Public Law Researsh

Abstract The concept of power has always been controversial and disputed between
political thinkers and philosophers. Modern paradigm of power has taken shape
around the idea of Hobbes where power is based on the concept of sovereignty
and understanding in relation to the government. This concept of power has
been persisted in the views of other scientists in this field. In postmodernism,
new paradigm of this concept was developed by Foucault's ideas about power.
From this perspective, power is not concentrated in the hands of the government
but is plural in society and does not operate negatively, instead it has a positive,
productive, and ultimately shapes the identity of human subjects. Two issues of
power and public order are related in modern legal and political thought and
their connection in the relationship between State and society can be understood
clearly. In the postmodern condition, perception and understanding of society
and government has changed and work order in such a society, unity and
equality in a nation-State is not monolithic, but rather post-modern social order
is based on the principle of difference and specificity of individuals and groups.
The present paper after the introduction of postmodernism has tried in light of it
to explain the concept of power and public order which are the foundations of
public law.
1.

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 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.

Abstract Recently, the resource-rich countries by adopting a variety of policies has
intended to increase their shares in petroleum operations. The law enactment as
to the requirement for local content utilization is a way through employing the
workforces, equipment and products locally provided in the territory by
increasing the value-added to the country’s economic other than the extraction
project. Upon oil exploration in Iran, especially after the nationalization of
petroleum industry and also the Islamic revolution, different rules and
regulations have been enacted in respect of local content. Currently, the “Law
on Maximum Utilization of Manufacturing and Service Rendering Capabilities
to Resolve the Country’s Requirements and Strengthen them in the Course of
Export and to Modify the Article (104) of Direct Tax Act” is the most important
instrument which reflects the local content requirements including: project
assignment to Iranian companies, Iranian-foreign joint venture or foreign
companies, performance requirement, respecting minimum percentage (51%),
information requirement, monitoring and controlling requirement and refers to
the sanctions of defaults and exceptions.
This article attempts to explain each of the mentioned requirements, sanctions
and exceptions and refers to the existing gaps by considering the characteristics
of petroleum industry and proposes respective recommendations as to the case.

Abstract Challenge of arbitrators is a controversial issue in international arbitration in general and in ICSID Arbitration in particular. There is a consensus that the lack of impartiality and independency leads arbitrators to be challenged. However, there is a duality of standards for challenging arbitrators. In international commercial arbitration and international investment arbitration which are not based on the Washington Convention, the standard is based on the standard of "reasonable doubt". By contrast, ICSID Arbitration adheres to the criterion of "lack of manifest" by virtue of Article 57 of the Washington Convention. The majority of ICSID Tribunals make a distinction between ICSID Arbitration and non-ICSID arbitration, which is unsatisfactory and could be criticised. By evaluating pertinent ICSID Arbitration cases, this Article argues that ICSID regime is ambiguous in terms of the challenge of arbitrators. It concludes that for the purpose of adopting a unitary standard for the challenge of arbitrators in international arbitration, ICSID Arbitration Rules as amended in 2006 and some ICSID cases have provided the basis for invoking the standard of "reasonable doubt".

Abstract Recent armed conflicts have confirmed that the use of explosive weapons is a major cause of civilian death and injury and destruction and damage of civilian residences and critical civilian infrastructure. Although there is no dispute that any use of explosive weapons in populated areas must comply with the rules of IHL, there are divergent views on whether these rules and principles sufficiently regulate the use of such weapons, or whether there is a need to clarify their interpretation or even to develop new rules.

Abstract The strategy of government for facing with music concert is examined from viewpoint of either intervention or supervision. In the intervention strategy through security forces, the government enforces artists for receiving prior permission and license for holding music concerts. In fact, applying licensing system limits the artistic rights, especially the right to freedom of artistic expression and the government may supervise over music concerts before, during production and before presentation and only upon issuing license, the musician is able to present the show on live stage concert. In the second strategy, it is focused on the principle of freedom and the government upon production of music and only in case of confronting with crime and violation of law, may intervene in a music concert. According to positive law in Iran, a very strict licensing system in the Ministry of Culture and Islamic Guidance is established that apart from its fundamental weaknesses, refers to selecting the “intervention strategy”. But also in practice, the second strategy is applied through police force and the Judiciary. Thus, it refers to a chaotic mixed system of intervention and supervision with different approaches that in addition to be illogical, may lead to wasting the capital, time and energy of musicians. The present article examines this issue and offers the following solutions: establishment of administrative courts by maximum partnership of music guild system (unions) at Ministry of Culture and Islamic Guidance and appeal jurisdiction of court of administrative justice in single stage for all plaintiffs either musicians or the government.

Abstract After Islamic revolution in Iran, principle 171 of the Constitution made a
very serious change in civil liability of State and judges. The State became liable
for the mistake of judges though the act of judges is an act of State authority
which did not cause liability for State according to article 11 of Civil Liability
Act. That principle was on the favor of victims but in reality there were rarely an
award to compensate them. In new Islamic Criminal Code and the new Code of
Criminal Procedure, there are some new articles relating to the liability of State
for issuance and enforcement of judicial decisions. The question is whether these
new articles made any changes in bases, conditions and effects of liability
derived from issuing and enforcing judicial decisions and whether these changes
are in accordance with the Shia jurisprudence or not. In this article, these
questions are discussed and in addition, focus has been put on the problems of
the new Acts.

Abstract During the Naseri era, both Amir Kabir and Sepahsalar had reforming plans for the judiciary system. The most significant challenges of their administration period included the religious versus conventional courts, the extent to which clergymen could intervene in judiciary affairs and a change of attitude in the scope of judiciary affairs. This study has investigated the relationship between these two reformative plans. The results indicates the major reforms implemented by Amor Kabir as follows: the reformation of the religious court, establishing the court of justice (house of justice), revoking the convention of sanctuary and a pay cut for the clergymen, whereas Sepahsalar executed the following reforms: publishing the guide booklet of the judiciary power's court house, enacting laws to support the proletariat rights, restricting the ruler's authority and creating a new judiciary structure. Both reformers tried to strengthen the conventional court against the religious court. It seems that, regardless of similarities, they were following different approaches. Amir must have intended to perform justice through some reforms influenced by Occidental trends, whereas Sepahsalar tried to use the law as a driving force for other sectors of the society to move toward development.

Abstract This paper attempt to review the biases of taking costs of proceedings in the administrative litigations. the 1392 administration and rules of procedure in Iranian administrative court tribunal act in Article 19, has been appointed that the cost of proceedings in the lower branches was one hundred thousand Rials and two hundred thousand Rials in appeals chamber. In the appendix of this article is provided on the sum of the inflation rate announced by the central bank of the Islamic Republic of Iran, corrected every three years with the proposal of the president of administrative court tribunal, confirmation of head of the judiciary and then approved by the cabinet. Therefore, litigation in administrative court tribunal is required to pay costs of proceedings. the main hypothesis of this article is based on the belief that except for some exceptions, the 1932 act Is moving towards accepting the theory of taking costs of proceedings in administrative actions