be seen in traditional markets, their simultaneous presence in digital platforms makes the market tend towards them. In addition, this problem may be aggravated by the actions of digital platforms to strengthen and expand their position in the market. It is noteworthy that none of the aforementioned features that have led to the occurrence of the mentioned challenges have been recognized in the traditional rules of competition as an obstacle to entering the market or as an anti-competitive practice. Therefore, the first competitive challenge of platform markets, which requires the regulation of appropriate rules, is the growing monopoly of these markets. Naturally, the most suitable solution to get out of this situation is to recognize the aforementioned features as specific types of entry barriers for digital markets.It should also be kept in mind that the preliminary stages to apply anti-competitive rules and guaranteeing them in digital platform markets face serious challenges. In these markets, it is not possible to identify the product as easily as it is in traditional markets, and the application of the conventional SSNIP test cannot be applied to many platforms that offer zero-price services or two- or multi-modal platforms. This makes it a serious challenge to recognize the exact share of the platform in the market and, accordingly, to recognize the market power. It seems that the transition from "quantitative criteria" to "qualitative criteria" is the way out of such challenges.Also, following the traditional rules in recognizing the anti-competitive behavior of platforms, causes many platforms to be accused of aggressive pricing at the very beginning due to having zero marginal cost. In addition, the existence of the aforementioned features has facilitated the conditions for committing anti-competitive acts, such as establishing exclusive conditions in the transaction, selling a package of products, collusion, etc. It seems that the requirement to overcoming such challenges is to promote ex-ante regulations along with the implementation of the current (mostly a-posteriori) regulation model.Finally, it seems that the simultaneous presence of these features in digital platforms has largely led to the reemergence of traditional issues of competition law as current issues, and this will consequently require a review of competition laws in this area, as countries such as the United States, China, and the European Union have followed the same path.
Abbasali Kadkhodaei; Seyed reza Jalili
Abstract
The states whose national security is threatened sometimes violate international law by seeking to maintain their national security. Thus, the treaty system took national security into account. Examining the provisions of the treaty system on the invocation of national security, the rule of recourse ...
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The states whose national security is threatened sometimes violate international law by seeking to maintain their national security. Thus, the treaty system took national security into account. Examining the provisions of the treaty system on the invocation of national security, the rule of recourse to national security was not inferred, but by analyzing the exceptions of national security in the treaty system, the two concepts of national security protection and national defense security were invoked. "Protective national security exception" is a set of rules that have been formulated to protect individuals against governments' self-centeredness in the field of human rights, and "national security defensive exception" is the authorization that international law allows countries to resort to national security. It gives self-defense against acute threats. The purpose of this research is to answer the question whether countries can ignore international law in a limited and temporary manner citing their national security. It can be confirmed that Governments can violate international law in a controlled manner without being held accountable for their self-preservation, and this violation may occur against any international entity. The sum of these two mechanisms expresses the concept of the exceptionalism system of national security. Implicit and explicit exceptions to states' recourse to national security (exceptionalism) can be summed up under the legal regime of national security.
Abbasali Kadkhodaii; mersedeh mazloumi
Abstract
With the establishment of the European Union, the concept of traditional sovereignty underwent changes; Because on the one hand there is the issue of the sovereignty of European governments and on the other hand there is the issue of the sovereignty of the European Union. In the past, absolute sovereignty ...
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With the establishment of the European Union, the concept of traditional sovereignty underwent changes; Because on the one hand there is the issue of the sovereignty of European governments and on the other hand there is the issue of the sovereignty of the European Union. In the past, absolute sovereignty was defined for governments; But the developments that took place made it possible to define relative sovereignty for legal entities. There are three approaches to governance in the EU. One approach favors the sovereignty of states over the sovereignty of the Union, and the other approaches the sovereignty of the Union over the sovereignty of European states. The third approach is to take the middle ground that neither of the two is superior to the other; in which that the territory of the Union and the member states are defined as two separate territories that do not conflict with each other. In fact, there is no conflict between the tasks of the Union and the member states; Rather, their tasks are in the interests of each other, and the reason for the formation of the Union from the beginning has been to better serve the common interests of European governments.
Hossein Rezazadeh; abbasali kadkhodaii
Abstract
International Environmental Law is one of the branches of international law that has been developed several decades ago, especially after 1970. Since then, the process of humanization of international law has begun and extended to various branches of international law. The humanization of international ...
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International Environmental Law is one of the branches of international law that has been developed several decades ago, especially after 1970. Since then, the process of humanization of international law has begun and extended to various branches of international law. The humanization of international law had begun with an individual-oriented approach, and changed to humankind-approach afterwards, which means it seeks to achieve common high goals among all humanity as a whole. International environmental law is one of the branches of international law that is influenced by this process and based on objective and subjective factors in the environmental field has a humankind-approach. To the authors, the influence of the dignity elements on the basis of invoking to human dignity in the field of environmental law and human dignity capacities, has led to humanist and the humankind-approach of environmental law.
Abbasali KadKhodaei; Asma Salari
Abstract
It took humankind a long time to realize its inability to understand different aspects of environmental risks and find that it would bear irreversible damage if such a risk occurs. Knowing the vulnerability of the environment and the limitations of science to accurately predict threats to it, led to ...
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It took humankind a long time to realize its inability to understand different aspects of environmental risks and find that it would bear irreversible damage if such a risk occurs. Knowing the vulnerability of the environment and the limitations of science to accurately predict threats to it, led to emerging the precautionary principle. This concept has stemmed from domestic legal systems and is being developed in international law. Various Formulations of the principle and its including in binding and nonbinding international instruments in varied fields have resulted in controversial discussions between states, Tribunals and Commentators on Its legal status in International law. They are at least divided into two groups: some who are on customary status of the principle and some who entitle it as a general principle of law. This paper examines different views towards the legal status of the precautionary principle in International law and try to give a reasonable opinion at the end.